Lawyer Responds to Amateur Radio

An FHH attorney explains why he sometimes works in opposition to ARRL and individual amateurs.

[Blogmeister’s Note: A post last year by our colleague, Mitchell Lazarus, has attracted considerable recent comment from folks sympathetic to amateur radio. To help further dialog among differing points of view, we present Mitchell’s response. The views here are, of course, Mitchell’s own, not necessarily shared by other FHH lawyers or clients of the firm.]

A recent Reddit posting on an amateur radio “subreddit” called me a “lawyer hostile to amateur radio.” Other comments directed both to my blog piece linked on Reddit and to other of my blog postings take a similar view (or worse). So have some amateur websites over the years.

My response: the charge of “hostility” is unwarranted and contrary to the facts.

I have great respect for the work of amateurs, particularly in emergency communications and in advancing radio technology over the decades. I have enjoyed long friendships with amateur licensees, including (I hope) some reading this post. I have blogged in support of amateur positions.

But, yes, I have crossed swords with some amateurs.

Part of my job involves seeking FCC approval for new radio technologies. The process can include proposing a frequency band for a new kind of device, and then working with the manufacturer to minimize the risk of interference to incumbents in the band. This is not only good spectrum citizenship, but it also recognizes that the FCC will disallow a technology it thinks will cause undue interference.

Because amateur radio has so many allocations scattered through the usable spectrum, it can be hard to avoid them altogether. But we try. When amateur representatives mounted a full-bore opposition to Broadband-over-Power-Line, most overlooked that one BPL company – my client – had configured its technology to avoid all amateur bands. (ARRL noticed and praised this frequency choice.) Many other devices whose FCC approvals I worked on likewise have no in-band amateur-band emissions. Often this was deliberate, and sometimes required redesign of the device. (You’ll have to take my word for this, as client confidentiality bars my giving specific examples.)

Occasionally, though, the technical requirements of a device plus limitations in other bands make it impossible to avoid amateur frequencies. In those cases the client and I work hard to minimize any risk of interference. (I am trained as an electrical engineer as well as a lawyer.) In a few of these matters, I have checked in with ARRL senior management to alert them in advance to our plans and to listen to their concerns.

All of the amateur bands, like nearly all usable spectrum, are shared with others. And all spectrum users have a responsibility to work with and accommodate their sharing partners. Over the years I have sat down with the Department of Defense and its military branches, FAA, NASA, satellite operators, broadcasters, the GPS industry, radio astronomers, microwave operators, public safety representatives … a large cross-section of the spectrum community. Goodwill on both sides, plus good engineering, usually yields a solution that everyone can live with.

In my own experience, though, those representing amateur interests have rarely been receptive to this kind of discussion. My past efforts to negotiate conditions for spectrum usage in amateur bands mostly failed, and I mostly stopped trying years ago. Even ARRL usually seems more inclined to fight than talk. Proposed non-amateur uses of amateur frequencies are routinely, and apparently unthinkingly, deemed objectionable, no matter how harmless the incursion and no matter how important the application.

I can recall only one exception: some years ago, when I requested an FCC waiver for a public safety radar device in a radar band that also had an amateur secondary allocation, no one opposed.

A more typical case: A client manufactures a small, throwable surveillance robot – think of a Red Bull can with a wheel on each end – that navigates under remote control and sends back video to the operator. Military personnel in Iraq and Afghanistan relied on it for checking the interiors of buildings before entry, among other uses. Thinking the device might also be helpful to local police and fire personnel, the company obtained an FCC experimental license and lent out units to a few cities and towns for trial. The device was a big hit, particularly valuable in situations involving hostages or barricaded shooters. One officer told the FCC, “We don't feel comfortable without this thing now.”

In looking for a frequency band for domestic use, the company faced severe constraints. Adequate building penetration – essential for the application – requires frequencies below about 500 MHz. (Tests with a 915 MHz prototype showed dismal results.) The need for a reasonably efficient antenna of reasonable length sets a lower bound on frequency. In the end, the only workable region turned out to be in part of the 420-450 MHz military radar band, which also has a secondary amateur allocation. The company asked the FCC for a waiver to operate in the band.

ARRL and many individual amateurs objected to the waiver on interference grounds.

Does the device cause interference? Top output power for any model is 323 milliwatts. The FCC limits licensing to police, firefighters, and critical infrastructure security personnel. Most cities with any units at all have only one or two of them. Typical usage might be once or twice a month, never for much longer than an hour (due to battery limitations) and most operation is close to the ground. Interference into a given amateur receiver at a given time is not impossible, but any reasoned analysis would conclude it’s extremely unlikely.

The manufacturer nevertheless offered, and the FCC imposed, a requirement that the device protect from interference, and accept interference from, all licensees including amateurs. The manufacturer also agreed to an ARRL request for a label that says, “This device may not interfere with Federal or non-federal stations operating in the 420-450 MHz band and must accept any interference received.”

Still, ARRL and its supporters treated the device as a major interference threat. In various combinations of parties they opposed the waiver, sought reconsideration of the waiver after its grant, challenged the company’s equipment authorization, petitioned to block scores of police-department licenses, and then sought reconsideration of the license grants after issue. None of their dozens of pleadings contained any allegation of actual interference. One party offered calculations that predicted harmful interference at a range of 400 km and to the International Space Station, with a minimum altitude of 330 km – from 316 milliwatts, which is impossible. (To his credit, the individual later withdrew his objections.)

I have no objection to amateurs’ defending their interests. My problem, rather, is with those who showed no willingness to balance the low likelihood of interference against the benefits of a device that many police departments said would reduce their officers’ risk of sudden death. The amateurs in the proceeding insisted, in effect, that any energy emitted in the amateur bands is bad; nothing else need be considered. That view might have been reasonable decades ago, when uncongested spectrum was still plentiful. Today, I expect more from a technically sophisticated, public spirited community.

My blog post linked in the Reddit entry raises a parallel issue. It told about a Mr. Ruben Lopez in Pomona Park, Florida whose well pump emitted RF in the 160 meter amateur band (1800-2000 kHz). Someone reported Mr. Lopez to the FCC, which issued an official citation and threatened him with six-digit fines. I noted that Mr. Lopez appeared to be an innocent offender, and suggested that perhaps the affected amateurs might have found a way to leave him alone.

Responsive posts on Reddit and my law firm’s blog site again take the absolute view: emissions in an amateur band cannot be tolerated. Some would blame the well pump manufacturer, although there may be no way to reach the manufacturer other than through Mr. Lopez; and to enforce against the manufacturer would be a long and difficult business – all the more so if the pump is not recently installed. Some commenters supposed that the amateur experiencing interference would have tried to contact Mr. Lopez directly, and gone to the FCC only as a last resort. That is surmise; we just don’t know. If the fix is inexpensive, as one commenter suggests, the affected amateur – who probably knows a lot more about radio technology than Mr. Lopez – might have offered to take care of it. But frankly, if a stranger came to my door to say my well pump was interfering with his radio and I had a federal obligation to repair it to the stranger's satisfaction … I would lock the door and call the police.

This is a crowded and complicated world. Sometimes we all have to bend a little to let others squeeze by. Personally I have no hostility toward amateur radio. But I do resist knee-jerk opposition that overlooks the interests of everybody else. Given the chance, I would far rather work with amateurs on spectrum matters than against them.

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Comments (21) Read through and enter the discussion with the form at the end
J Clifford Curley - May 29, 2014 3:42 PM

Geee, good response! you are clearly not safe. in my career i only faced a death threat, which showed up on my desk in a secure facility, a personal law charge of 120 moilion dollars and worked with the DEA to do a sting on someone trying to buy "my" TV statiion with clearly (my point of view) drug money. perhaps i should write a defence!.

Ambient - May 29, 2014 4:49 PM

I imagine that many loyal ARRL members, like myself, were exasperated at the organization's extreme position against the law enforcement surveillance invention. The scorched-earth campaign against this life-saving product, for use by sworn personnel, was not one of the Amateur Service's shining moments.

Ben - May 29, 2014 8:44 PM

Here's the thing. The spectrum is a managed resource. Admittedly managed very poorly: the FCC could hardly be less competent, less of a proper steward of this precious resource, less of an enforcer of its legitimate mandate, less of a puppet for the rich, less interested in "doing for the people." But they are what we have, aside from actual ethical behavior by the people involved. Please don't snicker.

The spectrum is not yours, or your client's, to radiate into randomly. It doesn't matter if it's a ham band, an emergency marine band, a SW broadcaster's band, or whatever. Legally speaking, in the USA, you can radiate where the FCC says you can radiate, and nowhere else. But if in so doing, you cheat the public out of portions of its precious resource that were not allotted specifically to your service, you're a bad citizen.

Saying you "avoid ham bands" just makes me think "ok, but then what *aren't* you avoiding?" It's simple: Don't radiate anywhere you aren't specifically intended to radiate, that is, where your service has been allocated its own portion(s.) of the spectrum. No need to say "in the ham bands"; just say (and do) "we're working to reduce all RFI to below interference levels." That's the right answer. That's the *only* right answer.

Looking at a spectrum analysis of the range of 9 mhz to 15 mhz this afternoon, with its now far too copious "gifts" of inadvertent radiation from all manner of devices and sources in every direction in my tiny rural town -- switching power supplies, plasma televisions, treadmills, poorly maintained power transmission circuitry, signs, streetlights, etc. -- I find myself entirely without sympathy for your clients, for engineers barely worthy of the name who design improperly radiating systems, and, frankly, for anyone engaged in defending these bad actors. They are malefactors by any sane standard. Which of course typically leaves out the law, sigh.

Again ethically speaking, your client's inventions and devices should be subject to the very same constraints clocked devices are; they should be placed in a "calibrated corn field" and measured from every angle by competent field engineers with precision test equipment for emissions above a gnat's whisper. If that standard cannot be met, then back to the drawing board with the thing. FCC and the law aside, this is what is *right*.

The law, like the FCC, is "what we've got." It's a terrible mess, designed by the rich for the benefit of the rich. Where it isn't outright wrong, it's often unfair, poorly crafted, and/or ridiculous. One consequence of this is that it becomes very difficult to hold the feet of people acting against the public interest to the fire. Bad enough. But the real shame of it all is that what we *don't* have is citizens ethical enough to keep from depositing a nice warm load of spurious interference on their neighbors and customer's doorsteps when they know perfectly well that doing so causes them hardship.

No one should be threatening you with violence. Including the government. Such action is just small minded and asinine. But that doesn't make what you, or your clients do, ok.

AA7AS

Dave - May 30, 2014 11:47 PM

Mitchell;
I enjoyed reading your views. It is never a waste of time listening to another perspective. I remember Reddit. Their robotic system wasn't even that expensive. You are right, it's interference to Amateur Radio would be minimal. The issue here is that is not the problem. This situation needs to be flipped around to see the real problem.
I am retired, after working 32 years in communications. One thing I have learned is that Amateurs and Law Enforcement do not make good co-tennants. They both think they are in the right. the only difference, one side has guns.
The issue here is an Amateur accidentally interfering with a robot while in critical use. Enforcement will do what ever is needed to resolve the interference NOW and will assume it was intentional. Hopefully the Amateur lives through this confab and can afford the legal fees.
Dave...

Keith - May 31, 2014 2:56 AM

Simply stated, If the device is to be used by law enforcement, then use transmitters that are approved for use in the public service spectrum in the device. There are plenty of frequencies municipalities etc have assigned to them that I am certain can be used if they are ordering said device. If it is to be used by hams, we will surely be willing to make sure that any new device that is developed remain in our allocated spectrum. There is no need to ask for spectrum when the user is licensed to operate said device, unless of course the device is too "dirty" to be used in that spectrum to obtain FCC Type acceptance.

Technology today allows for frequency agile transmitters and receivers.

73
W5KB

Todd Carney - May 31, 2014 4:27 AM

Fair enough. But I'm afraid there are a number of Hams who hold to the NRA's logic that "if you give them an inch, they'll take a mile." It's a very stupid and hackneyed cliche. So if "they" could take a whole mile, how could you stop them from taking the first inch, too? And if you could stop them from the inch, then why not the second inch, or third foot, or maybe even a half-mile. I suppose it goes along with the "stand your ground" mentality. What's needed is common sense--with both the ARRL and NRA's causes, not some juvenile and anti-social waving of the "Don't Tread on Me" flag. Rights come with duties and responsibilities. Always.

Ron H - May 31, 2014 12:42 PM

You are 100% right when you say that hams are protective to an extreme, but look at the history of others using part of our spectrum. To many time have they p[laced things in our ham bands to find out its was a mess in practice. In the lab where one has a controlled environment, is one thing, out in the real world it is something very different. While I am NOT opposed to other devices using part of our spectrum, I do want to see real world test results (both the bad and the good) before I sign off on it.
Frequency allocation is the key to all users of the band. We as hams do not like that, we want to whole piece of the pie and not just a few discrete frequencies. Look at the 60 meter band, we have discrete frequencies and it works for the good of all. Within our 60 meter frequencies are military, federal, business and other users all harmoniously working together. However in the rest of the ham world this is not the case and that is where the problem lies. You and your clients want a discrete frequency in the middle of the “open range”. What happens is nothing less than “range wars” just like out west with the barb wire fence.

Doug - June 1, 2014 6:39 PM

Do not forget how things really work in America: It is not the interference from the device that worries amateurs, it's the subsequent actions that would result when someday one of the devices is interfered with or simply fails. The manufacturer's engineers looking for a scapegoat blame amateurs for the problem. Then the FCC is petitioned to remove amateur access to the band. The FCC ordered a power limitation to 50 watts TPO on the 70 cm band in New Mexico due to the US Army contending that hams interfered with missile command links at White Sands Missile Range. They run over 1kw with tracking CP antennas versus whatever hams are doing out there? It is highly unlikely that was the cause of any link loss but the contractor's engineers had to make something up to cover their posteriors.

Al - June 1, 2014 9:39 PM

The problem comes later when law enforcement says their devices received interference from amateur radio that jeopardized lives and they can point to a local amateur antenna. Even if it wasn't the cause obviously a law enforcement life saving device should have precedence and then later you file a petition to eliminate the interference. Poof... Amateurs lose our main UHF band. We all know that comes next. We needs that spectrum for the same technical reasons as your client. There are other nearby frequencies that would achieve the same technical abilities but those are already in use by law enforcement, businesses and TV broadcast. This doesn't even include the 150mhz of spectrum bought by the cable companies that they aren't using (just to reduce broadcast TV use). Of those the easiest one to take from are amateurs. Competition in the UHF and microwave bands are getting fierce. It will only get worse. Amateur radio has huge portions of the high frequency band because no one else wants it. We know we have to fight to keep it. Do you want to share the 1.8mhz or 10ghz bands? Didn't think so.
The FCC was right to deny your robots use of the band even though they bent over backwards to let you try it out. Make it work in the near by LMR, LEO, TV or some of that unused spectrum the cable companies bought and see how willing they are to "share" with a "life saving" law enforcement tool. They know what would be the next step after it's in the field, just like we do.

Corey - June 2, 2014 8:53 AM

The biggest concern wasn't amatuers losing spectrum, but that an encrypted data channel (Which wouldn't sound too much different than noise) being place in the ham bands, and made unsafe to use.

Imagine if an operator keyed up at 100W over the robot, while it was attempting to pick up an explosive device?

BOOOM!

All because the amateur operator had no idea that a safety of life system was being used there. There's plenty of spectrum to be had in the land mobile area of the RF spectrum. No reason to do something as unsafe as try to make it a secondary user.

Smitty - June 2, 2014 12:21 PM

Mr. Lazarus, it seems that you just don't get it. As both a lawyer and an engineer, you should, though. It isn't only interference on ham bands that knowledgeable hams are concerned with, it's ANY interference--to either the band services or to the device in question--on ANY band.

If the device is to be used as a public service device, the correct band that it uses should be the public service band--where such comm equipment belongs. There are allocations on that band set aside for such things. As it sits now, if the device frequency were to be set in the ham bands and it was in an area where interference with the frequency was present, the device would be next to useless!

Or are you suggesting that the local law enforcement now have the right to shut down radio useages in an area where such devices are deployed? That, sir, opens an entirely different can of worms, and I doubt that even you would want to do that. 73.

Al - June 2, 2014 5:21 PM

LEO/Government has lots of spectrum in this same frequency range but even they don't want you to use their spectrum because they also know once this gets used they too would have to coordinate and avoid interference. Which would mean they lose frequencies they are using now. For any practical application your robots need frequencies free of interference but your application claims you must accept interference. Nobody believes you. That's why you can't get approved. This needs to be in the municipal or broadcast bands with a truthful application.

Richard Clem - June 3, 2014 3:47 PM

It appears that you're talking about the "Recon Robot," about which I filed comments: "One officer told the FCC, “We don't feel comfortable without this thing now."

But you go on to point out: "The manufacturer also agreed to an ARRL request for a label that says, 'This device may not interfere with Federal or non-federal stations operating in the 420-450 MHz band and must accept any interference received.'"

I pointed out in my comments that even though the police "don't feel comfortable without this thing," the manufacturer was perfectly willing to market it, even though it was subject to harmful interference. And by the nature of Amateur Radio, the interference would come at random times and from unknown sources. From the comments from police, it was very clear that they were not aware of this limitation, despite the label on the device.

So the cops come to depend on the thing, and when they're using it in an emergency situation, some ham unknowingly comes on frequency and wipes it out. There's no way for the cops to know why the thing is malfunctioning, or to locate the source of the interference. And from the glowing praises submitted by law enforcement, it was very clear that the manufacturer had kept them in the dark about this threat.

As a ham, I would certainly never intentionally interfere with such a device, even if I had the "right" to do so. But because I can use a much higher power level on the same frequency, it would only be a matter of time until a ham, possibly me, inadvertently interfered with its operation, perhaps with disastrous results. That was my reason for pointing out that the choice of frequency was so bad.

John Doe - June 15, 2014 10:16 AM

I still don't understand why it needs to be in the 420-450 mhz band that is shared by radar and amateur radio, but cannot be set up to use the 460 mhz public safety band.

Mitchell Lazarus - June 15, 2014 10:55 AM

Response to John Doe:
Because the combination of channelization and congestion at 460 MHz made it it impossible to operate at a bandwidth capable of carrying video.

rsaxvc - June 15, 2014 11:36 AM

Mitchell, What sort of modulation are you using for your video that requires so much bandwidth for a single channel?

Guglielmo - June 15, 2014 11:42 AM

“Someone reported Mr. Lopez to the FCC, which issued an official citation and threatened him with six-digit fines. I noted that Mr. Lopez appeared to be an innocent offender, and suggested that perhaps the affected amateurs might have found a way to leave him alone.

Is it your experience that the FCC issues citations and warns of fines to “innocent offenders” as a matter of course?

“Given the chance, I would far rather work with amateurs on spectrum matters than against them.”

Your very best solutions concerning Mr. Lopez and his illegal interference is to “leave him alone” or have a stranger resolve his problem for free. If you refuse to see the harm in illegal interference there can be no one who will take your claim of wanting to “work with” with amateurs seriously.

Ger - June 15, 2014 12:18 PM

Mr. Lazarus,

I read your last post regarding the individual who had an unintentional emitter of radio frequency interference, and put it in context with this post. It seems that you are still missing a couple of key points here, as well as need to disclose a couple of points.

On the disclosure side, your primary duty is to the clients you represent first and foremost. It is not your duty to enforce the law (which is reserved for the state), nor is it to espouse optimal engineering practice (which is reserved for professionally licensed engineers and regulatory bodies). When you claim that you are both an engineer and a lawyer, you cannot imply a claim to be in a position of authority to speak on a subject other than for your clients.

So it is demonstrated in your last post as well as this one. The individual with the unintentional radiator of radio frequency interference is best compared to a driver in an accident; in other words, the at-fault parties in an accident are liable for actual damages and statutory damages regardless of intent. No matter what your lament is on that situation, your client has a statutory duty to mitigate the complainant's damages, just like a complainant has no right to sue for an unintentional bump from another person on a city street. If you don't like the law, then I suggest you work with legislators and regulatory commissioners to change the law or the way it is enforced.

When radio amateurs tell you that an unintentional radiator causes excessive interference, it is exactly that: *excessive* interference. They are aware that there are low-level sources of background noise from electrical devices and natural sources that they deal with, and that's why you hear the background static or you get "snow" on an old TV. The difference is that when it overwhelms normal reception of signals, that is not a normal condition, and no amount of complaining can justify your position in this regard. This is the crux of why you are wrong in your previous post: you are excessively minimizing a legitimate complaint.

In this post, you attempt to use both your authority as an engineer and lawyer to minimize the positions of amateur radio operators and advocacy organizations using the example of an improperly-engineered police device. Specifically, you claim that the only frequencies that are available for this device by the device manufacturer are those available to amateur radio operators. You ignore the fact that there are enormous amounts of adjacent spectrum specifically allocated to government use; in particular, the band above 450MHz is frequently utilized by government agencies for official business. Moreover, as others mentioned above in the comments, the inadvertent use of perfectly-legal transmitters could overwhelm the signal to the police device and cause failure. It is clear that the manufacturer of the police device is either negligent or willful in its incorrect design and preying upon the ignorance of police agencies who have limited technical knowledge required to correctly evaluate the suitability of these devices.

No amount of hyperbole from you or your supporters in the comments or elsewhere will absolve you from having your arguments taken apart. Simply, you need to think more deeply about your arguments before you post them, or simply remain silent and leave your justifications to your legal pleadings and statements in court. Either way, you owe a duty to your clients to fully explain to them the entire situation or to obtain technical counsel with domain-specific knowledge to perform the same - just like an engineer should. Let's hope this is reflected in your future posts and statements.

Best regards,
Gerry

Mr. Sunshine - June 15, 2014 4:37 PM

Mitchell Lazarus: “Expert in the agency’s arcane legal and technical rules ...” and yet somehow opposed to the FCC enforcing regulations.

WhyBotherToDiscuss - June 15, 2014 6:32 PM

While you state that you are an electrical engineer (EE), you seem to ignore the fact that technology changes and advances. You say that your client only uses 323mW maybe once or twice a month and due to battery life, the emissions are less than an hour.

Please take of the JD hat for a moment and put on the EE hat. Technology changes, technology improves and in a few years the battery life improves from less than an hour to more than several hours. And since law enforcement is going to drop these devices from drones and transmit back to the command center 2000 feet away, the transmission power increases to 750mW or more.

And since your client's already view this as an essential device they don't want to go without, it becomes very popular and every squad car in the country starts to use these for every scenario from drunk driving arrests to domestic disputes to hostage situations. The frequency of use goes from once or twice a month to multiple times a day.

Then with the popularity of this device, it becomes completely pervasive in the world of police and semi-official police enforcement. Why wouldn't this become necessary for every mall cop, small town police unit, sheriff department, highway patrol, INS in the land? After all, are you against letting the police keep you safe?

Is this not the goal of your client's business plan? If not, what kind of people are running their business? Why would anyone invest in a company that doesn't think they will 'change the world' with their ideas?

Now, why would anyone express a concern over anything like this? It seems a clear cut way forward to protect the public? No elected official, or hope to be elected official would come out against soccer Mom's and the public's safety. Would they?

Bill - June 16, 2014 11:11 AM

So your so-called support of amateur radio comes in the form of supporting RM-11708? Just to reduce your cluelessness a tiny bit, that is the one case of ARRL vs. amateur radio operators, where the ARRL has taken the side of recreational boaters who also want to freeload on the ham bands. There has been almost universal opposition from hams with the exception of a few officers within the ARRL who want to grow their organization through recreational boating. Puuhhh leez.

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