From: pschleck@cwis.unomaha.edu (Paul W Schleck KD3FU)
Subject: Draft Comments on Docket 92-136
Organization: University of Nebraska at Omaha
Date: Tue, 15 Sep 1992 02:56:19 GMT

I'll probably be mailing this in a few days.  Just want to make sure I
haven't completely missed the point.  I ran the document through the spelling
and grammer checks on Word for Mac (which gave it a *17th* grade reading
level, sheesh!), but there might still be some grammar and factual
errors.

Feel free to borrow the ideas, but please express them in your own
words.  Nothing turns off government officials more than form-letter
lobbying.  Comments and criticisms welcome.



                            Before the 
                Federal Communications Commission
                      Washington, DC  20554

                                        PR Docket No. 92-136

In the Matter of

Amendment of Part 97 of the                          RM-7849
Commission's Rules to Relax                          RM-7895
Restrictions on the Scope of                         RM-7896
Permissible Communications
in the Amateur Service.

To: The Commission

                COMMENTS OF PAUL W. SCHLECK, KD3FU

                             Summary

There are clearly several flaws to the current wording of Part 
97.113 of the Commission's Rules.  Although made in response to 
public inquiry, and with the best of intentions, strict 
interpretations of these rules over the years have been extremely 
detrimental to the Amateur Service.  Instead of encouraging 
technical experimentation by protecting the Amateur Service from 
commercial exploitation, they have had the unintended effect of 
stifling many constructive uses of the amateur bands and 
corresponding advancement of the state-of-the art in 
communications.

In these comments, I advocate a more simply worded test of whether 
a given amateur communication is to the detriment of the Service 
or not.  This test would essentially be whether the operator 
him/herself received compensation for the communication.  In 
addition to advocating this simpler rule, I also advocate the 
explicit recognition of the Amateur Service as both an 
experimental and personal communications service, a more 
permissive policy towards the transmission of incidental or 
background music under certain circumstances, the compensation 
exception for instructors engaged in the teaching of a class, and 
the occasional rebroadcast of governmental radio services such as 
time and weather.

No Direct Operator Compensation is the Optimal Legal Test

Indeed, in the footnotes of Docket 92-136 (note #7), the 
Commission references the position of the American Radio Relay 
League (henceforth referred to as "the League"), which advocates 
(among other things) that the question of compensation to the 
control operator him/herself, rather than the potential benefit of 
incidental third parties, be the overriding issue.  This legal 
test makes sense as amateur radio operators are the best judge of 
what is appropriate communications, as demonstrated from our long 
and proud tradition of self-enforcement.  Economics dictate that 
no amateur radio operator is going to allow the Service to be 
commercially exploited with no compensation to him/herself.  In 
addition, there is no incentive for an unscrupulous person to get 
an amateur license and exploit the Service as "there is no money 
in it." 

I would advocate this as the most important (and sole) test of the 
appropriateness of communication that may be suspected as having 
commercial content.  The Commission's proposed revision of Part 
97.113 includes a test of whether such communications constitute 
"regular use" which is hopelessly vague, and under the right 
interpretation, might turn out to be even more restrictive than 
the previous rules it claims to "relax."  An individual interested 
in personal communications has a wide array of choices, including 
cellular telephone, Citizen's Band Radio, business-band radio, and 
the Amateur Service.  The proposed exception might very well make 
illegal all uses of the Amateur Service that could conceivably be 
undertaken in the other alternatives.  Although the rumored 
reference of "excess capacity" mistakenly attributed to 
Commissioner Sikes would clearly be a poor choice of words, there 
is certainly some capacity for incidental communications that would 
be technically illegal under the present rules, but would not 
change the basic character of the Amateur Service.

Indeed, I would argue that the presence of the other services 
almost guarantees that the majority of individuals interested in 
personal communications that may potentially violate the letter 
(as well as the intent) of Part 97.113, would choose the 
alternative services instead of the Amateur Service (after all, 
the others have minimal or non-existent licensing and fewer 
restrictions).

The Amateur Service is Both an Experimental and Personal 
Communications Service

At the heart of these usage debates is the basic question of 
whether the Amateur Service is an experimental service, or a 
personal communications service.  Clearly the character of the 
service that has evolved over the years indicates that it is both.  
The use of the Amateur Service for pure experimentation (such as 
amateur satellites, packet networks, and repeaters) is inseparably 
coupled with the use of the Amateur Service for personal 
communications (communications with other countries through the 
AMSAT constellation of amateur satellites, use of the packet 
networks for the relay of bulletins and electronic mail, and the 
use of VHF repeaters for public service events support).  The 
personal communications drives the experimentation and the 
experimentation drives the personal use.  Historically, the 
experimentation has always stayed "1 or 2 bands" above the 
personal communications use, even back in the days when state-of-
the-art referred to radio bands of wavelengths 200 meters and 
shorter (just above the present-day AM broadcast band).

As mentioned above, the crucial legal test to maintain this 
synergy between the two interests is the compensation (or lack 
thereof) to the control operator.  For this reason, I would not 
advocate allowing incidental personal business on the amateur 
bands as that would clearly upset this delicate balance and 
change the character of the Amateur Service.

Transmission of Incidental Music under Certain Restrictions Should 
Be Permitted

When the no-music provision of the Commission's Rules was 
established in the early part of this century, it was to clearly 
delineate between the purpose of the broadcast services and 
communication services such as the Amateur Service.  This absolute 
and restrictive ruling does not take into account many permissible 
uses of the Amateur Service today.  In the case of telephone 
patching from VHF repeaters, a control operator may encounter 
"hold music" while making a phone call.  No one is going to sit 
down in their easy chair in the evening and tune in an amateur 
repeater to be entertained by "hold music."  This is clearly not 
the use of the Amateur Service for communications outside its 
scope.  In fact, a well-meaning repeater control operator 
(distinct from the control operator of the non-repeater station 
mentioned above) may shut down the patch, obstructing otherwise 
appropriate use of the amateur band and upsetting the delicate 
balance between experimentation and personal communications.

In the case of the authorized amateur rebroadcast of "NASA 
Select" audio and video of Space Shuttle missions, the presence 
of incidental background music makes some rebroadcasts illegal.  
Clearly this is an overly restrictive interpretation.  Such music 
is incidental to the transmission and does not provide 
entertainment value.  Such a restriction also upsets the delicate 
balance between experimentation and personal communications (as 
it would prevent such worthwhile endeavors in the future, due to 
the legal risks to the control operator). 

I would advocate allowing the presence of music, where such music 
is clearly incidental to the communication and results from the 
permitted rebroadcast of other services (such as NASA Select, NOAA 
Weather, and Department of Commerce Time broadcasts) and common 
carriers (such as the telphone service).  If the Commission is 
conerned with the impact of such a provision on international 
treaty, such incidental music could be restricted to 50 Mhz and 
above (as is the case with the use of experimental communications 
protocols and the automated relay of third-part traffic).

An Exception for the Compensation of Instructors Conducting 
Classes is Worthwhile

As in any educational endeavor, students can best learn with a 
combination of theoretical instruction, and concrete example.  
Removing the restriction on amateur transmissions due to the fact 
that an instructor happens to be compensated in some way for 
his/her work is an idea whose time has come.  Not only would this 
have the benefit of allowing many desirable educational 
techniques used in the instruction of students, it does not 
conceivably bring with it any undesirable uses of the amateur 
service (as the instructor would otherwise be bound by the other 
rules on prohibited transmissions). 

The Impact on Amateur Packet and Digital Networks Would be 
Favorable

Since amateur digital networks using ASCII (henceforth referred to 
as "packet radio") do not have common-carrier protections, the 
control-operator of a packet-radio station could conceivably be 
held responsible for any communications passing through his 
station that may directly or indirectly benefit any third party.  
This is clearly an excessive restriction, and precludes many types 
of useful experimentation in packet radio.  Recently (early 1991), 
the Commission was forced to act on a bulletin relayed via packet 
radio concerning a 1-900 number in support of a political cause 
(the so called "Desert Storm" bulletin).  Several packet-radio 
operators were issued Notices of Apparent Liability for 
contributing to the transmission of this bulletin, which violated 
the current no-business provisions of Part 97.113.

It is unfortunate that this matter was reported to the Commission 
for two reasons.  One is the the Amateur Service had already 
demonstrated its ability to police itself and insure that the 
Service was used only for constructive, non-exploitative uses (by 
cancelling the message and sending electronic mail to the 
originator).  The Commission was also forced to take action that 
it probably would have liked to avoid, due to the legal 
implications and detrimental impact to amateur experimentation.
Currently, there is much hesitation in the amateur community to 
undertake more amibitions technical experimentation in packet 
radio due to the legal risks involved.  Again, the delicate 
balance is upset.

Had my proposed legal test been in place at the time, the 
Commission would not have had to take such drastic action, and the 
Amateur Service would have used its discretion in preventing 
itself from being exploited by commercial interests.

Policy Statements of the American Radio Relay League Should Not Be 
Taken as Necessarily Reflecting the Public Interest

I wish to emphasize that I have the greatest respect for the 
League.  No other organization representing the Amateur Service 
can provide the kind of information gathering, consensus building, 
and lobbying the Commission for issues of importance to the 
Service than it has done over the years.  Their efforts in 
encouraging the Commission to publish this Notice of Proposed 
Rulemaking is testimony to this.

However, being a representational democratic organization, it must 
by necessity engineer political compromises when it comes to 
statements of organizational policy.  Although the League can be 
assumed to have great expertise in matters of the Amateur Service, 
the positions it advocates have the unavoidable presence of 
official viewpoints that are dissonant combinations of many, 
sometimes contradictory, views.  If there is a place for 
consensus-building and presenting policy that is truly in the 
public interest, it is at the level of the Commission and the 
federal rulemaking process.

                           Conclusions

For the many reasons I have provided, I advocate that the 
Commission go further than the League and adopt my proposed "no 
operator compensation" test as the sole test of whether a given 
communication consitutes prohibited commercial use of the Amateur 
Service (with the exceptions that are already present in Part 97, 
to avoid inadvertantly making the Commission's rules more 
restrictive, which is not the purpose of this Notice of Proposed 
Rulemaking). To do otherwise requires the addition of "regular 
use" provisions in the rules that are hopelessly vague and subject 
to endless interpretation, possibly more restrictive than the 
present rules.  I advocate permitting the broadcast of incidental 
music under the restrictions I have enumerated above.  I also 
support the remaining provisions of the Commission's Notice with 
respect to the instructor exception and certain, incidental 
rebroadcasts of government radio services.  The overriding test of 
any Commission rulemaking is whether it preserves the delicate
balance between experimentation and personal communications that 
has preserved the basic character of the Amateur Service for almost 
a century.

Respectfully Submittted,




PAUL W. SCHLECK, KD3FU


From: Erik@tdkt.kksys.com (Erik Jacobson)
Sender: FredGate@tdkt.kksys.com