On July 14, 2010, the Federal Communications Commission (FCC) issued a Report and Order that modifies section 97.113 of the Amateur Radio Service rules. In doing so, it closed two proceedings (WP Docket 10-72 and WP Docket 10-54) of the Commission's Wireless Telecommunications Bureau (WTB). The modified rules take effect on September 3, 2010.

The prior wording of 97.113 had been interpreted to prohibit FCC-licensed employees of governmental entities and private companies, including hospitals, from any on-the-air participation in disaster or emergency preparedness drills on Amateur Radio frequencies at their employer's facilities or elsewhere on behalf of their employer. The pertinent new wording of that portion of 97.113 is 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 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.

Although the last sentence of (i) is ambiguous, it is clear from the context of the Report and Order that the time limitations pertain to licensed employees' participation in the drills and not to the drills themselves, which may involve many volunteers in addition to the licensed employees.

Here are additional quotes from the Report and Order that explain the rationale for the FCC's decision:

• "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."

• "...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. We therefore amend our 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. We find that extending authority to operate amateur stations during such drills will enhance emergency preparedness and response and thus serve the public interest."

• "Our 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 our ongoing emergency preparedness and response priorities and is therefore consistent with the public interest."

• "...we believe 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, we limit the amateur operations in connection with [government-sponsored] 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."

• "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. We therefore find 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."

• "...accrediting standards for health care organizations require hospitals and organizations that offer emergency services (or are community-designated disaster receiving stations) to annually conduct emergency preparedness drills for mass casualty scenarios. While such drills may be conducted for accreditation purposes rather than as part of a government-sponsored activity, they arguably serve similar purposes in terms of enhancing emergency preparedness and response."

• "...in light of the concerns raised by some commenters, we require 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. We emphasize that the purpose for any drills we authorize herein must be related to emergency and disaster preparedness. By limiting the purpose in this manner, we further ensure that such drills will be appropriately limited."

This report and order is expected to bring to an end the controversy that began in the summer of 2009 when a licensed employee of a Missouri hospital was admonished by the FCC Enforcement Bureau for his on-air participation at his hospital during a statewide medical drill. A subsequent FCC Public Notice described a method of obtaining advance waivers of Rule 97.113 for government-conducted disaster drills, but our analysis showed that this was not a good solution for employees of privately-owned hospitals.

In February 2010, the American Hospital Association (AHA) filed a request for a blanket waiver of rule 97.113(a)(3) to permit hospitals seeking accreditation to use licensed hospital employees to transmit communications on behalf of the hospital as part of emergency preparedness drills. FCC issued a Public Notice seeking comment on the AHA request and later opened a rulemaking docket eventually resulted in these changes in 97.113. Read the HDSCS formal comments on that docket here.

This entire matter has had very little effect on HDSCS because only a small fraction of our members are employed at hospitals. Most are volunteers from all walks of life. While we realize that licensed employees can play a very important role in any hospital's emergency preparedness planning, we also need to emphasize once again that licensed employees should not constitute the entire communications backup plan. Volunteer licensed hams from the community must also play a major role if Amateur Radio is to be a successful and enduring communications backup when regular systems fail or are overloaded.

Copyright © 2010 by Joseph D. and April A. Moell. All rights reserved.

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This page updated 6 August 2010