[TowerTalk] CC&R's

[Jim Lux]

OTARD specifically excludes amateur radio, broadcast AM/FM, CB and the
like.. Broadcast video (terrestrial, local stations only), satellite (DBS,
1m antenna size), and two way internet/video type services (MMDS)(I think
the latter is for licensed only... no claiming OTARD for your massive 802.11
antenna)

OTARD specifically does apply to HOAs, landlords, etc., and preempts
contractual obligations, in addition to preempting local ordinances, state
laws, etc..  PRB-1 was specifically at governmental agencies (ordinances,
laws, etc.) but was (deliberately) silent on contractual obligations (i.e.
CC&Rs).

The problem with OTARD is that it doesn't apply to amateur radio (unless you
want to claim that your 40m 5 element beam is "designed to receive local
terrestrial TV broadcasts").  However, it is useful none the less.

The beauty of OTARD, in regards to amateur radio, is that it can force a
rewriting of the "antenna rules" in your HOA.  If you can manage this
process, then you can get the rules rewritten in a general way that won't
specifically prohibit amateur radio. HOAs hate to revise rules repeatedly,
especially under the gun of Federal preemption, so you can create some "fear
uncertainty and doubt" about whether the rules might change again and
convince the HOA it's better to have a generic, fairly inclusive rule. ->
reasonable accomodation, visual impact reduction, etc., rather than outright
prohibition.

If you take the tack of presenting yourself as a reasonable, knowledgeable
person about antennas in general, you might get to write the rule.
Obviously, you're never going to get a rule through that permits a 100 foot
tower with a full size 80 meter beam, but, you might get rule that allows
antenna support structures to support broadcast TV antennas (as explicitly
required by the FCC), and then, make sure the rule doesn't proscribe adding
other antennas (like that UHF/VHF beam, or dipoles, or a variety of antennas
that aren't too visually obtrusive).

Certainly, you could get onerous rules like "no transmitters" eliminated.

Study up on the otard rules, and particularly, look through those cases that
the FCC cites, because being knowledgeable about those helps a lot.  There
WILL be discussion with your HOA board and the management rep about
requiring permits, fees, fixed locations, etc., and you need to be able to
say, not only does the FCC rules prohibit that, but a HOA in Maryland wrote
a rule just like the one you're proposing, and got their hands slapped,
expensively. Print them out, for your HOA board to read (or at least to make
it look like you've done your homework).

http://home.earthlink.net/~w6rmk/otard.htm has summaries of some of the
cases, although I think I updated it last summer, and I'm sure there's new
material I need to add.

In my case, they went through several revisions, all totally unacceptable,
FCC wise. I patiently identified why it wasn't a good rule, mailing out
dozens of pages, with highlighting and sticky notes to tell them where their
proposed rule matched, word for word, the rule the FCC objected to.  Each
time, I proposed a new wording. Patience, and be aware that you may not win
in the long run.

By the way, one reason that they hate to change rules is that, often, states
impose a series of requirements on HOA rules, but give them a grandfather
exception, until they change any rule, which triggers all the state
requirements.  Example, California passed a law a year or so back about pets
in CIDs (common interest developments) and said explicitly that the HOA
rules must be changed to conform. However, the law said that the HOA didn't
have to bring it's rules into conformance until they made another change.
So, the change in antenna rules prompted a change in the pet rules.


----- Original Message -----
From: "Jim Miller" <JimMiller at STL-Online.Net>
To: "Jim Lux" <jimlux at earthlink.net>; "Towertalk" <towertalk at contesting.com>
Sent: Thursday, January 01, 2004 9:21 PM
Subject: Re: [TowerTalk] CC&R's


> How does the OTARD rule apply or not apply to amateur radio antennas
> possibly even support "structures"? -
> http://www.fcc.gov/Bureaus/Wireless/News_Releases/2000/nrwl0038.html) -
"the
> FCC extended to antennas that receive and transmit telecommunications and
> other fixed wireless signals its existing prohibition" (continued)
>
> It appears to me this is just what we need.  How not so?
> Does this apply to municipalities again and exclude HOA's?
>
> tnx es 73, de Jim KG0KP