Why is out of band transmit illegal? (was: Stupid question)

[N8OHU]

right but that pertains to "operations in an emergency," and not "stations in distress" The two are not the same.

§97.405 Station in distress.

(a) No provision of these rules prevents the use by an amateur station in distress of any means at its disposal to attract attention, make known its condition and location, and obtain assistance.

(b) No provision of these rules prevents the use by a station, in the exceptional circumstances described in paragraph (a) of this section, of any means of radiocommunications at its disposal to assist a station in distress.

Therefore, for that reason, I have interpreted this section to also exempt me from 97.301 and even 97.5 (station licensed required)

So before when I asked if it was a distress call, I believe that would be permissible. It sounded like it was just casual calling in stuff and not a distress call.
Then again, it's like I always say, would you rather be alive and have a fine from the FCC or would you rather die wedged in a crevice somewhere while the wildlife picks the meat off your bones?
Or in this case would you rather someone else die than get some penalty?

The point seems to be that using your radio on their frequencies is what the Government rightly doesn't want us doing; using another persons radio isn't as much of an issue.

 

[zz0468]

...would you rather be alive and have a fine from the FCC or would you rather die wedged in a crevice somewhere while the wildlife picks the meat off your bones?
Or in this case would you rather someone else die than get some penalty?

You all act as if it's an either/or thing, and it's not.

Do what you need to save a life, and don't hide behind an erroneous interpretation of the rules to justify it. Why is that such a difficult concept to grasp?

 

[teufler]

Many of us are Amateur Radio operators on RR. As amateur radio operators we try to live with all are fellow operators. We all make the best to understand the rules and operate under the guidelines we think we know. We all would , when faced with what we determine is an emergency, try to make a contact with whatever we have available. Our personal control is more an issue now then is has been, as radios are being made now that are not limited to just the ham bands. Mant have cell phones now, though parts of the country, especially rural areas, do not have cell phone coverage or the carrier they have do not have towers that work in all areas. Right now I would be hard pressed to figure out who I would dial, out on the interstates away from cities. I think 911 but I am not sure that would work. Some states have numbers posted on signs but I bet few of us write them down. The practices that the FCC does now seem to suggest they have little time to step into whether a ham talked out of band or not. There will always be a time that some amateur has to resort to extrodinary measures and we all know, they have to be ready to defend their actions. Police are heto solve this problem, for now, in that radios are being converted to digital trunking and the radios we own , will not operate in that mode. Rural areas will still be analog, rural areas still will not have cell phone coverage, and rural areas, hams are not in abundance.

 

[mmckenna]

Therefore, for that reason, I have interpreted this section to also exempt me from 97.301 and even 97.5 (station licensed required)

So before when I asked if it was a distress call, I believe that would be permissible. It sounded like it was just casual calling in stuff and not a distress call.
Then again, it's like I always say, would you rather be alive and have a fine from the FCC or would you rather die wedged in a crevice somewhere while the wildlife picks the meat off your bones?
Or in this case would you rather someone else die than get some penalty?

No, I agree with you. I'm against the broad interpretation and attitude that some guy that takes a Ham Cram session and passes his tech license is suddenly "god of the airwaves" and has full access to every single frequency, system, etc. just because the radio can be hacked to work on those frequencies.

If one expects to be in a situation where they might run across a life or death emergency, then they should be properly equipped. The suggestion that a hacked amateur radio is the -only- way to do this is completely false. PLB's are cheap and work just about everywhere. They are intended for this purpose.
You can also pick up used Part 90 accepted radios dirt cheap, or even a $20 Chinese radio.

Being a cheapskate ham isn't a good enough excuse to violate the rules. Being properly trained and equipped for the situation you are wandering into is the correct answer.

As I've said before, a radio shouldn't be the only tool in your toolbox. If the argument of "what if I run across a life or death emergency" is going to be used, I'd hope we'd make an effort to be better equipped/trained than just clipping a wire in an amateur radio.

If someone really want to make a difference in an emergency then they really should have more training than a 35 question multiple choice ham test. I've been an amateur radio operator for several decades. Amateur radio operators don't impress me. Some guy with a $120 hand held doesn't instill a feeling of security and safety. Time to stop playing first responder with your amateur license. Confusing a hobby and being a real public safety professional are two separate things. Time for the ham crowd to stop leaning on this misinterpreted rule as a justification.

 

[AK9R]

If one expects to be in a situation where they might run across a life or death emergency, then they should be properly equipped...Being properly trained and equipped for the situation you are wandering into is the correct answer...As I've said before, a radio shouldn't be the only tool in your toolbox.

I agree.

The "average" individual who is not an amateur radio operator, when confronted with an emergency, is going to try to make contact with his/her cell phone. If that doesn't work, he/she may try to flag down a truck driver in the hopes that the trucker's CB will be of some use. If that doesn't work, he/she may leave the injured party to drive to someplace where the cell coverage is better or other means of communications are available. For the "average" individual, pulling out a two-way radio that is otherwise non-compliant with Part 90 is not an option.

So, that being the case, why should amateur radio operators believe that their license under Part 97 gives them any special powers to communicate over the radio with people outside the scope of Part 97?

Time to stop playing first responder with your amateur license. Confusing a hobby and being a real public safety professional are two separate things. Time for the ham crowd to stop leaning on this misinterpreted rule as a justification.

A very good point. I've had leadership positions in ARES and RACES for a long time and my biggest concern is hams who have that gung-ho, save-the-world attitude.

The story that I often tell new hams is that when I was first licensed, I was all about modding my radios for OOB transmit. Every radio I owned was modified. Then, one of my modded radios, with local police and fire frequencies programmed into it, was stolen. I felt like the guy who's gun had been stolen. I all of a sudden felt very responsible for the mayhem that might be caused by the person who stole my radio. Since then, I've never had another radio modded. I don't need it, because I have been issued a legal Part 90 radio, and I don't want it, because I don't want to be the guy that a modded radio gets traced back to.

 

[DaveNF2G]

Therefore, for that reason, I have interpreted this section to also exempt me from 97.301 and even 97.5 (station licensed required)

Peachy. Interpret away. Just remember that you will not be the judge at your trial.

Someone asserted earlier in the discussion that the interpretation of ambiguous rules is supposed to defer to the defendant. That is also legally incorrect.

When interpreting any agency's rules, the courts are required to defer to interpretations made by the agency whose rules are being interpreted. If no such clear interpretation is available, then the courts must consider the most common usage of said rules by those affected by them. They are not required to poll individuals; the statements of a representative group or organization are sufficient evidence.

In the case of any ambiguity in the "emergency doctrine" provisions of and FCC Rules, the FCC has already published clear statements as to their intended meanings. That is the basis on which you will be judged if you are charged for OOB operation. ARRL tends to follow the Commission's lead on this, so if the court wanted a second opinion, you would still lose.

Source - American Jurisprudence on legal construction.

 

[rapidcharger]

An email will clear this up. Do I need to write this one too or will someone else do it this time?

sent via tapatalk on a mobile device.

 

[zz0468]

An email will clear this up. Do I need to write this one too or will someone else do it this time?

It's been done. Post #38.

 

[rapidcharger]

It's been done. Post #38.

That inquiry was pertaining to the use of ham gear for other radio services but it didn't specially ask for a clarification on the stations in distress and whether that can be taken literally.

sent via tapatalk on a mobile device.

 

[zz0468]

That inquiry was pertaining to the use of ham gear for other radio services but it didn'circumstances
t specially ask is nofor a clarification on the stations in distress and whether that can be taken literally.

sent via tapatalk on a mobile device.

Perhaps, but re-read the reply in post 38, especially the first sentence in the third paragraph. It specifically states that there is nothing within part 97 that provides authorization for part 90 or 95 frequencies. How unambiguous does it need to be? You can re-ask the question, but that part of the answer is not going to change.

What people can't seem to accept is that the FCC will NEVER say that hams can operate outside part 97 frequencies under any circumstances. There IS one exception, and it's in writing, in Part 97. That ONE exception is the Alaska emergency frequency in the 5 mhz band, in Alaska only

 

[SteveC0625]

Steve,

U.S. common law dictates that there is no general duty to act in an emergency, however, at least eight states have enacted laws requiring citizens to assist strangers in peril. These states include Florida, Ohio, Massachusetts, Rode Island and Vermont. You can be charged with a misdemeanor for not responding to someone in danger. Citizens are never required to place themselves in peril. This allows for so much subjectivity (such as the Part 90 vs Part 97 vs Part ## discussion here) that the laws are generally ignored by law makers and citizens. - See more at: What Is The Duty To Act?

Plenty of info on the web via Mr Google using vermont duty to rescue statute

Fair enough that a few states actually do require the average citizen to render aid. The previous posts involved abandonment and good samaritan which was more to my point.

But even in the 8 out of 50 states, these laws do not authorize illegal means of rendering aid. And that's the focus of this thread.

The last few posts have raised some interesting points that perhaps have not entered the discussion in the past. In particular, rapidcharger's comments about station in distress may well be one of the very few legit permissions in the FCC rules for OOB operation.

We know that some localities have successfully prosecuted individuals for transmitting on Part 90 frequencies even when the incident involved reporting of dire emergencies. So appropriate application of the FCC rules may not be enough protection. It would be great if there is some actual case history available on that one.

I think the wisest thing that one can do is to have multiple legitimate communications means at one's disposal. For example, I hold a Tech ticket, a GMRS license, and a local Part 90 authorization on a number of municipal, Fire, and EMS frequencies in our county. Several of the adjacent counties have no issue with urgent communications on their fire or EMS frequencies by legitimate users from other counties. If I can't reach help by one of these means or my cell phone, I'm not convinced that going OOB would help either.

 

[rapidcharger]

Perhaps, but re-read the reply in post 38, especially the first sentence in the third paragraph. It specifically states that there is nothing within part 97 that provides authorization for part 90 or 95 frequencies. How unambiguous does it need to be?

I'm not convinced that the person answering the question had 97.405 in mind but I also realize the message was not worded the way I would do it.

I'll write a letter. An actual letter and not an email. I'm going to say it with love and send it by mail. That way hopefully the response will free of snarky one-liners and satisfy the lingering questions. If I get a response (please allow 6-10 weeks for processing), I will post a copy of it here so that everyone can see it and either print it out and frame it and put it on their wall, or stuff a copy of it in their wallet, or keep a stack of them next to the toilet, depending on everyone's feelings about the outcome.

 

[N8OHU]

I'm not convinced that the person answering the question had 97.405 in mind but I also realize the message was not worded the way I would do it.

I'll write a letter. An actual letter and not an email. I'm going to say it with love and send it by mail. That way hopefully the response will free of snarky one-liners and satisfy the lingering questions. If I get a response (please allow 6-10 weeks for processing), I will post a copy of it here so that everyone can see it and either print it out and frame it and put it on their wall, or stuff a copy of it in their wallet, or keep a stack of them next to the toilet, depending on everyone's feelings about the outcome.

Actually, I think it's quite clear; Part 90 and Part 95 frequencies are not part of the frequencies allocated to any license class of Ham Radio Operator, so using them even for an emergency is not allowed unless you also hold a license that does contain them (GMRS or radio from an employer that is Part 90 licensed). What is allowed is frequencies that are part of the Amateur allocation that are not normally available to your specific license class.

 

[Voyager]

So Parts 90 and 95 are not a "means of radiocommunication" under your definition.

If a letter is to be written, it needs to be made clear with an example such as coming across a vehicle accident where there are no other means of summoning help (no cell service, no ham repeaters accessible). And ask if it would be permissible to use a non-Part 97 frequency to summon help for a victim whose life is in immediate danger.

Another valid question (in addition, not in alternative) would be whether the FCC considers their rules to be more important than a human life, or if violation of the rules is justified in order to save a life.

 

[mmckenna]

Another valid question (in addition, not in alternative) would be whether the FCC considers their rules to be more important than a human life, or if violation of the rules is justified in order to save a life.

Based on this statement I can gather that no matter what the FCC says, you are going to do this anyway.
Am I right?

My question to you, and anyone else who thinks along this same line is:
-What have you done to prepare yourself for acting in an emergency, other than doing the out of band modification to your radio?
-What training have you put yourself through in preparation?
-What other equipment do you carry with you for emergency response needs?
-What other radio equipment do you own that would be suitable for this use? PLB? Part 90 radio? Part 95 radio? Satellite phone? Or did you just stop at amateur radio and go no further?

Scenario:
A major accident happens in front of your home. I have no other means of getting help. I assume there is first aid supplies inside your home.
I take a hammer and break your window to gain access to your home and said first aid supplies.
Would you hold me accountable for the broken window?
Would you press charges for "breaking and entering"?
Would the local PD/Sheriff press charges for breaking and entering?
Or, would you see it as "I did what was necessary" to save a human life.

Not trying to trap you with this question, just trying to get behind the mindset.

 

[zz0468]

So Parts 90 and 95 are not a "means of radiocommunication" under your definition.

Quite the contrary. But the point I'm trying to make here is part 97 rules ONLY pertain to part 97 frequencies and operators. It has NOTHING whatsoever to do with anything within part 90.

The FCC defines an amateur radio operator and an amateur radio station as operating on amateur frequencies under part 97. There is no assumption on their part that an amateur radio station will be capable of transmitting on part 90 frequencies, in fact that is specifically prohibited under part 90. Really. So, within the context of part 97, "radio communication" is understood to mean "radio communication on part 97 frequencies.

Another valid question (in addition, not in alternative) would be whether the FCC considers their rules to be more important than a human life, or if violation of the rules is justified in order to save a life.

It's not really a valid question, in fact it's pushing the boundaries of absurdity. I think what you'll end up finding is that the FCC will NEVER put forth in writing that it's ok to operate unlicensed and out of band under any circumstances. And out the the other side of their mouth they would state that no one should die as a result of FCC rules. Why must it be an either/or thing?

The way to handle your scenario is forget about it. And if, on the off chance you have to come up on some local PD channel to call for help because nothing else is available, just do it and save a life. And don't go running and hiding behind your wrongheaded interpretation of the rules. You stand up proudly and say 'Yep, I know it was illegal, but it saved this man's life".

 

[buddrousa]

I got one for you get on the pentagon frequencies tell them you have an emergency on the beltline in DC and see what happens. You will find out right quick what rights you thought you had. I have one for you pull your gun and shoot the man beating the woman up and see how many years you get for saving her life. I know this is not fcc but it has the same bearing you can use deadly force to protect yourself but you can not use deadly force to protect someone else. If you want to be a 1st responder join a department we do not need untrained rescue randy's running all over town keeping our two way channels busy because you want to be someone.

 

[rapidcharger]

Actually, I think it's quite clear;

Well good for you.

If a letter is to be written, it needs to be made clear with an example such as coming across a vehicle accident where there are no other means of summoning help (no cell service, no ham repeaters accessible). And ask if it would be permissible to use a non-Part 97 frequency to summon help for a victim whose life is in immediate danger.)))

Yes.

(((Another valid question (in addition, not in alternative) would be whether the FCC considers their rules to be more important than a human life, or if violation of the rules is justified in order to save a life.

No.

I got one for you get on the pentagon frequencies tell them you have an emergency on the beltline in DC and see what happens. You will find out right quick what rights you thought you had. I have one for you pull your gun and shoot the man beating the woman up and see how many years you get for saving her life. I know this is not fcc but it has the same bearing you can use deadly force to protect yourself but you can not use deadly force to protect someone else. If you want to be a 1st responder join a department we do not need untrained rescue randy's running all over town keeping our two way channels busy because you want to be someone.

#MissingThePointEntirely

 

[buddrousa]

No just people Living in Denial.
I’m Never at Fault
Others are always at fault, aren’t they? You keep doing everything right and they just ruin things for you, do they? Sorry to have to say this, but not assuming responsibility is one of the most obvious signs that you are living in denial.
Everything Has an Excuse
“I’m not going to do this because…” “I would have done that, if not for…” Do you somehow manage to find excuses for everything? Good for you, maybe you will find someone who pays you for that, but for the time being, your attitude is yet another sign that you are simply living in a fantasy world.
Everyone Else is Wrong
Are all of the people who don’t agree with you clueless? Are they that ignorant, can’t they understand your brilliance? I’m sorry but, if that’s the way you see things, I am afraid that the problem lies elsewhere. One tip: it’s not with everyone else.

 

[rapidcharger]

Well that was insightful.