Bill Sohl wrote:
wrote in message
oups.com...
Bill Sohl wrote:
wrote in message
ups.com...

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?

I I think the ADA may predate waivers...
but that isn't of any importance anyway.

I think it is. IMHO anyway.

The ADA didn't force anyone to immediately
do anything. Most or much of the ADA
impact has been with new accomodations.
Application of ADA in existing situations
has usually been the reult of a complaint by
an individual or a group of individuals.

Exactly - and *nobody complained*. It took
backdoor diplomacy by a foreign King to
get waivers, not advocacy by any US
group.

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.

Perhaps, perhaps not.

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!

Which is why further discussion on this is
a waste of my time. I'll wait to see what
the FCC does before continuing this
hypothetical.

I think it's worthwhile to consider where a
path may lead before going that way.

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.

Ditto my last again.

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.

I know what you said, but in reality your except
does contradict your lead statement.

Not at all. See below.

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.

Which clearly is additional operating privileges.

But not *different* operating privileges!

(I should have said it that way from the beginning!)

IOW, what's the difference between operating on, say, 14,030 kHz
vs. 14,020 kHz using the same mode and power level? What additional
knowledge or skills are needed for the lower frequency that aren't
needed
for the higher one?

It could be claimed that since the Extra written isn't required to use
14,030, why is it an absolute requirement to use 14,020? Particularly
for folks who have a really tough time memorizing/understanding all the
stuff in the written tests?

By allowing waivers *in principle*, the whole quagmire opens up to
question all test requirements.

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.

I doubt it, but for now see no need to discuss or debate
the point UNLESS someone actually goes there.

Just the opposite - because if they go there, and cite the
precedent, what possible argument could be used against
them?

This is actually backing up your assertion that FCC won't go
for waivers under any circumstances, because they set
the precedent for more waivers in cases like the above.

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?

I believe so, but for now see no need to discuss or debate
the point UNLESS someone actually goes there.

And so far, nobody has.

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.

The ADA calls for "reasonable" accomodations. That
is the defining point.
But again, for now I see no need to discuss or debate
the point.

"Reasonable" means there's a very wide latitude for
interpretation and argument.

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.

Which is why the legislation isn't absolute as to access.
Ditto again...end of discussion for now.

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?

Cross that bridge if and when it happens.

"Failing to plan is planning to fail"

73 de Jim, N2EY