Why not a Petition for Rulemaking to allow Part 90 Radios for GMRS?

[amocjr]

I have read numerous comments on many Internet sites to the effect that the Part 90 certification requirements are as or more stringent than the Part 95A requirements, so that any radio that met the Part 90 technical standards would also meet the Part 95 technical standards. I have also read comments suggesting that the FCC tacitly permits the use of Part 90 equipment for GMRS; some have even said that the FCC has said so publicly, although I have seen no evidence to support that.

Now, if those comments are correct, particularly the ones regarding the technical standards, and given the apparent total lack of commercially-available (in current production and available from the manufacturer or distributor), Part 95A-approved radios that allow full use of the GMRS operating privileges (5-watt, repeater-capable handhelds and up-to-50-watt, repeater-capable mobiles) and the dwindling supply of used Part 95A radios, why has no one petitioned the FCC to amend Part 95A to permit the use of Part 90-approved radios for GMRS?

If the Part 90 technical standards are the same or more rigorous than the Part 95A standards, granting that petition would seem to be a no-brainer. It would benefit the manufacturers by opening up a new market for their Part 90 radios at no additional cost to them, it would benefit licensees by making more (and new and supported) radios legally available and enable them to make full use of their GMRS operating privileges, and by doing so for licensees who use GMRS for emergency communications and public service, it would benefit the public. Heck, it could even benefit the FCC if they ever wanted to narrow-band the GMRS, by making narrow-band capable radios immediately available to licensees. And if the second set of comments is correct, it would legitimize the FCC's current practice and put the question to rest.

Either I am missing something or there's an opportunity here. Which is it?

(Please note that this is quite different from the recent petition for rulemaking to allow the use of amateur radio equipment on GMRS. The FCC rejected that petition because it would have allowed uncertified equipment on GMRS and violated the spirit of Section 95.655, which prohibits certifying radios that have amateur radio frequency capability. But 95.655 specifically allows the certification of radios with frequency capabilities other than the GMRS frequencies if it is certified for another radio service where those frequencies are authorized and certification is required, which is the case with Part 90 (unlike Part 97). And, in fact, until recently, there seems to be a long history of cross-certifying radios for Part 90 and Part 95A. This would just make Part 95A certification automatic for Part 90 certified radios.)

Thanks,
Tony

 

[nd5y]

There is nothing preventing anybody from filing petitions for rulemakeing for changes to part 95 or any other rule parts. Any petition not researched or written properly or not having supporting information or documentation would just end up in the trash. I don't know if the FCC keeps records of every single petition that they receive. Maybe people or manufacturers have already done that and the FCC rejected them without consideration.

 

[mmckenna]

Either I am missing something or there's an opportunity here. Which is it?

(Please note that this is quite different from the recent petition for rulemaking to allow the use of amateur radio equipment on GMRS. The FCC rejected that petition because it would have allowed uncertified equipment on GMRS and violated the spirit of Section 95.655, which prohibits certifying radios that have amateur radio frequency capability. But 95.655 specifically allows the certification of radios with frequency capabilities other than the GMRS frequencies if it is certified for another radio service where those frequencies are authorized and certification is required, which is the case with Part 90 (unlike Part 97). And, in fact, until recently, there seems to be a long history of cross-certifying radios for Part 90 and Part 95A. This would just make Part 95A certification automatic for Part 90 certified radios.)

Thanks,
Tony

Doesn't sound like you are missing anything.

I think it's a good idea. It would solve a lot of issues.
There are some plans in the works to redo the rules for GMRS. They've been stalled in the FCC for quite a few years now. It isn't dead, just stalled. No idea what the final outcome will be or when/if it'll happen.

And, yes I've heard that about FCC verbally saying it's OK to run Part 90 only radios on GMRS, but unless it's documented, I don't think a verbal approval would hold up if it came down to it. Until Part 95A rules are changed to permit that, the rules is the rules.

 

[Voyager]

There is a factor you (the OP) are missing. Currently, there is a rule which is interpreted by the community and affirmed by some FCC engineers that allows Part 90 radios on GMRS. It's not black and white, but is a credible interpretation.

IF someone were to petition the FCC, that would do one of two things:

1. Make it black and white they are allowed, or

2. Make it black and white they are NOT allowed.

So, is it better to have a rule that can be misinterpreted (making the defendant innocent in any legal proceeding, as any ambiguity must fall in favor of the defendant) or is it better to have your interpretation clearly right or wrong?

I suspect that the rules may be vague for a reason. While it would be nice to have clear rules, either way will anger those whose interpretation will have been changed by the clarification (and there ARE people on both sides, as seen in other RR threads).

I would submit that it's better to have a law that will support either side than have one that could instantly make a significant percentage of GMRS radios illegal.

Never file for a clarification when you don't know that your interpretation will be upheld. In this case, no matter what you think, you may be told you are right or you are wrong. Is it worth taking that chance when right now you are not clearly wrong no matter which side of the issue you are on?

 

[Voyager]

I don't think a verbal approval would hold up if it came down to it. Until Part 95A rules are changed to permit that, the rules is the rules.

Knowledge combined with lack of enforcement establishes precedent. That is as good as a rule and carries the same weight.

There is no clear prohibition of Part 90 radios in GMRS rules today. That's the basis of the entire debate. There is a rule that says radios must meet the technical standards of Part 95. It can be argued that many Part 90 radios do that provided they are used below 50W.

Again, the ambiguity falls in favor of the user. Why would you want to tick off any GMRS users unless you suffer from ID-10-T syndrome? I suspect that is the reason nobody wants to file a petition.

 

[gewecke]

Exactly. There are probably as many dual band ham mobiles & portables on Gmrs as there are Lmr radios by hams and Gmrs users alike, so the primary consensus is "mums the word". 73, n9zas

 

[mmckenna]

Knowledge combined with lack of enforcement establishes precedent. That is as good as a rule and carries the same weight.

There is no clear prohibition of Part 90 radios in GMRS rules today. That's the basis of the entire debate. There is a rule that says radios must meet the technical standards of Part 95. It can be argued that many Part 90 radios do that provided they are used below 50W.

Again, the ambiguity falls in favor of the user. Why would you want to tick off any GMRS users unless you suffer from ID-10-T syndrome? I suspect that is the reason nobody wants to file a petition.

It certainly is vague. It wouldn't hurt to ask the FCC to clarify in writing, worse they could say is "no".
Assuming it says something that favors the reader, rather than asking for documented clarification, doesn't really help anyone except for the reader.

Also, ignorance of the law usually doesn't hold up as a good defense in court.

 

[Voyager]

There is a very big difference between ignorance of the law and ambiguous laws.

Ambiguous laws are laws which can be interpreted more than one way (like this issue). There is precedent that any ambiguity in the law MUST side with the defendant (no matter which way they interpret the ambiguous law).

You seem to not want to acknowledge any interpretation other than your own although you admit the law (rule) is vague.

And a "no" reply would open up challenges due to contradicting precedent.

I believe the popular vernacular is that it is best to "let sleeping dogs lie".

 

[Project25_MASTR]

Kenwood has current 90/95A products. Bridgecom does as well.

With the lack of allowance of digital, big manufacturers have a difficult time justifying catering to such a limited market.

Sent from my SM-T350 using Tapatalk

 

[amocjr]

There is no clear prohibition of Part 90 radios in GMRS rules today. That's the basis of the entire debate. There is a rule that says radios must meet the technical standards of Part 95. It can be argued that many Part 90 radios do that provided they are used below 50W.

Actually, Section 95.603(a) says that GMRS transmitters have to be certificated. Now, it doesn't explicitly say certificated pursuant to which Part, so I suppose one could argue that a transmitter certificated under Part 90 that also met the Part 95A technical standards satisfied the rule (as long as it was operated within the power limits, etc.), but that's a bit of a Hail Mary pass.

Again, the ambiguity falls in favor of the user.

Ambiguity is not an absolute defense. There's a principal that says criminal statutes have to be construed narrowly, and ambiguity has undoubtedly gotten some criminal defendants off, but the FCC brings civil enforcement actions, and the standard in civil cases is different. Plus, courts will generally defer to an administrative agency's interpretation of its own rules, so if the FCC says, "No, Section 95.603(a) clearly means that GMRS transmitters have to be certificated under Part 95A even if they are certificated under Part 90 and otherwise meet the Part 95 technical standards," the court is likely to go along with them on that..

Why would you want to tick off any GMRS users unless you suffer from ID-10-T syndrome? I suspect that is the reason nobody wants to file a petition.

All that being said, I'm not sure I'm willing to kick the skunk and have it go the wrong way (although I do think there is every reason to grant the petition, assuming the premise regarding technical standards is correct). Mama didn't raise an ID10T.

 

[Voyager]

so if the FCC says, "No, Section 95.603(a) clearly means that <snip>" the court is likely to go along with them on that..

And there went their credibility. Any attorney will then have them define their interpretation of the word "clearly", and will point out that it is not clear at all and cite the case's existence as evidence. They would then bring experts who would have taken surveys and show that it is not clear as the FCC says it is. Those experts would likely include telecommunications attorneys and maybe even ex-employees of the FCC.

All the attorney has to show is doubt that it is clear. For good measure, he would also point out that it is self-serving that the FCC would support its own actions, and that the testimony is biased.

The court would then see that lack of credibility and rule in favor of the defendant.

Of course, you never know the outcome when going to court, but this shows the other side of the coin.

All that being said, I'm not sure I'm willing to kick the skunk and have it go the wrong way (although I do think there is every reason to grant the petition, assuming the premise regarding technical standards is correct). Mama didn't raise an ID10T.

"kick the skunk"... LOL. And likely a very apt description of the process, too!

 

[mmckenna]

You seem to not want to acknowledge any interpretation other than your own although you admit the law (rule) is vague.

You are certainly welcome to disagree with me. I'm not the type that would lose sleep over something like this. We're just a bunch of strangers having a conversation on the internet. Nothing we say is binding.

My interpretation is just that, mine. I'm happy to acknowledge your interpretation, or anyone else's for that matter. Your's is valid and well thought out. It doesn't mean that I have to automatically side with you. We can all agree to disagree without getting in a fight. This isn't an elementary school playground here.

 

[Voyager]

No fight intended. I was simply responding to your statement of "Also, ignorance of the law usually doesn't hold up as a good defense in court." which seems to imply that there is a clear law which is being ignored. That is not the case.

As I said, there is a very big difference between ignorance of the law and ambiguous laws. One is the fault of the violator. The other is the fault of the lawmakers.

 

[Dantian]

I think such a petition is a good idea, not only for the reasons stated by the OP, but because it could help unjam the almost 6 year old proceeding on GMRS rules.

The FCC would probably find it convenient to combine the two proceedings, and this could help them get it out the door.

I know that some of my friends believe the best thing for the FCC to do in this case is nothing. I respect their opinion but disagree. The continuing ignorance and ambiguity over the rules, licenses and repeater investments is not good for the service. It also foments skepticism and resentment of FCC, like we don't already have a lot of that in GMRS.

Many petitions fail and many never see the light of day. In the case of GMRS, it is primarily an issue of influence by manufacturers and secondarily the views of large organizations like repeater groups.

You will need either or both to endorse your petition _before_ filing it. The FCC finds it easy to ignore and dismiss petitions filed by private individuals who have not done their homework of gaining grassroots support first. In Amateur Radio this is why petitions by the ARRL attorney get taken seriously and filings by individual hams don't seem to have much success.

It may not be advisable in this case to seek out manufacturers, who are continuing to push the FCC to drop licenses in GMRS. But you should approach licensees of large repeater networks and coverage areas and get their written endorsement to be filed with the petition.

Of course the petition needs to be written and formatted highly professionally, and include an Appendix that states _exactly_ which rules you would like changed and the precise wording you recommend. Do not expect the FCC to do this work for you; they tend to reward those who do the work for them.

After filing you have to monitor the situation so that you know when the FCC has "accepted for filing" the petition, which means they have not dismissed it out of hand and they have assigned a Rule Making number to it. That gets it on Public Notice and starts the clock ticking for comments and replies. Then you have to get a ton of supportive comments filed. Good luck.

 

[amocjr]

But you should approach licensees of large repeater networks and coverage areas and get their written endorsement to be filed with the petition.

That's a good suggestion. I wonder if any of them monitor this forum and might express a view here.

 

[Rred]

"Either I am missing something"
I think so. The issue is more than technical compliance. The FCC intends FRS and GMRS as "appliances" for mass market appliance operators. Buy it, stick the batteries in, use it anyplace, anytime. (Although a license might be nice.)

A Part90 radio, in theory, requires frequency coordination, mainly done when the FCC assigns a specific geographic location for the licensee's exclusive or shared use, and requires programming not only of channel but also of power limits as determined by the details of the license. It is not an "appliance", and you can't just buy one out of the box and use it without further issues.

So allowing the mass market to just buy Part90 radios, encouraging them to program them willy-nilly and without oversight or effort? Could make a dog's dinner out of all Part90 operations. Which aren't just for business, there's a significant amount of "public safety" licensing that no one wants to take any chance of interrupting.

There are plenty of radios sold for each service, and manufacturers certainly CAN and (rarely) do apply for multiple certifications. But no matter how long you have had a driver's license (and 1 in 10 drivers don't) and how well you can drive in circles, you still need a different license before you can drive in the Daytona 500.

Different, but same same.

 

[bill4long]

A Part90 radio, in theory, requires frequency coordination

GMRS does not require coordination.

So allowing the mass market to just buy Part90 radios, encouraging them to program them willy-nilly and without oversight or effort?

I got news for you, this is already being done by a lot of people, and the FCC simply doesn't enforce the implied prohibition against it. All the rule-making change would do is make it legal for those who give a crap. (I don't.) There never will be any more of a "mass market" for GMRS than there already is, otherwise radio manufacturers would be pressing for Part 90 acceptance with GMRS since the radios are already within technical specification given their Part 90 certification. (GMRS frequencies which are govern by Part 95 fall right in the middle of the Land Mobile frequencies which are govern by Part 90.)

Anyone seriously interested in GMRS is not going to have a difficult time programming Part 90 radios for GMRS, as de facto, is occurring, all over the county. This lack of Part 90 acceptence for GMRS amounts to nothing more than a "Blue Law", and the FCC has no motivation to change it, because A) there isn't much of a demand, B) it isn't causing any harm, and C) they don't enforce the implied prohibition anyway.

(This post does not constitute legal advice.)

 

[bill4long]

Why not a Petition for Rulemaking to allow Part 90 Radios for GMRS? Reply to Thread

Not a bad idea. Go ahead and try. But there's really no reason to because the FCC doesn't seem to care about GMRS and they don't enforce the implied prohibition against using Part 90 radios on GMRS. Hell, there are unlicensed, illegal GMRS repeaters running day and night in New York City for years and the FCC does nothing about them. Do you think you're in any danger using your Part 90 certified Baofeng HTs on GMRS frequencies? Hahaha.

The FCC is a complaint-driven entity. Regarding enforcement issues, they act primarily due to interference issues. If you interfere with the local police, for example, you are going to see the FCC act. Otherwise, they have much better things to do with their limited resources than hunting down GMRS users who are using Part 90 radios.

(This post does not constitute legal advice.)

 

[linboogy]

Not a bad idea. Go ahead and try. But there's really no reason to because the FCC doesn't seem to care about GMRS and they don't enforce the implied prohibition against using Part 90 radios on GMRS. Hell, there are unlicensed, illegal GMRS repeaters running day and night in New York City for years and the FCC does nothing about them. Do you think you're in any danger using your Part 90 certified Baofeng HTs on GMRS frequencies? Hahaha.

The FCC is a complaint-driven entity. Regarding enforcement issues, they act primarily due to interference issues. If you interfere with the local police, for example, you are going to see the FCC act. Otherwise, they have much better things to do with their limited resources than hunting down GMRS users who are using Part 90 radios.

(This post does not constitute legal advice.)

What is an (unlicensed GMRS repeater)??

 

[bill4long]

What is an (unlicensed GMRS repeater)??

The owner of a GMRS repeater must have a GMRS license. If he doesn't, the repeater transmitter would be unlicensed therefore illegal.