Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * |                              |
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| Kenwood Communications Corp.     | ) |                              |
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| Request for Declaratory Ruling   | * |                              |
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| Determine Compliance With        | * |                              |
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| Sections of Part 97 of the       | * |                              |
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**ORDER**

**Adopted: July 18, 2000 Released: July 28, 2000**

By the Chief, Public Safety and Private Wireless Division, Wireless
Telecommunications Bureau:

I. INTRODUCTION

1.  Kenwood Communications Corp. (Kenwood), a manufacturer of commercial
    and amateur radio equipment, requests[^1] a declaratory ruling
    confirming that a device it manufactures known as the "Sky Command
    System" (Sky Command)[^2] complies with the Amateur Radio Service
    Rules.[^3] Alternatively, Kenwood requests that should we find that
    Sky Command does not comply with certain amateur service rules, we
    grant blanket rule waivers so that amateur service licensees can
    utilize Sky Command.[^4] For the reasons set forth herein, we deny
    Kenwood's requests.

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II. **BACKGROUND**

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2.  Sky Command permits amateur service licensees who do not have
    sufficient space for High Frequency (HF) antennas, or who live in
    areas with restrictive covenants, to operate their HF equipment at
    remote locations through the use of Very High Frequency (VHF) and
    Ultra High Frequency (UHF) channels. [^5] The antennas for systems
    utilizing VHF and UHF channels are much smaller than those
    associated with HF systems.[^6] Sky Command also could be useful in
    situations where the amateur service licensee wants to monitor HF
    bands while in a room other than the "shack,"[^7] or while away from
    home at a local event.[^8] Using Sky Command, the amateur service
    licensee uses a portable VHF/UHF radio to transmit control signals
    and audio signals on the 440 MHz (70 cm) amateur service band to a
    second VHF/UHF transceiver which is interconnected by an
    input/output unit with the licensee's HF transceiver.[^9] The second
    VHF/UHF transceiver is used to transmit the audio output from the HF
    transceiver on a radio frequency channel in the 144 MHz (2 m)
    amateur service band to the licensee's portable VHF/UHF radio (the
    control point).[^10]

3.  On November 4, 1999, Kenwood submitted a request for declaratory
    ruling that use of Sky Command complies with the Commission's
    amateur service rules, or, in the alternative, a blanket waiver of
    any rules which would prohibit amateur service licensees from using
    its Sky Command system.[^11] Kenwood contends that Sky Command
    complies with the rules and that use of the device is in the public
    interest.[^12] In the event that we conclude that Sky Command does
    not comply with our rules, Kenwood requests any needed rule
    waivers.[^13] In this connection, Kenwood argues that grant of such
    waiver request is in the public interest because it would allow
    amateur service licensees to operate their HF equipment from areas
    with limited physical space or from neighborhoods that have
    restrictive covenants that prohibit outdoor antennas.[^14]

4.  Kenwood's request was placed on Public Notice on December 15,
    1999.[^15] Comments or reply comments supporting Kenwood's request
    were received from Gordon West Radio School, Inc. (West), Costa Mesa
    Emergency Service Amateur Communications (Costa Mesa), Kenwood,
    James M. Hicks, and Robert A. Kile. Comments or reply comments
    opposing Kenwood's request were received from the American Radio
    Relay League, Inc. (ARRL), Robert G. Wheaton, the Bexar Emergency
    Amateur Repeater System (BEARS) and Kendall Amateur Radio Society
    (KARS). On April 17, 2000, Kenwood submitted a Request for Waiver
    and paid fees for waiver of two rule sections.[^16]

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III. **DISCUSSION**

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5.  Kenwood requests a declaratory ruling, or in the alternative, a
    waiver with respect to several Part 97 rules.[^17] As set forth
    below, we conclude that Sky Command does not comply with Section
    97.201(b), and that a waiver of the rules is not warranted.

6.  The amateur service rules provide that an amateur station on or
    within 50 km of the Earth\'s surface may be under telecommand[^18]
    (remote control) where there is a radio or wireline control link
    between the control point and the station sufficient for the control
    operator to perform his or her duties.[^19] A radio control link
    requires the use of an auxiliary station.[^20] The Commission's Part
    97 rules define an auxiliary station as an amateur station, other
    than in a message forwarding system,[^21] that is transmitting
    communications point‑to‑point within a system of cooperating amateur
    stations.[^22] An amateur station that is an auxiliary station may
    transmit only on the 1.25 m and shorter wavelength bands, except the
    219-220 MHz, 222.000‑222.150 MHz, 431‑433 MHz, and 435‑438 MHz
    segments.[^23]

7.  Kenwood acknowledges that in its Sky Command system the portable
    VHF/UHF transceiver at the control operator's location (control
    point), which transmits control information and audio via a channel
    in the 440 MHz band to the VHF/UHF transceiver interconnected with
    the HF transceiver, is an auxiliary station.[^24] Kenwood contends,
    however, that the VHF/UHF transceiver interconnected with the HF
    transceiver, which transmits the audio output from the HF
    transceiver to the operator at the control point via a channel in
    the 144 MHz band, is not an auxiliary station.[^25] Specifically, it
    argues that because the 2 m link is not used for telecommand, it
    should not be considered an auxiliary station.[^26]

8.  We disagree. Section 97.213(a) of the Commission's Rules requires
    that if radio is used for the control link between the control point
    and the station, the control link must use an auxiliary
    station,[^27] and Section 97.201(b) limits auxiliary stations to
    transmitting only on the 1.25 m and shorter wavelength bands, with
    the exception of certain frequency segments.[^28] In this regard, we
    note that Section 97.213(a) does not distinguish between radio
    control links used by the control operator for telecommand and radio
    control links used for other purposes, *i.e.*, the distinction
    Kenwood draws between the VHF and UHF link.[^29] Moreover, it is our
    view that the return transmissions from the HF station to the remote
    control point are part of the telecommand function being performed
    over the control link. In this regard, we note that the information
    transmitted from the HF station to the control operator informs the
    control operator as to whether the HF station is functioning in the
    manner the control operator desires and this information may cause
    the control operator to initiate, modify, or terminate functions,
    such as changing the HF transceiver\'s memories, setting or changing
    frequencies, or turning off the remotely controlled HF transceiver.
    We also note that the VHF link is integral to Sky Command and that
    without these VHF return transmissions, Sky Command is not of any
    use to an operator because the operator cannot hear what the HF
    station is receiving. We agree with BEARS that ignoring the return
    transmissions in the system, which are on the 2 m amateur service
    band, is at best a tortured interpretation.[^30] Moreover, we note
    that Section 97.3(a)(7) defines an auxiliary station as an amateur
    station "transmitting *communications point-to-point within a
    system* of cooperating amateur station*s*,"[^31] and we note that
    "*communications point-to-point within a system*" would include all
    communications between the location of the HF station and the
    station at the remote control point. Thus, we conclude that Sky
    Command does not comply with Section 97.201(b) of the Commission's
    Rules because Section 97.201(b) does not authorize auxiliary
    stations to transmit on the 2 m band.

9.  We now turn to whether a blanket waiver to permit Sky Command
    auxiliary stations to transmit on the 2 m amateur service band is
    warranted. To obtain a waiver of the Commission's Rules, a
    petitioner must demonstrate either (a) that the underlying purpose
    of the rule(s) would not be served or would be frustrated by
    application to the present case, and grant of the requested waiver
    would be in the public interest; or (b) that, in view of unique or
    unusual factual circumstances, application of the rule(s) would be
    inequitable, unduly burdensome or contrary to the public interest,
    or the applicant has no reasonable alternative.[^32] We find that
    Kenwood has met neither standard.

10. *Underlying Purpose*. The underlying purpose of limiting auxiliary
    stations to transmitting only on the 1.25 m and shorter wavelength
    bands is to minimize the possibility of harmful interference to
    other amateur service stations and operations, particularly "weak
    signal" activity[^33] in the 2 m (144-148 MHz) band.[^34] In a
    subsequent *Order*, the Commission reaffirmed this approach by
    rejecting a proposal to eliminate the frequency restrictions
    applicable to auxiliary stations.[^35] The Commission agreed with
    those commenters who argued that opening lower frequencies to
    auxiliary stations was unjustified because path lengths for such
    operations generally are too short to require such frequencies.
    [^36] Further, the Commission believed that eliminating the
    restriction would result in harmful interference because many bands
    (particularly the 2 m band) already were fully loaded in many
    areas.[^37] As a result, it determined that these frequency
    restrictions should be retained because the rules reflect a good
    correlation between the frequencies authorized for auxiliary
    operation and auxiliary link functions.[^38] Moreover, it believed
    that the potentially disruptive interference that could occur to
    other amateur service operations if auxiliary operations were
    expanded outweighed the additional flexibility and other benefits
    resulting from elimination of these frequency restrictions.[^39]
    Kenwood has not shown that this is no longer correct, and several
    commenters raise these same concerns.[^40] Accordingly, we conclude
    that application of the frequency limitations in Section 97.201of
    the Commission's Rules to Kenwood's proposal is consistent with the
    Commission's intent to minimize potentially disruptive interference.

11. *Public Interest.* Kenwood argues that grant of a waiver would be in
    the public interest because it would allow amateur service licensees
    to operate their HF equipment from areas with limited physical space
    or from neighborhoods that have restrictive covenants prohibiting
    outdoor antennas.[^41] As an initial matter, we note that such
    constraints do not necessarily prevent amateur service stations from
    transmitting on the HF amateur service bands. It is our
    understanding that amateur radio operators in apartments have used
    antennas designed for operating from cars and "slinky-type" antennas
    to transmit on the HF bands from locations that do not allow
    permanent outdoor antennas and towers.[^42] We also note that it is
    our understanding that some of these restrictive covenants prohibit
    only antennas that are visible from the front of the dwelling or
    that are above the roof line, thereby allowing certain HF antennas
    such as ground-mounted verticals. Other amateur radio operators have
    used attic antennas or hollow flagpoles as support structures for HF
    antennas or have chosen to operate on the HF bands from mobile
    stations.[^43] Moreover, there is no firm evidence to support
    Kenwood\'s argument that granting the waiver request will allow
    licensees in antenna restricted locations to operate stations on the
    HF amateur service bands, because Kenwood has not shown that these
    licensees are willing or able to obtain a second location where they
    could install the necessary equipment and outdoor transmitting
    antennas.

12. Finally, we are not persuaded by Kenwood's argument that we should
    grant the requested waiver on the basis that Sky Command will allow
    amateur service licensees to use combinations of frequencies to form
    complex communications systems that will make amateur service
    licensees even more efficient in handling disaster, emergency, and
    other public service communications.[^44] Use of amateur service
    equipment and channels to form complex communications systems for
    public service communications reflects a choice the amateur service
    licensee has made as to how to use amateur service channels, rather
    than anything inherent in Sky Command. We also note that none of the
    situations in which Kenwood says Sky Command would be very useful
    are public service applications *per se*, but rather are
    applications that allow a licensee personally interested in
    operating on the HF bands to pursue this interest at locations other
    than the HF station.[^45]

13. *Unique Circumstances*. Kenwood has not claimed that there are any
    unique or unusual factual circumstance that would justify grant of a
    waiver here. Further, we are concerned that granting a waiver to
    Kenwood for Sky Command would not be a technology-neutral approach,
    by favoring a particular manufacturer's product. In this regard, we
    note that it appears that Sky Command can be used only with certain
    Kenwood HF transceivers and handheld radios.[^46] For this reason,
    we agree with the ARRL that it is inappropriate for us to take
    actions that have the effect of favoring amateur service licensees
    who use the products of one particular manufacturer.[^47]

14. *Lack of Reasonable Alternatives*. As noted above, the rules require
    an auxiliary station to transmit only on the 1.25 m and shorter
    wavelength bands, except the 219-220 MHz, 222.00‑ 222.15 MHz,
    431‑433 MHz, and 435‑438 MHz segments.[^48] Kenwood concedes that it
    could have designed Sky Command to operate on the 222 MHz band
    rather than the 144 MHz band.[^49] It states that it chose the 144
    MHz band because many amateur service licensees already own
    dual-band equipment operating in the 144 MHz and 440 MHz bands, and
    Kenwood wanted Sky Command to be compatible with existing
    equipment.[^50] Similarly, ARRL states that Kenwood currently
    markets a radio in Japan that transmits on the 440 MHz and 1296 MHz
    bands and can be used with Sky Command, but which Kenwood has chosen
    not to export to the United States.[^51] Kenwood, however, in
    response states its belief that there is no market for this radio in
    the United States because reconfiguring Sky Command's VHF channel to
    transmit in a higher frequency amateur service band ignores the
    marketplace reality that the amateur service community demands a
    VHF/UHF dual-band transceiver for Sky Command application.[^52] We
    conclude that Kenwood's analysis of the market and marketing
    decisions are not sufficient bases upon which we can conclude that
    Kenwood has no reasonable alternative to the 144 MHz band for Sky
    Command operations. Indeed, it appears that Kenwood prefers to use a
    VHF/UHF dual-band transceiver that it already markets for its Sky
    Command system because this VHF/UHF dual-band transceiver also can
    be used for other amateur radio applications, such as packet radio
    and voice communications. Therefore, we believe that grant of this
    requested waiver is not warranted because a reasonable alternative
    exists that would be consistent with the Commission's Rules.

# CONCLUSION

15. For the foregoing reasons, we conclude that use of the 144 MHz
    amateur service band for Sky Command does not comply with the
    Commission's amateur service rules. We also conclude that Kenwood
    has not demonstrated that a blanket rule waiver permitting amateur
    service licensees to utilize the 144 MHz band to operate a Sky
    Command system is warranted under the circumstances presented.

**V. ORDERING CLAUSES**

16. ACCORDINGLY, IT IS ORDERED pursuant to Sections 4(i) and 303(r) of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
    303(r), and Section 1.925 of the Commission\'s Rules, 47 C.F.R. §
    1.925, the request for declaratory ruling or waiver filed by Kenwood
    Communications Corp. on November 4, 1999, IS DENIED.

17. This action is taken under delegated authority pursuant to Sections
    0.131 and 0.331 of the Commission\'s Rules, 47 C.F.R. §§ 0.131,
    0.331.

FEDERAL COMMUNICATIONS COMMISSION

D\'wana R. Terry

Chief, Public Safety and Private Wireless Division

Wireless Telecommunications Bureau

[^1]: Request for Declaratory Ruling or Waiver of Applicable Rule
    Sections (filed November 4, 1999) (Kenwood Request). On April 17,
    2000, Kenwood submitted FCC Form 159 and paid fees for waivers of
    two Commission rule sections.

[^2]: Kenwood Request at 1-2.

[^3]: 47 C.F.R. Part 97.

[^4]: Kenwood Request at 9.

[^5]: *Id*. at 2.

[^6]: *Id*.

[^7]: "Shack," as the term is used by Kenwood, refers to the room or
    area where an amateur radio station is located.

[^8]: *Id*. at Exhibit 1 (Sky Command System Operating Manual).

[^9]: *Id*. at 4, Exhibit 1 at 3.

[^10]: *Id*. at 4, Exhibit 1 at 2-3, 5, 7.

[^11]: *Id*. at 1.

[^12]: *Id.* at 2.

[^13]: *Id.* at 8.

[^14]: *Id.* at 1-2.

[^15]: Wireless Telecommunications Bureau Seeks Comment on Request for
    Declaratory Ruling or Waiver by Kenwood Communications Corporation
    to Allow Amateur Radio Operators to Use Channels in the Two Meter
    Amateur Service Band (144.0-148.0 MHz) to Remotely Control an
    Amateur Service Station Transmitting on High Frequency Amateur
    Service Bands, *Public Notice*, 14 FCC Rcd 21360 (WTB PSPWD 1999).

[^16]: Request for Waiver (filed April 17, 2000).

[^17]: *See* Kenwood Request at 5-8.

[^18]: Telecommand is a one‑way transmission to initiate, modify, or
    terminate functions of a device at a distance. 47 C.F.R. §
    97.3(a)(41).

[^19]: *See* 47 C.F.R. § 97.213. The duties of the control operator are
    to insure the immediate proper operation of the station and to
    operate the station only in the manner and to the extent permitted
    by the privileges authorized for the class of operator license held
    by the control operator. *See* 47 C.F.R. § 97.105.

[^20]: *See* 47 C.F.R. § 97.213.

[^21]: A message forwarding system is a group of amateur stations
    participating in a voluntary, cooperative, interactive arrangement
    where communications are sent from the control operator of an
    originating station to the control operator of one or more
    destination stations by one or more forwarding stations. 47 C.F.R. §
    97.3(a)(31).

[^22]: 47 C.F.R. § 97.3(a)(7).

[^23]: 47 C.F.R. § 97.201(b).

[^24]: Kenwood Request at 7.

[^25]: *Id*. at 8.

[^26]: *Id*.

[^27]: 47 C.F.R. § 97.213(a).

[^28]: 47 C.F.R. § 97.201(b).

[^29]: Kenwood also argues that the transmission of the audio from the
    HF station to the control point should be considered third party
    communications, rather than a function of the auxiliary station.
    *See* Kenwood Request at 8. We disagree. Third party communications
    is a message from the control operator (first party) of an amateur
    station to another amateur station control operator (second party)
    on behalf of another person (third party). *See* 47 C.F.R. §§
    97.3(a)(46), 97.115(b). In the configuration that Kenwood outlines,
    there is no third party. Therefore, we conclude that Kenwood's
    proposed transmissions on the 2 m amateur band are not within the
    definition of third party communications.

[^30]: BEARS Opposition at 1.

[^31]: 47 C.F.R. § 97.3(a)(7) (emphasis added). In this case, the
    "system of cooperating amateur stations" is the handheld or portable
    VHF/UHF station controlling the system, which is at the control
    operator's location (remote control point); the second handheld or
    portable VHF/UHF station, which is interconnected with the HF
    station; and the remotely controlled HF station's transceiver.

[^32]: 47 C.F.R. § 1.925(b)(3).

[^33]: Weak signal communications are primarily Morse code telegraphy
    and single sideband voice messages transmitted over very long
    distances in the VHF and UHF amateur service bands.

[^34]: Deregulation of Part 97 of the Commission's Rules to Simplify the
    Licensing and Operation of Complex Systems of Stations and Modify
    Repeater Subbands in the Amateur Radio Service, *Report and Order*,
    Docket No. 21033, 66 FCC 2d 207, 215 ¶ 6 (1977).

[^35]: *See* Amendment of the Amateur Service Rules to Allow Auxiliary
    Operation on All Amateur Service Frequencies, except 431-433 MHz and
    435-438 MHz, *Order,* FCC 86-125 (rel. Mar 26, 1986).

[^36]: *Id*. at ¶ 3.

[^37]: *Id*.

[^38]: *Id*. at ¶ 4.

[^39]: *Id*.

[^40]: BEARS Opposition at 2; ARRL Comments at 6 (the variety of uses of
    2 m has expanded since 1986); KARS Reply Comments at 1-2. *See also*
    Kenwood Request, Exhibit 1 at 3 (Sky Command manual instructs the
    operator to choose a frequency (on the 144 MHz band) that does not
    interfere with local stations).

[^41]: Kenwood Request at 1-2.

[^42]: *See* *The ARRL Antenna Book* at 4-3 (16^th^ ed. 1991)
    (discussion of antennas that can be used in apartments).

[^43]: *See, e.g.,* *QST* at 53-54 (May 1999) (regarding construction of
    a flagpole antenna).

[^44]: Kenwood Request at 4, Reply Comments at 2-5; *see also* West
    Comments at 2; Costa Mesa Comments at 1-2.

[^45]: Kenwood Request, Exhibit 1.

[^46]: *Id.*

[^47]: ARRL Comments at 3-4.

[^48]: 47 C.F.R. § 97.201(b).

[^49]: Kenwood Request at 7 n.10.

[^50]: *Id*.

[^51]: ARRL Comments at 3-4.

[^52]: Kenwood Reply Comments at ii.