From: karn@qualcom.qualcomm.com (Phil Karn)
Subject: My comments on Docket 92-136
Reply-To: karn@chicago.qualcomm.com
Organization: Qualcomm, Inc
Date: Fri, 2 Oct 1992 01:22:04 GMT








                        Before the
             Federal Communications Commission
                  Washington, D. C. 20554



In the matter of                   )
                                   )
Amendment of Part 97 of the        )        PR Docket 92-136
Commission's Rules to Relax        )
Restrictions on the Scope of       )
Permissible Communications         )
in the Amateur Service             )



To: The Commission


           COMMENTS OF PHILIP R. KARN, JR., KA9Q



_1.  _I_n_t_r_o_d_u_c_t_i_o_n _a_n_d _B_a_c_k_g_r_o_u_n_d

     I most heartily applaud the Commission's move to  relax
the existing rules regarding prohibited transmissions in the
Amateur Radio Service.  My only concern is that the proposed
changes do not go nearly far enough.

     Before the _E_y_e_b_a_n_k docket in the early 1970s,  the  FCC
rules  regarding  the  "business  use" of amateur radio were
very simple: an amateur could not sell radio  communications
services.  Period.   Indeed, this is the very essence of the
word "amateur", which Webster's New World Dictionary defines
as  "a  person who engages in some art, science, sport, etc.
for the pleasure of it rather than for money;  a  nonprofes-
sional;  specifically  an athlete who is variously forbidden
by rule to profit from athletic activity." Other parties may
make  money  off the Olympics, for example, but the athletes
themselves are still (nominally) amateurs.

     Despite the lack of a clear  and  demonstrated  threat,
the  Commission drastically expanded the prohibitions on the
Amateur  Service  with  the  _E_y_e_b_a_n_k  docket.  This   action
occurred  in  a very different era.  It came just before the
start of the digital revolution that put powerful  new  com-
puting and communications technologies into the hands of the
average person, including the average radio amateur. It  was
a time when AT&T jealously guarded its monopoly on long dis-
tance telephone service against even the tiniest  threat  of
"competition",  including,  perhaps,  the Amateur Radio Ser-
vice. AT&T even demanded the right to prohibit (or at  least
heavily  restrict)  the  interconnection of its network with



                      October 1, 1992





                           - 2 -


customer-provided terminal or communications equipment.

     These moves eventually earned AT&T  an  antitrust  suit
that resulted in the breakup of the Bell System, the transi-
tion to open competition  in  long  distance  telecommunica-
tions,  and a complete overhaul (which is still underway) of
US telecommunications policy to promote even  more  competi-
tion,  e.g., in local telephone service.  The FCC now recog-
nizes that it is not tasked with protecting AT&T's revenues.

     Yet despite the radical change in overall  US  telecom-
munications  policy  since the early 1970s, the prohibitions
of the _E_y_e_b_a_n_k docket  on  the  Amateur  Service  remain  in
effect.  Along  with  the  recently removed requirement that
every prospective amateur pass a code test,  these  restric-
tions severely stunted the Amateur Service at a time when it
should have experienced dramatic, healthy  growth,  particu-
larly in its capability to provide public service communica-
tions.

     There seem to be few limits on  how  broadly  97.113(a)
can  be interpreted. Indeed, "armchair lawyering" has become
almost a cottage industry among hams. At times it seems that
discussing  the meaning of 97.113(a) is the only permissible
use of amateur radio![1]

     The current restrictions also lend themselves to selec-
tive,   politically   motivated  enforcement,  such  as  the
infamous citation of packet station operators  for  carrying
an  anti-Gulf-War  "900  number" message in early 1991. That
this action was indeed politically motivated is hard to deny
when one considers that no amateur was ever cited for carry-
ing health and welfare traffic on behalf of the US  military
at  the  same  time,  even though this could be construed as
assisting the US military with its regular business affairs.
Such selective enforcement of a rule to stifle speech criti-
cal of the Government strikes at  the  heart  of  our  First
Amendment guarantees and can never be tolerated.

_2.  _D_i_s_c_u_s_s_i_o_n

     Restrictions on the permissible use  of  Amateur  Radio
should  be  kept to the absolute minimum required to further
the basis and purpose of the service. In other  words,  each
_________________________
9  [1] Earlier this year I wrote and distributed  satire
ostensibly  claiming  that amateur radio operation with
commercially   manufactured    transceivers    violated
97.113(a)  because it promoted the regular business af-
fairs of the transceiver  manufacturer,  and  operation
with  commercial  power also violated 97.113(a) because
it promoted the regular business affairs of  the  elec-
tric utility. Several people took me seriously.
9


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                           - 3 -


and  every  prohibition   must   continually   justify   its
existence.   Not only is this philosophy in harmony with the
(theoretical) traditions of American government, but it also
maximizes  the return to the public from the spectrum it has
invested in the Amateur Service. I would like to analyze the
proposed  new  regulations  in this light, and suggest addi-
tional relaxations that would not threaten the character  of
the Amateur Service.

_2._1.  _9_7._1_1_3(_a)(_1)

     This proposed section is sound. Indeed it is  the  _o_n_l_y
rule  that  is really needed to protect the Amateur Service.
Although it will not completely  prevent  every  conceivable
abuse,  additional restrictions are unnecessary because this
simple rule ensures that any abuses that will occur will  be
self  limiting.  This is true because of a universal charac-
teristic of human nature: no one wants to volunteer  his  or
her  time  and the use of his or her property solely to make
money for someone else without getting _s_o_m_e_t_h_i_n_g in  return.
And  to  the  extent  that  an  amateur gets a non-pecuniary
return for providing communication services to others (e.g.,
access  to  communication  links  provided  by  others  in a
cooperative network, or the sense of satisfaction that comes
from  providing a public service) he will be contributing to
the basis and purpose of the Amateur Service, whether or not
some  other  party  happens  to benefit financially from the
arrangement.

     Although this would be a very liberal rule, there's one
common  practice  that  it  would (and should) prohibit: the
payment of a required membership fee for access to  "closed"
amateur  repeater  and  remote  base  systems.  Despite  the
widespread nature of this practice, it is tantamount to sel-
ling  amateur  communication  services,  which  is  directly
counter to the basic principles of the Amateur Service. This
is  _n_o_t  to  say  that  the operator of a repeater should be
forced to open his machine to anyone who wants to use it. It
only  says that he cannot establish a quid-pro-quo relation-
ship between the payment of a fee and access to  an  amateur
radio communication system.

_2._2.  _9_7._1_1_3(_a)(_2)

     The prohibition on "communications in which the station
licensee  or  control  operator  has  a  pecuniary interest,
including communications on behalf of an employer" is  vague
and  overly  broad. Because many amateurs (including myself)
have related professional and amateur interests,  this  rule
could  be  interpreted  as  prohibiting much valuable "cross
fertilization" that benefits both fields.

     For example, much technology originally  developed  and
tested  within  and  for  the  Amateur Service is eventually



                      October 1, 1992





                           - 4 -


commercialized. Examples include AMSAT's low-cost  satellite
technology,  TAPR's  packet  radio  developments, and my own
TCP/IP networking software package. In my opinion, this ful-
fills  the amateur mandate to advance the state of the radio
art, especially since the additional developments made  pos-
sible by the proceeds from commercialization are made freely
available to amateurs. But, strictly speaking, doesn't  this
practice  violate  the letter of the "no pecuniary interest"
prohibition?  Given the history of the existing  regulation,
I  would not be surprised to one day find amateurs seriously
arguing that it does, regardless of any benefits to the Ama-
teur Service.

     A related problem with this rule is the fact that  many
amateurs  like  to  "talk  shop"  over  the air, not because
they're paid to do so, but because they have technical  jobs
that  they enjoy talking about.  Significant "cross fertili-
zation" often  results  that  benefits  both  the  amateur's
employer and the Amateur Service.[2] Wouldn't this also be a
technical violation of the rules?

     Although I don't argue with the motivation behind  this
rule  (no one wants to see the ham bands taken over by taxi-
cab dispatchers) I am unable to propose  alternate  language
that  would  ban only those "employer-benefiting" communica-
tions that clearly harm amateur radio.  Unless  the  Commis-
sion  can  do  so, I suggest removing this prohibition alto-
gether and relying entirely on the first rule (no communica-
tions for hire) to limit abuses.

_2._3.  _9_7._1_1_3(_a)(_3)

     The ban on "music" is completely unnecessary. As stated
in  the petitions for rule making, this rule has caused many
amateurs to believe it prohibits even the  incidental  back-
ground  music  one might hear during an autopatch call or in
"wakeup calls" during Space Shuttle missions.

     It has also engendered debates over  whether  transfer-
ring  MIDI[3]  format  computer files is legal. The League's
position, as stated in _T_h_e _F_C_C _R_u_l_e _B_o_o_k, is that it is. But
the  basis  for this interpretation is not at all clear. Why
should digital bits representing  the  notes  of  a  musical
score   be  legal  on  the  ham  bands  while  digital  bits
representing the output of a synthesizer fed the  very  same
MIDI  score  be illegal? Admittedly the MIDI score is a much
more compact representation of the same information, but  if
efficiency were a consideration, one could justify outlawing
_________________________
9  [2] One of the founders of my present employer (a ra-
dio  communications  R&D  company) is an amateur who is
fond of saying that  "anything  you  do  in  ham  radio
you'll probably use at work within 6 months".
9


                      October 1, 1992





                           - 5 -


many other amateur practices...

     The fact of the matter is that there is  no  real  need
for  a  music  prohibition.  Most musical recordings that an
amateur would want to deliberately transmit are protected by
copyright  anyway. And given the prohibition against accept-
ing payment for amateur communication services rendered,  it
seems  unlikely that the average amateur would be willing to
pay copyright license fees out of his own pocket.

     As a strong believer in the First Amendment, I am  also
troubled  by some of the other prohibitions on this section.
Prohibitions on "obscene,  indecent,  or  profane  words  or
language" (whatever they are) are ill-defined and vague, and
in my opinion should be unconstitutional.  This  is  not  to
say  that  I  defend or encourage obscenity, only that it is
futile and counterproductive for the government  to  attempt
to  legislate  common  courtesy and manners. Nevertheless, I
know that this is a minority position  in  our  increasingly
moralistic  and intolerant society, so I would argue against
these restrictions from a more practical standpoint --  that
they  inhibit the development of automatic store-and-forward
data networks.  Intermediate stations in these networks  are
unable  to  automatically screen the traffic they carry, and
holding the operators of  these  stations  responsible  only
serves  to  discourage the development of these networks. If
the Commission sees fit to retain these  prohibitions,  they
should  be  applied only to the originator of the communica-
tions. One way this might be accomplished is to  insert  the
word "knowingly", as in "no amateur operator shall _k_n_o_w_i_n_g_l_y
transmit obscene, indecent or profane words or language..."

     I am also moderately opposed to continuing the restric-
tion  on  codes  and  ciphers.  The practical application of
codes  and  ciphers  to  real  communications   systems   is
presently  the  subject  of  much  research, development and
experimentation in the communications industry.   Permitting
amateurs  to use them would allow us to participate in these
efforts. I understand that codes and ciphers could  be  used
to conceal evidence of improper use of amateur radio, but if
the only rule is that one cannot sell amateur communications
for  hire,  it is not clear that one would be able to deter-
mine this solely from the content of a communication anyway.
Removing  this  prohibition would also eliminate a precedent
that may soon be used to help justify  draconian  government
restrictions  on the private use of cryptography over common
carrier facilities.

9_________________________
9  [3] Musical Instrument Digital Interface. Such  files
essentially encode the score of a musical piece, as op-
posed to the actual sounds that a listener would hear.




                      October 1, 1992





                           - 6 -


     I presume that another reason for this prohibition  was
to  prevent the use of amateur radio for espionage purposes.
But there are  now  many  other  communication  alternatives
available to spies that are far more reliable and secure and
convenient than amateur radio, including the use of  encryp-
tion over ordinary telephone lines.

_2._4.  _9_7._1_1_3(_a)(_4)

     This section is also vague and overly broad and  should
be  deleted.  In particular, the phrase "on a regular basis"
will mean something different to everyone who reads  it.  As
many  others  will undoubtedly point out, almost any amateur
communication can in theory be handled by other  radio  ser-
vices. This is particularly true given new developments like
the cellular telephone.

_2._5.  _9_7._1_1_3(_b)

     I am not convinced of the need for a specific  prohibi-
tion  on  broadcasting since, again, I believe that a simple
prohibition against  providing  amateur  communications  for
hire  would  serve  to  limit any abuses. I would point out,
however, that there is no practical way to restrict  author-
ized  broadcasts  such as Space Shuttle mission audio to the
exclusive use of radio amateurs, and I  suspect  that  there
are  many  non-amateurs who listen to them. Given that there
are already enough amateurs  to  justify  these  broadcasts,
these  additional  passive  listeners in no way threaten the
nature of the Amateur Service. Indeed, they probably do much
to  make amateur radio visible to the public, something that
clearly benefits the service.

_2._6.  _9_7._1_1_3(_c,_d)

     These two  exceptions  to  the  prohibitions  would  be
unnecessary  if only the simple "no communications for hire"
rule were adopted. Since neither the  teacher  demonstrating
amateur  radio  or  the  W1AW operator running code practice
would be charging anyone for an actual  communications  ser-
vice,  irrespective  of whether they are being paid a salary
for their services as an operator  of  an  amateur  station,
their activities would be permissible.

_2._7.  _9_7._1_1_3(_e)

     This rule is also unnecessary, for the same reason that
the  music  prohibition is unnecessary. Many of the stations
that might be retransmitted emit either copyrighted material
(e.g.,  broadcast  stations) or are protected from intercep-
tion by the Electronic  Communications  Privacy  Act  (e.g.,
common  carrier  stations).  These other restrictions, along
with the ban on amateur communications  and  the  desire  to
avoid  spectrum  waste,  would  serve to limit abuses of the



                      October 1, 1992





                           - 7 -


ability to retransmit non-amateur signals.

_2._8.  _9_7._1_1_3(_f)

     The meaning of the phrase "automatically retransmit the
radio signals" has become deeply ambiguous with the develop-
ment of digital store-and-forward (packet)  radio  networks.
For  years  amateurs have argued over whether a "digipeater"
or packet switch is a repeater within  the  meaning  of  the
Commission's  rules.  This  is  an  important issue since it
determines the legality of operating  a  digipeater  outside
the repeater sub bands.

     I suggest that if the Commission retains this  restric-
tion  at  all,  it should adopt a more limited definition of
"repeater" as a station that automatically  retransmits  the
radio  signals  of  other  stations  _w_i_t_h_o_u_t  _b_e_i_n_g _u_n_i_q_u_e_l_y
_a_d_d_r_e_s_s_e_d _a_n_d _r_e_q_u_e_s_t_e_d  _t_o  _d_o  _s_o  _b_y  _t_h_e  _s_t_a_t_i_o_n  _b_e_i_n_g
_r_e_p_e_a_t_e_d.  Since  a  digipeater or packet switch retransmits
only those packets that contain its callsign or unique  net-
work address, unintentional repeating -- the original reason
for restricting repeaters to sub  bands  --  is  impossible.
Conventional carrier-operated repeaters would continue to be
restricted to the repeater sub  bands,  as  would  repeaters
with continuous sub-audible tone squelch access, since these
"PL" tones are not unique to each repeater.

     Note that whether the repeater carries analog voice  or
digital  data  would  be irrelevant; a digital repeater that
regenerates and retransmits  input  bits  without  examining
their content would be restricted to the repeater sub bands,
while a voice repeater that requires a unique  digital  code
for access would not be similarly restricted.

_3.  _S_u_m_m_a_r_y _a_n_d _C_o_n_c_l_u_s_i_o_n_s

     Again, I heartily applaud the Commission's proposal  to
relax  the  usage prohibitions on the Amateur Radio Service,
and I encourage it to go even further than what it has  pro-
posed. Significant relaxation is required if amateurs are to
further the state of the radio art  and  provide  meaningful
services  to  the public. Much, if not most, of the leading-
edge developments in communication  technology  now  involve
networks  of  stations that automatically relay digital com-
munications.  Not only do these computer controlled stations
significantly  enhance flexibility and reliability, but they
make much better use of our spectral resources. They let  us
use  low  power transmitters on higher frequency bands so we
can intelligently route information only where we want it to
go  instead  of  "flooding"  it  everywhere in a brute-force
fashion with high-powered, low frequency transmitters. If it
weren't  for the present regulations, we could transparently
interconnect amateur and non-amateur facilities  (e.g.,  the
Internet)  into  a  powerful  and flexible hybrid that would



                      October 1, 1992





                           - 8 -


substantially benefit _b_o_t_h amateurs and non-amateurs.[4]

     Yet the FCC rules,  mainly  those  having  to  do  with
prohibited  and  third-party communications, keep getting in
our way because there is simply no practical way  to  screen
communications  in  an  automatic station. Although some may
object that our networks are beginning to resemble those  of
common  carriers,  the term "common carrier" is a legal con-
cept, not a technical one. By definition, a  common  carrier
sells  its  services  to  anyone willing to pay, and this is
specifically prohibited by the existing rules and by the new
proposed  97.113(a)(1). Regardless of the technology we use,
amateur radio is _n_o_t a common carrier and it is in no danger
of  becoming one as long as communications for hire continue
to be prohibited.

     That a voluntary, cooperative communication network can
continue   to   function   effectively  in  the  absence  of
government-mandated restrictions on its use is  demonstrated
by  the  _U_S_E_N_E_T  and  _F_I_D_O_N_E_T computer networks.  USENET and
FIDONET are very similar in  functionality  to  the  amateur
packet  radio  bulletin  board networks, except that because
common carrier (dialup telephone, leased line)  transmission
facilities are used, the draconian "acceptable use" rules of
amateur radio do not apply. Even the Internet  continues  to
thrive  despite  its  evolution  into a mix of publicly- and
privately funded networks, with parts operated as commercial
service   offerings  and  others  continuing  as  non-profit
cooperative enterprises, some operated out  of  individuals'
pockets.  Yet all of these networks continue to thrive, with
the more egregious abuses limited  by  peer  pressure,  self
restraint  and  self  policing,  concepts  quite familiar to
radio amateurs.  (In particular,  USENET  and  FIDONET  have
strong  traditions  against commercial exploitation, largely
because the individual operators who foot the phone bills do
not  wish  to  support the money-making activities of others
unless there is some compensating benefit to the network  as
a whole.)

     I firmly believe that the same  mechanisms  would  con-
tinue to protect amateur radio if it were deregulated. If it
is not, then the potential of  amateur  radio  to  join  the
mainstream  of  the  personal communications revolution will
remain largely unrealized.

9_________________________
9  [4] Indeed, this radio/wire Internet  may  eventually
be  built, but under Part 15, not Part 97, because Part
15 has no content restrictions at all.  And  this  will
have been another lost opportunity for the Amateur Ser-
vice to fulfill its mandate to advance the art of  com-
munications and to serve the public.




                      October 1, 1992





                           - 9 -


Respectfully submitted,



Philip R. Karn, Jr., KA9Q




















































                      October 1, 1992