Bill Sohl wrote:
wrote in message
ups.com...
The trend is and has been towards ending code.

Ending code or code *testing*?

Ending code testing.

Whew!

Nothing has changed to alter that general opinion.

Doesn't mean it's a good thing.

IYHO

Of course.

Inactivity in response to the treatty change by the FCC
can certainly be chalked up to digestion of the host
of petitions filed after WRC and the ultimate
issuance of NPRM 98-235 which is now pending.

Maybe - but if there really was a precedent, FCC could
cite it, but they haven't.

IF (let's be hypothetical)

Sure!

the FCC did retain code for
Extra, then the American Disabilities Act (ADA) will
surely be raised by someone who need only point
to the use of waivers previously and no court in
this country would rule against such a clain.

IANAL, but was ADA ever successfully cited before
against an FCC decision? An amateur license isn't
a right - only access to the tests for one is.

ADA wasn't needed because the FCC had already
provided a waiver process.

Did code waivers come first, or ADA?

Waivers of any kind are a real quagmire because they
say the waivered test isn't really necessary for the
license. What's to prevent someone for demanding a
waiver of the Extra *written* test?

Anyone can demand anything.

Of course.

But there's as much reason to use ADA against the
Extra written as their is to use it against an "Extras
only" code test.

On your first statement
regarding waivers being a quagmire...I agree and
that's exactly why the FCC isn't going to retain
any code testing.

Probably right!

That's a path that FCC just won't go down.

Probably not.

PLEASE explain on what legal or rational basis the
FCC could argue to avoid a waiver policy if code
was only retained for Extra.

Several:

First off, I don't think ADA has ever been successfully
cited against FCC regulations

So? It hasn't been needed on any FCC basis yet.

Or maybe it doesn't apply.

Second, an amateur radio license isn't a commercial
thing, so it's not like someone is denied a job or similar.

ADA is not simply about jobs...it is about "access"
on a broad basis.

Which is up to interpretation. "Access" can be
interpreted to mean being allowed to take the
test, not being guaranteed a license.

Third, Extra does not give any more power, modes,
bands or other operating privileges *except* a little
more frequency spectrum.

That's a contradictory statement. You say
there's no additional privileges
and then you note that there is.

Read it again! I wrote there are no additional
operating (meaning on-the-air) privs *except* a bit
more spectrum.

There's also the vanity
call selection and the ability to VE other Extras, but
that's about it.

Ditto my last.

Let me try another way...

What does upgrading to Extra get for a General class licensee?

There's the ability to VE all exams including Extra.

There's the really spiffy callsigns.

But Generals have access to all the same bands as Extras. All the
same modes, too, and the same power level.

On 4 of the HF bands, there are parts of the band that
are for Extras only.

The ADA argument could be brought that all that additional theory in
the
Extra written isn't an absolute requirement because it's not directly
related
to the privileges gained.

Fourth and most important, there's no absolute right
to an amateur radio license. It's a privilege - only
access to the tests is a right.

I think any good ADA attorney would argue otherwise.

But would they win?

As an analogy, consider the national parks. There
are places where access to the park by motor
vehicle is not allowed. Does ADA require that
all parts of all parks be accessible by motor vehicle
because some people can't walk to them?

ADA calls for reasonable accomodation where it can be done.
Your national park analogy doesn't apply.

I think it does. Paved paths could be provided, and small motor
vehicles.

Point is, that's not done because, in those parts of the national
parks, access by
everyone is deemed secondary to preserving the wild state of
the park.

One simple solution is the "Canadian compromise": Keep
code testing but change how it is scored. One method is
to change the requirement for Element 3 (General written)
to the following:

Element 3 can be passed by getting an ~85% grade on the
35 written questions *or* a ~75% grade and a passing mark
on the code test.

That way there's no "lowering of standards" yet the Morse Code
test is not a mandatory pass-fail standalone test any more.

I personally don't believe the Canadian compromise
would pass ADA requirements.

I do. In fact I think it would solve a lot of problems.

We clearly differ in opinion then.

I'm wondering how the options given above would not meet ADA. The
two grading methods would be open to everyone.

What would be the problem?

73 de Jim, N2EY