Gents (and ladies too), in my opinion Paul has hit the head on the nail
(with minor exceptions, in my opinion)about deed restrictions....CC&R's as
they have been written and subjectively enforce go way beyond ham antennas
and really trample over the basic rights of Americans owning land. And
Paul's dead on, again in my opinion, the ARRL blew it trying to do an end
run trying to get the FCC to preempt civil contracts between consenting
parties which they have no business doing! Congress should have been the
ARRL's first line of offense and if Congress refused to do they duty
upholding the US Constitution then the ARRL should be thinking of a lawsuit
to force Congress to act and if they don't then given the Constitutional
nature of these questions it would go to US Supreme Court for a decision.
73...../k6sdw
>From: "Paul Christensen" <w9ac@arrl.net>
>Putting myself in the position of the FCC for a moment, I would have ruled
>as they did. In my opinion, only the state and federal legislatures should
>have the authority to void a private contract term. The legislatures, by
>their vested authority as specified in the first Articles of the U.S.
>Constitution and in most state's constitutions, then may grant that power
>to
>the state or federal agencies within the competent jurisdiction of the
>legislature.
>
>Recall that federal preemption in the off-air TV and satellite TVRO issue
>was a mandate from Congress in which Congress passed the authority onto the
>FCC. No problem here. However, Congress did not intent for the FCC to
>overrule and void every homeowner's contract with his/her homeowners'
>association or developer. In my opinion, more damage was done by the
>Leauge
>in petitioning the FCC in what is clearly a contract law matter. The time,
>energy, and financial resources would have been better directed to Congress
>in the first place. The League had already faced this dilema during the
>long-standing spectrum protection issue. Again, the FCC declined to rule
>on
>the matter and the effort was reorganized and directed to Congress, where
>it
>presently resides.
>
>Contracts between parties is as old as the law itself. It is no trivial
>matter to begin tampering with legally enforceable agreements between
>people.
>
>Have many homeowner's associations accrued an unnecessary and unreasonable
>amount of power? The answer is clearly and emphatically, Yes. When
>so-called private associations begin taking on the function, appearance and
>most importantly, the "smell" of municipal government, they in fact become
>government.
>
>In one example, a rather large private community in a Miami suburb is more
>than 3,000 homeowners strong. In it's privitization, they have developed
>and managed their own police and fire departments, water utilities, and
>local post office. A great many municipalities do not even have these
>resources and must rely on county government for thier services. My point
>is that when a "private" 3,000 member community behaves and holds itself
>out
>as a governmental municipality....well then "a rose by another name is..."
>
>So, what's the significance of all this? Due Process rights as granted to
>all citizens as a protective measure against *any form of government* under
>the U.S. Constitution's 5th Amendment as it aplies to federal government
>and
>Constitution's 14th Amendment as directed to the States. Local municipal
>governments MUST affort a minimum level of substantive and procedural due
>process rights to its citizens. This is why PRB-1 can be invoked at your
>local or county level. On the other hand, a private homoeowners'
>association, even though it takes on the functions of a municipal
>government
>in the administration of traditional municipal services, is under no
>authority to assure due process. Why? Because, 1) a private group is
>under
>no obligation to protect your due process rights, and 2) you have in effect
>waived any due process rights when you signed the contract to purchase your
>deed-restricted home, inclusive of CC&Rs.
>
>Once again, the solution is in the hands of Congress. Congress needs to
>recognize that our due process rights are being compromized by these
>quasi-municipalites. Congress needs to draft a set of guideleines that
>determines when a nice, cute homeowners' association becomes a mean and
>smelly municipality. If Congress fails to address the issue, then in
>time,
>a precedent-setting case will be accepted for judicial review by the U.S.
>Supreme Court and they will figure it out for them.
>
>73,
>
>-Paul W9AC
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