IMPORTANT UPDATE: On July 14, 2010, FCC announced a rule change to permit licensed employees to participate in their employers' disaster drills

On October 20, 2009, the Wireless Telecommunications Bureau (WTB) of the Federal Communications Commission (FCC) issued Public Notice DA-09-2259 titled "Amateur Service Communications during Government Disaster Drills." It restated the prohibitions of FCC Rule 97.113(a)(3), specifically that a ham operator may not use Amateur Radio frequencies to communicate on behalf of his or her employer, including participation in the employer's disaster drills. That was followed by this statement: "Given the public interest in facilitating government-sponsored emergency preparedness and disaster drills, we take this opportunity to provide a clear process for requesting a waiver, and the information that we require in order to consider granting such a request."

But the process described in the notice was anything but clear at the time, especially for Amateur Radio licensed employees of non-government hospitals.[1] A footnote in the notice refers the reader to Code of Federal Regulations section 1.925, which contains general rules for requesting waivers of rules in radio services under the FCC-WTB, including Land Mobile, Ship, Aircraft, Cellular, and so forth. It references another section (1.1102) that gives FCC form numbers which must be used for waiver requests and the fees that must be paid in these services. But the Amateur Radio Service is not mentioned in either 1.925 or 1.1102 and the new Public Notice does not actually state that the requirements and procedures of 1.925 must be followed for Rule 97.113 waiver requests.[2]

The Public Notice states the following about Rule 97.113 waiver requests:

• Waiver requests should be submitted in advance to the FCC-WTB by the government entity conducting the drill.

• The waiver request must state where and when the drill will take place, the identities of the Amateur Radio licensees that would transmit via Amateur Radio in behalf of their employers, the name(s) of the employer(s), and a brief description of the drill.

Here are the problems that we note about this Public Notice and the subject waivers as they relate to hospitals:

• Only a fraction of drills involving hospitals are "conducted" by government entities. Every hospital accredited by the Joint Commission[3] must perform and thoroughly document two disaster drills per year to maintain accreditation. Here in Orange County California, many of these drills take place at only one hospital at a time and have little or no government involvement. HDSCS takes part in them to test communications paths, to practice medical messaging and to familiarize the hospital staff with Amateur Radio capabilities. Other drills in our county involve multiple hospitals. Typically, they have been staged by a coalition of many entities including the hospitals, law enforcement agencies, multiple fire departments, Red Cross and the county Emergency Medical Services Agency (OC-EMSA), each with equal status in the planning and execution of the event. It is unclear whether FCC would entertain a request for waiver from police, fire or EMSA (the government participants) on behalf of the participating private hospitals when none of these government participants is the primary "conductor" of the drill.

• Large drills involving many hospitals would require a major effort to identify all of the potential employee Amateur Radio operator participants in time to get a waiver. Examples include the annual Statewide Medical Drill, which is organized by California Emergency Medical Services Agency, and the Golden Guardian disaster drill, which is organized by the Governor's Office of Homeland Security. Dozens of hospitals and other agencies around the state participate in each. Therefore, a large number of local and area-wide Amateur Radio Organizations are involved. It is unrealistic to expect the state's Emergency Medical Service Agency or its Office of Homeland Security to collect all of the required participant information for each and every hospital (as well as any other agencies with participating licensed employees) and then submit a blanket waiver request to FCC sufficiently in advance. The alternative, a large number of waiver requests from local government agencies, is equally unpalatable.

• The Public Notice states that waivers must be requested prior to the subject drill and that Rule 97.113 is not waived for the participating Amateur Radio licensees unless and until it is granted. But no advance deadline is given for waiver submissions. No listing of acceptable formats for requests (letter, e-mail, FAX) was given. There was no standard for turnaround for waiver requests.

• Waiver documentation is provided by FCC only to the requestor, not to the affected ham operators. Requests must come from government entities, but the waivers are actually for the protection of individual employee Amateur Radio operators. Keep in mind that the hospitals and other agencies are not at risk and cannot be cited for FCC Part 97 violations; only the individual licensed hams can.

• Waivers are to be issued only for government-conducted drills. There is no waiver policy for other important disaster preparation activities that licensed employees should also do on Amateur Radio, such as the training nets that take place weekly in many localities.

The bottom line: This FCC Public Notice may provide some relief to Amateur Radio licensed employees of government agencies who are impacted by the recent FCC admonition regarding 97.113(a)(3) and disaster drills. But it does not appear to offer significant relief to employees of non-government hospitals. Therefore, HDSCS continues to urge Amateur Radio organizations such as ARES to collaborate with hospitals in their areas in creating and developing emergency communications systems like HDSCS that are community-based, not employee-based. When the Amateur Radio operators transmitting during hospital disaster drills are all community volunteers (non-employees), no waiver is necessary.

E-mail comments and questions to comments@hdscs.org

NOTES

[1] Only a small fraction of hospitals are run by governments. For instance, all but one of the 35 hospitals in Orange County, California are private, either for-profit or non-profit.

[2] Update 10/22/09: We learned from a Amateur Radio operator and emergency planner in Kansas who has corresponded with FCC that there is no application fee for the waiver and that no FCC numbered form is needed. The request with backup information should be sent by postal mail to Wireless Telecommunications Bureau, 445 12th St., S.W., Washington, DC 20554, Attention: Scot Stone. The referenced Sections 1.925 and 1.1102 are not applicable.

[3] Formerly called the Joint Commission for the Accreditation of Hospitals (JCAH, 1951) and the Joint Commission for the Accreditation of Healthcare Organizations (JCAHO, 1987).

Copyright © 2009, 2010 by Joseph D. and April A. Moell. All rights reserved.

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This page updated 15 July 2010