[TowerTalk] Is the FCC sharp? Is ARRL counsel swift?

[Stu Greene]

At 07:58 PM 12/31/01 -0800, Mike W4EF wrote:

>Seems to me that the question of erecting towers is really a property
>rights issue. Not really sure though how private property is protected
>under the U.S. Constitution. With a few noteable exceptions, it is sparsley
>mentioned in the text:
>
>"No person shall be deprived of life, liberty, or PROPERTY without
>'due process of law.' "  -  U.S. Constitution, Fifth Amendment
You're right.  Property is not mentioned because, aside from due process of 
law and equal protection under law, the courts in England and then here 
have created an entire body of law regarding property.

But the conflict arises this way.  A tower is my personal property and I 
want to erect it on my real property. OK.  But either CC&Rs, which limit my 
use of my property, or zoning laws which do the same thing collide with my 
right to use my property as I see fit.

The FCC, in PRB-1, preempted zoning as an absolute bar to tower erection, 
and what ARRL did in the next case  was to ask the FCC to treat CC&Rs in 
the same manner.

The Commission took the easy way out by ruling that  ARRL  persuade 
Congress to enact a statute depriving courts of the power to use CC&Rs to 
prohibit towers. The easy way was not the right way, and I suspect that 
Congress just isn't going to pass legislation preempting CC&Rs.

.  The right and in my opinion legally correct way to decide ARRL's 
petition would have been to say this. " CC&Rs are contracts between owners 
of property in a subdivision, and as such have created  property rights 
with which we cannot interfere."

It has been suggested by others and I agree that if hams want to install 
towers they need to check CC&Rs as well as zoning before they buy.  Then 
it's decision time for the buyers.





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