HomeMy WebLinkAbout3.1 Supplement #3 SUPPLEMENT
AGENDA ITEM #6. I
Distributed: Lin (p
From: Suzanne Avila
To: Jaime McAvoy
Subject: FW:PRB-1---1985 and 1999 Versions with Highlighting
Date: Wednesday,April 06,2016 3:05:12 PM
Attachments: Memorandum Opinion and Order in PRB-1 Approved 1985.docx
Memorandum Opinion and Order in PRB-1 Adopted 1999.docx
From:Gary Waldeck [mailto:gcwaldeck@gmail.com]
Sent:Wednesday,April 06, 2016 1:47 PM
To:Suzanne Avila<savila@losaltoshills.ca.gov>
Cc: kavitat@comcast.net;Jim Abraham <Jim@jimabraham.com>
Subject: PRB-1--- 1985 and 1999 Versions with Highlighting
Suzanne,
Please forward these two documents to Patrick Tuck so that we may discuss their meaning
during out 4pm telephone call.
The 1985 version was a Memorandum Opinion and Order delivered in 1985 and set the stage
for recognizing Amateur Radio Operators and their unique needs. The 1999 petition, while
denied, contains several passages that are germane to the discussion and reflect the
Commission's opinion on the subject matter.
I'd appreciate it if these attached documents (or their highlighted paragraphs) were placed
into the PC hearing package as supplemental documents.
Thank you
Gary
Gary Waldeck
GCWaldeckPGmail.com
(650) 739-8823 (Office/Cell)
«...»«...»
Memorandum Opinion and Order in PRB-1 Applicable FCC Statements are in
Para. 24&25
Before the Federal Communications
Commission Washington, DC 20554
FCC 85-506 36149
In the Matter of ) ) Federal preemption of state and ) PRB-1 local regulations
pertaining ) to Amateur radio facilities. )
MEMORANDUM OPINION AND ORDER
Adopted: September 16, 1985; Released: September 19, 1985
By the Commission: Commissioner Rivera not participating.
Background
1. On July 16, 1984,the American Radio Relay League, Inc(ARRL)filed a Request for Issuance of a
Declaratory Ruling asking us to delineate the limitations of local zoning and other local and state
regulatory authority over Federally-licensed radio facilities. Specifically,the ARRL wanted an explicit
statement that would preempt all local ordinances which provably preclude or significantly inhibit
effective reliable amateur radio communications. The ARRL acknowledges that local authorities can
regulate amateur installations to insure the safety and health of persons in the community, but believes
that those regulations cannot be so restrictive that they preclude effective amateur communications. 2.
Interested parties were advised that they could file comments in the matter. With extension,comments
were due on or before December 26, 1984,2 with reply comments due on or before January 25, 1985.3
Over sixteen hundred comments were filed.
Local Ordinances
3. Conflicts between amateur operators regarding radio antennas and local authorities regarding
restrictive ordinances are common. The amateur operator is governed by the regulations contained in
Part 97 of our rules. Those rules do not limit the height of an amateur antenna but they require,for
aviation safety reasons,that certain FAA notification and FCC approval procedures must be followed for
antennas which exceed 200 feet in height above ground level or antennas which are to be erected near
airports. Thus, under FCC rules some antenna support structures require obstruction marking and
lighting. On the other hand, local municipalities or governing bodies frequently enact regulations
limiting antennas and their support structures in height and location,e.g.to side or rear yards,for
health,safety or aesthetic considerations. These limiting regulations can result in conflict because the
effectiveness of the communications that emanate from an amateur radio station are directly
dependent upon the location and the height of the antenna. Amateur operators maintain that they are
precluded from operating in certain bands allocated for their use if the height of their antennas is
limited by a local ordinance.
4. Examples of restrictive local ordinances were submitted by several amateur operators in this
proceeding. Stanley J. Cichy,San Diego, California, noted that in San Diego amateur radio antennas
come under a structures ruling which limits building heights to 30 feet. Thus, antennas there are also
limited to 30 feet. Alexander Vrenios, Mundelein, Illinois,wrote that an ordinance of the Village of
Mundelein provides that an antenna must be a distance from the property line that is equal to one and
one-half times its height. In his case, he is limited to an antenna tower for his amateur station just over
53 feet in height.
5.John C. Chapman, an amateur living in Bloomington, Minnesota,commented that he was not able to
obtain a building permit to install an amateur radio antenna exceeding 35 feet in height because the
Bloomington city ordinance restricted "structures" heights to 35 feet. Mr. Chapman said that the
ordinance,when written, undoubtedly applied to buildings but was now being applied to antennas in
the absence of a specific ordinance regulating them. There were two options open to him if he wanted
to engage in amateur communications. He could request a variance to the ordinance by way of a
hearing before the City Council,or he could obtain affidavits from his neighbors swearing that they had
no objection to the proposed antenna installation. He got the building permit after obtaining the
cooperation of his neighbors. His concern, however, is that he had to get permission from several
people before he could effectively engage in radio communications for which he had a valid FCC
amateur license.
6. In addition to height restrictions,other limits are enacted by local jurisdictions—anticlimb devices on
towers or fences around them; minimum distances from high voltage power lines; minimum distances
of towers from property lines; and regulations pertaining to the structural soundness of the antenna
installation. By and large,amateurs do not find these safety precautions objectionable. What they do
object to are the sometimes prohibitive, non-refundable application filing fees to obtain a permit to
erect an antenna installation and those provisions in ordinances which regulate antennas for purely
aesthetic reasons. The amateurs contend,almost universally,that"beauty is in the eye of the
beholder." They assert that an antenna installation is not more aesthetically displeasing than other
objects that people keep on their property, e.g. motor homes,trailers, pick-up trucks, solar collectors
and gardening equipment.
Restrictive Covenants
7.Amateur operators also oppose restrictions on their amateur operations which are contained in the
deeds for their homes or in their apartment leases. Since these restrictive covenants are contractual
agreements between private parties,they are not generally a matter of concern to the Commission.
However,since some amateurs who commented in this proceeding provided us with examples of
restrictive covenants,they are included for information. Mr. Eugene 0.Thomas of Hollister, California,
included in his comments an extract of the Declaration of Covenants and Restrictions for Ridgemark
Estates, County of San Benito,State of California. It provides: No antenna for transmission or reception
of radio signals shall be erected outdoors for use by any dwelling unit except upon approval of the
Directors. No radio or television signals or any other form of electromagnetic radiation shall be
permitted to originate from any lot which may unreasonably interfere with the reception of television or
radio signals upon any other lot. Marshall Wilson,Jr. provided a copy of the restrictive covenant
contained in deeds for the Bell Martin Addition#2, Irving,Texas. It is binding upon all of the owners or
purchasers of the lots in the said addition, his or their heirs, executors,administrators or assigns. It
reads: No antenna or tower shall be erected upon any lot for the purposes of radio operations. William
J. Hamilton resides in an apartment building in Gladstone, Missouri. He cites a clause in his lease
prohibiting the erection of an antenna. He states that he has been forced to give up operating amateur
radio equipment except a hand-held 2 meter(144-148 MHz) radio transceiver. He maintains that he
should not be penalized just because he lives in an apartment. Other restrictive covenants are less
global in scope than those cited above. For example, Robert Webb purchased a home in Houston,
Texas. His deed restriction prohibited "transmitting or receiving antennas extending above the roof
line."
8.Amateur operators generally oppose restrictive covenants for several reasons. They maintain that
such restrictions limit the places that they can reside if they want to pursue their hobby of amateur
radio. Some state that they impinge on First Amendment rights of speech.Others believe that a
constitutional right is being abridged because, in their view, everyone has a right to access the airwaves
regardless of where they live.
9.The contrary belief held by housing subdivision communities and condominium or homeowner's
associations is that amateur radio installations constitute safety hazards,cause interference to other
electronic equipment which may be operated in the home(television, radio, stereos)or are eyesores
that detract from the aesthetic and tasteful appearance of the housing development or apartment
complex. To counteract these negative consequences,the subdivisions and associations include in their
deeds, leases or by-laws, restrictions and limitations on the location and height of antennas or, in some
cases, prohibit them altogether.The restrictive covenants are contained in the contractual agreement
entered into at the time of the sale or lease of the property. Purchasers or lessees are free to choose
whether they wish to reside where such restrictions on amateur antennas are in effect or settle
elsewhere.
Supporting Comments
10.The Department of Defense(DOD)supported the ARRL and emphasized in its comments that
continued success of existing national security and emergency preparedness telecommunications plans
involving amateur stations would be severely diminished if state and local ordinances were allowed to
prohibit the construction and usage of effective amateur transmission facilities. DOD utilizes volunteers
in the Military Affiliate Radio Service (MARS), Civil Air Patrol (CAP)and the Radio Amateur Civil
Emergency Service (RACES). It points out that these volunteer communicators are operating radio
equipment installed in their homes and that undue restrictions on antennas by local authorities
adversely affect their efforts. DOD states that the responsiveness of these volunteer systems would be
impaired if local ordinances interfere with the effectiveness of these important national
telecommunication resources. DOD favors the issuance of a ruling that would set limits for local and
state regulatory bodies when they are dealing with amateur stations.
11.Various chapters of the American Red Cross also came forward to support the ARRL's request for a
preemptive ruling. The Red Cross works closely with amateur radio volunteers. It believes that without
amateurs' dedicated support, disaster relief operations would significantly suffer and that its ability to
serve disaster victims would be hampered. It feels that antenna height limitations that might be
imposed by local bodies will negatively affect the service now rendered by the volunteers.
12. Cities and counties from various parts of the United States filed comments in support of the ARRL's
request for a Federal preemption ruling. The comments from the Director of Civil Defense, Port Arthur,
Texas,are representative:The Amateur Radio Service plays a vital role with our Civil Defense program
here in Port Arthur and the design of these antennas and towers lends greatly to our ability to
communicate during times of disaster.We do not believe there should be any restrictions on the
antennas and towers except for reasonable safety precautions. Tropical storms, hurricanes and
tornadoes are a way of life here on the Texas Gulf Coast and good communications are absolutely
essential when preparing for a hurricane and even more so during recovery operations after the
hurricane has past.
13.The Quarter Century Wireless Association took a strong stand in favor of the Issuance of a
declaratory ruling. It believes that Federal preemption is necessary so that there will be uniformity for
all Amateur Radio installations on private property throughout the United States.
14. In its comments,the ARRL argued that the Commission has the jurisdiction to preempt certain local
land use regulations which frustrate or prohibit amateur radio communications. It said that the
appropriate standard in preemption cases is not the extent of state and local interest in a given
regulation, but rather the impact of the regulation on Federal goals. Its position is that Federal
preemption is warranted whenever local government regulations relate adversely to the operational
aspects of amateur communication. The ARRL maintains that localities routinely employ a variety of
land use devices to preclude the installation of effective amateur antennas, including height restrictions,
conditional use permits, building setbacks and dimensional limitations on antennas. It sees a
declaratory ruling of Federal preemption as necessary to cause municipalities to accommodate amateur
operator needs in land use planning efforts.
15.James C. O'Connell,an attorney who has represented several amateurs before local zoning
authorities,said that requiring amateurs to seek variances or special use approval to erect reasonable
antennas unduly restricts the operation of amateur stations. He suggested that the Commission
preempt zoning ordinances which impose antenna height limits of less than 65 feet. He said that this
height would represent a reasonable accommodation of the communication needs of most amateurs
and the legitimate concerns of local zoning authorities.
Opposing Comments
•
16.The City of La Mesa,California, has a zoning regulation which controls amateur antennas. Its
comments reflected an attempt to reach a balanced view.This regulation has neither the intent, nor the
effect, of precluding or inhibiting effective and reliable communications. Such antennas may be built as
long as their construction does not unreasonably block views or constitute eyesores. The reasonable
assumption is that there are always alternatives at a given site for different placement, and/or methods
for aesthetic treatment. Thus, both public objectives of controlling land use for the public health, safety,
and convenience,and providing an effective communications network,can be satisfied. A blanket to
completely set aside local control,or a ruling which recognizes control only for the purpose of safety of
antenna construction,would be contrary to...legitimate local control.
17. Comments from the County of San Diego state:While we are aware of the benefits provided by
amateur operators,we oppose the issuance of a preemption ruling which would elevate 'antenna
effectiveness'to a position above all other considerations. We must, however, argue that the local
government must have the ability to place reasonable limitations upon the placement and configuration
of amateur radio transmitting and receiving antennas.Such ability is necessary to assure that the local
decision-makers have the authority to protect the public health,safety and welfare of all citizens. In
conclusion, I would like to emphasize an important difference between your regulatory powers and that
of local governments. Your Commission's approval of the preemptive requests would establish a
"national policy." However,any regulation adopted by a local jurisdiction could be overturned by your
Commission or a court if such regulation was determined to be unreasonable.
18.The City of Anderson, Indiana,summarized some of the problems that face local communities: I am
sympathetic to the concerns of these antenna owners and I understand that to gain the maximum
reception from their devices, optimal location is necessary. However,the preservation of residential
zoning districts as"liveable" neighborhoods is jeopardized by placing these antennas in front yards of
homes. Major problems of public safety have been encountered, particularly vision blockage for auto
and pedestrian access. In addition, all communities are faced with various building lot sizes. Many
building lots are so small that established setback requirements (in order to preserve adequate air and
light) are vulnerable to the unregulated placement of antennas. ...the exercise of preemptive authority
by the FCC in granting this request would not be in the best interest of the general public.
19.The National Association of Counties(NACO),the American Planning Association (APA)and the
National League of Cities (NLC) all opposed the issuance of an antenna preemption ruling. NACO
emphasized that federal and state power must be viewed in harmony and warns that Federal intrusion
into local concerns of health, safety and welfare could weaken the traditional police power exercised by
the state and unduly interfere with the legitimate activities of the states. NLC believed that both
Federal and local interests can be accommodated without preempting local authority to regulate the
installation of amateur radio antennas. The APA said that the FCC should continue to leave the issue of
regulating amateur antennas with the local government and with the state and Federal courts.
Discussion
20.When considering preemption,we must begin with two constitutional provisions. The tenth
amendment provides that any powers which the constitution either does not delegate to the United
States or does not prohibit the states from exercising are reserved to the states. These are the police
powers of the states. The Supremacy Clause, however, provides that the constitution and the laws of
the United States shall supersede any state law to the contrary. Article III,Section 2. Given these basic
premises,state laws may be preempted in three ways: First,Congress may expressly preempt the state
law. See Jones v. Rath Packing Co.,430 U.S. 519, 525 (1977). Or,Congress may indicate its intent to
completely occupy a given field so that any state law encompassed within that field would implicitly be
preempted. Such intent to preempt could be found in a congressional regulatory scheme that was so
pervasive that it would be reasonable to assume that Congress did not intend to permit the states to
supplement it. See Fidelity Federal Savings& Loan Ass'n v. de la Cuesta,458 U.S. 141, 153 (1982).
Finally, preemption may be warranted when state law conflicts with federal law. Such conflicts may
occur when "compliance with both Federal and state regulations is a physical impossibility," Florida Lime
&Avocado Growers, Inc.v. Paul,373 U.S. 132, 142, 143 (1963),or when state law"stands as an obstacle
to the accomplishment and execution of the full purposes and objectives of Congress," Hines v.
Davidowitz,312 U.S. 52,67(1941). Furthermore,federal regulations have the same preemptive effect
as federal statues, Fidelity Federal Savings& Loan Association v. de la Cuesta,supra.
21.The situation before us requires us to determine the extent to which state and local zoning
regulations may conflict with federal policies concerning amateur radio operators.
22. Few matters coming before us present such a clear dichotomy of view point as does the instant
issue. The cities,countries, local communities and housing associations see an obligation to all of their
citizens and try to address their concerns. This is accomplished through regulations, ordinances or
covenants oriented toward the health, safety and general welfare of those they regulate. At the
opposite pole are the individual amateur operators and their support groups who are troubled by local
regulations which may inhibit the use of amateur stations or, in some instances,totally preclude
amateur communications. Aligned with the operators are such entities as the Department of Defense,
the American Red Cross and local civil defense and emergency organizations who have found in
Amateur Radio a pool of skilled radio operators and a readily available backup network. In this situation,
we believe it is appropriate to strike a balance between the federal interest in promoting amateur
operations and the legitimate interests of local governments in regulating local zoning matters. The
cornerstone on which we will predicate our decision is that a reasonable accommodation may be made
between the two sides.
23. Preemption is primarily a function of the extent of the conflict between federal and state and local
regulation. Thus, in considering whether our regulations or policies can tolerate a state regulation,we
may consider such factors as the severity of the conflict and the reasons underlying the state's
regulations. In this regard,we have previously recognized the legitimate and important state interests
reflected in local zoning regulations. For example, in Earth Satellite Communications, Inc.,95 FCC 2d
1223 (1983),we recognized that...countervailing state interests in here in the present situation...For
example,we do not wish to preclude a state or locality from exercising jurisdiction over certain
elements of an SMATV operation that properly may fall within its authority,such as zoning or public
safety and health, provided the regulation in question is not undertaken as a pretext for the actual
purpose of frustrating achievement of the preeminent federal objective and so long as the non-federal
regulation is applied in a nondiscriminatory manner.
24. Similarly,we recognize here that there are certain general state and local interests which may, in
their even-handed application, legitimately affect amateur radio facilities. Nonetheless,there is also a
strong federal interest in promoting amateur communications. Evidence of this interest may be found
in the comprehensive set of rules that the Commission has adopted to regulate the amateur service.
Those rules set forth procedures for the licensing of stations and operators,frequency allocations,
technical standards which amateur radio equipment must meet and operating practices which amateur
operators must follow. We recognize the amateur radio service as a voluntary, noncommercial
communication service, particularly with respect to providing emergency communications. Moreover,
the amateur radio service provides a reservoir of trained operators,technicians and electronic experts
who can be called on in times of national or local emergencies. By its nature,the Amateur Radio Service
also provides the opportunity for individual operators to further international goodwill. Upon weighing
these interests,we believe a limited preemption policy is warranted. State and local regulations that
operate to preclude amateur communications in their communities are in direct conflict with federal
objectives and must be preempted.
25. Because amateur station communications are only as effective as the antennas employed, antenna
height restrictions directly affect the effectiveness of amateur communications. Some amateur antenna
configurations require more substantial installations than others if they are to provide the amateur
operator with the communications that he/she desires to engage in. For example, an antenna array for
international amateur communications will differ from an antenna used to contact other amateur
operators at shorter distances. We will not, however,specify any particular height limitation below
which a local government may not regulate, nor will we suggest the precise language that must be
contained in local ordinances,such as mechanisms for special exceptions,variances,or conditional use
permits. Nevertheless, local regulations which involve 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.
26. Obviously,we do not have the staff or financial resources to review all state and local laws that
affect amateur operations. We are confident, however,that state and local governments will endeavor
to legislate in a manner that affords appropriate recognition to the important federal interest at stake
here and thereby avoid unnecessary conflicts with federal policy, as well as time-consuming and
expensive litigation in this area. Amateur operators who believe that local or state governments have
been overreaching and thereby have precluded accomplishment of their legitimate communications
goals, may, in addition, use this document to bring our policies to the attention of local tribunals and
forums.
27. Accordingly,the Request for Declaratory Ruling filed July 16, 1984, by the American Radio Relay
League, Inc., IS GRANTED to the extent indicated herein and in all other respects, IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION William J.Tricarico Secretary
Footnotes !
Public Notice,August 30, 1984, Mimeo. No. 6299,49 F.R. 36113,September 14, 1984. 2Public Notice,
December 19,1984, Mimeo. No. 1498.3Order, November 8, 1984, Mimeo, No. 770.4MARS is solely
under the auspices of the military which recruits volunteer amateur operators to render assistance to it.
The Comission is not involved in the MARS program. 547 CFR Part 97.
We reiterate that our ruling herein does not reach restrictive covenants in private contractual
agreements.Such agreements are voluntarily entered into by the buyer or tenant when the agreement
is executed and do not usually concern this Commission.
PRB-1 (1999) Paragraphs 7& 10 state the operative
Adopted 11/18/1999 conclusions of the court
Released 11/19/1999
ORDER(FCC 99-2569) In the Matter of Modification and Clarification of Policies and Procedures
Governing Siting and Maintenance RM8763 of Amateur Radio Antennas and Support Structures,and
Amendment of Section 97.15 of the Commission's Rules Governing the Amateur Radio Service. Before
the Federal Communications Commission Washington, D.C. 20554 36149, By the Deputy Chief,Wireless
Telecommunications Bureau: IT IS ORDERED that, pursuant to Sections 4(i) and 303(r) of the
Communications Act of 1934,as amended,47 U.S.C. 154(i) and 303(r),the petition for rule making, RM-
8763,filed by The American Radio Relay League, Inc.on February 7, 1996, IS HEREBY DENIED
Introduction and Executive Summary
1. In this Order,we address a Petition for Rule Making(Petition),filed on February 7, 1996, by The
American Radio Relay League, Inc. (ARRL or Petitioner),asking that the Commission review and modify
its policies and procedures pertaining to the Commission's limited preemption of state and local
regulations affecting amateur radio facilities.The Petitioner also requests that the Commission amend
Section 97.15 of the Commission's Rules to clarify the Commission's preemptive intent with respect to
such state and local regulations. We have carefully reviewed the requests, and the supporting
arguments,and conclude that the modifications and clarifications suggested by Petitioner would not
serve the public interest,convenience and necessity.Therefore,the Petition is denied.
Background
2. In 1984,ARRL petitioned the Commission for a declaratory ruling that would limit local regulatory
control of amateur stations. It was believed that local building codes and zoning regulations had limited
the communications ability of licensees in the amateur service.An outdoor antenna is a necessary
component for most types of amateur service communications. Municipalities and local land use
regulatory authorities regulated the heights, placement and dimensions of antennas. In PRB-1, resolving
the ARRL's declaratory ruling petition,the Commission noted that these regulations often result in
conflict because the effectiveness of the communications that emanate from an amateur radio station is
directly dependent upon the location and the height of the antenna. Consequently in PRB-1,the
Commission enunciated the Federal policy toward state and local regulatory restrictions on amateur
station facilities.
3. In the MO&O,the Commission declared a limited preemption of state and local regulations governing
amateur station facilities, including antennas and support structures.The Commission determined that
there was a strong Federal interest in promoting amateur service communications,and that state and
local regulations that preclude amateur service communications are in direct conflict with Federal
objectives and must be preempted. Furthermore,the Commission stated that a local ordinance or
zoning regulation must make reasonable accommodation for amateur communications and must
constitute the minimum practicable regulation to accomplish the local authority's legitimate purpose.
However,the Commission did not extend the limited preemption to covenants,conditions and
restrictions (CC&Rs) in deeds and in condominium by-laws because they are contractual agreements
between private parties. Petitioner, inter alia, requests the extension of the limited preemption to such
CC&Rs.
4. Petitioner also requests other clarifications to PRB-1,as follows:
a. that local governments must make a reasonable accommodation for amateur radio
antennas, rather than balancing their own local interests against the Federal interest in
amateur radio;
b. that local governments could not specify a lower height maximum than sixty to seventy
feet for an amateur radio antenna structure;
c. that overly burdensome conditions in land use authorizations or imposition of excessive
costs is preempted;
d. that denial of a particular use permit or special exception does not relieve a local
government from having to make a reasonable accommodation for amateur
communications;
e. that conditional use permit procedures can be used to regulate amateur radio antennas,
but only as an adjunct to a reasonable height restriction;and, (f)that land use
restrictions pertaining to safety that limit the overall height of an amateur radio antenna
structure,or restrict installation of an antenna altogether,are invalid unless there is no
other alternative available that is less burdensome and still accomplishes the same
purpose.The Commission sought comment on the Petition on February 21, 1996.
5.Since the adoption of the Commission's limited premption policy in PRB-1, Congress enacted Section
704 of the Telecommunications Act of 1996, concerning the siting of personal wireless service facilities.
We note that Section 704 of the Telecom Act encompasses commercial mobile radio services,
unlicensed wireless services and common carrier wireless exchange access services.Thus,Section 704 of
the Telecom Act,which, among other things, bars state or local regulations that prohibit or have the
effect of prohibiting the provision of personal wireless services,does not apply to stations or facilities in
the amateur radio service.
Discussion
6.The Commission's policy with respect to restrictive covenants is clearly stated in the MO&O
establishing a limited preemption of state and local regulations. In the MO&O,the Commission stated
that PRB-1 does not reach restrictive covenants in private contractual agreements. The Petitioner argues
that enforcement of a covenant by the court constitutes "state action",thus converting what otherwise
would be a private matter into a matter of state regulation and,thus,subject to the Commission's
limited preemption policy. Notwithstanding the clear policy statement that was set forth in PRB-1
excluding restrictive covenants in private contractual agreements as being outside the reach of our
limited preemption,we nevertheless strongly encourage associations of homeowners and private
contracting parties to follow the principle of reasonable accommodation and to apply it to any and all
instances of amateur service communications where they may be involved.Although we do not hesitate
to offer such encouragement,we are not persuaded by the Petition or the comments in support thereof
that specific rule provisions bringing the private restrictive covenants within the ambit of PRB-1 are
necessary or appropriate at this time. Having reached this conclusion,we need not resolve the issue of
whether,or under what circumstances,judicial enforcement of private covenants would constitute
"state action."
7. Petitioner further requests a clarification of PRB-1 that local authorities must not engage in balancing
their enactments against the interest that the Federal Government has in amateur radio, but rather
must reasonably accommodate amateur communications.
We do not believe a clarification is necessary because the PRB-1 decision precisely stated the principle
of"reasonable accommodation". In PRB-1,the Commission stated: "Nevertheless, local regulations
which involve 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." Given this
express Commission language, it is clear that a "balancing of interests" approach is not appropriate in
this context.
8. Petitioner also requests establishment of sixty or seventy feet as the minimum height in a
metropolitan area for an amateur antenna structure so that local authorities could not specify a lower
height maximum for an amateur antenna. Petitioner argues that such a minimum height would
minimize interaction between amateur stations and home electronic equipment and provide reasonable
antenna efficiency at different amateur frequencies, MF through UHF and beyond. Petitioner also
contends that structures of that height and above can be so located as to minimize the visual impact,
and that retractable antennas could be used to address unusual aesthetic situations,such as in historic
or scenic zones.
We do not believe that it would be prudent or that it is appropriate to set such a standard for amateur
antennas and their supporting structures because of varying circumstances that may occur when a
particular antenna configuration is under consideration,such as terrain or man-made obstructions.We
believe that the policy enunciated in PRB-1 is sound. PRB-1 did not specify a particular height limitation
below which a local government may not regulate.The Commission did not want to mandate specific
provisions that a local authority must include in a zoning ordinance.We continue to believe that the
standards the Commission set,that is, "reasonable accommodation" and "minimum practicable
regulation", have worked relatively well.Therefore,we are not persuaded that changes to the
Commission's policy of leaving the specifics of zoning regulations to the local authority, including
provisions concerning the height of an amateur antenna,are necessary at this time.
9. Petitioner further requests that the Commission specifically preempt overly burdensome conditions
and excessive costs levied by a local authority in connection with engineering certifications or issuance
of antenna permits.Specifically, Petitioner argues that assessment of unusual costs for processing an
antenna permit application cannot be used by the local authority as a means of indirectly prohibiting the
antenna. Petitioner states that the same argument is true of conditional use permits that require an
amateur antenna to be screened from view by the installation of mature vegetation.According to the
ARRL, if full vegetative screening cannot be accomplished in a cost-effective manner,a condition
requiring such screening is a de facto prohibition. Although Petitioner concedes that a municipality may
require amateur operators to pay reasonable expenses to obtain amateur permits,the Petitioner
objects to the imposition of unreasonable expenses because such expenses would discourage or
prohibit the installation of amateur antennas. Petitioner also requests that the Commission declare as
invalid certain land use restrictions based on safety considerations,such as setbacks on the property
where the antenna is to be erected, unless there are no other alternatives that would accomplish the
same purpose. Finally, Petitioner requests that the Commission specify that, if a local authority denies a
conditional use permit or a special exception request, it still has the obligation to make a reasonable
accommodation for amateur communications.
We return once again to the position that we have stated earlier in this Order,that is,that the standards
of"reasonable accommodation" and "minimum practicable regulation" are sufficiently efficacious as
guideposts for state, local and municipal authorities.We believe that the effectiveness of these
guidelines or standards can be gauged by the fact that a local zoning authority would recognize at the
outset,when crafting zoning regulations,the potential impact that high antenna towers in heavily-
populated urban or suburban locales could have and,thus,would draft their regulations accordingly. In
addition,we believe that PRB-1's guidelines brings to a local zoning board's awareness that the very
least regulation necessary for the welfare of the community must be the aim of its regulations so that
such regulations will not impinge on the needs of amateur operators to engage in amateur
communications.
Conclusion
10. In our view, Petitioner has not demonstrated that the clarifications requested are necessary.
Accordingly,we conclude that the public interest would best be served by denying the ARRL request for
modification and clarification of Commission policies and procedures concerning the limited preemption
of state and local regulations that affect amateur service radio facilities.
Ordering Clause
11. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and 303(r)of the Communications Act of
1934,as amended,47 U.S.C. 154(i)and 303(r),the petition for rule making, RM-8763,filed by The
American Radio Relay League, Inc. on February 7, 1996, IS HEREBY DENIED.This action is taken under
the delegated authority contained in Sections 0.131 and 0.331 of the Commission's Rules,47 C.F.R.
0.131 and 0.331. Federal Communications Commission Kathleen O'Brien Ham Deputy Chief,Wireless
Telecommunications Bureau