ARRL

ARRL General Bulletin ARLB092 (1999)

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ARLB092 FCC Denies League's Request for Stronger Federal Preemption Policy

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ARRL Bulletin 92  ARLB092
From ARRL Headquarters  
Newington CT  November 24, 1999
To all radio amateurs 

SB QST ARL ARLB092
ARLB092 FCC Denies League's Request for Stronger Federal Preemption Policy

The FCC has turned down a 1996 ARRL petition asking the Commission
to go further in compelling state and local governments to
reasonably accommodate Amateur Radio and apply the least restrictive
means to regulate amateur antennas and activity. However, in denying
the petition, designated RM-8763, the FCC did offer some words that
may be helpful to amateurs.

The requested rules changes would have expanded and clarified PRB-1,
the Federal preemption of state and local regulation spelled out by
the FCC in 1985 and since incorporated into the laws of several
states.

Specifically, the League called on the FCC to amend Section 97.15(e)
of its rules to say that any state or local antenna restrictions
limiting ham radio antennas to heights below 70 feet would be
''presumed unreasonable'' unless the state or local authority could
show its restrictions were necessary for health, safety or aesthetic
reasons.

Further, the ARRL asked the FCC to clarify that local government's
role in applying PRB-1 was to accommodate ham antennas rather than
to balance local interests against Federal interests in ''effective
public service amateur communications.'' The League also wanted the
FCC to acknowledge that it ''has no less interest in the effective
performance of an Amateur Radio Station'' in an area regulated by
deed restrictions, covenants, or condominium regulations than by
zoning ordinances. It also asked the FCC to preempt overly
burdensome conditions and excessive costs localities might require
in connection with amateurs antenna installations.

In its denial, in an Order released November 19, the FCC said it
would not be ''prudent'' or ''appropriate'' to set a height standard for
amateur antennas and supporting structures ''because of varying
circumstances that may occur'' for differing antenna configurations.
''We believe that the policy enunciated in PRB-1 is sound,'' the FCC
said, noting that PRB-1 does not specify a height limit. The
Commission also said it did not want to mandate specific provisions
that localities must include in zoning ordinances.

''We continue to believe that the standards the Commission set, that
is 'reasonable accommodation' and 'minimum practicable regulation',
have worked relatively well,'' the FCC said. The Commission applied
that same philosophy to the imposition of fees, zoning laws and
other conditions that localities might impose on amateur antenna
installations.

The FCC also said its policy with respect to restrictive covenants
already is clearly stated in PRB-1, which excludes restrictive
covenants in private contracts as ''outside the reach of our limited
preemption.'' The FCC did say that it ''strongly encourages
associations of homeowners and private contracting parties to follow
the principle of reasonable accommodation'' with respect to Amateur
Radio. But it drew the line at proposing specific rule changes to
bring private restrictive covenants under the umbrella of PRB-1.

The part of the FCC's Order that may prove most helpful is the
assertion that PRB-1 precisely stated the principle of ''reasonable
accommodation.'' Some courts have held that a local authority can
merely balance its own interests against those of the amateur. PRB-1
states that local regulations involving placement, screening, or
height of antennas based on health, safety, or aesthetic
considerations ''must be crafted to accommodate reasonably amateur
communications, and to represent the minimum practicable regulation
to accomplish the local authority's legitimate purpose.'' In its
Order, the FCC said that given PRB-1's explicit language, ''it is
clear that a 'balancing of interests' approach is not appropriate in
this context.''

The ARRL Executive Committee will review the Order at its December 4
meeting to determine what further action is appropriate.
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