At 11:01 AM 4/1/2005, Craig Lekutis wrote:
>I find the TowerTalk posts to be quite informative regarding HOAs and other
>community bodies restricting your ability to construct a tower. The problems
>are aligned to what site acquisition specialists in the wireless industry
>face every day.
>
>Last month the Supreme Court ruled 9-0 that ham operator Mark Abrams
>(WA6DPB) was not entitled to attorneys' fees and damages that were listed at
>$15 Million. In 1989 the Rancho Palos Verdes, CA homeowner received
>permission to put up a 52.5-foot tower on his property for amateur radio
>service and to relay signals from other operators. They later said he was
>using it for a commercial enterprise. He applied again for a second tower on
>his property high above the Pacific. They turned him down when neighbors
>objected. He appealed and won, but the court wouldn't allow him to be
>awarded attorney's fees. He appealed that decision and won again. Then the
>city appealed and it went to the Supreme Court.
>
>The March 22 decision will have ramifications not only in the commercial
>sector, but for those enjoying amateur radio as zoning boards will
>arbitrarily flex their muscles knowing that they can't be sued for
>attorneys' fees and damages. There's an extensive article on
>http://www.wirelessestimator.com detailing the multi-year costly battle as
>well as the written opinion and consensus opinions. Abrams says he hasn't
>given up yet.
>
>Craig
Based on some comments from the ARRL attorneys involved in this case posted
on the ham-law list, I don't think this is necessarily true.
I believe that it has more to do with "civil rights damages and costs"
(that's the stuff in 42 USC 1983), NOT the general case. (communications
stuff is in 47 USC). From my casual reading of the decision, it looks like
the court said that if one law provides specific remedies (i.e. the stuff
in the Telecom Act, title 47), then you can't try to use remedies in
another law (the title 42 stuff, which is the civil rights stuff)
In horrible legal speak:
"We decide in this case whether an individual may enforce the limitations
on local zoning authority set forth in ... Communications act of 1934,
through an action under Rev.Stat 1979, 42 USC 1983."
Here's a quote from Chris Imlay:
"This was my case. I argued it successfully in the 9th Circuit, and worked
with the Wilmer, Cutler, Pickering, Hale & Dorr attorneys, including Seth
Waxman, who argued it brilliantly, albeit unsuccessfully, for Mark Abrams
in the Supreme Court. I can assure you with a good deal of certainty that
the holding in this case has nothing to do with Amateur radio antenna
cases whatsoever. However, having the decision go against 1983 damages and
1988 attorneys fees under the Telecom Act, it makes it even more unlikely
than it was before that civil rights damages and attorney's fees will be
awarded under current law in an Amateur antenna case.
Chris Imlay, W3KD "
The actual decision is at:
http://www.supremecourtus.gov/opinions/04pdf/03-1601.pdf
_______________________________________________
See: http://www.mscomputer.com for "Self Supporting Towers", "Wireless Weather
Stations", and lot's more. Call Toll Free, 1-800-333-9041 with any questions
and ask for Sherman, W2FLA.
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