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

[rfradioconsult]

This topic keeps returning on a regular basis, the Part 97 "emergency" clause is very murky at best. Some interpret it to mean you have "protection" under color of law to make radio contact in an emergency to any user regardless of the scope of their license. The other interpretation is that as an amateur radio operator you can contact another Amateur station on any Part 97 frequency, think of you using your Tech class station to contact someone on the 20 Meter Extra class segment.

In a few publicized cases the Ham involved were charged by the local jurisdiction with a crime such as interfering with a police officer, or in some instances a computer crime. This can be costly to you, loss of your equipment, attorney fees, police record record, etc.

If you choose to program Public Safety frequencies into your radio(s), don't depend on your interpretation of Part 97 to save you from the local District Attorney, they can always find a local or state Statute to make you life very uncomfortable and your bank accout much smaller.

 

[DaveNF2G]

The emergency clause does nothing more than provide an "affirmative defense" (one which must be proven by preponderance of the evidence offered by the accused) against a charge of unlawful radio operation. It might also be useful when defending against Obstructing Governmental Administration or similar criminal charges for using a government radio system without authorization.

If the FCC or a court of law are not persuaded by the defense offered, then the accused will be convicted of the offense charged.

I don't list my educational credentials in my signature any more, but I do know what I'm talking about here. You don't get to have your own facts.

 

[N4DES]

The prohibition on using non-type accepted transmitters in a radio service where type accepted transmitters are required is absolute. In other words, if you have authorization to transmit in a Part 90 service (most public safety licenses are Part 90 licenses), you must use Part 90 accepted equipment. Period. End of story.

And once you venture into the Part 90 spectrum, only those rules apply. You cannot apply Part 97 rules to a different area of the spectrum no matter what class of amateur license you hold. To be specific, in Part 90 is says this:

§ 90.203 Certification required.
(a) Except as specified in paragraphs (b) and (l) of this section, each transmitter utilized for operation under this part and each transmitter marketed as set forth in § 2.803 of this chapter must be of a type which has been certificated for use under this part.

(e) Except as provided in paragraph (g) of this section, transmitters designed to operate above 25 MHz shall not be certificated for use under this part if the operator can program and transmit on frequencies, other than those programmed by the manufacturer,
service or maintenance personnel, using the equipment’s external operation controls.

and

90.427(b) Except for frequencies used in accordance with § 90.417, no person shall program into a transmitter frequencies for which the licensee using the transmitter is not authorized.

 

[WB4CS]

KS4VT you've correctly laid out the rules for transmitting into part 90 spectrum. Thank you for posting the specific rules. I haven't researched Part 95 rules yet, but I imagine there is similar wordage for Part 95 rules as well, that would show it's not legal to use a modified ham rig for GMRS, FRS, MURS, and CB. (Edit: See below)

I believe the main issue that a lot of hams face is the interpretation of Part 97.403 which states that “No provision of these rules prevents the use by an amateur station of any means of radiocommunication 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.”

Some hams interpret this to mean that in an emergency anything and everything goes. They read this rule to mean that if life is at risk, they can use their modified ham transceivers to directly talk to a Fire/Rescue/Police/Part 90 user. The other interpretation is that this rule applies only to Part 97 spectrum, meaning that in an emergency a Technician could use an Extra class ham frequency to get help.

The stance I've had on this agrees with what you've said, if you're in Part 90 spectrum ONLY part 90 rules apply. If you're in Part 95 spectrum, only Part 95 rules apply. Part 97 rules apply only in the Amateur bands. On the other hand, you have those hams that see it differently. That's part of what motivated me to contact the FCC for clarification on 97.403. Here's hoping that I get a response from the FCC.

Legality aside, as it has been laid out many times before, using a transceiver that has been modified to transmit where it's not designed to transmit can cause spurious emissions on frequencies other than the one being transmitted on. Which means using a modified handheld for GMRS or MURS, or your local Volunteer Fire Dept repeater,is a very bad idea. And before anyone jumps on the idea that Part 90 radios are "modified" to use in ham frequencies, remember that 1) Part 90 radios are certified for the frequency spread they cover as opposed to ham gear only being guaranteed within the ham bands, and 2) Amateur Radio equipment does not require FCC type acceptance (there is no Part 97 type acceptance.)

Edit:
Found the wordage for legality of Part 95 transmitters as well:
GMRS: 95.129: Every station in a GMRS system must use transmitters the FCC has certificated for use in the GMRS. Write to any FCC Field Office to find out if a particular transmitter has been certificated for the GMRS. All station equipment in a GMRS system must comply with the technical rules in part 95.

FRS: 95.194 a) You may only use an FCC certified FRS unit. (You can identify an FCC certified FRS unit by the label placed on it by the manufacturer.)

MURS: 95.655 a) No transmitter will be certificated for use in the CB service if it is equipped with a frequency capability not listed in § 95.625, and no transmitter will be certificated for use in the GMRS if it is equipped with a frequency capability not listed in § 95.621, unless such transmitter is also certificated for use in another radio service for which the frequency is authorized and for which certification is also required. (Transmitters with frequency capability for the Amateur Radio Services and Military Affiliate Radio System will not be certificated.)

There you go. Why it's not legal to transmit out of band with your ham rig Another long boring post by me!

 

[N4DES]

KS4VT you've correctly laid out the rules for transmitting into part 90 spectrum. Thank you for posting the specific rules.

Your welcome....

 

[DaveNF2G]

Perhaps, now that the specific regulatory language for each service in question has been posted for all to see, the thread can be locked so there is no more circular armchair lawyering.

 

[KD5SPJ]

Oddly enough yet again, I have a slightly different take on this topic. IF I read the OPs question correctly, he is asking why it is illegal to transmit on 11m band on HF radios that are designed for 10~160M. Well, if one puts on their wayback hat, they can see a time when 11M was included on all stock HF radios. I personally have a nice FT-101B (that I am selling BTW!) that has 11m right there on the band selector.

Now case in point, it IS illegal to use 11m band on an HF transciever even if it came equipped with it from what I have heard. And it is also illegal for an HF radio not so designed to do 11m to be modded and used on that band. Again, as far as I know. BUT, that seems af if it has little to do with spurious emissions as much as it does with MONEY. Since everything can be traced back to money, the money is the reason. Companies that make the HF radios don't want to pay the Government to certify their radios for 11m for a couple reasons, one is because it isn't a large enough demand for an HF rig to be used on 11m, and two because it would be expensive to get them all certed for 11m by the FCC.

What I mean is, the FCC really doesn't care too much if your HF radio does work on 11m unless YOU cause problems. And even if you do, there is little chance of you getting pursued or caught. However, it is a hefty fine and not worth it. Now if we are talking about freebanding (which it is in a sense) then that MAY be different. Many people do freeband as a hobby or a way to get jollies, they are open to fines and equipment confiscation.


So, as one can see, there are more reasons in reality than just the certification of a rig to make sure it doesn't create any problems when transmitting. My FT-101B works perfectly on aam and all the other HF bands from 10~160 so that alone shows every HF radio COULD work on 11m, as well as other bands if they allowed it.

 

[mtindor]

I'm sure it's been beat to death in years gone by, but i'm wondering why it's illegal to transmit out of band on modified ham gear, but okay for Part 90 radios such as the Wouxun and Baofeng to transmit on several different bands.

<snipped>

 

[nd5y]

Now case in point, it IS illegal to use 11m band on an HF transciever even if it came equipped with it from what I have heard. And it is also illegal for an HF radio not so designed to do 11m to be modded and used on that band. Again, as far as I know. BUT, that seems af if it has little to do with spurious emissions as much as it does with MONEY. Since everything can be traced back to money, the money is the reason. Companies that make the HF radios don't want to pay the Government to certify their radios for 11m for a couple reasons, one is because it isn't a large enough demand for an HF rig to be used on 11m, and two because it would be expensive to get them all certed for 11m by the FCC.

It isn't about money. The FCC will not certify any radio for Part 95 CB if it is capable of operating on any frequencies other than the 40 CB channels.
Refer to 97.655

 

[KD5SPJ]

It isn't about money. The FCC will not certify any radio for Part 95 CB if it is capable of operating on any frequencies other than the 40 CB channels.
Refer to 97.655

I was refering to both HF radio designed to operate in the 11m band and those modded to do only 10~160 being modded.

 

[WB4CS]

KD5SPJ, I see where you're going and I'm not sure how the rules apply.

Not long ago hams had the lower portion of 220 MHz, which the FCC reassigned that portion for LMR use (UPS or FedEx I think?) There still exist amateur transceivers from that time period that will TX with no modification in the spread that is no longer in the amateur band. Just as there are old amateur HF rigs with the old 11m amateur band included.

I would imagine that now that spread of 220 MHz is Part 90(?) and now that 11m is Part 95, the current rules for that spectrum would apply. Making the old radios no longer legal for use in their respective old Part 90/95 spectrum.

I can admit that the FCC has their hands full and CB and Amateur Radio rule violations are on the bottom of their list of priorities. I admit that the FCC spends more time issuing fines for radio services that either make money (Cellular and Broadcast) or serve the needs of Public Safety. But if you go back to the technical aspect of it, using a radio that is not designed to transmit within a certain spectrum can cause interference to those higher priority services, and that's when the FCC is more likely to step in and put their foot down.

I guess I equate it to the rules of the road. The speed limit is 55. I could drive 100 every day and go years without getting caught, but why run the risk of breaking the law and getting caught? I'll just keep on obeying the rules and drive 55, while the other guys drive 100 and eventually get their license revoked. Same goes for radio. If someone gets caught somewhere they're not supposed to be with the wrong equipment, it's their money that pays the fine and their license that gets revoked.

I try to lead by example as a ham. I can point out when someone is not following the rules, answer their questions when they want to know what the rules are. It's up to them what they do with that information.

 

[KD5SPJ]

I don't know if you misunderstood what I meant in my post, or if I didn't articulate it correctly. I am a HAM operator (obviously) and do not operate illegally, nor do I condone illegal operation. I was responding to what I thought was the OPS topic by adding what I have heard and seen in my long and checkered past with my fascination in radio. I also let both CB people and HAMs know when I see infractions but that is as far as I'll go. The last thing I really want to do is get in some hotted up debate about rules which I have no jurisdiction or control over.

I can say that the part you mentioned about older radios being in the spectrum of newer differently regulated frequencies is a big problem because there ARE so many old HTs and base units still around in those old Hzs and being sold on CL and Ebay as Cb radios (incorrectly listed) or as just walkie talkies, and being purchased by people who have no knowledge what frequencies they are in or what the rules are that apply to them. And they don't care. If you scan those frequencies you'll hear all kinds of chatter from hunters and even kids with those old radios!

On my point about HF radios that still have 11m I was also referring to that that existed at one time as a HAM band before it was changed to citizens band which a lot of CB people don't know. And I also meant to get across that many don't realize or don't care that it is illegal to use the old HF rigs on 11m. Just an observation more than a statement of what is right or wrong for whatever reason. If you really want to see heated debates about legal use of radio, have a discussion with a Pirate Radio operator! WOW! they make us here look lame by comparison!

 

[WB4CS]

I don't know if you misunderstood what I meant in my post, or if I didn't articulate it correctly. <snip>

Oops. I think I sort of misunderstood you, but also knew we were agreeing with each other for the most part. But good deal either way

You mention hunters and kids on the air... not to beat this dead horse again (as I always do) but that's my main reason for not owning or supporting the "cheap-Chinese" brands. eBay and other sites have tons of the cheap-Chinese radios marketed as "two-way radios" and never mention the need of licenses. I've seen several hikers and campers at the local campground using them without a license. People will buy them because they're cheap radios, punch in some random frequency, and talk away.

True story: I was once taking a break from hiking and using my handheld to chat on 2 meters. A couple walked past me and asked to look at my radio since they were carrying their own radios. They asked me if I could help them with a problem, seems they had found a local 2-meter repeater while scanning and said they couldn't figure out why they couldn't talk back to the people they were hearing. They didn't have the tone or offset programmed (thankfully!). When I asked what their call signs were, so I could introduce myself as a fellow ham, they gave the deer in the headlights look. They said "we don't have any license, we got these off of eBay so we could talk with our kids back at camp." They were using 146.000 MHz on a Baofeng UV5R. They had no idea they were illegally using the frequency.

Sorry - way off topic I know. Back to our regular scheduled programming!

 

[KD5SPJ]

I totally agree Brandon! On both the quality of your discussion and the whole thing about people who have NO idea about FCC regs and who use radios they either bought from ebay, or Cl. I see it here so often it has become commonplace. So much so I hear them on MY local repeaters, which I help maintain, chatting like they are on Ch19 on 11m. It's a sad state of affairs when it gets to that point and to the point you have to let someone know they are poerating illegally on the HTs they bought.

I can see it though since no where in most of the ebay adds for HF, 2m or what ever ham band is there not s single mention about licensing! Sad sad sad.

Thanks for the great conversation!

73s

 

[KB7MIB]

Wirelessly posted (Mozilla/5.0 (X11; Linux i686; U; en-US) Gecko/20081217 Vision-Browser/8.1 301x200 LG VN530)

I believe that every radio service has it's place: Amateur, CB, MURS, GMRS, FRS. Even Part 15 devices such as LOWER, 49MHz, and the Motorola DTR(?) & TriSquare eXRS on 900MHz. I also believe in following the appropriate rules for each service/device.

 

[DaveNF2G]

Even some radios that were manufactured as CB transceivers are no longer legal to use on CB.

The FCC de-certified 23-channel CB rigs after the band was expanded to 40 channels. The reason for this was technical. The expansion of the band came with a tightening of the emission standards for radios transmitting in the band and the older radios do not meet the new standards.

That being said, I have seen a lot of 23-channel CB radios for sale and in current use.

 

[KD5SPJ]

Even some radios that were manufactured as CB transceivers are no longer legal to use on CB.

The FCC de-certified 23-channel CB rigs after the band was expanded to 40 channels. The reason for this was technical. The expansion of the band came with a tightening of the emission standards for radios transmitting in the band and the older radios do not meet the new standards.

That being said, I have seen a lot of 23-channel CB radios for sale and in current use.

That is completely true. And MANY don't know that it is now illegal to use the 23ch radios. So do I. I use them as museum pieces.

 

[WB4CS]

Finally received a response from the FCC on this matter! See quoted text below of email. Hopefully this will put this subject to rest for a few days

Brandon,



Your question was referred to me because it concerns the Commission&#8217;s amateur radio rules.



Section 97.105(b) answers your question: &#8220;A station may only be operated in the manner and to the extent permitted by the privileges authorized for the class of operator license held by the control operator.&#8221; Control operator privileges are specified in Section 97.301.



Part 97 does not contain any &#8220;privileges authorized&#8221; for amateur radio operators that include Part 90 or Part 95 frequencies. Part 90 and 95 both require the use of certificated equipment. See Section 90.203 and 95.409. Use of modified amateur radio transceivers on Part 90 or 95 frequencies violate the rules because modified amateur radio equipment is not certified for either Part 90 or 95 radio services.



As you note, &#8220;The rules are clear that in order to use Part 90 or 95 spectrum, the operator must have the correct licensing and certified radios to use those services.&#8221; The debate you are referring to, therefore, comes down to &#8220;How can we get around the rules?&#8221; The answer is, &#8220;You can&#8217;t.&#8221; We will be happy to relieve you of thousands or tens of thousands of dollars and your amateur radio license if you transmit on channels you are not licensed to transmit on.



William

Wireless Telecommunications Bureau

 

[MTS2000des]

can't believe this thread is two pages.
the bottom line, HAM radios are for duly licensed HAM licensees to transmit on HAM frequencies.

and then the whackers come out with their "what if...all else fails scenarios"

I'll put it like this:

If you have to ask, the answer is NO.
NO you cannot legally use a HAM radio outside of the ham bands for transmitting.

NO you cannot program up a trunking system on a network which you are not authorized and transmit "in an emergency".

NO you cannot transmit on any frequency or radio system on which you either A)-do not posses a valid license for or B)-have express authorization from said system licensee (your employer, or an SMR/radio shop you pay for services for). You can only lawfully use equipment that is FCC certified for that particular radio service under such licenses.

I don't know why this is so hard to get. The FCC response speaks volumes.

 

[N4DES]

Short, sweet and to the point....thanks for doing that.

Finally received a response from the FCC on this matter! See quoted text below of email. Hopefully this will put this subject to rest for a few days