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FCC Denies Arizona Ham’s Petition to Extend PRB-1 to Private Contracts, Such as CC&Rs

07/17/2012

In January 2012, Leonard Umina, W7CCE, of Gilbert, Arizona, filed a Petition for Rulemaking, asking the FCC to “expand its policy of limited preemption of state and local regulations governing amateur station facilities to preempt private land use regulations such as covenants, conditions, and restrictions (CC&Rs) and rental agreements that limit amateur licensees’ ability to deploy antennas.” On July 16, the FCC notified Umina that it had denied his Petition.

In its denial, the FCC told Umina that it had already answered the question of whether to preempt CC&Rs in deeds and bylaws that restrict the installation of antennas and associated support structures used by Amateur Radio stations back in 1985 with PRB-1. PRB-1 -- as codified in Section 97.15(b) -- states that “[s]tate and local regulation of a station antenna structure must not preclude amateur service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state or local authority's legitimate purpose.”

With PRB-1, the FCC “established a policy of limited preemption of state and local regulations governing amateur station facilities, including antennas and support structures, but expressly decided not to extend its limited preemption policy to CC&Rs in home ownership deeds and condominium bylaws because ‘[s]uch agreements are voluntarily entered into by the buyer or tenant when the agreement is executed and do not usually concern the Commission.’ In 2001, the Commission denied a Petition requesting that the Commission adopt rules to preempt CC&Rs that do not provide reasonable accommodation for Amateur Radio operators, and affirmed that the limited preemption policy of PRB-1 applies only to state and local regulations. The Commission noted that its decision in PRB-1 to exclude CC&Rs from its preemption policy was premised upon the fundamental difference between state and local regulations, with which an Amateur Radio operator must comply, and CC&Rs, which are contractual terms to which the purchaser of a property voluntarily subjects him- or herself.” The FCC also concluded in its PRB-1 decision that “there ha[d] not been a sufficient showing that CC&Rs prevent Amateur Radio operators from pursuing the basis and purpose of the Amateur Service.”

It also pointed out that “should Congress see fit to enact a statutory directive mandating the expansion of its limited preemption policy to include more than state and local regulations, it would expeditiously act to fulfill its obligation thereunder.” The FCC noted that less than a month after Umina filed his Petition for Rulemaking, Congress enacted the Middle Class Tax Relief and Job Creation Act of 2012, requiring the FCC to report to Congress regarding the uses and capabilities of Amateur Radio Service communications in emergencies and disaster relief.

This report will “identify impediments to enhanced Amateur Radio Service communications and recommendations regarding the removal of such impediments, including ‘the effects of unreasonable or unnecessary private land use restrictions on residential antenna installations.’ Had Congress intended to mandate an expansion of the Commission’s policy at this time, it would have done so directly. We believe that it would be inappropriate and premature for the Commission to consider modifying its policy until after Congress has an opportunity to review the report and decide whether to enact a statutory directive mandating the expansion of the Commission’s limited preemption policy to include more than state and local regulations. We therefore deny the petition.”



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