PACKET RADIO: PRB-1

Steve Wolf, W8IZ@W8IZ


(This text from the W8IZ packet radio bulletin

board. It's formatted to fit a 80 character screen.)


Here's the full text of the FCC's Memorandum, Opinion, and Order in
PRB-1.  You may cite the Federal Register: 50 FR 38813 for an
"official" copy.
Before the Federal Communications Commission          FCC 85-506
Washington, D.C.  20554                    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 athorities can
regulate amateur installations to ensure 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.[1] With extension, comments were due on
or before December 24, 1984,[2] with reply comments due on or before
Januaray 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 amateur antenna support structures require
obstruction marking and lighting.  On the other hand, local munici-
palities 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 dependant 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 ordinacnes were submitted by several amateur
operators in this proceeding.  Stanley J. Clichy, 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 ordinace,
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--anti-climb devices on
towers or fences around them; minimum distance from high voltage
power lines; minimum distance of towers from property lines; and
regulations pertaining to structural soundness of antenna
installation.  By enlarge, amateurs do not find the 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 to 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, pickup trucks, solar
collectors and and gardening equiptment.
Restrictions 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 Commission.  However, since
some amateurs who commented in this proceeding provided us with
examples of restrictive covenants, they are included for information.
Mr. Eugene O. Thomas of Hollister, California included in this
comment an extract of Declaration of Covenant of Restrictions for
Ridgemark Estates, County of San Benito, State of California.  It
provides:
>  No antennas 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 eletromagnetic radiation shall be permitted to >
origionate from any lot which may unreasonably interfere with
reception of television >  or radio signals upon any other lot.
Marshall Wilson Jr. provided a copy of 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 a lot for 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 operatiing
amateur radio equiptment 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
covenant for several reasons.  They maintain that such restrictions
limits 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 free speech.  Others believe that the
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
interferance to other electronic equiptment which may be operated in
the home (television, radio, stereos) or eyesores that detract from
the aesthetic and tasteful appearances of the housing developement or
apartment complex.  To counteract these negative consequences, the
subdivisions and associations include in their deeds, leases, or
bylaws, 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 amatuer 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 natural security and emergencies preparedness
telecommunications plans involving amatuer stations would severely
deminished if state 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),[4] Civil Air Patrol (CAP) and the Radio Amateur Civil
Emergency Service (RACES).  It points out that these volunteer com-
municaters are operating radio equiptment in their homes and that
undue restrictions on antennas by local athorities 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 telecommunications
resources.  DOD favors the issuance of a ruling that would set limits
for local and state regulatory bodies when they are dealing with
amatuer 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
operation 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 complaints 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 leads greatly to our ability >  to communicate
during times of disaster.  >     We do not believe there should be
any restrictions on the antenna and tower except >  for reasonable
safety precautions.  Tropical storms, huricanes 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 jurisdic- tion to preempt certain local land use
regulations which frustrate or prohibit amateur radio communications.
It said that the appropriate standards in preemption cases is not the
extent of state and local interest in a given regulation, but rather
the impact of that regulation on Federal goals. Its position is that
Federal preemption is warrented whenever local governmental
regulations relate adversely to the operation aspects of amateur
communication.  The ARRL maintains the localities routinely employ a
variety of land use devices to preclude the installation of
efffective amateur antennas, including height restrictions,
conditional use permit, building setbacks and dimensional limitations
on antennas.  It sees a declaratory ruling of Federal preemption as
necessary to cause municipalities to accoummodate amateur operator
needs in land use planning efforts.  15. James C. O'Connell, an
attourney who has represented several amateurs before local zoning
athorities, 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 athorities.
Opposing Comments 16. The City of Le 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 ruling to
completely set aside local control, or a ruling which recognises >
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 abilities is >  necessary to assure that
the local decision-makers have the authority to protect the >  public
health, safety and welfare of citizens.  >     In conclusion, I would
like to emphasize an important differance between your >  regulatory
powers and that of the local governments.  Your Commission's approval
of the >  preemptive requests would establish a "national policy."
However, any regulations >  adopted by a local jurisdiction could be
overturned by your comission or a court if >  such regulations was
determined to be unreasonable.
   18. The City of Anderson, Indiana, summerized 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" neighbors 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 (NCL)
all opposed the issuance of an antenna preemption ruling.  The 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.  The 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 ammendment provides that any
powers which the constitution either does not deligate 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
Supermacy 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, Comgress 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 warrented 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 statutes, 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 and 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 recognised the legitimate and important state interests
reflected in local zoning regulations.  For example, in EARTH
SATELLITE COMMUNICATIONS, INC., 95 FCC 2d 1223 (1983), we recognised
that
>  ...countervailing state interests inhere in the present
situation...For example, we do >  not wish to preclude state or
locality from exercising jurisdiction over certain >  elements of an
SMATV operation that properly may fall within its athority, 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 achievment of the >  preeminent federal objective and so
long as the non-federal regulation is applied in a >
nondiscriminatory manner.
   24. Similarly, we recognise here that there are certain general
state and local interests which may, in there 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.[5]  Those rules set forth procedures
for the licensing of stations and operators, frequency allocations,
technical standards which amateur radio equiptment must meet and
operating practices which amateur operators must follow.  We
recognise the amateur radio service as a voluntary, non-commercial
communication service, particularly with 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
good will.  Upon weighing these interests, we believe a limited
preemption policy is warrented.  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.  Never- theless, 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 praticable
regulation to accomplish the local athority's legitimate purpose.[6]
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 un- necessary 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
ligitimate 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
[1] Public Notice, August 30, 1984, Mimeo No. 6299 49 F.R. 36113,
September 14, 1984 [2] Public Notice, December 19, 1984, Mimeo No.
1498 [3] Order, November 8, 1984, Mmimeo No. 770 [4] MARS is solely
under the auspices of the military which recruits volunteer amateur
operators to render assistance to it.  The Commission is not involved
in the MARS program.  [5] 47 CFR Part 97 [6] 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.
FCC Field Office (for Ohio) 24897 Hathaway St Farmington Hills  MI
48331-1395 

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