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ARRL Argues that Oklahoma Town’s RFI Ordinance is “Null and Void”

07/23/2010

Saying that only the Federal Communications Commission is empowered to regulate radio frequency interference (RFI), the ARRL has notified Midwest City, Oklahoma, that its local ordinance 27-3(9), seeking to regulate radio transmissions and RFI, is “null and void.” Midwest City is in the Oklahoma City metropolitan area.

Midwest City’s Ordinance 27-3(9) reads: “In addition to other public nuisances declared by other sections of this Code or law, the following [is] hereby declared to be [a] public nuisance: Operating or using any electrical apparatus or machine which materially and unduly interferes with radio or television reception by others.” Section 27 of Midwest City’s Ordinances deals with nuisances.

On July 21, ARRL General Counsel Chris Imlay, W3KD, wrote to Midwest City Assistant City Manager Dave Ballew, City Attorney Katherine Bolles and Director of Code Enforcement Mike Stroh, informing them that the ARRL had been provided with a copy of the ordinance by amateurs in that community. “We are also aware that a notice was sent by Mr Stroh on behalf of the City to one of ARRL’s members who resides in Midwest City asserting that the FCC-licensed radio amateur to whom the letter was addressed was in violation of the ordinance as the result of radio frequency interference appearing in a neighbor/complainant’s home electronic equipment,” the letter read. “The licensed radio amateur was ordered to remedy the problem in one day, under penalty of a sanction assessed against the real property of the radio amateur.”

Section 27-2 of the nuisance ordinance states the penalty for non-compliance: “It shall be unlawful for any person to create or maintain a public nuisance within the or [sic] to permit a public nuisance to remain on premises under his control within the city” and that “the punishment for a violation of this chapter shall be a minimum of one hundred dollars ($100.00) or fifteen (15) days imprisonment or both such fine and imprisonment and shall not exceed two hundred dollars ($200.00) or thirty (30) days imprisonment or both such fine and imprisonment. Each day a violation shall continue shall constitute a separate offense.”

The letter explained to the Midwest City officials that as the FCC is the only entity empowered to regulate RFI, that this matter “is not a proper subject for municipal regulation by Midwest City, and your ordinance 27-3(9), which purports to regulate RFI is preempted on its face, and is therefore null and void. The City in fact has absolutely no jurisdiction whatsoever over radio frequency interference. Such regulation is exclusively within the jurisdiction of the Federal Communications Commission and all regulation of radio transmission and interference phenomena is preempted by Federal law.”

All radio stations operate, and all telecommunications are regulated pursuant to the Communications Act of 1934, As Amended. The FCC has exclusive jurisdiction over RFI matters and all technical matters associated with radio communications. In the letter, General Counsel Imlay presented almost 20 legal cases defining the Commission’s role and its sole authority over these matters.

In the Communications Amendments Act of 1982, the legislation clearly demonstrated that Congress intended to completely preempt the regulation of RFI: “The Conference Substitute is further intended to clarify the reservation over matters involving RFI. Such matters will not be regulated by local or state law, nor shall radio transmitting apparatus be subject to local or state regulation as part of any effort to resolve an RFI complaint. The Conferees believe that radio transmitter operators should not be subject to fines, forfeitures, or other liability imposed by any local or state authority as a result of interference appearing in home electronic equipment or systems. Rather, the Conferees intend that regulation of RFI phenomena shall be imposed only by the [Federal Communications] Commission.” The Conference also clarified that “the exclusive jurisdiction over RFI incidents (including preemption of state and local regulation of such phenomena) lies with the FCC.”

General Counsel Imlay expressed his hope that it will not be necessary to submit Midwest City’s Ordinance 27-3(9) to the FCC by way of a Request for a Declaratory Ruling, “but that would be [the ARRL’s] planned course of action unless Ordinance 27-3(9) is rescinded and that letter from Mr Stroh to the radio amateur in Midwest City is retracted immediately. That radio amateur has the full support of ARRL in any action he may choose to take in this connection."



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