Letter from Dave Jordan, WA4GIN
I just completed a telephone call with Robert Kenny, FCC Public Safety and Homeland Security Bureau (PSHSB) Director of Media Relations regarding concerns raised over the past several months by statements offered by FCC Amateur Enforcement Officer, Ms. Laura Smith regarding enforcement of 97.113 as it relates to amateur radio volunteers who are also employees of served agencies, etc.
Mr. Kenny informed me that the PSHSB has meet with the FCC’s Office of General Council regarding concerns that local government, hospital, etc., employees who are also FCC licensed amateur radio operators would be in violation of part 97.113 if those employees participated in drills and exercises (on or off the clock) associated with Auxiliary Communications Services provided on behalf of constituents served by those agencies. Mr. Kenny informed me the FCC Office of General Council's interpretation of the current rules would allow for the use of HAM radios during emergency drills or exercises, etc. (example the Operation Hazel II SET in Virginia scheduled for tomorrow morning). He indicated that there would be no enforcement action taken if an independent party filed a complaint about the use HAM radios in this capacity.
Therefore, there is now no reason for any amateur radio operator to curtail their participation in exercises or drills related to ACS.
Mr. Kenny also indicated that the PSHSB it would initiate proceedings to have 97.113 amended if/when a petition is filed by someone to review the current rules. This may lead to better accommodations of volunteer ACS best practices in this area.
For those of you participating in the Virginia SET tomorrow please enjoy the event and gain as much useful experience as you possibly can from the exercise.
Arlington County, Virginia RACES Officer
p.s. Hazel II SET WEB SITE http://www.w4ghs.org/Hazel.html
From: Robert Kenny [mailto:Robert.Kenny@fcc.gov]
Sent: Friday, October 02, 2009 1:29 PM
To: David Jordan
Cc: William Lane
This is a rule that has been on the books for decades and was enforced to the strict letter of the law for many years. Within the past 10 to 15 years there was a lot more relaxed attitude in the way this FCC section was viewed. During this more lax era many agency employees earned ham license with the intend of supporting their agency during drills and in actual emergencies. The new Special Counsel for Amateur Radio Special Enforcement Division, Laura Smith has revered back to the earlier view of the regulation which means following the strict letter of the law.
This is not some mysterious rule but is straight forward and prohibits persons that are being paid by an agency or business to operate an Amateur Radio on behalf of that agency. There is no exceptions for those that are part of an emergency communication agencies as oppose to a for-profit business. It is a level playing field for all. Sections and localities across the nation have taken this change in stride and continue to plan for their up coming SETS, with the exception of Virginia. They just make sure they are staffing their agencies and shelters with ham operators that are not employees of that agency. This doesn't prohibit them having an employee to go into an agency and work creating replies to incoming mail, sitting by the operator and copying traffic, logging, acting as a courier etc. They just can't get on the air except in an actual emergency.
Does this require a lawyer to interpret? No, Laura has taken care of this issue and her opinion is the one that matters. So, why all the alarm and need for postponing SETs in Virginia and wringing our hands in despair? People are reading a lot more into this rule than what is there, or something else is going on.
Let's get back to having volunteers with no professional connection to agencies to provide the backup emergency communications for those agencies. This would free up these first responders and emergency agency personal to do the other needed work. For a link with more information on this FCC statement click here.
The following is the position of ARES in the Virginia Section about the perceived crisis from this recent FCC statement.
DEC's: Please forward to your EC's
EC's: Please forward to your members
The contents of the email were coordinated with the Section Manager, Virginia Section, ARRL.
Ladies and Gentlemen,
The Section Manager and I are not lawyers, but we are trying to interpret a recent determination made by the FCC.
As most of you are aware, the FCC recently made a public statement that they are going to enforce portions of Part 97 that pertain to usage of amateur radio by licensees in paid positions. Across the section we have several amateurs that are employees of local or state government agencies or employees of “served agencies” (private relief agencies, hospitals, etc.). The leadership is very concerned that although the FCC appears to state it is OK for one of these individuals to pass real world traffic in support of working an emergency situation, they are not permitted to practice this tasking during local exercises, drills, SET’s, etc. This appears to apply even if these people are “off the clock.” This could leave some of our members and other community service-minded hams open to legal action taken against them by the FCC. Another issue along the same lines is the private repeater owners’ liability. These fine people put a lot of time, effort, and money into repeater systems. They could also be open to legal taken against them by the FCC should they be found to be allowing these other hams to “operate illegally.”
To preclude some of this from happening, SM Carl Clements/W4CAC will be contacting ARRL HQ and asking for a determination as to how to “officially” respond to requests for SET’s, etc., by our local emergency communications teams. For the near term we are taking the official section position of the following:
(1) VA ARES SET’s are to be postponed or cancelled until guidance is received from ARRL HQ.
(2) All VA ARES SET’s must be approved in advance by the section manager and section emergency coordinator.
No, we cannot force the members to abide by these restrictions, however, the Virginia Section is not officially recognizing any SET’s until guidance is received from ARRL HQ and the use of the copyrighted terms “ARES” and “Amateur Radio Emergency Service,” and associated ARRL-copyrighted logos PLUS ARES appointment titles MAY NOT BE USED during any exercise, drill or SET without prior approval.
The FCC appears to be adamant in that they intend to enforce this rule in Part 97. The rationale behind this Section policy is to protect our members and our leaders from possible action taken against them. Should you decide to participate in any of these activities without prior approval, you do so without the support and/or consent of the ARRL VA Section.
WE DO NOT WANT TO HAVE THE FCC USE VIRGINIA AS THEIR “TEST CASE” FOR ENFORCEMENT OF THIS RULE.
Upon receipt of further guidance from ARRL HQ we will be sending additional information to the members.
Thank you for your support of EMCOMM in the Commonwealth!
Joseph J. Safranek
Section Emergency Coordinator
VEOC's Reponse to this document-
In light of VA ARES’s decision to forgo any VA ARES SETS until clarification from the ARRL reference to the recent FCC position on Part 93, Section 113a the VEOC and management have decided to take the same approach here to be safe. Therefore, we are planning on not participating in Glen Sage's SET, Hurricane Hazel II, on 3 October. This has no reflection on Glen. Since VDEM’s ARCA Club is an affiliated ARRL club and uses the club’s N4VEM call sign for operations we will abide by VA ARES decision and remain on hold until we have a better upstanding of the FCC’s position on this matter.
Go these links for more information on the subject. http://forums.qrz.com/showthread.php?t=218059
Thank you all for your understanding
Terry B. Hebert (KG4GLS)
Operations Deputy Plans Chief
State Amateur Radio Liaison
Virginia Department of Emergency Management
Virginia Emergency Operations Center