US House Passes the Amateur Radio Parity Act
On September 12, 2016 by voice vote, the US House of Representatives suspended its rules and unanimously approved H.R. 1301, the Amateur Radio Parity Act, as amended.
H.R. 1301 now procceeds to the US Senate for consideration. Click here to read the full story.
To send a message to your members of the US Senate, click here.
About the Bill
The Amateur Radio Parity Act would not give Amateurs "carte blanche" to do whatever they wished.
Most importantly, it will ensure that every ham in the US, regardless of the community they live in, will have the opportunity to practice their avocation from their own homes without breaking any rules or fear of reprisal.
If enacted, amateurs who are living in deed-restricted communities would be guaranteed that there would be no preclusion of Amateur Radio communications by an HOA, that the Amateur would have the ability to construct an effective outdoor antenna on property under exclusive use of the licensee, and that the HOA must allow such facility using the least practicable restriction by the HOA to achieve their lawful purposes.
What did the original text of the Bill H.R. 1301 provide?
● It would have required FCC to enact rules to implement the “PRB-1” three-part test for municipal regulations affecting Amateur Radio communications to all types of private land use regulations, so that covenants and deed restrictions and HOA rules: (A) could not preclude Amateur Radio communications; (B) must make “reasonable accommodation” for Amateur Radio communications; and (C) must constitute the “minimum practicable restriction” in order to accomplish a legitimate purpose of the HOA seeking to enforce the rules.
Why didn’t the language of the original Bill preclude any HOA regulation of antennas completely?
● That could never have been achieved. Private land use regulations date back to the English common law and their use and enforceability in modern land use regulation is far too entrenched to have any reasonable chance of being exempted from them completely. Private land use regulations are included as restrictions applicable to parcels of land at the time that the buyer comes to the table. Neither Congress nor FCC would consider a complete preclusion of CC&Rs relative to Amateur antennas. The original bill language was not perfect but it was at the time the most that we could have hoped to achieve.
Why was it necessary to negotiate any changes to the Bills with the Community Associations Institute?
● There were two main reasons: first, in the Senate, Senator Nelson, the ranking minority member of the Senate Commerce Committee, stated his opposition to the Senate Bill as it read initially. His objection would have absolutely precluded the Bill from passing in the Senate, given the procedures for expedited handling of the Bill that were available to us. Unanimous vote in the Senate is required in order to pass bills that are not debated completely on the Senate Floor. Floor debate happens only with a very few bills of great importance, so the Parity Act would have to pass, if at all, by unanimous consent. Second, we were told that, although the House Bill was favorably reported from the House Telecommunications Subcommittee, it would not pass the House Energy and Commerce Committee unless there was agreement between ARRL and CAI. It is only because of the Substitute Amendment that the Bill was unanimously approved by the Energy and Commerce Committee.
What does the Substitute Amendment provide that is different from the original Bill language?
● The main difference is that the Substitute Amendment removes the “reasonable accommodation” obligation of HOAs and substitutes for it the absolute entitlement by every single radio Amateur living in a deed-restricted community to install and maintain on their property an “effective, outdoor antenna.” That is an extremely positive and helpful provision, now and in the future, because more than 22 percent of all Americans now live in deed-restricted communities. And 92 percent of new housing starts in the United States involve deed restrictions. Without this entitlement to install and maintain an effective outdoor antenna, deed restrictions will now and in the future be applicable to most hams in the United States. The language of deed restrictions either precludes outdoor antennas outright or else requires that any antennas be previously approved by an HOA, which, as of now, is typically never given. At the same time, the language of the Substitute Amendment preserves the existing PRB-1 language and all of the important case law with respect to municipal land use regulations that Amateurs have worked hard to establish for the past 30 years since PRB-1 was first issued.
What does the substitute amendment require exactly?
► FCC will enact rules that prohibit the application to Amateur Radio stations of deed restrictions which preclude Amateur Radio communications on their face or as applied.
► Also prohibited are those deed restrictions which do not permit an Amateur Radio operator living in a deed-restricted community to install and maintain an effective outdoor antenna on property under the exclusive use or control of the licensee.
► Also prohibited are deed restrictions which do not impose the minimum practicable restriction on Amateur communications to accomplish the lawful purposes of an HOA seeking to enforce the restriction.
►Amateurs who wish to install an antenna in a deed restricted community where there is an HOA must notify and obtain prior approval of the HOA. (This is no different than the requirement to apply for a building permit for an amateur antenna from a city, town or county).
► HOAs can preclude Amateur antennas in common areas (property not under the exclusive use of the licensee).
► HOAs can enact reasonable written rules governing height, location, size and aesthetic impact of, and installation requirements for, outdoor antennas and support structures for amateur communications. However, those rules cannot result in preclusion of Amateur communications and no such rule can restrict the absolute entitlement of each Amateur living in a deed-restricted community to an effective outdoor antenna.
►There are also very helpful factual findings in the amended Bill, such as a recitation of the strong Federal interest in Amateur Radio communications in residences of licensees. The factual findings are highly beneficial in terms of Federal policy that have never been in Federal legislation before.
Why should I have to apply for prior approval of an HOA before installing an antenna on my property?
● Because the HOA has a well-established interest in regulating aesthetics in a deed-restricted community just as a zoning authority has an interest in regulating safety and aesthetics throughout a municipality. You have to apply to the municipality and get a building permit for an antenna, and there is no logic that would have helped us justify language in the Bill that the HOA must give up the right to prior notice and approval of a ham radio antenna. If there is no HOA active, but you live in a deed-restricted community, obviously there is no one to notify or ask for approval. If your covenants do not make reference to antennas or structures and do not call for prior approval before installing a structure or building on the property, then obviously you don’t have to worry about the notification requirement. But if there is an HOA in your subdivision and if the deed restrictions call for prior approval or if they prohibit outdoor antennas, if our Bill passes you will have to notify the HOA and ask for approval for a particular antenna installation. After the notification and consent request is made, the HOA is obligated to not preclude Amateur Radio communications and it must allow you to install an effective outdoor antenna, and any restrictions must be the minimum to protect the aesthetic interest of the HOA. That is a more objective and favorable entitlement than is provided by the language of PRB-1.
What does “effective” mean and who gets to decide what “effective” means in my neighborhood?
● The word “effective” modifying “outdoor antenna” was chosen by ARRL as an appropriate and objective substitute for the more vague concept of “reasonable accommodation”. It is the ham who is best able to justify as a technical matter what constitutes an “effective” antenna on a given piece of property. It is impossible to delineate in legislation or even in FCC rules implementing legislation what type of antenna would be appropriate and suitable for installation on a given parcel of real property and what is effective for the ham involved, so it is up to the ham in each case to define for the HOA what would work effectively on that specific parcel. “Effective” in a townhouse development is going to differ from what effective means on 5-acre or 10-acre lots sited at low elevations. It is always a case-by-case analysis, just as the less objective and less clear term “reasonable accommodation” was in the zoning context for many years.
Why was the entitlement to an “effective outdoor antenna” substituted for “reasonable accommodation?”
● CAI was concerned that the case law in the zoning context applying PRB-1 and interpreting what constituted “reasonable accommodation” in zoning cases should not be carried over into the private land use regulation context. ARRL agreed; we have 30 years of generally favorable case law applying “reasonable accommodation” in the zoning context. We can’t allow any of that case law to be subject to reinterpretation just because FCC is carrying the PRB-1 concept over from zoning to private land use regulation. There is a provision in the Substitute Amendment that requires FCC to not make any change in PRB-1 as it pertains to municipal land use regulations. The creation of a slightly different standard was necessary to differentiate the private land use regulation from PRB-1. ARRL views the “effective outdoor antenna” entitlement to be a stronger, and more objective standard that will be easier for radio Amateurs and HOAs to administer.
The Substitute Amendment allows HOAs to enact rules governing antennas. Why do they get to set standards for height, dimensions, aesthetic impact and installation requirements?
● The HOAs already have all of that authority and a lot more. The rules they get to enact now have to be “reasonable” rules and they can’t result in the preclusion of Amateur communications or preclude an Amateur Radio licensee from installing and maintaining an effective outdoor antenna in exclusive use areas of their property. None of those conditions is an obligation on HOAs now. The Amateur Radio entitlements come only from this legislation.
Who determines what HOA rules are “reasonable”?
● The HOA can enact its own rules pursuant to its normal processes as set forth in the deed restrictions, but if a ham finds them unreasonable relative to the obligation specified in the Bill to not preclude amateur communications and to permit an effective outdoor antenna, that becomes a matter of discussion with the HOA. In extreme cases it may result in litigation. These are not precise terms. They have to be as flexible as they are to account for different land use situations. Reasonable rules governing temporary installation of a mobile whip on a tripod on a 5th floor condo in a 10-story building in downtown Chicago will differ substantially from reasonable rules governing a permanent, guyed tower installation on a 5-acre lot in a subdivision in Pearland, Texas. Overall, the obligation of HOAs in the Bill is to act reasonably in enacting rules that impact ham antennas. They don’t have that obligation now.
What took so long to get the language of the Substitute Amendment agreed to?
● Actually, ARRL announced that there was an agreement in principle with CAI on language for the substitute amendment as soon as we heard from our supporters on Capitol Hill that CAI had essentially agreed to ARRL’s final draft. That announcement was made publicly on ARRL’s web site when we first heard about it on May 28. We didn’t at that time have the final language from the House Office of Legislative Counsel (which puts all legislation in final form) until about June 2. So, we could not responsibly release the text of the Bill until we knew what it would say. We got the language and conferred with our legislative consultants on about June 3, and on June 7 we uploaded the text of the Bill to ARRL’s web site along with an in-depth article. We wanted ARRL members to know that we had achieved a very positive breakthrough on a very important and positive piece of legislation as soon as we could do so.
Did ARRL make compromises with CAI?
● No. There were no “compromises” made at all. In fact, the chair of ARRL’s Legislative Advocacy Committee and ARRL’s General Counsel characterize the Substitute Amendment, negotiated constantly over a three-month period as being far better for radio Amateurs than was the original Bill language. The PRB-1 test that we started with did not entitle every single radio amateur living in a deed restricted community to an effective outdoor antenna, notwithstanding anything in the language of the deed restrictions. It simply required “reasonable accommodation” which could have been argued to be an attic antenna or a mobile whip antenna good for operation on one band. The substitute amendment is far more favorable to Amateurs than was the PRB-1 standard.
Was the substitute amendment ARRL’s language or CAI’s lobbyist’s language?
● It was consensus language arrived at after numerous iterations with edits by both sides, but overall, the “effective outdoor antenna” entitlement and the “reasonableness” requirement for HOA rules affecting antennas originated with ARRL.
I have heard that the Substitute Amendment does not define the limits that HOA’s can impose on the installation of Amateur Radio antennas and support structures. How does that help hams living in deed-restricted communities?
● There are two main types of deed restrictions pertaining to antennas now: (1) those which permit no outdoor ham radio antennas, and (2) those which permit nothing at all without the approval of the HOA. Declarations of Covenants therefore do not, generally speaking, create standards which clarify when a ham radio antenna will or won’t be approved. In practical effect, the answer is always “no” anyway. Many thousands of hams have no choice but to live in these environments. For the first time in the history of ham radio in the United States, if this Bill passes, that all changes. From now on, in deed-restricted communities where there is no HOA, there is no approval requirement and no limit on antenna height, dimensions, etc. other than what the local municipal government might impose. Where there is an HOA, the HOA must not preclude Amateur Radio communications by any rules they might develop; the rules have to be reasonable; every amateur is entitled to an effective outdoor antenna; and no CC&R can impose more than the minimum practicable regulation necessary to accomplish the HOA’s goal. This is a huge win IF we can get the Bill through the House and the Senate this term. So to the extent possible in legislation regarding land use regulation (and this legislation is quite specific) the Substitute Amendment does define the limits an HOA can impose.
● ARRL has been working on a private land use regulation preemption policy and have tried to carry over PRB-1 from the zoning context so that it applies to all land use regulations, public and private, for at least 20 years. Never has anyone questioned the appropriateness of the effort. We have now a far, far better Bill than we have ever had before and we are close to having it implemented for the very first time.
What are the chances that this will pass?
● We don’t know. Now that the Bill has been successfully passed by the House Energy and Commerce Committee, we are hopeful that when the House reconvenes briefly in September that the Bill will be considered “on suspension” by a voice vote in the House, and that it will pass. It takes a 2/3rds vote in the House to pass on suspension. In the Senate, the Commerce Committee markup has occurred. If the House Bill passes, it will be sent over to the Senate and it will be considered by “unanimous consent”. We will need all ARRL members to urge their Senators to consent to the Bill at that time.
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