UNITED STATES OF AMERICA
DEPARTMENT OF COMMERCE
NATIONAL TELECOMMUNICATIONS
AND INFORMATION ADMINISTRATION
WASHINGTON, D.C.
Presidential )
Spectrum Policy ) Docket 040127027-4027-01
Initiative )
SECOND SUPPLEMENTAL COMMENTS OF
THE AMHERST ALLIANCE
In the Written Comments filed in this Docket by THE
AMHERST ALLIANCE, we referenced antenna bans by
Homeowners’ Associations (HOAs). As HOAs spread to more
and more neighborhoods, their antenna bans are, increasingly,
blocking the ability of Amateur Radio operators, and other radio
sources, to carry information in and out of disaster areas.
The rising tide of HOA antenna bans is thereby impairing
national security and the effectiveness of “first responses” to
natural or man-made disasters.
-2-
In response, THE AMHERST ALLIANCE and the AMERICAN
RADIO RELAY LEAGUE (ARRL) have urged Congress to enact
H.R. 1478, the Amateur Radio Emergency Communications
Consistency Act. This legislation, re-introduced in 2003 by
Representative Steven Israel (D-NY), would direct the Federal
Communications Commission to override the HOA antenna bans.
In their place, HOAs would be required to make “reasonable
accommodation” of Amateur Radio antennas in their regulations.
In Amherst’s Written Comments on the Presidential
Spectrum Policy Initiative (PSPI), we have urged NTIA, and also
the White House, to join Amherst and ARRL in endorsing, and
actively supporting, Representative Israel’s important bill.
As a source of further information on this legislation, and
its possible expansion to protect other radio-based emergency
services as well, THE AMHERST ALLIANCE hereby submits in this
Docket the text of its Written Testimony for June 11, 2003
Congressional Hearings on “Emergency Communications Needs
Of First Responders”.
-3-
For whatever reason, this Written Testimony was not
placed by Congressional authorities into the official record of the
Hearings. However, it was indeed submitted to the House
Subcommittee on Telecommunications and The Internet.
Presumably, the original and related copies can be found in
somewhere in the files of the Subcommittee and/or its leaders.
We hope and believe the information and ideas in this
Written Testimony will be useful in improving the scope and
reliability of emergency communications. The document should
be treated as part of the public record for NTIA’s PSPI Docket.
Respectfully submitted,
Melissa S. Lear
Special Assistant to the President
THE AMHERST ALLIANCE
9 Nolan Road
South Glens Falls, New York 12803
Dated: _____________________
March 18, 2004
THE AMHERST ALLIANCE
“Voices For Choices”
(203) 756-7310 or (203) 757-1790
45 Bracewood Road
Waterbury, Connecticut 06706
July 2, 2003
Representative Fred Upton
Chairman
Representative Edward Markey
Ranking Minority Member
Subcommittee on Telecommunications
And The Internet
Committee on Energy And Commerce
U.S. House of Representatives
Washington, DC 20515
RE: June 11 Hearings On Spectrum Needs Of America’s First Responders
Dear Representatives Upton and Markey:
We commend you and your Subcommittee for holding Hearings, on June 11, 2003, to consider the spectrum needs of the nation’s first responders.
This is clearly a legislative enterprise of the highest importance.
While the record is still open for written statements by interested parties,
THE AMHERST ALLIANCE hereby submits formal Written Testimony on ways to protect access to the radio spectrum by the first responders to
natural and man-made disasters, including acts of terrorism.
We respectfully request that this Written Testimony be placed in the record.
As you know, THE AMHERST ALLIANCE is a Net-based, nationwide citizens’ advocacy group, concerned with a wide range of media regulation issues. Our Members include Amateur Radio operators and other first
responders, as well as radio stations. We ask you to honor our request.
Respectfully,
Don Schellhardt
Attorney For THE AMHERST ALLIANCE
WRITTEN TESTIMONY OF
DON SCHELLHARDT,
ATTORNEY FOR
THE AMHERST ALLIANCE,
ON
SPECTRUM NEEDS OF
THE NATION’S FIRST RESPONDERS
PRESENTED TO
THE U.S. HOUSE OF REPRESENTATIVES
SUBCOMMITTEE ON TELECOMMUNICATIONS
AND THE INTERNET
FOR SUBCOMMITTEE HEARINGS
ON
JUNE 11, 2003
TABLE OF CONTENTS
Page
ABOUT THE AMHERST ALLIANCE 1
THE NEED FOR “DEFENSE OF THE SPECTRUM” 1
ENDORSEMENT OF H.R. 713 AND S. 537:
THE AMATEUR RADIO SPECTRUM PROTECTION ACT OF 2003 2
THE NEED TO EXPAND
THE AMATEUR RADIO SPECTRUM PROTECTION ACT OF 2003 3
Shortwave Transmissions 3
Citizens Band Transmissions 4
Radio Astronomy 5
THE “JUDGMENT CALLS” IN THE NETHERLANDS AND JAPAN 5
A PROPOSAL FOR EXPANDING
THE AMATEUR RADIO SPECTRUM PROTECTION ACT OF 2003 6
ENDORSEMENT OF H.R. 1478:
THE AMATEUR RADIO EMERGENCY COMMUNICATIONS
CONSISTENCY ACT 7
A PROPOSAL FOR MERGING H.R. 713 WITH H.R. 1478 7
CONCLUSION 10
APPENDIX:
RECOMMENDED TEXT OF H.R. 713,
AS REVISED BY PROPOSED AMENDMENTS
My name is Don Schellhardt. I am the Attorney For THE AMHERST
ALLIANCE, and I am now submitting Written Testimony on behalf of this
organization. I am also the Co-Founder of Amherst, and served for 2 years
as its first National Coordinator.
ABOUT THE AMHERST ALLIANCE
THE AMHERST ALLIANCE is a Net-based, nationwide citizens’
advocacy group which calls for greater diversity in media ownership and
programming. We were founded on September 17, 1998 -- in Amherst,
Massachusetts -- in order to mobilize public support for the establishment of
a Low Power FM Radio Service. Since the FCC’s establishment of a Low
Power FM Service, in January of 2000, we have been actively involved with
the process of Low Power FM implementation. At the same time, however,
our Members have led us to become involved with several other media issues,
ranging from the FCC’s deliberations on media ownership limits to the
Copyright Office deliberations on Internet royalties for small webcasters.
THE NEED FOR “DEFENSE OF THE SPECTRUM”
One of our issues of greatest concern has been what we call “Defense
Of The Spectrum”. By this, we mean efforts to protect small but vital
broadcasting services -- notably, Amateur Radio, shortwave, Citizens
Band transmissions and radio astronomy -- from erosion, or even
displacement, by the rising tide of commercial wireless transmissions.
THE AMHERST ALLIANCE
Spectrum Needs Of First Responders
Page 2
Our efforts on this front have included May 23 Written Comments in
FCC Docket 03-104, opposing approval of Broadband Over Powerlines (BPL),
and a June 11 letter to President Bush, stating our concerns about the inter-agency
“Spectrum Policy Initiative” he launched in a Presidential Memorandum on June 5.
ENDORSEMENT OF H.R. 713 AND S. 537:
THE AMATEUR RADIO SPECTRUM PROTECTION ACT OF 2003
As another step in our “Spectrum Defense” campaign, we are pleased and
proud to endorse H.R. 713, sponsored by Representative Michael Bilirakis (R-FL),
and S. 537, the companion bill introduced in the other House of Congress by
Senator Michael Crapo (R-ID).
In this regard, we strongly second the oral testimony of Jim Haynie,
President of the American Radio Relay League (ARRL), during these Hearings.
Legislation to protect Amateur Radio transmissions, which time after time
have played a crucial role during the aftermath of both natural and man-made
disasters, is clearly needed -- and it is needed now.
As noted in Section 2 -- the “Findings” Section -- of H.R. 713:
(4) The Federal Communications Commission has taken actions
which have resulted in the loss of at least 107 MHz of spectrum
to radio amateurs.
THE AMHERST ALLIANCE
Spectrum Needs Of First Responders
Page 3
If the FCC proceeds to authorize BPL, and/or if the White House proceeds
with the June 5 “Spectrum Policy Initiative” in its present form, the loss of 107 MHz
could be just the beginning. Amateur Radio truly needs the protection that
enactment of H.R. 713 would provide.
THE NEED TO EXPAND
THE AMATEUR RADIO SPECTRUM PROTECTION ACT OF 2003
While we strongly endorse enactment of H.R. 713, as currently written, we
also strongly endorse expansion of H.R. 713 -- to encompass comparable protection
for other small but vital “first responders” in the broadcasting community.
Shortwave Transmissions
Shortwave transmissions, like Amateur Radio transmissions, have often
constituted the first -- or one of the first -- sources of information flowing out
of, and/or into, areas facing a natural or man-made disaster.
In addition to their “first response” capabilities, shortwave transmissions
also frequently serve the more routine -- but still vital -- function of facilitating
the flow of ideas and information within, and across, national boundaries. If we
value human freedom, then preserving listener access to shortwave frequencies is
particularly important in societies which are largely closed, or are becoming so.
Of course, listener access is impossible unless broadcaster access is also preserved.
THE AMHERST ALLIANCE
Spectrum Needs Of First Responders
Page 4
Citizens Band Transmissions
Although references to Citizens Band transmissions often conjure up images
of SMOKEY AND THE BANDIT, Citizens Band transmissions also provide a
number of important public safety benefits:
· Routine reports of highway conditions, and key alerts
(as needed) about accidents and other emergencies,
by CB-equipped volunteers in the Radio Emergency
Affiliated Communications Teams (REACT)
· A way that mobile CB users can call for help, often
with more reliability than cell phones can provide, in
the event of vehicle breakdown and/or other highway
crises
· A way that base station CB users (especially, but not
exclusively, in rural areas) can call neighbors for help,
and/or exchange information with neighbors during a
disaster -- even if the phones and electricity are out
· A way that interstate truckers, and other drivers, can
use conversation to stay awake during long, lonely
drives
We submit that, in a possible competition for spectrum, any or all of these
public safety functions are more important to the nation than empowering
computer users to connect to The Internet 2 seconds faster than before.
THE AMHERST ALLIANCE
Spectrum Needs Of The Nation’s First Responders
Page 5
Radio Astronomy
We acknowledge that radio astronomy is unlikely to serve a “first response”
function -- unless it helps us to detect incoming meteorites. Still, radio astronomy
has served society well by expanding the body of human knowledge about the
universe around us. It seems likely to continue this service far into the future.
For this reason, we believe that radio astronomy should also enjoy statutory
protection against displacement by BPL or similar signals, to which it is acutely
vulnerable.
THE “JUDGMENT CALLS” IN THE NETHERLANDS AND JAPAN
We note that concerns about interference -- with more essential uses of the
broadcast spectrum -- have led regulatory agencies in both The Netherlands and
Japan to reject approval of Broadband Over Powerlines. Thus, the United States
would not be alone if it refused to open the floodgates to a tidal wave of BPL signals
and other new commercial wireless transmissions. At a minimum, Congress should
adopt the H.R. 713 approach of identifying small but vital uses of the spectrum --
to be protected from displacement, or at least assured of relocation on the spectrum
if needed.
THE AMHERST ALLIANCE
Spectrum Needs Of The Nation’s First Responders
Page 6
A PROPOSAL FOR EXPANDING
THE AMATEUR RADIO SPECTRUM PROTECTION ACT OF 2003
In order to facilitate action by the Subcommittee to expand the radio
spectrum protection coverage in H.R. 713, to include other small but vital
broadcasting services beyond Amateur Radio transmissions, we have developed
specific language which could be used to amend the bill.
The recommended revisions to the current text of H.R. 713 can be found
in the Appendix to this Written Testimony.
The core provisions of the recommended amendment would:
· Preserve the existing requirement that the FCC must protect
use of the radio spectrum for Amateur Radio transmissions
· Incorporate a new requirement that the FCC must consider
protecting, in a formal rulemaking, use of the radio spectrum
for each of the following purposes: shortwave transmissions,
Citizens Band transmissions and radio astronomy
· Establish a rebuttable presumption, for purpose of this
rulemaking, that these uses of the spectrum should be
protected
In addition, in several places within the bill where the Amateur Radio
Service is referenced, the recommended amendment would add the phrase:
… including military broadcasts conducted in tandem with
civilian amateur radio or amateur satellite services,
THE AMHERST ALLIANCE
Spectrum Needs Of First Responders
Page 7
We believe this aspect of the recommended amendment is actually a
clarification of what the authors of H.R. 713 already intended.
The change would assure protection of the Military Affiliate Radio Service
(MARS): a national defense communications network, in which civilian Amateur
Radio operators work in concert with military broadcasting personnel to ensure the
steady flow of personal messages back and forth between Americans in military
uniform and their family and friends on the home front. Since the MARS network
is a hybrid of Amateur Radio and military broadcasts, protecting only the civilian
portions of it -- as H.R. 713 provides -- might not be sufficient to preserve the
system. With the change we recommend, both portions of the MARS network
would be shielded against displacement by newer, less public spirited transmissions.
ENDORSEMENT OF H.R. 1478:
THE AMATEUR RADIO EMERGENCY COMMUNICATIONS
CONSISTENCY ACT
In addition to the protection against spectrum displacement that H.R. 713
provides, the Amateur Radio Service must also be shielded against another force:
private land use regulations which bar homeowners and/or tenants from installing
Amateur Radio equipment. Such bans abound in planned communities and other
neighborhoods around the country, where Homeowners Associations (HOAs), and
others, usually justify them on “aesthetic” grounds -- even though it is easy to find
compact equipment, which is effective without being obtrusive.
THE AMHERST ALLIANCE
Spectrum Needs Of First Responders
Page 8
HOA bans on Amateur Radio equipment are working in practice to
deprive thousands of American neighborhoods, and tens of millions of American
citizens, of the emergency preparedness services that are otherwise available --
virtually around the world. The bans are petty … unjustified by the evidence
about actual aesthetic impact … and, above all, dangerously shortsighted.
In future disasters, including acts of terrorism, it is well established
that Amateur Radio communications will save lives. From this, it follows that
HOA bans on Amateur Radio communications will cost lives. Perhaps, given
the geographic prevalence of such bans, and the growing availability of Weapons
of Mass Destruction, the bans will cost lives on a scale we cannot yet imagine.
Fortunately for all of us, Representative Steven Israel (D-NY) has
introduced H.R. 1478: The Amateur Radio Emergency Communications
Consistency Act. This legislation would make private land use regulations, like
regulations established by State and local governments, subject to the FCC’s
jurisdiction when Amateur Radio operations are involved. The bill would
effectively empower the FCC to modify, restrain or even override HOA bans on
Amateur Radio operations.
Like ARRL, THE AMHERST ALLIANCE heartily supports this bill.
Since H.R. 1478, like H.R. 713, has been referred to this Subcommittee,
the Subcommittee can -- and should -- report both proposals to the full
Committee, and later to the House floor.
THE AMHERST ALLIANCE
Spectrum Needs Of First Responders
Page 9
As we have done with H.R. 713, we recommend the adoption of
strengthening amendments to H.R. 1478.
In the case of H.R. 1478, however, our strengthening amendments would
be less complex. We recommend expanding the scope of the bill’s coverage to
provide FCC jurisdiction over private land use regulations which affect:
· Shortwave equipment and/or operations
· Citizens Band equipment and/or operations, if used by
volunteer participants in Radio Emergency Affiliated
Communications Teams (REACT)
· Any other broadcasting equipment and/or operations
which the FCC identifies as valuable for conducting
emergency communications and/or maintaining
public safety and/or preserving national security
A PROPOSAL FOR MERGING H.R. 713 AND H.R. 1478
Although we certainly would not oppose separate Subcommittee and full
Committee approval of H.R. 713 and H.R. 1478, we believe that -- all other factors
being equal -- it would be more efficient and effective to combine H.R. 713 with
H.R. 1478. Better still would be a combination of H.R. 713, as expanded through
the amendments we have recommended, with H.R. 1478, as expanded through the
amendments we have recommended.
The revised text of H.R. 713, as set forth in the Appendix to this Written
Testimony, shows how this could be done.
THE AMHERST ALLIANCE
Spectrum Needs Of First Responders
Page 10
CONCLUSIONS
To reiterate, briefly, the legislative recommendations of THE AMHERST
ALLIANCE, regarding action to address the spectrum needs of first responders,
we urge this Subcommittee to:
· Report H.R. 713 to the full Committee, after voting to
adopt strengthening amendments:
n A requirement that the FCC must consider
protecting shortwave transmissions, Citizens
Band transmissions and radio astronomy
n Clarification of references to Amateur Radio,
so that all of the Military Radio Affiliate
Service (MARS) network is protected
· Report H.R. 1478 to the full Committee, after voting to
adopt strengthening amendments:
n Protection of shortwave equipment and/or
operations
n Protection of Citizens Band equipment and/or
operations, if used by volunteer participants
in Radio Emergency Affiliate Communications
Teams (REACT)
n Protection of any other broadcasting equipment
and/or operations which the FCC identifies as
valuable for conducting emergency communications
… and/or maintaining public safety … and/or
preserving national security
· Ideally, combine the expanded version of H.R. 713 with the
expanded version of H.R. 1478 -- to form a single bill
RECOMMENDED TEXT OF H.R. 713
[AND COMPANION BILL S. 537],
THE AMATEUR RADIO SPECTRUM PROTECTION ACT OF 2003,
AS REVISED BY PROPOSED AMENDMENTS
ENDORSED BY
THE AMHERST ALLIANCE
June 28, 2003
Standard and italicized TIMES NEW ROMAN type = Current text of H.R. 713
Bold TIMES NEW ROMAN type = Amendment #1
(Based on text of H.R. 1478,
The Amateur Radio Emergency Communications Consistency Act)
Bold Italicized TIMES NEW ROMAN type = Amendment #2
(Proposed by THE AMHERST ALLIANCE)
Brackets [ ] indicate current text of H.R. 713 that would be deleted
***********************************************************************
A BILL
To ensure the availability of spectrum to amateur radio operators [.] and provide that private land use rules be treated as a State or local regulation for purposes of certain Federal Communications Commission regulations.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled.
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Amateur Radio Spectrum Protection and
Emergency Communications Consistency Act of 2003’.
AMHERST ALLIANCE APPENDIX:
Page 2
SEC. 2. FINDINGS.
The Congress finds the following:
(1) More than 650,000 radio amateurs in the United States are licensed
by the Federal Communications Commission.
(2) Among the basic purposes of the Amateur Radio and Amateur
Satellite Services are to provide voluntary, noncommercial radio service,
particularly emergency communications.
(3) Emergency communications services by volunteer amateur radio
operators have consistently and reliably been provided before, during,
and after floods, hurricanes, tornadoes, forest fires, earthquakes, blizzards,
train accidents, chemical spills, and other disasters [ . ] , including acts
of terrorism.
(4) The Federal Communications Commission has taken actions which
have resulted in the loss of at least 107 MHz of spectrum to radio amateurs.
(5) Private land use rules and/or covenants, in planned communities
and other areas, have frequently restricted the installation and/or use of Amateur Radio equipment to the point at which Amateur Radio Service
operations, and their emergency communications capabilities, have been
effectively banned in such areas.
(6) Similar or identical developments are also threatening to erode the
viability of shortwave and Citizens Band transmissions, both of which have also demonstrated a proven capability to materially enhance emergency communications, public safety services and the free flow of ideas and information, both within and across national boundaries.
(7) In addition, similar or identical developments are threatening to
erode the viability of certain radio astronomy operations, both amateur
and professional, which have made significant contributions to the body
of human knowledge and the talent pool of skilled scientists and broadcasters.
(8) New federal statutes and regulations are needed in order to assure
continuation of, and potential expansion of, the vital contributions currently
made by the Amateur Radio Service, and certain other forms of broadcast communications, to the nation’s emergency preparedness capabilities
and public safety services, as well as to other aspects of the national interest.
AMHERST ALLIANCE APPENDIX:
Page 3
SEC. 3. FEDERAL POLICY REGARDING REALLOCATION OF AMATEUR RADIO SPECTRUM [ . ] AND/OR CERTAIN OTHER BROADCAST OPERATIONS WHICH MAKE VITAL CONTRIBUTIONS TO THE NATIONAL INTEREST.
Section 303 of the Communications Act of 1934 is amended by adding at
the end the following new subsection:
‘ (z) (1) Notwithstanding subsection (c), after July 1, 2003 --
‘[(1)] (i) make no reallocation of primary allocations of bands of
frequencies of the amateur radio and amateur satellite services,
including military broadcasts conducted in tandem with civilian
amateur radio and amateur satellite services;
‘[(2)] (ii) not diminish the secondary allocations of bands of
to the amateur radio or amateur satellite services, including
military broadcasts conducted in tandem with civilian
amateur radio and amateur satellite services; and
‘[(3)] (iii) make no additional allocations within such bands of
frequencies that would substantially reduce the utility
thereof to the amateur radio or amateur satellite services,
including military broadcasts conducted in tandem with
civilian amateur radio and amateur satellite services;
unless the Commission, at the same time, provides equivalent replacement
spectrum to amateur radio and amateur satellite service. [ ’]
‘ (2) Notwithstanding subsection (c) ---
(i) within 10 days of the date of enactment of
Section 303 (z) (1), extend the protections of
Section 303 (z) (1), on an interim basis, to
shortwave broadcasts, Citizens Band broadcasts
and radio astronomy operations;
(ii) within 90 days of the date of enactment of
Section 303 (z) (1), issue for public notice and
comment the proposed version of a final rule
that would make permanent the interim
protections of Section 303 (z) (2) (i), based
upon the rebuttable presumption that the
AMHERST ALLIANCE APPENDIX:
Page 4
protected operations enhance the nation’s
emergency communications capabilities
and/or the nation’s public safety services,
and/ or promote the free flow of ideas and
information within and across national
boundaries, and/or significantly expand
the body of human knowledge, and/or
make other vital contributions to the
national interest;
(iii) within 1 year of the date of enactment
of Section 303 (z) (1), promulgate a
final rule which makes permanent the
interim protections of Section 303 (z)
(2) (i), for all of the broadcast operations
which are referenced therein, except in
those specific cases (if any) in which the
rebuttable presumption of a vital national
contribution has been overcome by a clear
preponderance of the evidence; and
(iv) periodically as needed, but in no event less
frequently than every 10 years, issue and
conclude a Notice Of Inquiry regarding
whether the protections of Section 303 (z)
(2) should be extended to, and/or withdrawn
from, any specific broadcast operations,
based upon whether vital contributions to
the national interest are in fact being made,
with all currently protected broadcast
operations remaining subject to the rebuttable
presumption of a vital national contribution.
SEC. 4. TREATMENT OF PRIVATE LAND USE RULES AS LOCAL REGULATION.
(a) For purposes of the Federal Communications Commission’s
regulation relating to station antenna structures and/or operations
in the amateur radio services (47 CFR 97.15), including military
broadcasts conducted in tandem with civilian amateur radio or
amateur satellite services, any private land use rules shall be
treated as a State or local regulation and shall be subject to the
same requirements and limitations as a State or local regulation.
AMHERST ALLIANCE APPENDIX:
Page 5
(b) The provisions of Section 4 (a) shall also apply to:
(1) shortwave radio receiving and/or transmission equipment
and/or operations;
(2) Citizens Band radio equipment and/or operations, if they
involve participants in volunteer Radio Emergency
Associated Communications Teams (REACT); and
(3) any other broadcasting equipment and/or operations
which the Federal Communications Commission
identifies as being of value for conducting emergency
communications and/or maintaining public safety
and/or preserving national security.
APPENDIX Prepared By:
DON SCHELLHARDT
Attorney For THE AMHERST ALLIANCE
(203) 756-7310 or (203) 757-1790
45 Bracewood Road
Waterbury, Connecticut 06706
June 28, 2003