Good Afternoon: There has been some concern expressed in the Amateur community regarding the FCC’s issuance of the Public Notice (https://docs.fcc.gov/public/attachments/DA-18-980A1.pdf) regarding non-compliant VHF/UHF radios earlier this week. Due to some unfortunate and, in our opinion, inaccurate wording in the Notice involving the use of these radios, we and the FCC are beginning to receive inquiries from Amateurs who own these radios and are fearful that operation of them in the Amateur bands is illegal. We do NOT believe that is the case. As you can see from the exchange below, Chris Imlay reached out to Laura Smith who, with Scott Stone, is initiating discussions within the FCC and, hopefully, we can get a clarification in the near future. We believe our interpretation as described by General Counsel is correct but are waiting for FCC to confirm this. In the meantime, we’ve removed the original story from the ARRL web site and, if asked, we are providing members with the explanation we have provided for many years. There are no certification requirements for Amateur Radio equipment and their operation is legal within the Amateur Radio frequencies with the appropriate license. However, it is illegal to operate them on frequencies for which they have not been certified under Part 90 and without the operator being properly licensed. We are preparing a web story for when we get confirmation from the FCC and, hopefully, a clarification. 73, Barry J. Shelley, N1VXY Chief Executive Officer ARRL, Inc. The national association for Amateur Radio (860) 594-0212 www.arrl.org From: Laura Smith <Laura.Smith@fcc.gov> Sent: Thursday, September 27, 2018 1:41 PM To: Imlay, Chris, W3KD <w3kd.arrl@gmail.com> Cc: Henderson, Dan N1ND <dhenderson@arrl.org>; Shelley, Barry, N1VXY (CEO) <bshelley@arrl.org>; mark.crosby@enterprisewireless.org; exec-com <exec-com@arrl.org> Subject: RE: FCC Enforcement Advisory, DA 18-980; Advisory Number 2018-03 Scot Stone and I have explained the very distinction regarding amateur radio operators that you raise to my colleagues in SED and we are having internal discussions regarding the matter. Give me a day or two before you do anything and I will get back to you with a more formal answer. From: Christopher Imlay <w3kd.arrl@gmail.com<mailto:w3kd.arrl@gmail.com>> Sent: Thursday, September 27, 2018 12:49 PM To: Laura Smith <Laura.Smith@fcc.gov<mailto:Laura.Smith@fcc.gov>> Cc: Henderson, Dan N1ND <dhenderson@arrl.org<mailto:dhenderson@arrl.org>>; Shelley, Barry, N1VXY <bshelley@arrl.org<mailto:bshelley@arrl.org>>; mark.crosby@enterprisewireless.org<mailto:mark.crosby@enterprisewireless.org>; exec-com <exec-com@arrl.org<mailto:exec-com@arrl.org>> Subject: FCC Enforcement Advisory, DA 18-980; Advisory Number 2018-03 Greetings, Laura, I hope you and your family are very well. ARRL is, overall, quite pleased with the FCC Enforcement Advisory that was issued this past Monday with respect to two-way, VHF and UHF radio importation, marketing and sale. However, I wanted to raise with you a significant concern with the language in the document with respect to licensed Amateur use, exclusively in Amateur allocations, of equipment that does not have a grant of certification and which is capable of transmitting on frequencies outside of Amateur allocations as well as within Amateur allocations. As I understand it, you have been asked by EB to field calls from radio Amateurs who have questions about this Advisory, and ARRL Headquarters has also received a large number of calls about the policy. I want to see if you and ARRL are on the same page with respect to this narrow, but significant issue. Part of the reason that I accompanied Mark Crosby and other LMCC representatives recently to a meeting with Rosemary Harold and other EB front office staff was that often, certain Chinese radio importers have identified their uncertified (or in certain cases, certified) products as Amateur Radio equipment, when the radios are marketed principally to the general public via mass e-marketers and not to Amateur Radio licensees. Since the radios are sold at very low price points (which has been alleged by some legitimate competitors to constitute "dumping" in violation of U.S. antitrust laws) they are being purchased in large quantities by the general public. Radio amateurs are complaining of increased, unlicensed use of Amateur allocations by hunters, fishermen and those who participate in outdoor activities, etc. While in most cases these radios are in fact usable at VHF and UHF by licensed radio Amateurs, these Asian manufacturers and importers are misrepresenting their markets and the Amateur Service is being misrepresented in the process. We believe that the Enforcement Advisory is very helpful in an effort to clarify the situation generally and to stop these practices. However, we also are of the view that the Advisory is in material error in one respect: We believe that it misstates the entitlement of radio Amateurs who are in possession of a VHF or UHF transceiver that is not certified in any radio service, but which is capable of transmitting on both Amateur frequencies and in allocations of other radio services, to use that radio to transmit solely on Amateur frequencies. The Advisory broadly prohibits the "use" of such radios but our view is that there is no such prohibition relative to licensed Amateur use, entirely within Amateur allocations, of a radio that may be capable of operation in non-Amateur spectrum (as long as it is not actually used to transmit in non-Amateur spectrum). The Advisory, in the first paragraph, after describing the nature of the radios under discussion, states that "These radios must be authorized by the FCC prior to being imported, advertised, sold or operated in the United States". While this is true generally in most radio services, there is no obligation on the part of licensed radio Amateurs to use radios that are FCC-certified, unless they incorporate scanning receivers or unless they are linear amplifiers. For many, many years, Amateur radio HF transceivers have been capable of operation in the 3-30 MHz range simply by changing crystals, or in the VHF and UHF range the in the same manner. Other transceivers have incorporated expanded band capability in order to enable MARS or CAP operation, allocations for which are outside Amateur allocations per se. And of course, more recently, Software-defined radios have been sold with user-selectable transmit capability without limitation. Licensed Amateurs have also, for many decades, modified commercial VHF and UHF radio equipment for legal use in the Amateur Service, though such modifications do vitiate the certification grant originally issued to the device in some other radio service. The Advisory does not adequately account for the fact that Part 97 service rules for the Amateur Service do not limit Amateur Radio operators to using only radio equipment certified in other radio services or equipment that is capable of Amateur band transmit only. While the Commission's rules do prohibit the importation, advertising, selling or marketing of uncertified radios that are capable of Amateur band operation and other band operation, there is no rule prohibiting licensed Amateurs from using an uncertified, expanded-transmit-capable radio on Amateur allocations. We realize of course that the intention of the Public Notice is broad; that it is intended essentially for the information of users of these uncertified radios on Part 90 (or 95, 80, 84 or 74 etc.) allocations. However, the Advisory states, for example, in the second paragraph that "Anyone importing, advertising or selling such noncompliant devices should stop immediately, and anyone owning such devices should not use them." Anyone, in this context, does not include licensed radio Amateurs operating in Amateur allocations in accordance with Part 97 rules. Finally, in the section on page 2 of the Advisory that pertains to the "Amateur Radio Exception", the statement is made that "If a two-way, VHF/UHF radio is capable of operating outside of the amateur frequency bands, it cannot be imported, advertised, sold, or operated within the United States without an FCC equipment authorization." (emphasis added).That statement is not correct in ARRL's view. It would be correct if the words "or operated" were not in the sentence. Nor is there any comfort from the citation of authority quoted in the notice of New Generation Hobbies, 26 FCC Rcd. 9468, 9471, n.23 (EB 2011) which pertained only to marketing of uncertified, expanded transmit Amateur equipment and not use thereof. The bottom line here is that we want to tell licensed radio Amateurs that they do not have to stop using equipment that may have been illegally imported, marketed or sold heretofore. We are hoping that a stop will be made to the illegal importing, marketing and sale. But those thousands of radio Amateurs who now possess this equipment are not, as far as we can determine, prohibited by any Commission rule, prohibited from using it in accordance with all Part 97 rules and the terms of their Amateur licenses. I hope that we are in agreement about this, because ARRL intends to proceed with the publication of an explanation along the above lines to the Amateur Radio community. If you would advise us to take this subject up with Rosemary Harold, we will gladly do so. We are hoping too that perhaps ARRL's publication of the above interpretation might make it easier for you to respond to contacts from radio Amateurs who are confused about their regulatory obligations in this context. Thanks for reading this lengthy e-mail, and thanks to the EB for issuing this important Enforcement Advisory. Kind regards, Chris Imlay General Counsel, ARRL -- Christopher D. Imlay Booth, Freret & Imlay, LLC 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG<mailto:W3KD@ARRL.ORG>