Tuesday, April 10, 2012

Here are more of my "beefs" regarding the current Amateur Radio licensing system in the United States:

Unfortunately, one of the other issues that makes the way the FCC licenses Amateur Radio operators in the United States patently illegal is that their whole "incentive licensing" system has now become what's called "systemically discriminatory" under US equal access law.  That makes not only most of the individual "graph based" test questions currently being used in our exams illegal, but it also makes the entire, so-called "incentive licensing" SYSTEM that requires such nonsense illegal as well.

Right now, ALL of the so-called "accommodations" Part 97 supposedly provides for alternative approaches to testing are only directed at accommodating people with visual and/or hearing impairments.  Unfortunately, those "accommodations" are anything BUT "accommodating." because they are largely unstandardized and are administered by largely untrained volunteers who most often know little to nothing about working with handicapped persons.

Indeed, the American Radio Relay League (ARRL)....the organization that hosts the largest Amateur Radio Volunteer Examiner Coordinator (VEC) in the country...have set aside a set of specific exams devoid of graphic diagrams (such as circuit schematics) to be administered to people who cannot see.

And while this approach is certainly fine for those persons so handicapped, what about the sighted person who couldn't read a schematic diagram to save their soul?  Is it fair to give the handicapped person such "breaks" while at the same time forcing sighted persons to take the "full up" exam?

How can such so-called "accommodations" NOT be labelled "systemically discriminatory"?

What's more, the FCC's approach to "accommodation" ALSO consistently leaves out a WHOLE PLETHORA of other disabilities, both physical and mental, that our "ego based", achievement-oriented testing approach clearly does NOT accommodate. 

It's all of this nonsense, my friends, that is going to allow the disabled lobby to eventually have a "field day" in the federal courts because there is absolutely NO direct link in the US amateur radio testing structure between the privileges such testing grants and the knowledge and skills one has to demonstrate (such as being able to read a schematic)  in order to get them.

THE LAWS

ONE of the federal laws that covers such issues is the "Persons with Disabilities Act of 1990"…the so-called ADA.  Specifically, Section 202 of that law titled "Discrimination" reads as follows: 

"Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of A PUBLIC ENTITY (emphasis mine), or be subjected to discrimination by any such entity."

And, because it is an arm of the federal government (and supported by your and my federal tax dollars) it would seem to me that the FCC certainly qualifies as a "public entity" under the terms of this Act.

However, the ADA is not the only federal statute that deals with such issues.  Another federal statute is the "Rehabilitation Act". And, as I read it, among other things, it also specifically prohibits Federal Executive Agencies (such as the FCC) from excluding persons with disabilities from obtaining the benefits of federal programs as a result of their disability.

Specifically, Section 504(a) of the Rehabilitation Act (which relates to nondiscrimination Under Federal Grants and Programs) reads in part as follows:

"No otherwise qualified individual with a disability in the United States, as defined in section 7(20), shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance OR UNDER ANY PROGRAM OR ACTIVITY CONDUCTED BY ANY EXECUTIVE AGENCY (emphasis mine) or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978".

It seems to me that, just using the provisions of one or the other of these Acts, a good class action lawyer could make a very strong case that the whole US so-called "incentive licensing" system for the Amateur Radio Service unfairly "excludes participation in…denies the benefits of…or subjects disabled persons to discrimination under" the FEDERALLY administered licensing system for the Amateur Radio Service in the United States. 

That’s because our licensing system withholds full participation in our Service (an Extra Class license) based on applicants passing ever-more-irrelevant written examinations that are not only internally duplicative (as I will show below), but also go WELL BEYOND what the international guidelines suggest should be the minimum qualifications for full participation in the Amateur Service.

The term we educators use to describe such tests is "invalid" because such tests measure skills and abilities that bear little or no relationship to what candidates actually need to know in order to successfully perform in their new roles.  When constructing such tests, one must always ask the question:  "Does the test actually measure what it is supposed to measure?" 

What's more, when such tests require a knowledge of predominantly "nice to know" rather than "need to know" information, then, according to a whole host of equal access legislation in the USA (like those I've cited above), such tests become what's called "systemically discriminatory".  That's because, taken together, they create a SYSTEM that makes a license grant contingent on applicants successfully answering questions that have little or no direct relationship to the privileges they grant.

For example, under US federal law, when hiring a person to stack boxes in a government warehouse, you can no longer legally make that person's hiring decision based on them successfully completing an examination over how boxes are made.  The job they are applying for is to STACK the boxes, NOT to make them.  And while a knowledge of how boxes are made is "nice to know", it is NOT an essential element in the job they are being hired for. 

Therefore, they cannot (legally) be required to know such information.

Likewise, forcing ALL applicants for an Extra Class License to answer a question like: "What is the direction of an ascending pass for an amateur satellite?" is an absolutely invalid and illegal question under current US law.  That's because satellite operation is NOT an operational privilege granted exclusively to Extra Class license holders.  And it is certainly NOT a requirement in order to be qualified to operate in the last few KHz of the HF bands now reserved for Extra Class operators.  In fact, ANYONE with a valid Amateur License in the United States (including Technicians) can operate via our fleet of amateur satellites.

Likewise, asking an Extra Class applicant the question "How many times per second is a new frame transmitted in a fast-scan television system?" is also an illegal question because, once again, Amateur television operation is NOT an exclusive operational privilege granted solely to Extra Class operators.  As with satellite operation, ANYONE with a valid Amateur Radio License in the USA (including Technicians) can legally operate an Amateur television transmitter. That question is, therefore both invalid AND illegal under US equal access law because it creates what's legally called "an unnecessary regulatory barrier" to prospective applicants.  That is, the knowledges and skills required to correctly answer that particular question have absolutely NOTHING to do with the knowledge and skills needed to safely and courteously exercise the uniquely "exclusive" privileges an Extra Class License grants.

Note that the "easiness" or the "hardness" of the question is not the issue.  Rather, it's the RELEVANCE of the question to the SPECIFIC privileges a particular class of license grants that is important in determining the validity of our tests.

And, sadly, BOTH the General AND Extra Class exam pools are now CHOCK FULL of these equally "nice to know" questions that often bear absolutely NO direct relationship to the added privileges granted.  True, such questions discuss Amateur operation in general.  But, under today's federal equal-access laws, that's simply no longer good enough. 

Frankly, BOTH of the questions I've shown above belong in the Technician question pool, NOT in the one for Extra Class.  And making correctly answering such misplaced questions contingent on the grant of an Extra Class license becomes systemically discriminatory because it perpetuates a SYSTEM of discrimination by forcing ALL applicants (not just the disabled) to demonstrate knowledge and skills that are either irrelevant, or are not required for the exclusive privileges associated with the class and type of license being sought.

THE FCC'S DILEMMA

The bottom line here is that, unlike in the 1950s (when the FCC first hatched their "incentive licensing" foolishness), in the United States today, you can no longer legally test people for a government license if you cannot somehow DIRECTLY RELATE the skills and knowledges being examined to a SPECIFIC operational or safety need the new license will grant. 

Unfortunately, the problem the FCC now faces for our Service is NOT just a matter of changing questions or making them "more" or "less" comprehensive.  The problem lies in the fact that, back in the 1950s and 60s, the FCC (at the ARRL's urging) decided that the ONLY privileges that would be withheld from lower class licensees in our system would be access to "exclusive" frequencies and call signs. 

THAT prior (and now irrevocable) management decision, in turn, means that their WHOLE, THROUGHLY ENTRENCHED APPROACH TO LICENSING in our Service is now illegal because, under these new federal equal access laws, their licensing system for the Amateur Service arbitrarily withholds access to those "exclusive" privileges based on tests and questions that have absolutely NOTHING directly to do with the privileges those tests grant.

In short, today's FCC is now caught between a legal "rock and a hard place".

Clearly, a 50 question test over highly technical (but yet largely irrelevant) information to successfully determine if an applicant for an Extra Class license can safely and courteously operate in the last few KHz of our HF bands is overkill.  Beyond knowing where the new lower-end frequency boundaries are, that skill set should have ALREADY been largely tested on the General Class exam. 

Likewise, it DOES NOT take a 50 question exam over largely unrelated technical material to insure Extra Class applicants can successfully fill out an application for a so-called "exclusive" call sign. 

Yet, as I've said, under our arcane FCC "incentive licensing" farce, those are the ONLY TWO added operational privileges an Extra Class license grants to those who successfully complete such tests.

And, as I've also shown by citing just TWO questions from the current Extra Class exam pool, there remains a glaring (and I say illegal) disconnect between the content and the comprehensiveness of the questions on our exams (particularly those for an Extra Class license) and the (meager) additional (predominantly frequency-access-based) privileges they grant.

Sadly, for FAR too many crusty curmudgeons in our ranks, it has become an inconvenient truth that US federal laws like the ADA and the Rehabilitation Act now require that EVERYONE be given an equal opportunity for full, "barrier free" access to public services and resources like the Amateur Radio Service. Clearly, such laws are now threatening to break up their horrifically entrenched, government protected, members only "Country Club".

Now, complying with these new laws does NOT mean there should no longer be any licensing or control of that access to our Service.  Clearly, the International Telecommunication (ITU) rules for our service (from which the FCC gets its authority to regulate the amateur bands) make it crystal clear that applicants for a license in our service must be examined.  But, what it DOES mean is that, by law, federal agencies like the FCC can no longer arbitrarily place barriers in front of people seeking full and complete access to federally administered programs like Amateur Radio without just cause.  That also means that the content and comprehensiveness of our exams need to be DIRECTLY tied to some very specific operational needs.  

Right now (particularly with the exams for the Extra Class license) they clearly aren't.

It is also important to remember that no person needs to specifically prove they've been discriminated against in order for a federal agency to be found guilty of systemic discrimination under these laws.  All that's necessary is that it can be reasonably shown in a court of law that a SYSTEM of such discrimination exists in that federal agency (in this case the FCC's licensing requirements for our Service) just as I have clearly and unequivocally done in the paragraphs above.  

I've always found it sad that, everywhere else in the world, governments have left it up to we Hams to decide which operating mode goes where on our bands.  The ITU (the organization that governs all radio services internationally), has set out broad (VERY broad) frequency allocations for our Service...usually consisting of only an upper and lower band limit and a specified bandwidth for the emissions to be conducted therein.

It is only in the United States that such broad limits have been further restricted by license class and operating mode in Part 97.  And that is because the FCC, back in the 1950s, decided to base differences in our license classes (and the incentive for us to upgrade) on ego-stroking "exclusivity" (i.e access to so-called "exclusive" operating frequencies and modes) rather than on specific operational considerations such as limits on power output, constructing transmitters "from scratch", operating a repeater or club station, or giving exams. 

And, as I have also said, simply "stroking egos" no longer cuts it as a valid (spelled: "legal") reason for a US Government agency to grant full privileges to one class of licensees in our Service while arbitrarily and capriciously withholding them from another.  Such differentiation can no longer be legally based on applicants being forced to correctly answer exam questions that are either duplicative, irrelevant and/or unrelated to the SPECIFIC additional operating privileges such new licenses will grant. 

CANADA'S SYSTEM

By contrast, and unlike the "ego-based" tests proscribed for applicants to our Service in the USA, the Canadian license system for our Service ties the successful completion of THEIR advanced test to specific operational needs.  In exchange for successfully passing it, Canadian Hams are given just a very small number of very specific additional privileges that are far more commensurate with the technical material examined.  These include being able to build transmitters "from scratch", run a KW of power (vice 250 Watts), be the licensee of a club or repeater station, and give exams. 

Clearly, the latter pursuits involve a great deal more potential risk of physical harm to either one's self or to others (running high power) if you don't know what you are doing, or are activities with much greater probabilities of causing harmful interference to others on the Ham bands or other services (building transmitters from scratch or running a club station or a repeater).  ALL of those activities absolutely require a modicum of additional technical knowledge to perform safely and without interfering with other operators or other Services.

And, because the Canadian test criteria are largely based on such clearly delineated operational and safety needs (rather than on simply granting Extra Class operators "exclusive" access to artificially walled-off frequency spectrum that General Class operators already know how to operate in) they are far less prone to charges of systemic discrimination than the US testing structure.

What's more, in Canada, those Amateurs with a Basic With Honours Certificate (granted by scoring 80 percent on a 100-question exam) can operate ANYWHERE within the upper and lower limits of ALL of our internationally allocated Amateur Bands.  The only frequency restrictions such Basic Certificate holders have are by emission bandwidth, NOT by license class or operating mode.  And, usually, for HF, that bandwidth limit is set at 6 KHz (except for 30 Meters where it is set at 1 KHz). 

Or, to put it another way, the only operational restrictions place on Basic Certificate holders in Canada is that short "laundry list" of limitations I've outlined above which are reserved exclusively for Advanced Certificate holders.  And their Advanced Exam covers only that material that is DIRECTLY related to the specific additional privileges that the Advanced Certificate grants.

What's more, Canada (like most other countries in the world) leaves it up to its Hams to decide for themselves "what goes where" on our bands.  And their exam structures are usually based solely on safety and operational considerations rather than on needlessly (and illegally) "stroking egos".

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