[Ares-races] Re: Avon Products Foundation AKA Pallotta Teamworks

[Mark C. Whitaker]

I'm glad this discourse has come up...generates some traffic and also gets
the wheels to turning.

Being somewhat of a analyzer (hence why I chose a career in legal and
accounting) I look at this from a "whole" aspect of what is the substance of
the issue and try to determine just what the end goal is of the parties
involved.

Personally, I don't have any problem supporting a non-profit organization as
I know that the total proceeds of the event goes to the non-profit with a
portion of that money being used to cover costs for event
planning/administration (which may include the contract hiring of an events
coordinator at a designated fee).  However, given that Pallotta Teamworks
created and runs the event on a for-profit basis (with, as I understand it,
a portion of the net income after profit has been recognized going to the
charity involved) this raises the question in my mind of whether this is a
public service event or a commercial venture.

With reference to FCC �97.113(a)(5) there is some question in my mind as to
whether these events fall under a "regular basis".  Pallotta Teamworks runs
several events throughout the year on what may be considered a regular
basis, even though these events occur in different geographical regions.  If
this is a regular basis and there is commercial equipment available to
fulfill the needs of the commercial venture, would the use of amateur radio
operators violate �97.113(a)(5)?

What do you all think?  Would this be considered a regular basis as opposed
to a casual basis?  Would people be willing to volunteer for what may be
perceived as a commercial venture or are they more inclined to participate
in charitable events?


Mark
KD7KUN
NCI-4243

 -----Original Message-----
Message: 2
From: "David French, N7FAN" <n7fan@qsl.net>
To: "Reflector, ARES-RACES" <ares-races@mailman.qth.net>
Subject: Fw: [Ares-races] Avon Products Foundation AKA Pallotta Teamworks
Date: Sat, 13 Apr 2002 22:51:21 -0700

Oops.  My original response went to the wrong person...which is probably
better than it going out to the group in general.  I say this because I was
100% WRONG!

Here is what the ARRL's Special Events Communication Manual has to say about
these types of things:


"Is It Legal?"

Yes!

Thanks to the FCC Rules that took effect in September, 1993, it is now
perfectly clear that it is legal for radio amateurs to provide
public-service communications.

Why were new rules needed? FCC licensees, amateur or otherwise, are supposed
to serve "the public interest, convenience, and necessity." In Section 97.1
of the Commission's Rules, the basis and purpose of the Amateur Radio
Service is spelled out quite clearly. Surely, public service and educational
activities are to be actively encouraged; how could there be any question
about their being legal?

To make a long story short, around 1970 there were concerns about possible
abuses of Amateur Radio by non-amateur and business interests. These
concerns led to a ban on amateur communications "to facilitate the business
or commercial affairs of any party" or "as an alternative to other
authorized radio services." Over time, the interpretations of these rules
became progressively more literal until they had a chilling effect even on
meritorious public service activities. By 1991, it was obvious that
something had to be done to put things back on track.

On September 13, 1993, following a rulemaking proceeding, the old "no
business" language was dropped, and replaced with a prohibition on
communications for compensation, on be-half of one's employer, or in which
the amateur has a pecuniary interest [97.1 13(a)(2),(3)]. In place of the
flat prohibition on providing an alternative to other radio services is a
less restrictive one, against doing so on a regular basis (97.113(a)(5)].

These rules changes mean a lot to public service-oriented amateurs. They
remove the ambiguities that have plagued amateur public-service
communications for the past two decades, and have generated endless
hair-splitting discussions about whether particular communications were
permitted. The focus is no longer on the content of the communication;
rather, it is on whether the amateur, or his or her employer, stands to
benefit financially [97.113(a)(2),(3)]. If so, then the communication is
still prohibited. If not, then the remaining question is whether the
communications need is one that ought to be met by some other radio service.
Here, the rule of reason applies. A need that arises on a regular basis, and
for which other communications services are reasonably available, should not
be met by Amateur Radio. The FCC declined to define "regular," but this
shouldn't pose much of a problem for us since abuses will tend to be
self-limiting; volunteers don't like being taken advantage of, and if they
are they should just say no.

The Commission doesn't want to hear questions about whether such-and-such is
permitted. The Report and Order says, in part, that "...any
amateur-to-amateur communication is permitted unless specifically
prohibited, or unless transmitted for compensation, or unless done for the
pecuniary benefit of the station control operator or his or her employer"
[97.113(a)(1)].

The rules do not represent a philosophical departure from our "roots." They
provide latitude in our operating and especially in our public-service
communications, just as we had for decades before the onset of
over-regulation in the early '70s. Seldom do we get to herald a return to
the "good old days." This is one of those rare times.