Questions presented:

(1) Who can operate an Amateur Radio Station on the Amateur Radio Frequencies and (2) Who may operate amateur radio equipment in the Amateur Bands in time of an emergency.

Many Police Departments, Sheriff’s Department, Emergency Management Agency, or other Federal and State Agencies proceed under the belief that they may (with out authority) use or “highjack” the amateur radio bands at any time or in time of or upon the existence of an emergency situation. The answers to these questions are divided into two parts (the legal theory and the practical application) and consist of four (4) pages:  

Legal theory and answers:

Unique to the Amateur Radio Service, the license granted by the Federal Communications Commission is both a station license (giving the holder thereof the non-vested right to operate transmitters from a fixed, mobile, portable or space location) and an operator license (indicating the holder possesses the requisite knowledge to operate the radio transmitting equipment pursuant to the class of the license granted). The grant of an Amateur Radio license does not confer upon the holder any right to the use of a specific frequency or mode.  In the United States and its territories, anyone who transmits on Amateur frequencies must possess a valid license issued by the Federal Communications Commission (FCC). See: FCC Rules & Regulations (R&R), Part 97, Section 17 & 501, et. seq.   The class of license issued to the individual governs frequency, emission, and usage.  See: FCC R&R Part 97, Section 17, 501, 503. 

Answer to Question One:

In the United States and its territories, anyone who possesses a valid Amateur Radio license (or registered in the FCC’s Universal Licensing System (ULS) database) can operate an Amateur Radio Station (transmitter) within the confines of the license grant. You may operate outside the confines of your license provide a “control operator” is present and possesses a valid Amateur Radio license of the appropriate class. See: FCC R&R Part 97, Section 3(a)(12). Anyone (not an Amateur Radio operator) may speak over Amateur Radio provided a control operator is present and controlling the transmission(s). See: FCC R&R Part 97, Section 103 & 105(a). See: FCC R&R Part 97, Section 113(a)(4), as to the content of transmissions.

An extensive search of the National Archive and Records Administration, the Code of Federal Regulations (Title 47), the Communications Act of 1934, the Homeland Security Administration’s Enabling Act and Directives, and the International Telecommunications Union Treaty’s (of which the United State is signatory) applicable sections governing Amateur Radio (Sections 302 & 303) failed to produced any authority granting any privilege (or rights) to individual(s) not licensed in the Amateur Radio Service to operate an Amateur Radio Transmitter in the Amateur bands under any circumstances or situation(s). The above does not address a Declaration of War or National Emergency by the United States Congress and/or Presidential Directive respecting the use of the RF spectrum by the U.S. Armed Forces (all statutes and treaties as amended or revised and citations have been omitted).

Answer to Question Two:

Notwithstanding the fact that a person is employed (including volunteers) by any State or Federal government agency, entity, or sub-division thereof, no person not possessing a valid Amateur Radio license (or listed in the FCC ULS database) may operate an Amateur Radio Station under any circumstances or situations. They may not use any amateur equipment, frequency, or mode. See: FCC R&R Part 97, Section 5(b).

Note: Any station licensed by the FCC may communicate with Amateur Radio Stations if specifically authorized. If permitted by the FCC an “Endorsement or a Special Operating Authority” will be so noted on the station’s current license. See: FCC R&R Part 97, Section 111(a)(1)(2)(3)(4). Note: Part 97, Section 111(a)(4) is the authority for the United States Coast Guard to operate on amateur radio frequencies to aid ships in distress on the high seas and inter-costal areas.

The United State’s space program has long recognized the value of Amateur Radio. NASA, notwithstanding its massive and reliable communications network, suggest no less than two (2) licensed amateur radio operators be “on board” the shuttle flights and the International Space Station. Even NASA abides by FCC Rules and Regulations. Generally see: www.spaceflight.nasa.gov/station/reference/radio and other NASA directives.

Practical Applications:

Amateur Radio has promoted itself by the phrase: ”When all else fails – Amateur Radio”.  Diversity in terms of geography, assigned frequencies, modes of operation, and human resources are Amateur Radio’s most valuable assets. By definition we are a public service. See: FCC R&R, Part 97, Section 1(a). How we offer that service and our assets to the public reflects on all Amateur Radio Operators.

            If Hurricane Andrew in 1991, destroying a large part of the State of Florida; the wildfires in California, in the ’90, destroying a large part of the State; the tsunami in Indonesia in 2004, destroying life and property on an unprecedented scale; and Hurricane Katrina, in 2005, destroying much of a port city and leaving behind untold damage to property and loss of life; has taught the Amateur Radio community, government agencies, and first responders anything, it is that you do what is necessary and worry about the paper work later.

“In Extremis” situations or circumstances require immediate action to control the situation, publish news to the population-at-large, provide immediate search and rescue operations, respond with and provide other relief such as: food, medical, shelter, sanitary, water, transportation needs and prevent continued destruction of property and the loss of life. 

To sustain an argument for “commandeering” or using amateur radio frequencies and equipment without the benefit of a licensed Amateur Radio operator present, I suggest the following may be considered: Commercial broadcast stations would be off the air, no backup communication facilities exist for any government or first responders, the immediate or continued destruction of property and/or loss of life exist, and the absence or unavailability of any licensed Amateur Radio Operator(s).

By example, an “In Extremis” circumstance can be a child choking at a swimming pool, a category one – five hurricane sitting off the coast of the U.S., a 747 heading for a tall building, or a lady trapped in a vehicle caught in the torrents of a flooding stream. The degree and length of time coupled with other factors respecting the “In Extremis” situation would dictate the use of Amateur Radio by non-licensed individuals.

Last port in the storm:

            Suppose for argument’s sake that a category five storm hit a costal city and devastated the surrounding area. All commercial broadcast stations are off the air, all public service communication facilities are destroyed.  The only available functioning communication vehicle is an amateur radio repeater some miles outside of the town. The repeater’s control operator is just coming back into town and hears many non-licensed police officers, EMA officials, and rescue personnel using the repeater. Pursuant to the FCC Rules and Regulations, he must turn off the repeater. His license is at stake for allowing unauthorized use of the machine. Does the control operator of the repeater turn off the repeater thereby denying it use to police, EMA, and rescue personnel?  The author suggests the control operator would have a much worse problem if the machine were turned off! 

Sometimes Amateur Radio is the last port in the storm. If a ship is at sea during a storm and limps into port all battered and taking on water, don’t stand at the slip and argue over who is going to get off the ship once it pulls into port. If Amateur Radio is all that is available, then do what is necessary.

Fallacy:

Technically, the Police, Sheriff’s Department, Emergency Management Agency, Federal or State personnel are correct. When it is a matter of “life or death”… anything goes.

 The fallacy of the “we can use it any time argument” lies in the agency personnel complacently planning to use Amateur Radio Frequencies and equipment if they “need to”, and incorporating that idea into their emergency communications or operations plans.  With that mode of thinking, they would be much more likely to use amateur frequencies and equipment when it is simply “more convenient” rather than the situation or circumstance actually being a genuine life or death situation.

Use common sense in any disaster situation.  One good dose of common sense is worth ten copies of Part 97 and the ten interpretations that go along with it (technical standards excepted).

/s/
Cooper L. Morris
State Bar of Georgia
wa4pzd@arrl.net
Volunteer Counsel S.E. Division / ARRL
P. O. Box 76522
Atlanta, Georgia 30358-1522