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Re: Topband: Foreign stns using NA remotes for K1N

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Subject: Re: Topband: Foreign stns using NA remotes for K1N
From: "Paul Christensen" <w9ac@arrl.net>
Date: Thu, 5 Feb 2015 10:27:33 -0500
List-post: <topband@contesting.com">mailto:topband@contesting.com>
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







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