[TowerTalk] HAM GATHERING SIGNATURES ON PETITION TO VOID ANTENNA PROHIBITIONS

[Dick Green WC1M]

I've always thought that restrictive covenants were protected by the
"inviolability of contracts" principle established by the Supreme Court, but
my brief research on the matter confirms what Joe says. Here's a link to a
decision by the U.S. Court of Appeals upholding the FCC's OTARD ruling,
which pre-empts private contracts restricting satellite dishes:

http://www.cadc.uscourts.gov/internet/opinions.nsf/5B795405F1CF018385256F7A0
06441C3/$file/99-1009a.txt

The ruling begins with a bunch of technical decisions regarding whether the
FCC exceeded its Congressional authority. Answer: No. The ruling on the
Constitutional question of whether the FCC's actions constituted an illegal
"taking" by the federal government appears later in the document. Again, the
answer was No.

The issue of whether private contracts can be abrogated or amended by the
federal or State government dates back almost to the day the Constitution
was ratified. The landmark Dartmouth College Case of 1819, argued by famed
Dartmouth alumnus Daniel Webster, established the sanctity of contracts by
invalidating the State of New Hampshire's annexing of the private college in
order to make it the state university. The court ruled that the Trustees of
Dartmouth had a contract with the Earls of Dartmouth in England to establish
a private college, and that the State couldn't just overthrow that contract.
(In this case, Webster uttered his famous line, "It is a small college, but
there are those who love it", emblazoned on many a wall around the campus.)

However, the Contracts Clause, which forms the basis of the ruling, applies
only to State governments. It was later established that the Due Process
clauses of the Fifth and Fourteenth Amendments prohibit the Federal and
State governments, respectively, from pre-empting contracts without due
process and/or just compensation. Of course, the terms "due process" and
"just compensation" are open to interpretation. A series of decisions during
the Great Depression used these clauses to significantly weaken the sanctity
of contracts. In general, it was established that the Federal and State
governments can abrogate contracts when they find it's in the public
interest (at least one ruling called it "necessary to ensure public health",
but that's easily extended to "public interest".)

Note that none of the restrictions apply to the judiciary. The courts can
overturn private contracts whenever they want to.

73, Dick WC1M

> -----Original Message-----
> From: Joe Subich, W4TV [mailto:lists at subich.com]
> Sent: Monday, April 23, 2012 2:50 PM
> To: towertalk at contesting.com
> Subject: Re: [TowerTalk] HAM GATHERING SIGNATURES ON PETITION TO VOID
> ANTENNA PROHIBITIONS
> 
> 
> No, you will find the FCC's ruling on OTARD (over the air receiving
> device - e.g. satellite and TV antennas) applies to private contracts
> including HOAs, rental contracts, and builder imposed deed limits.
> 
> The FCC - and any other *federal* authority - has the power to preempt
> private contracts simply by declaring the terms of the contract
> "contrary to public policy."  It is the same authority used to void many
> other "private" restrictions regarding public accommodation, housing,
> memberships, etc.
> 
> 73,
> 
>     ... Joe, W4TV
> 
> 
> On 4/23/2012 2:30 PM, Al Kozakiewicz wrote:
> > I think you'll find that applies to public ordinances (e.g. zoning
> laws) , not deed covenants.
> >
> > Al
> > AB2ZY
> >
>