[Federal Register Volume 75, Number 149 (Wednesday, August 4, 2010)]
[Rules and Regulations]
[Pages 46854-46858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19198]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 97

[WP Docket No. 10-72, WP Docket No. 10-54; FCC 10-124]


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

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) amends its rules to permit amateur radio operators to 
transmit messages, under certain limited circumstances, during either 
government-sponsored or non-government sponsored emergency and disaster 
preparedness drills, regardless of whether the operators are employees 
of entities participating in the drill.

DATES: Effective September 3, 2010.

FOR FURTHER INFORMATION CONTACT: Thomas Beers, Policy Division, Public 
Safety and Homeland Security Bureau, (202) 418-1170, or TTY (202) 418-
7233.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order (R&O) in WP Docket No. 10-72; WP Docket No. 10-54; FCC 10-
124, adopted July 14, 2010, and released July 14, 2010. The complete 
text of this document is available for inspection and copying during 
normal business hours in the FCC Reference Information Center, Room CY-
A257, 445 12th Street, SW., Washington, DC 20554. This document may 
also be obtained from the Commission's duplicating contractor, Best 
Copy and Printing, Inc., in person at 445 12th Street, SW., Room CY-
B402, Washington, DC 20554, via telephone at (202) 488-5300, via 
facsimile at (202) 488-5563, or via e-mail at [email protected]. 
Alternative formats (computer diskette, large print, audio cassette, 
and Braille) are available to persons with disabilities by sending an 
e-mail to [email protected] or calling the Consumer and Governmental 
Affairs Bureau at (202) 418-0530, TTY (202) 418-0432. This document is 
also available on the Commission's Web site at http://www.fcc.gov.

Summary of the Report and Order

    1. 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, tests 
and exercises in preparation for such emergency situations and transmit 
messages on behalf of their employers during such drills and tests. 
Accordingly, the Commission amends its rules to provide that, under 
certain limited conditions, amateur radio operators may transmit 
messages during emergency and disaster preparedness drills and 
exercises, limited to the duration of such drills and exercises, 
regardless of whether the operators are employees of entities 
participating in the drills or exercises.
    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 were 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, public 
safety agencies, and hospitals 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 and public health 
entities seeking to have employees operate amateur stations during 
government-sponsored emergency preparedness and disaster drills 
presently must request a waiver. In this connection, Commission staff 
has granted several waivers on a case-by case basis.
    5. On February 17, 2010, the American Hospital Association (AHA) 
filed a request for a blanket waiver of Section 97.113(a)(3) of the 
Commission's rules to permit hospitals seeking accreditation to use 
amateur radio operators who are hospital employees to transmit 
communications on behalf of the hospital as part of emergency 
preparedness drills. On March 3, 2010, the Wireless Telecommunications 
and Public Safety

[[Page 46855]]

and Homeland Security Bureaus jointly issued a Public Notice seeking 
comment on the foregoing request.
    6. On March 18, 2010, the Commission adopted a Notice of Proposed 
Rulemaking (NPRM) seeking comment on whether to amend the rules to 
permit amateur radio operators to participate in government-sponsored 
emergency and disaster preparedness drills and tests, regardless of 
whether the operators are employees of the entities participating in 
the drill or test. The Commission also invited comment on whether there 
were circumstances in which amateur operators should be allowed to 
participate on their employer's behalf in non-government-sponsored 
tests or drills. Comments were due May 24, 2010, and reply comments 
were due June 7, 2010.

Government-sponsored Emergency Drills

    7. In the NPRM, the Commission tentatively concluded to permit 
amateur radio operators to participate in government-sponsored 
emergency and disaster preparedness drills and tests, regardless of 
whether the operators are employees of the entities participating in 
the drill or test. In reaching this tentative conclusion, the 
Commission stated that employee status should not preclude or prevent 
participation in government-sponsored emergency and disaster tests and 
drills. The Commission also tentatively concluded that extending 
authority to operate amateur stations during such drills will enhance 
emergency preparedness and thus serve the public interest.
    8. In response to the NPRM, public safety agencies and other 
emergency first responder entities voiced general support for the 
proposal. These commenters note that public safety agencies frequently 
incorporate amateur radio and indeed are encouraged to do so as a part 
of Commission policy. Several amateur groups and clubs also support the 
rule amendment, because it will improve the skills of employees who may 
be called upon to use their expertise in times of emergency or 
disaster. Other commenters suggest that the rule amendment would likely 
increase the usefulness of existing national-level programs such as the 
Radio Amateur Civil Emergency Service (RACES), the Amateur Radio Relay 
League's Amateur Radio Emergency Service (ARES(copyright)), or the US 
Department of Defense's Military Auxiliary Radio System (MARS).
    9. On the other hand, several commenters state that the proposal 
would erode the amateur status of the service, which is an essential 
characteristic of amateur radio. Nickolaus E. Legget argues that this 
``would lead to a `backdoor' de facto reallocation of some frequencies 
to hospitals and related operations.'' Other commenters maintain that 
this proposal would exacerbate the tendency of some hospitals or other 
public safety agencies to replace commercially available CMRS equipment 
with less expensive amateur radio equipment, intending to rely on 
amateur radio and employee licensees for communications. One commenter, 
James T. Philopen, states that the Commission lacks authority to amend 
the existing rule under Article 1, Section II Radio Service, subpart 56 
of the International Telecommunications Treaty, which defines the 
Amateur Radio service as one ``without pecuniary interest.'' Another 
commenter objects to the proposed amendment, stating that such a rule 
would lead to employees being coerced into using their amateur 
privileges, including using their amateur privileges in ways prohibited 
by our rules. Finally, a handful of commenters suggest alternative 
language or request additional definitions to the proposed rule, or 
recommend alternative regulatory treatment.
    10. As the Commission noted in the NPRM, 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 
disaster situations. Moreover, the current amateur radio service rules, 
which permit participation in such drills and tests by volunteers 
(i.e., non-employees of participating entities), reflect the critical 
role amateur radio serves in such situations. However, as evidenced by 
recent waiver requests, state and local government public safety 
agencies, hospitals, and other entities concerned with the health and 
safety of citizens appear to be limited in their ability to conduct 
disaster and emergency preparedness drills, because of the employee 
status of amateur radio licensees involved in the training exercises. 
The Commission therefore amends its rules to permit amateur radio 
operators to participate in government-sponsored emergency and disaster 
preparedness drills and tests, regardless of whether the operators are 
employees of the entities participating in the drill or test. The 
Commission finds that extending authority to operate amateur stations 
during such drills will enhance emergency preparedness and response and 
thus serve the public interest.
    11. In reaching this decision, the Commission did not find 
persuasive those comments stating that this decision will erode the 
amateur radio service. The exception the Commission provides is 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. Further, when such operations are conducted in these 
limited circumstances, the amateur communications are only one 
component of the overall and more extensive communications activities 
that are involved with emergency drills and tests. Thus, the Commission 
does not foresee the use authorized herein to be extensive enough to 
amount to an erosion of the amateur radio service. Moreover, under 
existing rules, licensed employees may use amateur radio privileges 
when an emergency has rendered other communications unavailable. The 
Commission's decision reflects the practical reality that a large 
number of agencies and organizations at the state and local levels 
coordinate with their local volunteer amateur radio operators to 
conduct emergency drills and exercises in concert with other modes of 
communication, such as land mobile radio. This integrative activity is 
essential to allow for a practiced response on the part of the first 
responder community in the event of an emergency. Because some of those 
drills and exercises include transmission of amateur communications by 
employees of participating entities, this rule amendment will support 
the Commission's ongoing emergency preparedness and response priorities 
and is therefore consistent with the public interest.
    12. The Commission also rejects the comments claiming that we lack 
the authority to amend our amateur rules because it conflicts with the 
Communications Act and the prohibition on ``pecuniary interest'' in the 
ITU treaty. The Commission's authority under the Communications Act to 
propose, promulgate and amend rules for the purpose of promoting safety 
of life and property through the use of wire and radio communication is 
well-established. Moreover, the limited action the Commission is taking 
here does not violate the ITU treaty. The ITU Radio Regulations 
specifically state that ``[a]dministrations are encouraged to take the 
necessary steps to allow amateur stations to prepare for and meet 
communication needs in support of disaster relief.'' The rule 
amendments the Commission adopts do not undermine the ``pecuniary 
interest'' limitation. Rather, the amended rules provide a discrete 
exception to the existing rule that prohibits any

[[Page 46856]]

pecuniary interest attributable to the operator including 
communications on behalf of an employer. The Commission also finds 
unpersuasive comments that suggest that the amended rules either will 
cause employees to be coerced to transmit amateur radio messages or 
would cause entities to use amateur radio privileges in any way that 
would violate the Commission's rules. The flexibility of amateur 
operators will remain limited by the requirements of the Communications 
Act and the Commission's rules, including the rule amendments we adopt 
herein. The Commission's action today does not alter the 
responsibilities of these operators, and, as was the case under the 
prior rules, amateur licensees are obliged to operate their radio 
stations in compliance with the terms of their licenses, 
notwithstanding any conflicting instruction from their employers. In 
any event, the Commission does not expect that employer overreaching is 
likely to be a problem, given that the amended rules reflect a spirit 
of cooperation recognized by both the public safety community and the 
amateur radio community as necessary for preparing for times of 
emergency or disaster.
    13. The Commission also finds it unnecessary to adopt alternative 
language or specify additional definitions. The Commission finds its 
proposed language is sufficiently clear. The purpose of the rule 
amendment is to promote the effectiveness and usefulness of emergency 
operations by permitting licensed employees to practice the skills they 
would use in an actual emergency as a last resort, i.e., should other 
means of communications fail or be unavailable. The Commission finds 
that the amended language is narrowly tailored to achieve these ends.
    14. In amending the amateur radio rules, the Commission reiterates 
that it does not intend to 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, the 
Commission believes that the public interest will be served by 
establishing 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, the Commission limits the amateur operations in 
connection with emergency drills to the duration and scope of the 
drill, test or exercise being conducted, and to operational testing 
immediately prior to the drill, test or exercise.
    15. Some commenters request more specific limits on the duration of 
the use of amateur radio services to prevent continuous drills and the 
bandwidth from becoming de facto emergency service spectrum. The 
Commission declines to adopt specific time restrictions other than a 
limit tied to the duration of the exercise. The Commission finds that 
such matters should be left to the discretion of the sponsoring 
agencies. The Commission emphasizes, however, that the amendment does 
not permit communications unrelated to the drill or exercise being 
conducted. Other commenters suggest that the rules should specifically 
provide for more expansive operational testing. Boeing suggests that 
testing be permitted thirty days prior to a scheduled government 
sponsored drill. The Commissino declines to specify the timing or 
duration of emergency drills. As evidenced by the waiver requests that 
have been submitted, the Commission expects that agencies will schedule 
emergency drills or exercises at appropriate times and for appropriate 
durations.

Non-Government-sponsored Emergency Drills

    16. In the NPRM, the Commission proposed 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. The Commission noted, however, that there may be 
circumstances where conducting emergency drills for disaster planning 
purposes, even if not government-sponsored, would serve the public 
interest. Accordingly, we sought 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.
    17. Most of the commenters who support permitting employee 
operation of amateur stations during government sponsored drills also 
support such operation during non-government-sponsored emergency 
drills, if the purpose of the drill is to assess communications 
capabilities to further public safety. However, a few commenters 
opposed expansion of the rule to include non-government sponsored 
emergency drills For example, Holtz states that this would ``open the 
door for significant commercial abuse and exploitation of the amateur 
service;'' that in the ``absence of government sponsorship, there is 
ambiguity about whether any particular drill by a commercial entity is 
primarily for its own benefit, or for the public benefit;'' and that 
this would create ``an incentive for employers to pressure employees to 
get amateur licenses, and to pressure licensed amateurs to engage in 
questionable or prohibited practices,'' i.e., to use ``amateur radio as 
a lower-cost substitute for Part 90 systems.'' In relation to such 
concerns, Sheppard suggests limiting this expansion to those operations 
``when the emergency drill or test is sponsored by an agency or 
organization which supports public safety or public health.'' And 
Traynor suggests limiting such expansion to ``organizations defined by 
FEMA as providing the nation with Critical Infrastructure and Key 
Resources (CIKR) as described in the National Infrastructure Protection 
Plan (NIPP).'' Earlier, in response to the AHA Petition, ARRL asked 
that AHA's requested waiver be limited to radio transmissions made by 
hospital employees that are ``necessary to participation in emergency 
preparedness and disaster drills that include Amateur operations for 
the purpose of emergency response, disaster relief or the testing and 
maintenance of equipment used for that purpose.''
    18. In addition to Federal, state and local authorities, other non-
government entities, such as private hospitals, have a direct interest 
in the health and welfare of citizens, especially during times of 
emergency or disaster. During those times, emergency communications 
serve a critical purpose to both governmental and non-governmental 
entities as well as to the constituencies they serve. As we determined 
above, familiarization, planning, and training are required for 
effective use of amateur radio in an emergency. The Commission 
therefore finds that the public interest would be served by permitting 
amateur radio operators to participate in non-government sponsored 
emergency and disaster preparedness drills and tests, regardless of 
whether the operators are employees of the entities participating in 
the drill or test.
    19. While the Commission recognizes commenters' concerns regarding 
the potential for improper use of amateur radio in conducting emergency 
drills and tests, the Commission finds that the public interest in 
permitting non-government-sponsored entities to utilize, on a limited 
basis, amateur radio as part of emergency preparedness and response 
drills outweighs such

[[Page 46857]]

concerns. As with government-sponsored emergency drills, the Commission 
limits the amateur operations in connection with non-government 
sponsored emergency drills to the duration and scope of the drill, test 
or exercise being conducted, and operational testing immediately prior 
to the drill, test or exercise. Moreover, in light of the concerns 
raised by some commenters, the Commission requires that non-government 
sponsored drills and tests be limited to no more than one hour per 
week; except that no more than twice in any calendar year, they may be 
conducted for a period not to exceed 72 hours. This time limitation, 
which is consistent with the timeframes contained in the waiver 
requests filed with the Commission, should serve to further ensure the 
use of amateur radio for bona fide emergency testing. The Commission 
emphasizes that the purpose for any drills it authorizes herein must be 
related to emergency and disaster preparedness. By limiting the purpose 
in this manner, the Commission further ensures that such drills will be 
appropriately limited.

ARPC Petition and AHA Petition

    20. ARPC requested we amend Sec.  97.113(a)(3) in order to permit 
amateur radio licensees employed by public safety agencies to 
participate in drills conducted by their employer. Similarly in its 
request, AHA emphasized the need to allow hospital employees with 
amateur radio licenses to participate in emergency preparedness and 
disaster readiness tests and drills. The Commission appreciates both of 
these filings, and, as discussed herein, supports the requested rule 
changes. Because the Commission amends the rules in a manner that 
addresses the concerns raised by both petitioners, it dismisses both 
petitions as moot.

I. Procedural Matters

A. Paperwork Reduction Act Analysis

    21. The R&O does not contain proposed information collection(s), 
subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In 
addition, therefore, the R&O 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).

B. Congressional Review Act

    22. The Commission will send a copy of the R&O in a report to be 
sent to Congress and the Government Accountability Office pursuant to 
the Congressional Review Act (``CRA''), see 5 U.S.C. 801(a)(1)(A).

II. Final Regulatory Flexibility Certification

    23. 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).
    24. 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. Moreover, the rule being adopted is so narrow that no 
nexus exists between the regulated amateur licensees who may be 
employed, and costs to be born by employers (e.g. overtime pay). 
Therefore, if there were any costs imposed on employers, that is a 
matter outside the scope of the rule and thus the impact of the rule 
cannot be said to involve the imposition of any economic burden on 
those individual persons who are the only entities regulated and 
impacted by the rule adopted in the R&O. Finally, no commenters 
addressed our conclusion in the NPRM and small entities which filed 
comments uniformly supported the proposed rule changes. Therefore, the 
Commission certifies that the proposals in the R&O will not have a 
significant economic impact on a substantial number of small entities.
    25. Report to Congress: The Commission will send a copy of the R&O, 
including this Final Regulatory Flexibility Certification, in a report 
to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act. In addition, The Commission 
will send a copy of the R&O, including a copy of this Final Regulatory 
Flexibility Certification, to the Chief Counsel for Advocacy of the 
SBA. This final certification will also be published in the Federal 
Register. A copy of the R&O and Final Regulatory Flexibility 
Certification (or summaries thereof) will also be published in the 
Federal Register.

III. Ordering Clauses

    26. Accordingly, it is ordered, pursuant to Sec. Sec.  1, 2, 4(i), 
4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g),706 and 715 of 
the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i) 
and (o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606, and 615, 
that the Report and Order in WP Docket No. 10-72 and WP Docket No. 10-
54 is adopted, and that part 97 of the Commission's rules, 47 CFR part 
97, is amended. The R&O shall become effective September 3, 2010.
    27. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of the Report and Order, including the Final Regulatory 
Flexibility Certification, to the Chief Counsel for Advocacy of the 
Small Business Administration.

List of Subjects in 47 CFR Part 97

    Amateur radio service.

Federal Communications Commission.
Bulah P. Wheeler,
Deputy Manager.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 97 as follows:

PART 97--AMATEUR RADIO SERVICE

0
1. 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.


0
2. Section 97.113 is amended by revising paragraph (a)(3), 
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:


Sec.  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:

[[Page 46858]]

    (i) A station licensee or control station operator may participate 
on behalf of an employer in an 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. Tests or drills that are not government-sponsored are limited to 
a total time of one hour per week; except that no more than twice in 
any calendar year, they may be conducted for a period not to exceed 72 
hours.
    (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.
* * * * *
[FR Doc. 2010-19198 Filed 8-3-10; 8:45 am]
BILLING CODE 6712-01-P