**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | RM-11392                     |
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| MARK MILLER                      | ) |                              |
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| Petition for Rule Making         | * |                              |
| Regarding Amendment of Part 97   |   |                              |
| of Commission\'s Rules Governing | * |                              |
| the Amateur Radio Service to     | * |                              |
| Implement Changes to Sections    | ) |                              |
| 97.3(c)(2), 97.221 Automatically | * |                              |
| Controlled Digital Stations,     | * |                              |
| 97.305 Authorized Emission       |   |                              |
| Types, 97.307 Emission           | * |                              |
| Standards, and 97.309 RTTY and   | * |                              |
| Data Emission Codes              | ) |                              |
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+----------------------------------+---+------------------------------+

**ORDER**

**Adopted: May 6, 2008 Released: May 7, 2008**

By the Deputy Chief, Mobility Division, Wireless Telecommunications
Bureau:

# Introduction

1.  In this *Order,* we address a petition for rulemaking[^1] filed by
    Mark Miller (Miller), requesting amendment of the Commission's
    Amateur Radio Service rules to revise the operating privileges for
    amateur radio service stations that transmit data emission types.
    Specifically, the Petition requests that Sections 97.3, 97.221,
    97.305, and 97.307 of the Commission's Rules[^2] be amended to
    revise various definitions and frequency privileges. Based upon the
    record before us, we deny the Petition.

# BACKGROUND

2.  On March 27, 2007, Miller requested that the Commission amend
    various rules that relate to use of amateur service spectrum by
    stations transmitting data and other narrow bandwidth emissions.
    Specifically, the petition requests that the Commission (1) amend
    the definition of data in Section 97.3(c)(2) to delete language
    added in the Commission's 2006 *Omnibus Report and Order*,[^3] (2)
    amend Section 97.221 to limit the subbands on which unattended
    operation of automatically controlled digital stations is permitted,
    and (3) amend Sections 97.305 and 97.307 to establish maximum
    necessary bandwidths for radioteletype (RTTY)[^4] and data emissions
    in the amateur high frequency (HF) bands.

3.  As Miller notes, adoption of these proposed changes would result in
    "a small number of wider bandwidth modes," including Pactor III, not
    being authorized.[^5] In support of these requests, the petition
    states that "\[e\]missions have crept into the narrowband RTTY/Data
    subbands in the 80 through 10-meter bands that are not appropriate
    for the RTTY/Data subbands," and that "\[s\]tations under automatic
    control have taken advantage of loopholes created by terminology in
    the commission's rules."[^6] We received over 650 comments and reply
    comments, most of which oppose the petition.[^7]

# DISCUSSION 

## Definition of data

4.  In the 2006 *Omnibus Report and Order*, the Commission revised the
    definition of data to include certain image emission types, in order
    to permit amateur stations to transmit both image and data emission
    types in the same frequency segments.[^8] The Commission proposed
    this change in response to a rulemaking petition filed by Miller in
    2003.[^9] The Commission agreed with commenters, including
    Miller,[^10] who argued that permitting images to be transmitted on
    data emission frequency segments would allow amateur radio to make
    the most of new software programs, thereby advancing amateur radio
    technology, which would be consistent with one of the purposes of
    amateur service, namely, to contribute to the advancement of the
    radio art.[^11]

5.  In his 2007 Petition, Miller argues that Section 97.3(c)(2) should
    be amended to return to the pre-2006 definition of data because "the
    necessary tests have not been performed to ensure that this mixing
    \[of data and image emissions\] will not cause interference because
    of an increase in traffic" on certain bands by upgraded licensees
    after the elimination of telegraphy proficiency as an examination
    requirement in the 2006 *No Code Report and Order*.[^12] This
    assertion conflicts with the Commission's conclusion in the *Omnibus
    Report and Order* and the record in that proceeding,[^13] and
    Miller's assertion in his 2003 Petition,[^14] that permitting
    amateur stations to transmit both image and data emission types in
    the same frequency segments would not result in interference.
    Nothing in the present record indicates that increased activity by
    upgraded licensees, or any other changed circumstance, provides a
    basis for revisiting the Commission's 2006 conclusion. We disagree
    with Miller's unsupported assertion that the elimination of
    telegraphy proficiency as an examination requirement for operator
    licensees that may use these bands to transmit both image and data
    emission types in the same frequency segments requires corresponding
    action to restrict permissible emission types. Rather, we believe
    that some upgraded licensees will choose to engage in these types of
    communications, but others will select different operating
    activities. Moreover, rescinding the 2006 amendment would conflict
    with the Commission's conclusion that permitting amateur stations to
    transmit both image and data emission types in the same frequency
    segments would contribute to the advancement of the radio art. For
    these reasons, we conclude that Miller has not set forth sufficient
    reasons for the Commission to propose to delete the 2006 addition to
    the definition of data. Should future experience substantiate
    Miller's concerns, he may file a new, factually supported petition
    for rulemaking.

## Automatically controlled digital stations

6.  Section 97.221 permits automatic control[^15] of amateur stations
    transmitting a RTTY or data emission on very high frequency (VHF)
    and higher amateur bands; on nine specific HF subbands[^16]; and on
    any other amateur frequency authorized for RTTY or data
    emissions[^17] if the station is responding to interrogation by a
    station under local or remote control and no transmission from the
    automatically controlled station occupies a bandwidth of more than
    500 hertz.[^18] In the Petition, Miller proposes that Section 97.221
    be amended to permit automatically controlled digital stations to
    transmit only on VHF and higher amateur bands and the nine specific
    HF subbands.[^19] He states that automatically controlled digital
    stations utilize bandwidth modes that are incompatible with the
    amateur service because such stations do not analyze the propagation
    conditions and amount of traffic in the spectrum.[^20] He argues
    that such modulation modes should not be permitted because other
    modes offer greater spectral efficiency while occupying less
    bandwidth.[^21] He also contends that interference from
    automatically controlled digital stations will increase in the wake
    of the *No Code Report and Order*, as upgraded licensees receive new
    HF privileges.[^22]

7.  Based on our review of the petition, we are not persuaded that
    Miller has set forth sufficient reasons for the Commission to
    propose to amend the rules to prohibit automatically controlled
    stations from transmitting on frequency segments other than those
    specified in Section 97.221(b). As an initial matter, we again
    reject as speculative Miller's contention that upgraded licensees'
    HF operations will result in increased interference from
    automatically controlled digital stations. As noted above, it is not
    currently clear which operating activities will be chosen by these
    licensees or whether they will impact other amateur stations.

8.  In addition, we are not persuaded that automatically controlled
    stations transmitting in response to interrogation by a station
    under local or remote control will cause increased interference to
    other stations in the HF RTTY/data bands outside the nine subbands.
    We note that such transmissions are limited to a maximum bandwidth
    of 500 hertz,[^23] which is less than the limit Miller proposes for
    the RTTY/data subbands.[^24] We believe, therefore, that
    transmissions by an automatically controlled station on a frequency
    outside the subbands specified in Section 97.221(b) will cause no
    more interference to other amateur station\'s transmissions than
    transmissions by other amateur stations on these frequencies.

9.  We also note that when the Commission has previously addressed the
    issue of interference between amateur stations engaging in different
    operating activities, it has declined to revise the rules to prevent
    one emission type from being transmitted in a frequency band on the
    basis that it may interfere with the operating activities of other
    amateur service licensees.[^25] Rather, the Commission noted that
    interference between amateur stations is already addressed by
    Section 97.101(b) and (d), which require amateur licensees to
    cooperate in selecting transmitting channels and in making the most
    effective use of amateur frequencies, provide that no amateur
    frequency will be assigned for the exclusive use of any station
    allocated to the Amateur Radio Service, and prohibit operators from
    willfully or maliciously interfering with or causing interference to
    any radio communication or signal.[^26] In the absence of a showing
    that Section 97.101 no longer serves its purpose, we believe that
    cooperation between licensees and compliance with Section 97.101 is
    sufficient to minimize interference.

## Bandwidth limitations

10. Our rules do not specifically limit the permissible bandwidth for
    RTTY and data emissions in the amateur HF bands. Instead, Section
    97.307(f) limits specified RTTY or data emissions to a symbol rate
    not to exceed 300 bauds (in the 80 to 12 meter bands) or 1200 bauds
    (in the 10 meter band); or for frequency-shift keying (FSK), to a
    maximum frequency shift of 1 kilohertz between mark and space.[^27]
    In the Petition, Miller proposes that these limits be replaced with
    a maximum necessary bandwidth of 1.5 kilohertz (in the 80 to 12
    meter bands) or 2.4 kilohertz (in the 10 meter band).[^28] He notes
    that the current limitations were developed before phase-shift
    keying (PSK)[^29] emissions generated by digital signal processors,
    such as personal computer sound cards, became available to amateur
    radio operators.[^30] Miller contends that the current rules "no
    longer provide the separation of certain inharmonious emission types
    to different segments of the frequency band."[^31]

11. We are not persuaded that the petitioner has presented sufficient
    reason to justify the requested amendment. The present rules allow
    amateur stations to transmit PSK data emissions subject to the
    conditions that the station transmission shall occupy no more
    bandwidth than necessary for the information rate and emission type
    being transmitted,[^32] and that emissions resulting from modulation
    must be confined to the band or segment available to the control
    operator.[^33] We believe that these rules provide amateur service
    licensees the flexibility to develop new technologies within the
    spectrum authorized for the various classes of licensees, while
    protecting other users of the spectrum from harmful interference. We
    also believe that imposing a maximum bandwidth limitation on data
    emissions would result in a loss of flexibility to develop and
    improve technologies as licensees' operating interests change, new
    technologies are incorporated, and frequency bands are reallocated.
    Additionally, we believe that amending the amateur service rules to
    limit the ability of amateur stations to experiment with various
    communications technologies or otherwise impeding their ability to
    advance the radio art would be inconsistent with the definition and
    purpose of the amateur service. Moreover, we do not believe that
    changing the rules to prohibit a communications technology currently
    in use is in the public interest.[^34]

# CONCLUSION AND Ordering clauses

12. Based on the record before us, we conclude that Miller has not set
    forth sufficient reasons for the Commission to propose to delete the
    2006 addition to the definition of data, amend the rules to prohibit
    automatically controlled stations from transmitting on frequency
    segments other than those specified in Section 97.221(b), or replace
    the symbol rate limits in Section 97.307(f) with bandwidth
    limitations. Consequently, we deny the Petition.

13. IT IS ORDERED that, pursuant to Section 1.407 of the Commission\'s
    Rules, 47 C.F.R. § 1.407, the Petition for Rule Making submitted by
    Mark Miller on March 27, 2007, RM-11392, IS DENIED.

14. 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
>
> Scot Stone
>
> Deputy Chief, Mobility Division
>
> Wireless Telecommunications Bureau

[^1]: *See* RM-11392, Mark Miller, Petition for Rule Making (filed Mar.
    27, 2007) (Petition).

[^2]: 47 C.F.R. §§ 97.3, 97.221, 97.305, 97.307. While Section 97.309,
    47 C.F.R. § 97.309, is listed in its caption, the petition does not
    propose any changes to that section.

[^3]: *See* Amendment of Part 97 of the Commission's Rules Governing the
    Amateur Radio Services, WT Docket No. 04-140, *Report and Order,* 21
    FCC Rcd 11643 (2006) (*Omnibus Report and Order*).

[^4]: RTTY is defined as narrow-band direct-printing telegraphy with
    specific emission designators. *See* 47 C.F.R. § 97.3(c)(7).

[^5]: *See* Petition at 13.

[^6]: *Id.* at 2.

[^7]: The petition was first placed on public notice on August 22, 2007.
    *See* *Public Notice*, Report No. 2828 (rel. Aug. 22, 2007). No
    comments were received. That public notice contained an erroneous
    note indicating that the petition was part of a different
    proceeding. Consequently, a corrected public notice was released on
    December 18, 2007. *See* *Public Notice*, Report No. 2828-Correction
    (rel. Dec. 18, 2007). We note that most of the comments in the
    docket appear to have been generated via a third-party website that
    enabled interested parties to select from pre-packaged statements
    opposing the petition, *see* http://www.activeham.com/hamaction/,
    and that the comments were not served on the petitioner as required
    by our Rules. *See* 47 C.F.R. § 1.405(a). We have taken this into
    account in determining how much weight to afford these comments.

[^8]: *See Omnibus Report and Order*, 21 FCC Rcd at 11654 ¶¶ 15-18.
    Specifically, the Commission added the italicized language to
    Section 97.3(c)(2): "Data. Telemetry, telecommand and computer
    communications emissions having *(i)* designators with A, C, D, F,
    G, H, J or R as the first symbol, 1 as the second symbol, and D as
    the third symbol; *(ii)* emission type J2D; *and (iii) emissions
    A1C, F1C, F2C, J2C, and J3C having an occupied bandwidth of 500 Hz
    or less when transmitted on an amateur service frequency below 30
    MHz.* Only a digital code of a type specifically authorized in this
    part may be transmitted." *See Erratum*, 21 FCC Rcd 13763, 13764
    (WTB MD 2006).

[^9]: *See* Amendment of Part 97 of the Commission's Rules Governing the
    Amateur Radio Services, WT Docket No. 04-140, *Notice of Proposed
    Rulemaking and Order*, 19 FCC Rcd 7293, 7301-03 ¶¶ 15-16 (2004)
    (citing Mark Miller Petition For Rule Making at 1 (filed Feb. 25,
    2003) (2003 Petition)).

[^10]: *See Omnibus Report and Order*, 21 FCC Rcd at 11655 ¶¶ 18-19.

[^11]: *Id.* at 11651-52 ¶¶ 15, 17.

[^12]: *See* Petition at 5; *see also id.* at 2 (arguing that "the
    expected surge in operators authorized to operate in the High
    Frequency (HF) bands due to the changes outlined in FCC 06-178
    require\[s\] us to look again at the current division between wide
    bandwidth and narrow bandwidth emissions to reduce interference
    among stations using narrow bandwidth communications, thereby
    benefiting all licensees") (citing Amendment of Part 97 of the
    Commission\'s Rules to Implement WRC-03 Regulations Applicable to
    Requirements for Operator Licenses in the Amateur Radio Service, WT
    Docket No. 05-235, *Report and Order and Order on Reconsideration,*
    21 FCC Rcd 14797 (2006) (*No Code Report and Order*)).

[^13]: *See Omnibus Report and Order*, 21 FCC Rcd at 11655 ¶ 18 ("We
    also note that no commenter has claimed that any interference occurs
    between these different types of emissions and that many commenters
    support allowing narrow bandwidth analog image emissions in digital
    frequency segments.").

[^14]: *See* 2003 Petition at 2 (stating that such emissions coexist
    "without harmful interference and without complaint to the FCC").

[^15]: Automatic control requires that the station licensee use devices
    and procedures for control when the station is transmitting so that
    compliance with the FCC Rules is achieved without the control
    operator being present at a control point. *See* 47 C.F.R. §
    97.3(a)(6). Only stations specifically designated in Part 97 may be
    automatically controlled. *See* 47 C.F.R. § 97.109(d).

[^16]: *See* 47 C.F.R. § 97.221(b). Specifically, 28.120-28.189 MHz,
    24.925-24.930 MHz, 21.090-21.100 MHz, 18.105-18.110 MHz,
    14.0950-14.0995 MHz, 14.1005-14.112 MHz, 10.140-10.150 MHz,
    7.100-7.105 MHz, and 3.620-3.635 MHz.

[^17]: *See* 47 C.F.R. § 97.305(c).

[^18]: *See* 47 C.F.R. § 97.221(c).

[^19]: *See* Petition at 2, 12-13.

[^20]: *Id.* at 13-14.

[^21]: *Id.* at 15-18.

[^22]: *Id.* at 12.

[^23]: *See* 47 C.F.R. § 97.221(c)(2).

[^24]: *See* Petition at 2-3, 10-11; *see also infra*, paras. 10-11.

[^25]: *See* Amendment of the Amateur Service Rules to Provide For
    Greater Use of Spread Spectrum Communication Technologies, WT Docket
    No. 97-12, *Report and Order*, 15 FCC Rcd 1481, 1491 ¶ 25 (1999).

[^26]: *Id.* (citing 47 C.F.R. § 97.101(b), (d)).

[^27]: *See* 47 C.F.R. § 97.307(f)(3), (4). FSK is a form of frequency
    modulation in which the modulating signal shifts the output
    frequency between predetermined values. Commonly, the instantaneous
    frequency is shifted between two discrete values termed the "mark"
    and "space" frequencies. *See* Amendment of the Commission's Rules
    to Provide for Operation of Unlicensed NII Devices in the 5 GHz
    Frequency Range, ET Docket No. 96-102, *Memorandum Opinion and
    Order*, 13 FCC Rcd 14355, 14376 n.68 (1998).

[^28]: *See* Petition at 10.

[^29]: PSK is a digital modulation scheme that conveys information by
    changing, or modulating, the phase of the reference carrier wave.
    *See* Annual Report and Analysis of Competitive Market Conditions
    with Respect to Domestic and International Satellite Communications
    Services, IB Docket No. 06-67, *First Report*, 22 FCC Rcd 5954, 5997
    n.202 (2007).

[^30]: Petition at 8.

[^31]: *Id.* at 8-9.

[^32]: *See* 47 C.F.R. § 97.307(a).

[^33]: *See* 47 C.F.R. § 97.307(b).

[^34]: *See* Amendment of the Amateur Service Rules to Provide for
    Greater Use of Spread Spectrum Communication Technologies, *Notice
    of Proposed Rule Making,* WT Docket No. 97-12, 12 FCC Rcd 2591, 2595
    ¶ 8 (1997).