Draft Comments on Docket 92-136
Paul W Schleck KD3FU
haven't completely missed the point. I ran the document through the spelling
and grammer checks on Word for Mac (which gave it a *17th* grade reading
level, sheesh!), but there might still be some grammar and factual
errors.
Feel free to borrow the ideas, but please express them in your own
words. Nothing turns off government officials more than form-letter
lobbying. Comments and criticisms welcome.
Before the
Federal Communications Commission
Washington, DC 20554
PR Docket No. 92-136
In the Matter of
Amendment of Part 97 of the RM-7849
Commission's Rules to Relax RM-7895
Restrictions on the Scope of RM-7896
Permissible Communications
in the Amateur Service.
To: The Commission
COMMENTS OF PAUL W. SCHLECK, KD3FU
Summary
There are clearly several flaws to the current wording of Part
97.113 of the Commission's Rules. Although made in response to
public inquiry, and with the best of intentions, strict
interpretations of these rules over the years have been extremely
detrimental to the Amateur Service. Instead of encouraging
technical experimentation by protecting the Amateur Service from
commercial exploitation, they have had the unintended effect of
stifling many constructive uses of the amateur bands and
corresponding advancement of the state-of-the art in
communications.
In these comments, I advocate a more simply worded test of whether
a given amateur communication is to the detriment of the Service
or not. This test would essentially be whether the operator
him/herself received compensation for the communication. In
addition to advocating this simpler rule, I also advocate the
explicit recognition of the Amateur Service as both an
experimental and personal communications service, a more
permissive policy towards the transmission of incidental or
background music under certain circumstances, the compensation
exception for instructors engaged in the teaching of a class, and
the occasional rebroadcast of governmental radio services such as
time and weather.
No Direct Operator Compensation is the Optimal Legal Test
Indeed, in the footnotes of Docket 92-136 (note #7), the
Commission references the position of the American Radio Relay
League (henceforth referred to as "the League"), which advocates
(among other things) that the question of compensation to the
control operator him/herself, rather than the potential benefit of
incidental third parties, be the overriding issue. This legal
test makes sense as amateur radio operators are the best judge of
what is appropriate communications, as demonstrated from our long
and proud tradition of self-enforcement. Economics dictate that
no amateur radio operator is going to allow the Service to be
commercially exploited with no compensation to him/herself. In
addition, there is no incentive for an unscrupulous person to get
an amateur license and exploit the Service as "there is no money
in it."
I would advocate this as the most important (and sole) test of the
appropriateness of communication that may be suspected as having
commercial content. The Commission's proposed revision of Part
97.113 includes a test of whether such communications constitute
"regular use" which is hopelessly vague, and under the right
interpretation, might turn out to be even more restrictive than
the previous rules it claims to "relax." An individual interested
in personal communications has a wide array of choices, including
cellular telephone, Citizen's Band Radio, business-band radio, and
the Amateur Service. The proposed exception might very well make
illegal all uses of the Amateur Service that could conceivably be
undertaken in the other alternatives. Although the rumored
reference of "excess capacity" mistakenly attributed to
Commissioner Sikes would clearly be a poor choice of words, there
is certainly some capacity for incidental communications that would
be technically illegal under the present rules, but would not
change the basic character of the Amateur Service.
Indeed, I would argue that the presence of the other services
almost guarantees that the majority of individuals interested in
personal communications that may potentially violate the letter
(as well as the intent) of Part 97.113, would choose the
alternative services instead of the Amateur Service (after all,
the others have minimal or non-existent licensing and fewer
restrictions).
The Amateur Service is Both an Experimental and Personal
Communications Service
At the heart of these usage debates is the basic question of
whether the Amateur Service is an experimental service, or a
personal communications service. Clearly the character of the
service that has evolved over the years indicates that it is both.
The use of the Amateur Service for pure experimentation (such as
amateur satellites, packet networks, and repeaters) is inseparably
coupled with the use of the Amateur Service for personal
communications (communications with other countries through the
AMSAT constellation of amateur satellites, use of the packet
networks for the relay of bulletins and electronic mail, and the
use of VHF repeaters for public service events support). The
personal communications drives the experimentation and the
experimentation drives the personal use. Historically, the
experimentation has always stayed "1 or 2 bands" above the
personal communications use, even back in the days when state-of-
the-art referred to radio bands of wavelengths 200 meters and
shorter (just above the present-day AM broadcast band).
As mentioned above, the crucial legal test to maintain this
synergy between the two interests is the compensation (or lack
thereof) to the control operator. For this reason, I would not
advocate allowing incidental personal business on the amateur
bands as that would clearly upset this delicate balance and
change the character of the Amateur Service.
Transmission of Incidental Music under Certain Restrictions Should
Be Permitted
When the no-music provision of the Commission's Rules was
established in the early part of this century, it was to clearly
delineate between the purpose of the broadcast services and
communication services such as the Amateur Service. This absolute
and restrictive ruling does not take into account many permissible
uses of the Amateur Service today. In the case of telephone
patching from VHF repeaters, a control operator may encounter
"hold music" while making a phone call. No one is going to sit
down in their easy chair in the evening and tune in an amateur
repeater to be entertained by "hold music." This is clearly not
the use of the Amateur Service for communications outside its
scope. In fact, a well-meaning repeater control operator
(distinct from the control operator of the non-repeater station
mentioned above) may shut down the patch, obstructing otherwise
appropriate use of the amateur band and upsetting the delicate
balance between experimentation and personal communications.
In the case of the authorized amateur rebroadcast of "NASA
Select" audio and video of Space Shuttle missions, the presence
of incidental background music makes some rebroadcasts illegal.
Clearly this is an overly restrictive interpretation. Such music
is incidental to the transmission and does not provide
entertainment value. Such a restriction also upsets the delicate
balance between experimentation and personal communications (as
it would prevent such worthwhile endeavors in the future, due to
the legal risks to the control operator).
I would advocate allowing the presence of music, where such music
is clearly incidental to the communication and results from the
permitted rebroadcast of other services (such as NASA Select, NOAA
Weather, and Department of Commerce Time broadcasts) and common
carriers (such as the telphone service). If the Commission is
conerned with the impact of such a provision on international
treaty, such incidental music could be restricted to 50 Mhz and
above (as is the case with the use of experimental communications
protocols and the automated relay of third-part traffic).
An Exception for the Compensation of Instructors Conducting
Classes is Worthwhile
As in any educational endeavor, students can best learn with a
combination of theoretical instruction, and concrete example.
Removing the restriction on amateur transmissions due to the fact
that an instructor happens to be compensated in some way for
his/her work is an idea whose time has come. Not only would this
have the benefit of allowing many desirable educational
techniques used in the instruction of students, it does not
conceivably bring with it any undesirable uses of the amateur
service (as the instructor would otherwise be bound by the other
rules on prohibited transmissions).
The Impact on Amateur Packet and Digital Networks Would be
Favorable
Since amateur digital networks using ASCII (henceforth referred to
as "packet radio") do not have common-carrier protections, the
control-operator of a packet-radio station could conceivably be
held responsible for any communications passing through his
station that may directly or indirectly benefit any third party.
This is clearly an excessive restriction, and precludes many types
of useful experimentation in packet radio. Recently (early 1991),
the Commission was forced to act on a bulletin relayed via packet
radio concerning a 1-900 number in support of a political cause
(the so called "Desert Storm" bulletin). Several packet-radio
operators were issued Notices of Apparent Liability for
contributing to the transmission of this bulletin, which violated
the current no-business provisions of Part 97.113.
It is unfortunate that this matter was reported to the Commission
for two reasons. One is the the Amateur Service had already
demonstrated its ability to police itself and insure that the
Service was used only for constructive, non-exploitative uses (by
cancelling the message and sending electronic mail to the
originator). The Commission was also forced to take action that
it probably would have liked to avoid, due to the legal
implications and detrimental impact to amateur experimentation.
Currently, there is much hesitation in the amateur community to
undertake more amibitions technical experimentation in packet
radio due to the legal risks involved. Again, the delicate
balance is upset.
Had my proposed legal test been in place at the time, the
Commission would not have had to take such drastic action, and the
Amateur Service would have used its discretion in preventing
itself from being exploited by commercial interests.
Policy Statements of the American Radio Relay League Should Not Be
Taken as Necessarily Reflecting the Public Interest
I wish to emphasize that I have the greatest respect for the
League. No other organization representing the Amateur Service
can provide the kind of information gathering, consensus building,
and lobbying the Commission for issues of importance to the
Service than it has done over the years. Their efforts in
encouraging the Commission to publish this Notice of Proposed
Rulemaking is testimony to this.
However, being a representational democratic organization, it must
by necessity engineer political compromises when it comes to
statements of organizational policy. Although the League can be
assumed to have great expertise in matters of the Amateur Service,
the positions it advocates have the unavoidable presence of
official viewpoints that are dissonant combinations of many,
sometimes contradictory, views. If there is a place for
consensus-building and presenting policy that is truly in the
public interest, it is at the level of the Commission and the
federal rulemaking process.
Conclusions
For the many reasons I have provided, I advocate that the
Commission go further than the League and adopt my proposed "no
operator compensation" test as the sole test of whether a given
communication consitutes prohibited commercial use of the Amateur
Service (with the exceptions that are already present in Part 97,
to avoid inadvertantly making the Commission's rules more
restrictive, which is not the purpose of this Notice of Proposed
Rulemaking). To do otherwise requires the addition of "regular
use" provisions in the rules that are hopelessly vague and subject
to endless interpretation, possibly more restrictive than the
present rules. I advocate permitting the broadcast of incidental
music under the restrictions I have enumerated above. I also
support the remaining provisions of the Commission's Notice with
respect to the instructor exception and certain, incidental
rebroadcasts of government radio services. The overriding test of
any Commission rulemaking is whether it preserves the delicate
balance between experimentation and personal communications that
has preserved the basic character of the Amateur Service for almost
a century.
Respectfully Submittted,
PAUL W. SCHLECK, KD3FU