[SCCC] SCCC Digest, Vol 176, Issue 3

Thu Aug 3 15:20:20 EDT 2017

Marty,

Thank you for this; it adds credence to my mantra, "nothing is as it seems,
especially in laws/regulations."

Damn, I thought it was good thing....... so thanks for the wake-up call.

73
Ray

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Today's Topics:

   1. The Case Against HR-555 (Marty Woll)

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Message: 1
Date: Wed, 2 Aug 2017 13:54:37 -0700
From: "Marty Woll" <n6vi at socal.rr.com>
To: "sccc" <sccc at contesting.com>
Subject: [SCCC] The Case Against HR-555
Message-ID: <009101d30bd1$8db24fa0$a916eee0$@socal.rr.com>
Content-Type: text/plain;	charset="us-ascii"

Now that I am a former ARRL Vice Director, I am free to speak my mind on
this matter.  As a long-time proponent of antenna rights, it is with great
disappointment that I say I do not favor passage of HR-555. I should add up
front, by way of disclaimer, that I am not an attorney.  

I was a big supporter of the original Amateur Radio Parity Act - the PRB-1
version.  The ability to put up outdoor antennas and the structures
necessary to support them on your property is crucial to being an active Ham
for many licensees.  Since 2010 I have visited the offices of numerous
elected officials, sent over a thousand e-mail messages, spent entire
convention weekends generating letters from Hams to their elected
representatives and spoken at countless club meetings to drum up support for
this legislation.  It's fair to say that I invested a major chunk of my time
in support of the original Parity Act, and I certainly respect ARRL
leadership for its persistence in seeking relief for all impacted Amateurs,
whether League members or not.  However, in February of 2016 the language
that mirrored PRB-1 was removed from HR-1301 (now HR-555), and this is a
critique of the result, not of the intent or effort.

Last year, ARRL found itself at odds with one senator over the bill and was
required to negotiate compromise language with CAI, a national trade
association of homeowner associations (HOAs) and similar groups.  While I
had some major misgivings at the time, I did not object to the compromise
language because I believed it would help at least those Amateurs who live
in homes with developer-imposed deed restrictions not within the purview of
an active HOA.  

Since that time, however, some high-profile, competent and very
knowledgeable attorneys (all of them Hams but none associated with the ARRL
Board) have evaluated the compromise language and found that it may do more
harm than good.  They have pointed out some serious shortcomings in HR-555
that significantly restrict how many Hams may benefit from its passage and
that, if uncorrected, could actually diminish the rights of some Amateurs
and grant the right to regulate Amateur antennas to HOAs that do not now
have that right.

What follows is an abbreviated description of the issues surrounding HR-555,
the current version of the Parity Act.  For those who want to dig deeper
into the matter, I have a version I can e-mail you separately that include
attachments containing (1) the original bill language, (2) the compromise
language in the current bill, and (3) an analysis prepared by former FCC
attorney and active Amateur Radio operator Jim Talens N3JT for the Potomac
Valley Radio Club.  Many of the points in Jim's critique were also made by
Fred Hopengarten K1VR (author of Antenna Zoning for the Radio Amateur) at
his presentation to the Legal Forum at the May 2017 Dayton Hamvention.
Suffice it to say that the expert Ham-attorneys are NOT all lining up in
support of HR-555 in its current form.

The original bill pretty much paralleled PRB-1, the Federal Preemption
Statute.  It required the FCC to revise its regulations to prohibit private
deed restrictions that preclude or fail to reasonably accommodate Amateur
Radio communications or that do not constitute the minimum practicable
restriction on such communications to accomplish the legitimate purpose of
the private entity seeking to enforce such restriction.

On the other hand, the compromise bill that CAI insisted on does the
following: 

1)  It grants HOAs the right to use aesthetics as a basis for antenna
decisions, even to those associations whose rules do not now have any
provisions concerning antennas.  This grant of power to HOAs is
unprecedented in Federal law, and it adds a right - as a matter of Federal
law - for HOA's that has never been previously approved in Federal law.
That right cannot be undone by state law.

2)  It requires a deed-restricted Amateur to notify and seek prior
permission from the HOA before installing any outdoor antenna, with no
grandfathering for those already installed.

3)  It does not establish a time frame within which the HOA must render a
decision; an HOA can stall indefinitely and do so without adverse
consequence.

4)  It does not grant or guarantee to an Amateur the right to operate on the
band(s) of his or her choice.

5)  It permits but does not require the HOA to establish written rules
regarding antenna size, type and location.

6)  It does not establish or require an HOA administrative process for
redress if an HOA denies a Ham's requested antenna.  The decision of the HOA
is final.

Under HR-555, if passed, Hams who have existing "stealth" antennas, even
with the concurrence of their immediate neighbors, would now be in violation
of Federal law and FCC regulations.  

HOAs will be legally able to write their own rules with no objective
criteria and no standards, and they will have the unrestricted power of
Federal law to back them up.

The band(s) on which the Amateur wishes to operate need not be a
consideration in any HOA decision; they could limit you to a small UHF whip
a few inches long on your gutter and say that have accommodated Amateur
Radio.

An HOA that previously existed only to conduct limited activities, such as
maintaining roads, utilities and exterior landscaping, one that has never
held any power to regulate Amateur Radio, would be granted the power to
demand the removal of existing antennas and to demand that an Amateur seek
its approval to install any Amateur antennas or supports.  Imagine having
moved into a neighborhood because the HOA had no regulatory power over
Amateur Radio antennas, only to have Federal law now grant the HOA that
power! 

The compromise bill expressly disconnects itself from PRB-1.  Unfortunately,
that means that none of the Ham-friendly court decisions interpreting PRB-1
would be binding on an HOA.

It has been argued that the FCC, in writing the regulations required by
HR-555, could eliminate some of the above risks.  However, the FCC has
opposed restricting the rights of HOAs for over thirty years, and I don't
think it is prudent to count on the Commission to reverse itself and
interpret the law in our favor.  Neither can we count on CAI, having won the
rights it demanded, to sit by and make no attempt to influence the
post-enactment regulatory process in its favor.  Wishful thinking to the
contrary is hardly a sound basis on which to make our decisions.  

Because of the aforementioned shortcomings of HR-555 and the likely adverse
consequences of its passage, I cannot support it any longer.  There may be a
better path than the one the League is now pursuing; I don't know if we can
ever get there, but I certainly don't want us to make things worse for a
significant number of Amateurs or expose them to being found in violation of
Federal law and FCC regulations.  Please consider these points when you are
asked to write letters of support for HR-555 to your legislators.

As an aside, I want to remind you that some licensees have been successful
in selling the advantages of Amateur Radio-based disaster communication
capability to their HOA boards.  Offering benefits can be much easier and
less costly than demanding one's rights. 

73,

Marty N6VI

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