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Before the
               Federal Communications Commission
                     Washington, D.C. 20554



In the Matter of

Kenwood Communications Corp.

Request for Declaratory Ruling to
Determine Compliance With Applicable
Sections of Part 97 of the Commission's 
Rules or Waiver of Applicable Rule Sections
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                             ORDER

Adopted:  July 18, 2000                 Released:  July 28, 2000

By the Chief, Public Safety and Private Wireless Division, Wireless Telecommunications Bureau:


I.   INTRODUCTION

1.     Kenwood Communications Corp. (Kenwood), a manufacturer of commercial and amateur
radio equipment, requests a declaratory ruling confirming that a device it manufactures known as the "Sky
Command System" (Sky Command) complies with the Amateur Radio Service Rules.  Alternatively,
Kenwood requests that should we find that Sky Command does not comply with certain amateur service
rules, we grant blanket rule waivers so that amateur service licensees can utilize Sky Command.  For the
reasons set forth herein, we deny Kenwood's requests.

     II.  BACKGROUND

3.       Sky Command permits amateur service licensees who do not have sufficient space for  High
Frequency (HF) antennas, or who live in areas with restrictive covenants, to operate their HF equipment at
remote locations through the use of Very High Frequency (VHF) and Ultra High Frequency (UHF) channels.
  The antennas for systems utilizing VHF and UHF channels are much smaller than those associated with HF
systems.  Sky Command also could be useful in situations where the amateur service licensee wants to
monitor HF bands while in a room other than the "shack," or while away from home at a local event.  Using
Sky Command, the amateur service licensee uses a portable VHF/UHF radio to transmit control signals and
audio signals on the 440 MHz (70 cm) amateur service band to a second VHF/UHF transceiver which is
interconnected by an input/output unit with the licensee's HF transceiver.  The second VHF/UHF transceiver
is used to transmit the audio output from the HF transceiver on a radio frequency channel in the 144 MHz (2
m) amateur service band to the licensee's portable VHF/UHF radio (the control point). 
4.     On November 4, 1999, Kenwood submitted a request for declaratory ruling that use of Sky
Command complies with the Commission's amateur service rules, or, in the alternative, a blanket waiver of
any rules which would prohibit amateur service licensees from using its Sky Command system.  Kenwood
contends that Sky Command complies with the rules and that use of the device is in the public interest.  In
the event that we conclude that Sky Command does not comply with our rules, Kenwood requests any
needed rule waivers.  In this connection, Kenwood argues that grant of such waiver request is in the
public interest because it would allow amateur service licensees to operate their HF equipment from areas
with limited physical space or from neighborhoods that have restrictive covenants that prohibit outdoor
antennas.
5.     Kenwood's request was placed on Public Notice on December 15, 1999.  Comments or reply
comments supporting Kenwood's request were received from Gordon West Radio School, Inc. (West),
Costa Mesa Emergency Service Amateur Communications (Costa Mesa), Kenwood, James M. Hicks, and
Robert A. Kile.  Comments or reply comments opposing Kenwood's request were received from the
American Radio Relay League, Inc. (ARRL), Robert G. Wheaton, the Bexar Emergency Amateur Repeater
System (BEARS) and Kendall Amateur Radio Society (KARS).  On April 17, 2000, Kenwood submitted a
Request for Waiver and paid fees for waiver of two rule sections.

     III. DISCUSSION

4.     Kenwood requests a declaratory ruling, or in the alternative, a waiver with respect to several
Part 97 rules.  As set forth below, we conclude that Sky Command does not comply with Section
97.201(b), and that a waiver of the rules is not warranted.  
5.     The amateur service rules provide that an amateur station on or within 50 km of the Earth's
surface may be under telecommand (remote control) where there is a radio or wireline control link
between the control point and the station sufficient for the control operator to perform his or her duties.  A
radio control link requires the use of an auxiliary station.  The Commission's Part 97 rules define an
auxiliary station as an amateur station, other than in a message forwarding system, that is transmitting
communications point-to-point within a system of cooperating amateur stations.  An amateur station that
is an auxiliary station may transmit only on the 1.25 m and shorter wavelength bands, except the 219-220
MHz, 222.000-222.150 MHz, 431-433 MHz, and 435-438 MHz segments.
6.     Kenwood acknowledges that in its Sky Command system the portable VHF/UHF transceiver 
at the control operator's location (control point), which transmits control information and audio via a
channel in the 440 MHz band to the VHF/UHF transceiver interconnected with the HF transceiver, is an
auxiliary station.  Kenwood contends, however, that the VHF/UHF transceiver interconnected with the
HF transceiver, which transmits the audio output from the HF transceiver to the operator at the control
point via a channel in the 144 MHz band, is not an auxiliary station.  Specifically, it argues that because
the 2 m link is not used for telecommand, it should not be considered an auxiliary station.
7.     We disagree.  Section 97.213(a) of the Commission's Rules requires that if radio is used for
the control link between the control point and the station, the control link must use an auxiliary station,
and Section 97.201(b) limits auxiliary stations to transmitting only on the 1.25 m and shorter wavelength
bands, with the exception of certain frequency segments.   In this regard, we note that Section 97.213(a)
does not distinguish between radio control links used by the control operator for telecommand and radio
control links used for other purposes, i.e., the distinction Kenwood draws between the VHF and UHF
link.  Moreover, it is our view that the return transmissions from the HF station to the remote control
point are part of the telecommand function being performed over the control link.  In this regard, we note
that the information transmitted from the HF station to the control operator informs the control operator as
to whether the HF station is functioning in the manner the control operator desires and this information may
cause the control operator to initiate, modify, or terminate functions, such as changing the HF transceiver's
memories, setting or changing frequencies, or turning off the remotely controlled HF transceiver.  We also
note that the VHF link is integral to Sky Command and that without these VHF return transmissions, Sky
Command is not of any use to an operator because the operator cannot hear what the HF station is
receiving.  We agree with BEARS that ignoring the return transmissions in the system, which are on the 2
m amateur service band, is at best a tortured interpretation.  Moreover, we note that Section 97.3(a)(7)
defines an auxiliary station as an amateur station "transmitting communications point-to-point within a
system of cooperating amateur stations," and we note that "communications point-to-point within a
system" would include all communications between the location of the HF station and the station at the
remote control point.  Thus, we conclude that Sky Command does not comply with Section 97.201(b) of
the Commission's Rules because Section 97.201(b) does not authorize auxiliary stations to transmit on the
2 m band.
8.     We now turn to whether a blanket waiver to permit Sky Command auxiliary stations to
transmit on the 2 m amateur service band is warranted.  To obtain a waiver of the Commission's Rules, a
petitioner must demonstrate either (a) that the underlying purpose of the rule(s) would not be served or
would be frustrated by application to the present case, and grant of the requested waiver would be in the
public interest; or (b) that, in view of unique or unusual factual circumstances, application of the rule(s)
would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no
reasonable alternative.  We find that Kenwood has met neither standard.
9.     Underlying Purpose.  The underlying purpose of limiting auxiliary stations to transmitting
only on the 1.25 m and shorter wavelength bands is to minimize the possibility of harmful interference to
other amateur service stations and operations, particularly "weak signal" activity in the 2 m (144-148
MHz) band.  In a subsequent Order, the Commission reaffirmed this approach by rejecting a proposal to
eliminate the frequency restrictions applicable to auxiliary stations.  The Commission agreed with those
commenters who argued that opening lower frequencies to auxiliary stations was unjustified because path
lengths for such operations generally are too short to require such frequencies.  Further, the Commission
believed that eliminating the restriction would result in harmful interference because many bands
(particularly the 2 m band) already were fully loaded in many areas.  As a result, it determined that these
frequency restrictions should be retained because the rules reflect a good correlation between the
frequencies authorized for auxiliary operation and auxiliary link functions.  Moreover, it believed that the
potentially disruptive interference that could occur to other amateur service operations if auxiliary
operations were expanded outweighed the additional flexibility and other benefits resulting from elimination
of these frequency restrictions.   Kenwood has not shown that this is no longer correct, and several
commenters raise these same concerns.  Accordingly, we conclude that application of the frequency
limitations in Section 97.201of the Commission's Rules to Kenwood's proposal is consistent with the
Commission's intent to minimize potentially disruptive interference.  
10.    Public Interest.  Kenwood argues that grant of a waiver would be in the public interest
because it would allow amateur service licensees to operate their HF equipment from areas with limited
physical space or from neighborhoods that have restrictive covenants prohibiting outdoor antennas.  As an
initial matter, we note that such constraints do not necessarily prevent amateur service stations from
transmitting on the HF amateur service bands.  It is our understanding that amateur radio operators in
apartments have used antennas designed for operating from cars and "slinky-type" antennas to transmit on
the HF bands from locations that do not allow permanent outdoor antennas and towers.  We also note that
it is our understanding that some of these restrictive covenants prohibit only antennas that are visible from
the front of the dwelling or that are above the roof line, thereby allowing certain HF antennas such as
ground-mounted verticals.  Other amateur radio operators have used attic antennas or hollow flagpoles as
support structures for HF antennas or have chosen to operate on the HF bands from mobile stations. 
Moreover, there is no firm evidence to support Kenwood's argument that granting the waiver request will
allow licensees in antenna restricted locations to operate stations on the HF amateur service bands, because
Kenwood has not shown that these licensees are willing or able to obtain a second location where they
could install the necessary equipment and outdoor transmitting antennas.
11.    Finally, we are not persuaded by Kenwood's argument that we should grant the requested
waiver on the basis that Sky Command will allow amateur service licensees to use combinations of
frequencies to form complex communications systems that will make amateur service licensees even more
efficient in handling disaster, emergency, and other public service communications.   Use of amateur
service equipment and channels to form complex communications systems for public service
communications reflects a choice the amateur service licensee has made as to how to use amateur service
channels, rather than anything inherent in Sky Command.  We also note that none of the situations in which
Kenwood says Sky Command would be very useful are public service applications per se, but rather are
applications that allow a licensee personally interested in operating on the HF bands to pursue this interest
at locations other than the HF station. 
12.    Unique Circumstances.   Kenwood has not claimed that there are any unique or unusual
factual circumstance that would justify grant of a waiver here.  Further, we are concerned that granting a
waiver to Kenwood for Sky Command would not be a technology-neutral approach, by favoring  a
particular manufacturer's product.  In this regard, we note that it appears that Sky Command can be used
only with certain Kenwood HF transceivers and handheld radios.  For this reason, we agree with the
ARRL that it is inappropriate for us to take actions that have the effect of favoring amateur service
licensees who use the products of one particular manufacturer. 
13.    Lack of Reasonable Alternatives.  As noted above, the rules require an auxiliary station to
transmit only on the 1.25 m and shorter wavelength bands, except the 219-220 MHz, 222.00- 222.15 MHz,
431-433 MHz, and 435-438 MHz segments.  Kenwood concedes that it could have designed Sky
Command to operate on the 222 MHz band rather than the 144 MHz band.  It states that it chose the 144
MHz band because many amateur service licensees already own dual-band equipment operating in the 144
MHz and 440 MHz bands, and Kenwood wanted Sky Command to be compatible with existing
equipment.  Similarly, ARRL states that Kenwood currently markets a radio in Japan that transmits on
the 440 MHz and 1296 MHz bands and can be used with Sky Command, but which Kenwood has chosen
not to export to the United States.  Kenwood, however, in response states its belief that there is no market
for this radio in the United States because reconfiguring Sky Command's VHF channel to transmit in a
higher frequency amateur service band ignores the marketplace reality that the amateur service community
demands a VHF/UHF dual-band transceiver for Sky Command application.  We conclude that
Kenwood's analysis of the market and marketing decisions are not sufficient bases upon which we can
conclude that Kenwood has no reasonable alternative to the 144 MHz band for Sky Command operations. 
Indeed, it appears that Kenwood prefers to use a VHF/UHF dual-band transceiver that it already markets
for its Sky Command system because this VHF/UHF dual-band transceiver also can be used for other
amateur radio applications, such as packet radio and voice communications.  Therefore, we believe that
grant of this requested waiver is not warranted because a reasonable alternative exists that would be
consistent with the Commission's Rules.   
     XIV. CONCLUSION
15.    For the foregoing reasons, we conclude that use of the 144 MHz amateur service band for  Sky
Command does not comply with the Commission's amateur service rules.  We also conclude that Kenwood
has not demonstrated that a blanket rule waiver permitting amateur service licensees to utilize the 144 MHz
band to operate a Sky Command system is warranted under the circumstances presented. 
V.        ORDERING CLAUSES

16.    ACCORDINGLY, IT IS ORDERED pursuant to Sections 4(i) and 303(r) of the
Communications Act of 1934, as amended, 47 U.S.C.  154(i), 303(r), and Section 1.925 of the
Commission's Rules, 47 C.F.R.  1.925, the request for declaratory ruling or waiver filed by Kenwood
Communications Corp. on November 4, 1999, IS DENIED.  
17.    This action is taken under delegated authority pursuant to Sections 0.131 and 0.331 of the
Commission's Rules, 47 C.F.R.  0.131, 0.331.

                                FEDERAL COMMUNICATIONS COMMISSION




                                D'wana R. Terry
                                Chief, Public Safety and Private Wireless Division
                                        Wireless Telecommunications Bureau