February 10, 2008

Since the fall of 2002, I have had some nagging questions regarding some of the "legalities" involved in the area of Amateur radio and Public Service. Luckily, RAC has resource people who can be approached to act as liaisons to Industry Canada. I posed 10 questions to Richard Ferch and copied to James Dean. Please note... these quick answers are yet to be explained fully by Industry Canada but that will probably happen in a future edition of The Canadian Amateur magazine. My questions are in black text and the answers are in blue text.

Hi John,

Some quick answers:

1. Section 7 of the Radiocommunication Act allows "Her Majesty" to assume control of an Amateur station in which case, transmissions from the station would be at the discretion of Her Majesty. A person from an agency of the Provincial government claimed that he represented the Crown and could therefore exercise the authority of Section 7 of the Radiocommunication Act. Is this true?

1. No. The provincial Crown and the federal Crown are legally two separate "persons". Neither one has the right to exercise the powers of the other. The only way a provincial employee could exercise powers under the Radiocommunication Act would be if he or she had specific authorization from the federal Minister of Industry, i.e. if they were legally acting as an agent of the federal Minister.

2. I believe the Provincial governmnet has legislation in place that would require an Amateur radio operator to provide assistance in the event of an emergency. Does this legislation supercede any Federal law that is already in place which governs what the Amateur operator is allowed to do under Federal legislation?

2. No. Provincial legislation does not supersede federal legislation. Federal legislation is paramount in those rare cases when the two jurisdictions overlap and the legislation conflicts. Most often the two legislations simply coexist and both would apply, but if there is a conflict, the federal legislation prevails.

3. I was once told, "Your heart is in the right place but the Provincial government is in charge of everything in the event of an emergency." Does this include my operating privileges as an Amateur radio operator?

3. No. The province may be able to require you to perform certain services, but they cannot require you to violate federal law. So they can require you to pass emergency traffic, but according to federal legislation when you are operating an amateur station you can only pass traffic to another amateur station, only on amateur frequencies, and only in unencrypted form, and the province cannot override these federal regulations. They may, for example, own amateur radio equipment and require you as a legally qualified amateur operator to operate it under their direction, but if the operation is in the amateur radio bands you would be responsible for complying with the federal regulations. They might also be able to co-opt you as a trained operator for a separate commercial-band station that the province owns, but in such a case you would not be operating as an amateur in the amateur service - you would not identify using your amateur call sign and you would not operate the commercial station in the amateur bands.

4. Can an Amateur radio operator be sued for handling Health and Welfare traffic that has not been approved by the Provincial government?

4. The province can require you to provide certain services under provincial legislation, but I am not sure what rights they might have to prohibit you from doing other things as well. You would have to read the provincial emergency legislation carefully to see what powers they have to order you to cease and desist from carrying on other activities. They can, for example, order you to evacuate, so if your station was in a fixed location you could be prevented from using it. If they have the legal right to confiscate your equipment during the emergency, then they might be able to control what you used it for within the limits permitted by federal law.

5. I was once told, "The Provincial government is footing the bill for everything so Amateurs have to do as they are told." I believe that Amateurs cannot receive financial compensation for the service we provide. How can the apparent conflict be addressed?

5. There is no bill to foot - as you say, you are not allowed to accept compensation in the first place. If they mean that they have paid for the radios they want you to use, then yes, they can control what you use their own radios for, but that control does not extend to requiring you to violate federal legislation.

6. Consider the case where the Provincial government has an emergency operations centre and has purchased Amateur radio equipment and antennae for the centre. John Doe VE7*** is the station's "manager". In the event of an emergency, is John Doe VE7*** or is the Provincial government responsible for the transmissions from the station?

6. The province may own the station and can control who is allowed access to it, but only a licensed amateur can actually operate it, and when an amateur is operating, the amateur operator is responsible for complying with the applicable federal legislation at all times.

7. In the preamble of a Net on 75M SSB, reference is made to a 75M frequency being that of an agency of the Provincial government. In the same preamble, reference is also made to "official government traffic". Can an agency of the Provincial government claim a frequency within an Amateur band? Would "official government traffic" be allowed under Federal regulations, i.e. what traffic is an Amateur allowed to handle?

7. No-one, not the province nor anyone else, can lay claim to a frequency. If the situation is not an emergency or an emergency simulation, amateurs may not handle official government traffic. During an emergency or simulated emergency, amateurs may pass messages relating to the emergency. The federal legislation permits amateurs to perform communications on behalf of a person, government or relief organization, which would appear to include official government traffic related to the emergency as well as other welfare traffic on behalf of other persons and organizations.

8. Information has been made available that Amateur transceivers have been "opened up" i.e. modified to transmit outside the 2M Amateur band. The reasoning is that only one radio is required to use on both the 2M Amateur band and also on VHF FM frequencies used by some agencies during emergencies. Is this not a contravention of Federal law?

8. An amateur transmitter that has been modified to operate outside the amateur bands cannot legally be used outside the amateur bands. Radios used on non-amateur frequencies must be certified for use on those frequencies. Amateur radios do not meet the certification requirements, not least because they are frequency programmable. In practice, many older amateur radios are capable of operating outside the amateur bands, and these are legal for amateurs to possess and use on amateur frequencies, but not to use outside the amateur bands. However, an amateur radio that was originally not capable of operating outside the amateur bands but has been modified to make it so capable is considered illegal by Industry Canada, even if it is possessed by an amateur.

9. Information has been made available that some models of VHF FM commercial radios have been modified so as to make them "front programmable". Speaking solely as an Amateur radio operator, I have a concern that a radio modified in this manner would allow the user to have access to the 2M Amateur band (as well as any Public Safety channel the operator decided to have in the radio). What regulations does a radio modified in this manner, contravene?

9. A commercial radio that has been modified so as to be capable of transmitting on the amateur bands is legal for an amateur to possess and use within the amateur bands. Once it has been modified it is no longer legal for anyone to use outside the amateur bands, not even on the frequencies it was originally intended for. It is not legal for a non-amateur to possess such a modified radio. A commercial radio that has been modified to make it programmable on non-amateur frequencies is not legal for anyone to use on those frequencies.

10. In the event of a declared emergency, are non-Amateurs allowed to use Amateur frequencies to talk with licenced Amateurs? Are they allowed to talk with other non-licenced people using Amateur frequencies?

10. Amateur stations may only communicate with other amateur stations. They may not communicate with stations in other services. If there is an amateur operator present to control communications and ensure that the federal regulations are met, a non-amateur may use the microphone (or a phone patch, etc.) - this is one form of third-party traffic, which is allowed. So two amateur stations could establish contact and then allow non-amateurs to talk to each other during the QSO, but the amateur operators at both stations would remain responsible for the operation of their stations and must remain present at and in control of the station while the non-amateur is talking. The communication must take place only on amateur frequencies and must meet all the rules applicable to the amateur radio service, including the prohibition on communicating directly with non-amateur stations.

73, Rich VE3KI