[SEDXC] The ARRL Letter, Vol 19, No 25

Sat, 01 Jul 2000 09:36:43 -0700

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FYI
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>FLORIDA TOWER RULING DISAPPOINTS LEAGUE
>
>The ARRL is expressing disappointment at a recent US Appeals Court ruling in
>a four-year-old Florida Amateur Radio tower case. The US Court of Appeals
>for the Eleventh Circuit on May 31 affirmed a lower-court ruling against
>Lenard Persin, WB4HZQ, in his efforts to erect an 80-foot repeater and HF
>remote base tower in his side yard in Seminole County.
>
>"We are disappointed with the Court's ruling, which runs contrary to the
>clear and unambiguous meaning of the FCC's PRB-1 preemption decision," said
>ARRL Executive Vice President David Sumner, K1ZZ. The Eleventh Circuit
>ruling was doubly troubling because the ARRL had agreed to fund Persin's
>appeal in the case.
>
>In a six-page, unpublished decision, the Eleventh Circuit decided that the
>US District Court had not erred by applying "a balancing test rather than
>the reasonable accommodation test required by PRB-1."
>
>Sumner said that by letting stand the US District Court's reliance on the
>"balancing of interests" approach, the Appeals Court took a regulatory
>direction that the FCC has expressly labeled "not appropriate." He called it
>"incomprehensible" that the Eleventh Circuit Court of Appeals could have
>failed to follow the lead of the Eighth Circuit, which reaffirmed the
>"reasonable accommodation" and "minimum necessary regulation" principles of
>PRB-1 in a landmark 1994 case.
>
>Seminole County's ordinance restricts Amateur Radio towers to 35 feet
>without a special exception. The lower court agreed with Seminole County
>that Persin's request for a taller structure would be detrimental to the
>character and not consistent with the development trends of his
>neighborhood. Persin said one neighbor in particular fought his application
>on that basis. In District Court, Persin had presented--to no avail--expert
>testimony that a 35-foot tower would be ineffective and that the taller
>tower he requested would not change the character of the neighborhood nor
>affect property values.
>
>Persin says he believes the decision dealt "a fatal blow" to PRB-1 and that
>other jurisdictions will copy Seminole County's approach to dealing with
>Amateur Radio towers "since they now know it will hold up in court." The
>county's ordinance, Persin says, "was particularly designed to thwart
>PRB-1." He called for protection stronger than that offered by PRB-1.
>
>Sumner and ARRL General Counsel Chris Imlay, W3KD, note, however, that,
>because the Eleventh Circuit opinion was not published, it will not serve as
>a precedent in future cases. Sumner says that, under PRB-1, municipalities
>continue to have "an absolute obligation" to reasonably accommodate Amateur
>Radio communication and to impose "the minimum practicable regulation to
>accomplish its legitimate purpose."

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FYI 
------------------------- 
<blockquote type=cite cite>FLORIDA TOWER RULING DISAPPOINTS LEAGUE 
 
The ARRL is expressing disappointment at a recent US Appeals Court ruling
in 
a four-year-old Florida Amateur Radio tower case. The US Court of
Appeals 
for the Eleventh Circuit on May 31 affirmed a lower-court ruling
against 
Lenard Persin, WB4HZQ, in his efforts to erect an 80-foot repeater and
HF 
remote base tower in his side yard in Seminole County. 
 
&quot;We are disappointed with the Court's ruling, which runs contrary to
the 
clear and unambiguous meaning of the FCC's PRB-1 preemption
decision,&quot; said 
ARRL Executive Vice President David Sumner, K1ZZ. The Eleventh
Circuit 
ruling was doubly troubling because the ARRL had agreed to fund
Persin's 
appeal in the case. 
 
In a six-page, unpublished decision, the Eleventh Circuit decided that
the 
US District Court had not erred by applying &quot;a balancing test rather
than 
the reasonable accommodation test required by PRB-1.&quot; 
 
Sumner said that by letting stand the US District Court's reliance on
the 
&quot;balancing of interests&quot; approach, the Appeals Court took a
regulatory 
direction that the FCC has expressly labeled &quot;not appropriate.&quot;
He called it 
&quot;incomprehensible&quot; that the Eleventh Circuit Court of Appeals
could have 
failed to follow the lead of the Eighth Circuit, which reaffirmed
the 
&quot;reasonable accommodation&quot; and &quot;minimum necessary
regulation&quot; principles of 
PRB-1 in a landmark 1994 case. 
 
Seminole County's ordinance restricts Amateur Radio towers to 35
feet 
without a special exception. The lower court agreed with Seminole
County 
that Persin's request for a taller structure would be detrimental to
the 
character and not consistent with the development trends of his 
neighborhood. Persin said one neighbor in particular fought his
application 
on that basis. In District Court, Persin had presented--to no
avail--expert 
testimony that a 35-foot tower would be ineffective and that the
taller 
tower he requested would not change the character of the neighborhood
nor 
affect property values. 
 
Persin says he believes the decision dealt &quot;a fatal blow&quot; to
PRB-1 and that 
other jurisdictions will copy Seminole County's approach to dealing
with 
Amateur Radio towers &quot;since they now know it will hold up in
court.&quot; The 
county's ordinance, Persin says, &quot;was particularly designed to
thwart 
PRB-1.&quot; He called for protection stronger than that offered by
PRB-1. 
 
Sumner and ARRL General Counsel Chris Imlay, W3KD, note, however,
that, 
because the Eleventh Circuit opinion was not published, it will not serve
as 
a precedent in future cases. Sumner says that, under PRB-1,
municipalities 
continue to have &quot;an absolute obligation&quot; to reasonably
accommodate Amateur 
Radio communication and to impose &quot;the minimum practicable
regulation to 
accomplish its legitimate purpose.&quot;</blockquote> 
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