Amending Section 97:113 of the Amateur Service Rules

Below is the text of the petition released today dealing with
amending Section 97:113 of the Amateur Service Rules regarding the
use of paid employees in government sponsored emergency training
drills. The link to the original document are:
http://hraunfoss. fcc.gov/edocs_ public/attachmat ch/FCC-10- 45A1.doc
http://hraunfoss. fcc.gov/edocs_ public/attachmat ch/FCC-10- 45A1.pdf
http://hraunfoss. fcc.gov/edocs_ public/attachmat ch/FCC-10- 45A1.txt

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of

(Amendment of Part 97 of the Commission's Rules Regarding Amateur Radio
Service Communications During Government Disaster Drills )

WP Docket No. 10-72

NOTICE OF PROPOSED RULEMAKING

Adopted: March 18, 2010 Released: March 24, 2010

Comment Date: (30 days after publication in the Federal Register).
Reply Comment Date: (45 days after publication in the Federal Register).

By the Commission:

I. INTRODUCTION

1. In this Notice of Proposed Rulemaking, we propose to amend the
Commission's amateur radio service rules with respect to amateur radio
operations during government-sponsore d emergency preparedness and
disaster readiness drills and tests. Although public safety land
mobile radio systems are the primary means of radio-based
communications for emergency responders, experience has shown that
amateur radio has played an important role in preparation for, during,
and in the aftermath of, natural and man-made emergencies and
disasters. Current rules provide for amateur radio use during
emergencies. At the same time, the rules prohibit communications in
which the station licensee or control operator has a pecuniary
interest, including communications on behalf of an employer. While
there are some exceptions to this prohibition, there is none that
would permit amateur station control operators who are employees of
public safety agencies and other entities, such as hospitals, to
participate in drills and tests in preparation for such emergency
situations and transmit messages on behalf of their employers during
such drills and tests. Accordingly, we propose to amend the rules to
provide that, under certain limited conditions, amateur radio
operators may transmit messages during emergency and disaster
preparedness drills, regardless of whether the operators are employees
of entities participating in the drill.

II. BACKGROUND

2. One of the fundamental principles underlying the amateur radio
service is the "[r]ecognition and enhancement of the value of the
amateur service to the public as a voluntary noncommercial
communication service, particularly with respect to providing
emergency communications. " Further, the rules state that "[n]o
provision of these rules prevents the use by an amateur station of any
means of radio communication at its disposal to provide essential
communication needs in connection with the immediate safety of human
life and immediate protection of property when normal communication
systems are not available." Indeed, amateur radio operators provide
essential communications links and facilitate relief actions in
disaster situations. While land mobile radio services are the primary
means of conducting emergency communications, amateur radio plays a
unique and critical role when these primary facilities are damaged,
overloaded, or destroyed. For example, during Hurricane Katrina,
amateur radio operators volunteered to support many agencies, such as
the Federal Emergency Management Agency, the National Weather Service,
and the American Red Cross. Amateur radio stations provided urgently
needed wireless communications in many locations where there was no
other means of communicating and also provided other technical aid to
the communities affected by Hurricane Katrina.

3. Since amateur radio is often an essential element of emergency
preparedness and response, many state and local governments and public
safety agencies incorporate amateur radio operators and the
communication capabilities of the amateur service into their emergency
planning. In this regard, some entities, such as hospitals, emergency
operations centers, and police, fire, and emergency medical service
stations, have emphasized the participation of their employees who are
amateur station operators in emergency and disaster drills and tests.
For example, a representative of the New Orleans Urban Area Security
Initiative recently emphasized the importance of conducting emergency
drills and the need for amateur participation.

4. The Commission's rules expressly permit operation of amateur
stations for public service communications during emergencies, and on
a voluntary basis during drills and exercises in preparation for such
emergencies. Given, however, that the Amateur Radio Service is
primarily designated for "amateurs, that is, duly authorized persons
interested in radio technique solely with a personal aim and without
pecuniary interest," the rules expressly prohibit amateur stations
from transmitting communications "in which the station licensee or
control operator has a pecuniary interest, including communications on
behalf of an employer." Accordingly, public safety entities seeking
to have employees operate amateur stations during government-sponsore d
emergency preparedness and disaster drills presently must request a
waiver.

III. DISCUSSION

5. We seek comment on whether to amend the rules to permit
amateur radio operators to participate in government-sponsore d
emergency and disaster preparedness drills and tests, regardless of
whether the operators are employees of the entities participating in
the drill or test. The rules already recognize the importance of
amateur radio in emergencies, and permit participation in such drills
and tests by volunteers (i.e., non-employees of participating
entities). As noted above, experience has shown that amateur
operations can and have played an essential role in protecting the
safety of life and property during emergency situations and disasters.
And as evidenced by recent waiver requests, state and local
government public safety agencies and other entities often conduct
disaster and emergency preparedness drills to be best-prepared for
such eventualities. The proposed rule would obviate the need for a
waiver in such instances by allowing employees of public safety
agencies and other entities to operate amateur stations for testing
and drilling of emergency communications preparedness. We thus
tentatively conclude that employee status should not preclude or
prevent participation in government-sponsore d emergency and disaster
tests and drills. Further, we tentatively conclude that extending
authority to operate amateur stations during such drills will enhance
emergency preparedness and thus serve the public interest.

6. In reaching these tentative conclusions, we do not disturb the
core principle of the amateur radio service as a voluntary,
non-commercial communication service carried out by duly authorized
persons interested in radio technique with a personal aim and without
pecuniary interest. Rather, we believe that the public interest will
be served by a narrow exception to the prohibition on transmitting
amateur communications in which the station control operator has a
pecuniary interest or employment relationship, and that such an
exception is consistent with the intent of the amateur radio service
rules. Accordingly, we propose that amateur operations in connection
with emergency drills be limited to the duration and scope of the
drill, test or exercise being conducted, and operational testing
immediately prior to the drill, test or exercise.
7. Furthermore, we propose that the emergency tests and drills
must be sponsored by Federal, state, or local governments or agencies,
in order to limit the narrow exception to ensure that drills further
public safety. We note, however, that there may be circumstances
where conducting emergency drills for disaster planning purposes, even
if not government-sponsore d, would serve the public interest.
Accordingly, we seek comment on whether we should permit employee
operation of amateur stations during non-government- sponsored
emergency drills, if the purpose of the drill is to assess
communications capabilities, including amateur radio, in order to
improve emergency preparedness and response.

8. A large number of agencies and organizations at the state and
local levels coordinate with their local volunteer amateur radio
operators to conduct drills and exercises in concert with other modes
of communication. This joint activity is essential to allow for a
practiced response on the part of the first responder community.
Because some of those drills and exercises include transmission of
amateur communications by employees of participating entities, we
believe the proposed rule changes would be in the public interest,
consistent with ongoing national emergency preparedness and response
priorities. We therefore seek comment on the tentative conclusions
contained herein.

III. PROCEDURAL MATTERS

9. Initial Regulatory Flexibility Certification. The Regulatory
Flexibility Act (RFA) requires an initial regulatory flexibility
analysis to be prepared for notice and comment rulemaking proceedings,
unless the agency certifies that "the rule will not, if promulgated,
have a significant economic impact on a substantial number of small
entities." The RFA generally defines the term "small entity" as
having the same meaning as the terms "small business," "small
organization, " and "small governmental jurisdiction. " In addition,
the term "small business" has the same meaning as the term "small
business concern" under the Small Business Act. A "small business
concern" is one which: (1) is independently owned and operated; (2) is
not dominant in its field of operation; and (3) satisfies any
additional criteria established by the Small Business Administration
(SBA).

10. Because "small entities," as defined in the RFA, are not
persons eligible for licensing in the amateur service, this proposed
rule does not apply to "small entities." Rather, it applies
exclusively to individuals who are the control operators of amateur
radio stations. Therefore, we certify that the proposals in this
Notice of Proposed Rulemaking, if adopted, will not have a significant
economic impact on a substantial number of small entities. The
Commission will send a copy of the Notice of Proposed Rulemaking,
including a copy of this Initial Regulatory Flexibility Certification,
to the Chief Counsel for Advocacy of the SBA. This initial
certification will also be published in the Federal Register.

11. The rulemaking shall be treated as a "permit-but- disclose"
proceeding in accordance with the Commission's ex parte rules.
Persons making oral ex parte presentations are reminded that memoranda
summarizing the presentations must contain summaries of the substance
of the presentations and not merely a listing of the subjects
discussed. More than a one or two sentence description of the views
and arguments presented generally is required. Other requirements
pertaining to oral and written presentations are set forth in Section
1.1206(b) of the Commission's rules.

12. Comment and Reply Comment Filing Instructions. Pursuant to
sections 1.415 and 1.419 of the Commission's Rules, 47 C.F.R. §§
1.415, 1.419, interested parties may file comments and reply comments
on or before the dates indicated on the front page of this document.
Comments may be filed using: (1) the Commission's Electronic Comment
Filing System (ECFS), (2) the Federal Government's eRulemaking Portal,
or (3) by filing paper copies. See Electronic Filing of Documents in
Rulemaking Proceedings, 63 Fed. Reg. 24121 (1998).

· Electronic Filers: Comments may be filed electronically using
the Internet by accessing the ECFS: http://www.fcc. gov/cgb/ecfs/ or
the Federal eRulemaking Portal: http://www.regulati ons.gov. Filers
should follow the instructions provided on the website for submitting
comments.
· For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen,
filers should include their full name, U.S. Postal Service mailing
address, and the applicable docket or rulemaking number. Parties may
also submit an electronic comment by Internet e-mail. To get filing
instructions, filers should send an e-mail to ecfs@fcc.gov, and
include the following words in the body of the message "get form." A
sample form and directions will be sent in response.

· Paper Filers: Parties who choose to file by paper must file
an original and four copies of each filing. If more than one docket
or rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
courier, or by first-class or overnight U.S. Postal Service mail
(although we continue to experience delays in receiving U.S. Postal
Service mail). All filings must be addressed to the Commission's
Secretary, Federal Communications Commission.
· The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at
236 Massachusetts Avenue, NE, Suite 110, Washington DC 20002. The
filing hours at this location are 8:00 am to 7:00 pm. All hand
deliveries must be held together with rubber bands or fasteners. Any
envelopes must be disposed of before entering the building.
· Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
· U.S. Postal Service first-class, Express, and Priority mail
must be addressed to 445 12th Street, SW, Washington DC 20554.
People with Disabilities: To request materials in alternative formats
for people with disabilities (Braille, large print, electronic files,
audio format), send an e-mail to fcc504@fcc.gov or call the Consumer
and Government Affairs Bureau at (202) 418-0530 (voice), (202)
418-0432 (tty).

People with Disabilities: To request materials in alternative formats
for people with disabilities (Braille, large print, electronic files,
audio format), send an e-mail to fcc504@fcc.gov or call the Consumer
and Government Affairs Bureau at (202) 418-0530 (voice), (202)
418-0432 (tty).

13. Interested parties may view documents filed in this proceeding
on the Commission's Electronic Comment Filing System (ECFS) using the
following steps: (1) Access ECFS at http://www.fcc. gov/cgb/ecfs. (2)
In the introductory screen, click on "Search for Filed Comments." (3)
In the "Proceeding" box, enter the numerals in the docket number. (4)
Click on the box marked "Retrieve Document List." A link to each
document is provided in the document list. Filings and comments are
also available for public inspection and copying during regular
business hours at the FCC Reference Information Center, 445 12th
Street, SW, Room CY-A257, Washington, DC 20554. Filings and comments
also may be purchased from the Commission's duplicating contractor,
Best Copy and Printing, Inc., Portals II, 445 12th Street, SW, Room
CY-B402, Washington, DC 20554, telephone 1-800-378-3160, or via e-mail
to fcc@bcpiweb. com. This Notice of Proposed Rulemaking also may be
downloaded from the Commission's web site at http://www.fcc. gov/.

14. Congressional Review Act. The Commission will send a copy of
this Notice of Proposed Rulemaking to Congress and the Government
Accountability Office pursuant to the Congressional Review Act, see 5
U.S.C. § 801(a)(1)(4) .

15. Paperwork Reduction Act Analysis. This Notice of Proposed
Rulemaking does not contain proposed information collection(s) ,
subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In
addition, therefore, the Notice of Proposed Rulemaking does not
contain any proposed new or modified "information collection burden
for small business concerns with fewer than 25 employees," pursuant to
the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
see 44 U.S.C. § 3506(c)(4).

16. Federal Rules that May Duplicate, Overlap, or Conflict with
the Proposed Rules. None.

17. For further information, contact Jeffrey Cohen, Senior Legal
Counsel, Public Safety and Homeland Security Bureau, (202) 418-0799,
or via e-mail at Jeff.Cohen@fcc. gov.

IV. ORDERING CLAUSES

18. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 303(r),
and 403 of the Communications Act of 1934, 47 U.S.C. §§ 154(i),
303(r), and 403, that this Notice of Proposed Rulemaking is HEREBY
ADOPTED.

19. IT IS FURTHER ORDERED that the Commission's Consumer and
Governmental Affairs Bureau, Reference Center, SHALL SEND a copy of
this Notice of Proposed Rulemaking, including the Initial Regulatory
Flexibility Analyses, to the Chief Counsel for Advocacy of the Small
Business Administration.

Federal Communications Commission
Marlene H. Dortch
Secretary

APPENDIX

Proposed Rules

Part 97 of Chapter 1 of Title 47 of the Code of Federal Regulations is
amended as follows:

The authority citation for part 97 continues to read as follows:

AUTHORITY: 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303.
Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47
U.S.C. 151-155, 301-609, unless otherwise noted.

1. Section 97.113 is amended by revising paragraph (a)(3), adding new
paragraphs (a)(3)(i) and (a)(3)(ii), redesignating paragraphs (c) and
(d) as new paragraphs (a)(3)(iii) and (a)(3)(iv) respectively, and
redesignating paragraphs (e) and (f) as (c) and (d) respectively, to
read as follows:

§ 97.113 Prohibited transmissions.

(a) ***

(3) Communications in which the station licensee or control operator
has a pecuniary interest, including communications on behalf of an
employer, with the following exceptions:

(i) A control station operator may participate on behalf of an
employer in a government-sponsore d emergency preparedness or disaster
readiness test or drill, limited to the duration and scope of such
test or drill, and operational testing immediately prior to such test
or drill.

(ii) An amateur operator may notify other amateur operators of the
availability for sale or trade of apparatus normally used in an
amateur station, provided that such activity is not conducted on a
regular basis.