Is it Time to Rethink How Ham Operators Support Medical Facilities in Your Area?
Since July 2009, the mail to hdscs.org has included numerous inquiries about the Federal Communications Commission (FCC) rule that prohibits Amateur Radio operators from communicating on behalf of their employers and an apparent change in interpretation of this rule by the Commission's enforcement staff. The most common questions have been:
The short answer to the last question is: "It depends. It may be time to rethink your support model."
If your hospital or other agency has employees with ham licenses, or if you are a licensed employee yourself, please read this entire page to get an understanding of the issues, how they affect your facility and its hams, and what you can do about it.
The Background
Amateur Radio has always been a non-commercial radio service. In the Definition of Terms section at the beginning of its governing FCC rules are these words: "Amateur service -- A radio communication service for the purpose of self-training, intercommunication and technical investigations carried out by amateurs, that is, duly authorized persons interested in radio technique solely with a personal aim and without pecuniary interest." [FCC 97.3(a)]
Amateur Radio frequency bands are akin to national parks in that they are set aside for personal enrichment and enjoyment, not for business development and use. Ham operators and the FCC have always realized that if Amateur Radio frequencies were allowed to be used for business purposes on a continuing basis, that there would be pressure for those business users to take over some of those frequencies altogether. Takeover attempts could also come from non-profit agencies and governments at all levels, all of which have communications needs.
On the other hand, an important aspect of Amateur Radio is "the value of the amateur service to the public as a voluntary noncommercial communication service, particularly with respect to providing emergency communications." [97.1(a)] When regular communications fail, whether from a local phone outage or a widespread disaster, lives can be in jeopardy. Ham operators are encouraged to help out, using their allocated radio frequencies. Most of them welcome the opportunity. In helping the public, the hams might be of indirect help to businesses, non-profit agencies and government. FCC allows this for the duration of lifesaving emergencies in rule 97.403, which states: "No provision of these rules prevents the use by an amateur station of any means of radio communication at its disposal to provide essential communication needs in connection with the immediate safety of human life and immediate protection of property when normal communication systems are not available."
How We Got to Today's Situation
For decades, FCC's Amateur Radio rules were so stringent that they prohibited on-air non-emergency activities that had any money-making aspect whatsoever. The rules defined these prohibited "business communications" to be any transmission or communication that facilitated the regular business or commercial affairs of any party. The rules also prohibited "communication for material compensation, direct or indirect, paid or promised."
As rigid as they were, the rules did not prevent Amateur Radio operators from preparing to serve the public at business locations in disasters. For instance, a large for-profit HMO in California began installing Amateur Radio stations in all of its hospitals and encouraging employees to obtain ham licenses so they would be able to operate the gear if and when needed in emergencies. Many other entities, including hospitals, businesses, local governments and agencies such as Red Cross and Salvation Army did the same, with a large percentage of them following this employee-based model.
In 1980, HDSCS formed in Orange County, California, but with a different model that was based on actual experiences in hospital communications failures. We created a cadre of volunteer ham operators that are ready to go into any of the county's hospitals as needed to provide emergency communications. We are self-managed, meaning that the hospitals are our clients, not our organizers or managers. Every member of our group prepares to support every one of our client hospitals. For several reasons, which will be explained in "Change Brings Opportunity" below, we believe that this is a much more effective concept than the employee-based model.
With the FCC rules firmly in mind, the goal of public service minded hams has always been to provide non-business communications. Hams that supported local governments did so to protect lives and property by aiding firefighters and law enforcement personnel when their normal communications were disrupted. Stations at corporate locations were to be used only for the health and welfare of those who work there (facilitating safe evacuations, for instance). For hams at hospitals, the focus was only on the needs of patients (i.e. the public), not on business operations of the hospital. (See "HDSCS Responds to Editorial about Amateur Radio Communications for Hospitals.")
In 1993, FCC rewrote some of the Amateur Radio Service rules. "Business communications" were no longer defined nor prohibited. FCC rule 97.113(a)(2) now prohibits "Communications in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer." Rule 97.113(a)(2) continues to disallow communications for hire or for compensation.
The newly enacted prohibition on communications benefiting one's employer seemed clear at the time. Certainly it would be a violation for a salesman to use the ham radio station in his car to communicate with his secretary about his customer appointments. But what about a hospital employee (who has his own ham license of course) going to the hospital's Amateur Radio station during his lunch hour and checking into a weekly network of hospital hams who are testing their equipment and honing their communications skills for use in future disasters? Hams believed that this was not forbidden by 97.113(a)(2) for two important reasons:
For the next 16 years, regular Amateur Radio nets and emergency communications training drills for hospitals, businesses and governmental agencies continued to incorporate licensed employees without any FCC attention or disapproval. Then in May 2009, William Cross W3TN, a staff member in FCC's Mobility Division, spoke to a forum at the Dayton Hamvention. He introduced Laura Smith, FCC's incoming Special Counsel for Amateur Enforcement and he restated FCC's concern about keeping Amateur Radio bands free of business-related communications. Quoting him: "Section 97.113 is in the rules for two reasons. It meets a statutory requirement and it is there to protect your frequencies ... because your spectrum is so valuable, if you let users such as businesses, TV stations, the National Weather service or other users, be they for-profit or non-profit, to meet their communications needs, your frequencies will become their frequencies. All it takes is an allocation proceeding with the FCC and your spectrum is gone."
Mr. Cross proposed a four-way test that hams should ask themselves before sending a non-emergency message via ham radio:
Mr. Cross's remarks did not directly touch on the matter of licensed employees participating in nets and communications drills. Believing that such activities meet the four-way test because of the two reasons stated above, employee hams continued to do them. Then in July, a Missouri ham received a letter of admonition from Ms. Smith about his participation in a disaster drill at the hospital where he is employed.
Perceiving this as a major change in FCC's attitude regarding disaster preparedness, some hams at hospitals and other agencies contacted Ms. Smith to discuss it. She remained firm, stating in a webinar with ARRL Atlantic Division members on September 12: "Simply put, a hospital drill that includes any amateur employees of the hospital is a violation of Section 97.113(a)(3). It does not matter if the amateur is off duty or on lunch hour; it does not matter if the job description does not include the so-called operation of the Amateur Radio; it does not matter if they are not getting paid specifically for the drill; it does not matter if they sign a statement indicating that they are doing this strictly as a volunteer. I trust I am making this clear, it does not matter what machinations you come up with, there is no loophole to the rule. If they are a hospital employee, they may not use the radio on behalf of their employer -- period. Should I receive a complaint regarding an amateur employee operating the radio at the hospital during a drill, I will follow up. And, should it be determined that a violation of the rules has occurred, the individual will be subject to any enforcement action the Commission deems appropriate. If the amateur community wishes for a rule change, I suggest they file a Petition for Rule Making and provide a concrete suggestion as to how they want the rule changed."
What This Means for Hospital Ham Support
The statements of Ms. Smith were an unexpected blow to employee-based Amateur Radio disaster preparedness groups of all kinds, whether these groups are for the support of for-profit hospitals, non-profit hospitals, agencies such as Red Cross or governmental organizations (e.g. RACES and SKYWARN). A subsequent FCC Public Notice describes a method of obtaining advance waivers of Rule 97.113 for government-conducted disaster drills, but our analysis shows that this is not a good solution for employees of privately-owned hospitals. (See additional updates at the bottom of this page, including a formal request for blanket waiver by the American Hospital Association and a proposed rule change by the FCC.)
It is very important to keep in mind that FCC does not and cannot prevent employees from every form of participation in Amateur Radio emergency preparedness. For now, hams who are on the payroll of a hospital may not key the microphone of an Amateur Radio station there to further the disaster preparedness interests of their employers and they shouldn't use their own stations for that either. But they can and should do all of the following activities off-the-air:
Note that equipment installation is last in this list, not first. There is good reason for that, which is thoroughly explained in "Supporting Hospitals with Amateur Radio -- Your First Steps."
Change Brings Opportunity
We believe that the recent FCC statements should be a signal for hospitals (as well as other agencies that depend almost entirely on their licensed employees) to take a close look at the community-based HDSCS model. Not only does our model stay true to the letter and intent of 97.113, it is also much more durable and effective than the employee-centric model because:
We strongly urge you to start making incorporating outside ham operators into your hospital's disaster preparedness, if you have not already done so. Our experience demonstrates the many advantages of an independent self-managed organization of ham operators that can support multiple hospitals when needed. When plans are in place for the use of trained Amateur Radio operators from the community to be alerted quickly and respond rapidly in an emergency, your hospital will have dedicated communicators that will free hospital personnel to do their intended jobs -- caring for patients and keeping the hospital functional.
E-mail comments and questions to comments@hdscs.org
About the photos: One reason for its longevity and success is that HDSCS is self-managed, doing its own recruiting and training that includes an annual all-day workshop. In the top picture, April Moell WA6OPS presents plans for an upcoming multi-hospital drill. In the middle, Kim Decelles K9KIM, April Moell WA6OPS, Cheryl Simpson KD6MWZ and Scott Lolmaugh WD8ICK learn about paramedic dispatch procedures during field trip to UCI Medical Center. At bottom, John Walker AC7GK receives his certificate to become a Certified Hospital Communicator following a test administered by four Coordinators of HDSCS. All of these members are community volunteers, not hospital employees.
Update #1: In October 2009, FCC received a petition from the newly-formed Amateur Radio Policy Committee to change its Amateur Radio rules to include "training exercises, planning drills or tests, without regard to whether the amateur operator has related employment" within the list of authorized transmissions in section 97.111.
Update #2: By motion at its annual meeting in January 2010, the Board of Directors of the American Radio Relay League instructed its headquarters staff to seek an exception to the prohibited transmissions FCC 97.113 that would allow employees to participate in the emergency preparedness and disaster drills of their employers "for the purpose of emergency response, disaster relief or the testing and maintenance of equipment used for that purpose." No petition for rulemaking was filed by ARRL, but informal discussions took place between ARRL and FCC officials.
Update #3: On 17 February 2010, the American Hospital Association (AHA) sent a letter requesting that FCC issue a blanket waiver of 97.113(a)(3) "...to permit hospitals seeking accreditation from the Joint Commission to utilize Amateur Radio operations as part of emergency preparedness..." In response, FCC issued a Public Notice on 3 March, requesting that comments on the AHA petition be formally submitted to FCC by April 2, 2010.
Update #4: On 24 March 2010, the FCC issued a Notice of Proposed Rulemaking that would, if adopted, modify the employee communications prohibition of 97.113(a)(3) to allow on-air participation "on behalf of an employer in a government-sponsored
emergency preparedness or disaster readiness test or drill, limited to the duration and scope of such test or
drill, and operational testing immediately prior to such test or drill." Comments to FCC were due on or before May 24, 2010. Read the formal HDSCS comments to the FCC on this matter.
Update #5: On 14 July 2010, the FCC issued a Report and Order that changed the wording of 97.113 to permit licensed employees to participate in their employers' disaster drills.
Text and illustrations copyright © 2009, 2010 by Joseph D. and April A. Moell. All rights reserved.
Go to HDSCS comments to the FCC regarding proposed changes in 97.113
Go to HDSCS Analyzes the FCC Public Notice Regarding Rule Waivers
Go to Supporting Hospitals with Amateur Radio -- Your First Steps
Go to Amateur Radio Support for Hospitals -- A 30-Year Legacy
Go to HDSCS Responds to Editorial about Amateur Radio Communications for Hospitals
Go to Equipment and personal preparedness for emergency communications
Back to the HDSCS home page
This page updated 15 July 2010
HDSCS urges hams around the USA to not abandon their support for their local hospitals. Effective programs can be built around volunteers, as we have proven for almost 30 years. The recent FCC actions have had very little effect on our program, because only 6 per cent of our members are employed at hospitals. For drills, we simply assign these members to communicate from other hospitals where they are not employed. This rotation would be important even without the recent FCC scrutiny, because our HDSCS policy is that every HDSCS member prepares to support every one of our client hospitals.
