There's an old adage among lawyers that when the facts are against you, stress the law; when the law is against you, stress the facts; and when the facts and the law are both against you, yell and pound on the table. I'm getting a bit tired of listening to the table pounding about the future of the telegraphy testing requirement for US hams. I thought I'd put some of the facts and a bit of the law on the table.

First, it's a fact that as of 5 July 2003, the ITU Radio Regulations no longer require that the various national administrations assure that all amateurs operating below 30 MHz are proficient in the use of Morse telegraphy.

Second, it is a fact that the FCC has already examined the evidence and found that telegraphy testing of amateur operators no longer serves a legitimate regulatory function. The relevant paragraphs of the Commission's Report and Order 99-412 are:

"5. The amateur service is one of the radio communication services authorized by the Radio Regulations and was one of the first non-government communication services. Regulation of the amateur service in the United States dates from the early 1900's as a result of the U.S. Navy's concern about interference to its stations and its desire to be able to order amateur radio stations off the air in the event of war. As part of this regulation, proficiency in Morse code was mandated to ensure that amateur radio operators could recognize and avoid interference with government and commercial stations as well as maritime distress messages, and to ensure that the U.S. Navy could communicate government orders to amateur radio operators. This mandated telegraphy proficiency was continued by the Federal Radio Commission and then by the Federal Communications Commission. Telegraphy proficiency remains one of the examination elements that, by international treaty, an examinee must pass to obtain an amateur service operator license that authorizes operating privileges in the portion of the radio spectrum below 30 MHz.

"22. Background. In the early days of radio, communication by radiotelegraphy was the primary means used to exchange messages between radio operators at all radio stations, including amateur radio stations. Proficiency in telegraphy using the Morse code was mandated to ensure that operators of amateur radio stations would not cause interference to Government and commercial stations and that amateur radio stations would be able to stay clear of maritime distress messages. ... Today, as opposed to the early days of radio, radiotelegraphy is just one of numerous diverse modes of radio communication.

"25. Decision. We have considered the comments on this issue and conclude that the public interest will best be served by reducing the telegraphy examination requirement to the minimum requirement that we have found that meets the Radio Regulations and that has been accepted as proving that the control operator of a station can ensure the proper operation of that station. ... In reaching this decision, we note that one of the fundamental purposes underlying our Part 97 rules is to accommodate the amateur radio operator's proven ability to contribute to the advancement of the radio art. We believe that an individual's ability to demonstrate increased Morse code proficiency is not necessarily indicative of that individual's ability to contribute to the advancement of the radio art. As a result, we find that such a license qualification rule is not in furtherance of the purpose of the amateur service and we do not believe that it continues to serve a regulatory purpose. Consistent with our decision to eliminate 13 wpm and 20 wpm Morse code proficiency as licensing requirements, we also are streamlining Section 97.503(b) of our Rules to reduce the number of telegraphy examination elements from three to one -- specifically, a 5 wpm telegraphy examination. We also conclude that, due to the Radio Regulations, we cannot grant the request of the ARRL that we authorize privilege on all amateur service bands below 30 MHz to Technician Class licensees who have not passed a telegraphy examination. While we do not disagree with the ARRL's belief that the best way to learn telegraphy is to use it on-the-air, and that actual use of telegraphy to communicate is proof of the ability to send and receive telegraphic texts, the Radio Regulations provide that the telegraphy requirement may be waived only for an operator of a station transmitting exclusively on frequencies above 30 MHz. In this regard, we also note, as the ARRL states, that the Radio Regulations remain an obligation of the Commission that can not be waived."

Third, the FCC has an affirmative legal obligation promote the effective use of the radio spectrum. It does not have authority to use an obsolete criterion from keeping otherwise qualified users off the air. 47 USC 303 states: "Except as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall ... (g) ... generally encourage the larger and more effective use of radio in the public interest ..."

Fourth, it is a settled matter in US law that regulations cannot be arbitrary and capricious. They must be based the general public's interest and have some basis in the factual, real-world situation.

My reasoning goes like this:

It is a settled matter of fact with the FCC that telegraphy testing for amateurs' no longer serves any legitimate regulatory purpose and is no longer in the public interest.

It is a fact that there is no longer any international treaty requirement that obligates the FCC to continue to test amateurs for proficiency as telegraphers.

It is a settled matter of law that an agency may not maintain an arbitrary and capricious licensing requirement.

It follows that the FCC should move quickly to abolish its Rules that require telegraphy testing for amateurs.

Pound away.