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![Previous (earlier) Story](/images/sty-down.gif "ISS Expedition 2 Crew Members Regain their "Earth Legs""){kind=small} Previous: ISS Expedition 2 Crew Members Regain their "Earth Legs" | ![Next (later) Story](/images/sty-up.gif ""Grecian Firebolt 01" Tests MARS Operators' Mettle"){kind=small} Next: "Grecian Firebolt 01" Tests MARS Operators' Mettle |
By David Sumner, K1ZZ
ARRL Executive Vice President
August 29, 2001
Editor's note: Typically, only ARRL members get to read the "It Seems to Us ..." editorials that run each month in QST. We're posting this editorial by ARRL Executive Vice President David Sumner, K1ZZ, that appears in the September 2001 issue of QST in the hope that both ARRL members and nonmembers might appreciate it and find it informative.
"The ability of amateurs to erect and use antennas is as essential to the existence of Amateur Radio as the defense of Amateur Radio Spectrum." With these words at its July meeting the ARRL Board of Directors adopted, as a major goal of our advocacy activities, legislative action granting the Amateur Radio Service the same level of protection from private Covenants Conditions and Restrictions (CC&Rs) prohibiting or restricting Amateur Radio antennas as is presently available to other services. The Executive Committee was directed to develop a plan of overall strategy to direct and focus the efforts of the various entities of the ARRL to achieve that goal.
Why legislative action? Why did the Board take this action now? What protections do other services now enjoy? What does this mean for amateurs who live in areas where antennas are restricted by CC&Rs?
The reason the Board specified legislative action is that so far we have been unable to persuade the FCC to act on its own initiative. When the FCC adopted its PRB-1 limited preemption policy in 1985 at ARRL request, the Commission said it believed it did not have the jurisdiction to preempt private land use regulations such as CC&Rs. It is now clear that the FCC does indeed have such jurisdiction to the extent required to further an important federal interest. In 1996 the ARRL pointed this out and argued that the FCC should use its authority to ensure that adequate emergency communications are available to residents of areas blighted by CC&Rs. The FCC Wireless Telecommunications Bureau (WTB) twice has declined to do so; our application for review of the WTB decision by the full Commission is pending. While we haven't given up on the application for review -- a majority of the Commissioners are brand new to their jobs and surely haven't yet made up their minds -- the new FCC Chairman, Michael Powell, is known to be strongly inclined against preemption except when explicitly instructed to do so by Congress.
There is another reason for acting now. While CC&Rs have been problematic in some areas for years, they are now spreading like a plague across the American landscape. It is increasingly rare for new housing developments to be free of restrictions on homeowners' enjoyment of their own property. In the immortal words of '60s songwriter Malvina Reynolds, "They're all made out of ticky-tacky and they all look just the same."
Congress has acted to protect a few other services against inappropriate restrictions on antennas. Closest to the situation faced by amateurs is Section 207 of the Telecommunications Act of 1996, which instructed the FCC to prohibit restrictions that impair a viewer's ability to receive over-the-air television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite services. The FCC did so, adopting what are commonly called "OTARD" (over-the-air reception devices) rules. A recent federal appeals court decision affirmed that the FCC's authority even extends to rental property. For example, a landlord cannot prevent a tenant from installing a small direct broadcast satellite antenna on a balcony or patio.
If you are presently limited by CC&Rs, don't get your hopes up that this will change overnight. We face a long, uphill battle. Congress has an aversion to considering legislation that affects favored interest groups, and there are few groups with greater influence than real estate developers. In the case of OTARDs there was a strong pro-competitive argument for preemption; in our case the rationale is different. Our initial efforts on the Hill to promote the concept of OTARD-like relief for amateurs have not met with much encouragement, even from longtime friends of Amateur Radio. It will take a lot of work by all of us to make any headway on the legislative front.
Neither should you necessarily expect to be able to put up the tower and beam you've always wanted. Let's face it, there are some housing situations where a large multiband HF beam simply isn't reasonable. For increasing numbers of amateurs it would be a significant improvement just to be able to install an outdoor antenna with a visual impact roughly equivalent to that of an OTARD.
The Board's actions against antenna restrictions were not limited to CC&Rs. To build on recent successes in writing protections similar to PRB-1 into the laws of 13 states, the Board instructed staff to develop a "how to" guide for amateurs seeking similar legislation in the remaining states. If you will forgive a shameless plug for a new ARRL publication, Fred Hopengarten, K1VR, literally "wrote the book" on how to cope with local land use regulations. Entitled Antenna Zoning for the Radio Amateur, it contains sample ordinances and even includes a CD-ROM with extensive reference material and sample letters that can be edited to suit individual circumstances.
Radio amateurs are not alone in wanting to continue to enjoy the use of our private residential property without unreasonable restrictions. Let us hope that our society continues to value choice in housing, and that we're not all "Put in boxes, little boxes, all the same."
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