Quoting myself:
'Rather than embracing this commercial abuse of free spectrum, the League
should be scrambling to draft a Petition for Rulemaking to prohibit this
form of paid spectrum access - and that should include all "for profit" and
"not-for-profit" entities. What other countries do is their prerogative'
Taking a detailed look at Part 97, specifically,
97.113(a)(2):
"(a) No amateur station shall transmit: (2) Communications for hire or for
material compensation, direct or indirect, paid or promised, except as
otherwise provided in these rules;"
I see no exemption "as otherwise provided" for RHR's toll-based, income
model. Note that the rule is specific to the amateur station as defined
under 97.3(a)(5).
97.113(a)(3)
"(a) No amateur station shall transmit: (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 still don't see an exemption here for RHR's toll-based business. Here,
the entities affected by this subpart are the amateur station, station
licensee, and/or control operator.
That leaves open the possibility that RHR obtained a Declaratory Ruling
under 47 CFR 1.2(a). I have to believe that before they commenced with
accepting fees in exchange for spectrum access that they conducted some
due-diligence, if even a legal memorandum from a telecom attorney. If they
did obtain a DR, I would like to see the ruling and exactly how the FCC
reached its conclusion. Without the DR, I'm at a loss to see how the
stations, licensees and control operators are compliant. I've seen many
oddities in the interpretation of the Commission's rules in other services.
I'm not saying there's a clear violation; I just want to know why it's not a
violation *as a matter of law.*
There's a bit of history here that goes back a long time: namely, closed
repeaters/closed auto-patch. Many repeaters are owned by clubs. Those
clubs often have dues-paying members. For decades, many clubs have limited
access to paying club members, especially with respect to autopatch access.
The fact that the clubs limit access is not the issue. In fact, 97.205(e)
specifically states that repeater access can be limited and therefore
"closed." But the very act of compelling its membership to pay for spectrum
access does not comply with the provisions under 97.113. OTOH, if dues are
optional for access, then I see no clear issue although that still remains a
gray area with respect to 97.113.
Just from where I'm sitting, RHR and its member stations would be compliant
if the service they offered was without "material compensation, direct or
indirect, paid or promised."
Paul, W9AC
_________________
Topband Reflector Archives - http://www.contesting.com/_topband
|