Tuesday, May 26, 2020

Part II

Let’s suppose that you awoke one morning to find a radio tower and antenna rising within sight of your bedroom window and that you had had no advance warning of its construction. Surely, you would question the purpose, legality, safety and esthetics of the installation. Your neighbor, one of 730,000 federally licensed amateur radio operators (aka “hams”) is erecting the installation. Does the ham need a variance if the installation appears to violate local zoning ordinances? Do you have the right to demand that the installation be removed or relocated? What is the interest of the various levels of government and organizations such as the Red Cross in the ham’s activities? Why is the federal government supportive of hams and involved in this ostensibly local issue, setting up a conflict between the federal government’s need to ensure that hams can operate versus local zoning ordinances and private homeowners’ associations with their restrictive covenants that often prohibit such installations? And who are these “hams,” anyway? Are their activities kosher?

Amateur radio operation is both a hobby and a vital volunteer public service in times of emergency, at no cost to the taxpayer. Hams communicate locally and around the world and when normal communications such as landlines and cell phones cannot function, hams provide vital communications links because they can erect stations quickly and just about anywhere. On a strictly volunteer basis, they assist police, the Red Cross, and agencies of federal, state and local governments in the coordination of disaster relief teams, transmission of communications etc. Cities and counties from around the U.S. use hams as part of their Civil Defense. RACES (Radio Amateur Civil Emergency Service) volunteers respond instantly; right now, hams are in Puerto Rico performing vital communications services, just as they do wherever they are needed.

As valuable as these services are acknowledged to be, state and local statutes and zoning ordinances; private covenants, conditions and restrictions (CC&Rs) in deeds (primarily of homeowners’ associations); and landlords of rental premises all act to prohibit or to strictly regulate radio installations. Local zoning ordinances and state statutes reflect a legitimate interest in protecting the health, welfare, esthetics and safety of the community. CC&Rs aim to do the same and to protect the quality of life of the members of the homeowners’ communities that are major users of these deed restrictions. At present, CC&Rs can do so because they are not covered by FCC (Federal Communications Commission) requirements regarding amateur radio installations, but this may change as a bill currently works its way through the U.S. Congress. In the case of ham renters who want to install antennas so that their radios (“rigs”) can operate, the ham’s only recourse is to negotiate permission with the landlord: Should the ham violate a lease prohibition/restriction regarding antennas then the ham could be evicted.

The difference between government laws, and CC&Rs and leases, is that the latter two are private arrangements while governmental prohibitions and restrictions are laws that can be enforced. This sets up a conflict between the federal government’s interest in facilitating the operations of hams (which the federal government licenses) and the states and localities that seek to prohibit or to otherwise regulate hams’ installations. It therefore gives rise to Constitutional questions regarding the permissible activities of states and localities vs. federal preemption. Therefore, at the request of the ARRL (American Radio Relay League, the hams’ organization), the FCC issued a declaratory ruling (FCC PRB-1) that guides local authorities in enacting and enforcing their ordinances regarding ham radio installations such as towers, antennas, and guy wires. Key elements in successful radio operation are the location and the height of the antenna. Therefore, PRB-1 requires local governments to reasonably accommodate amateur radio installations (antennas and their support structures) by imposing minimal local regulations and without unreasonable restrictions while protecting the community’s health, welfare and safety. Local ordinances must not be so onerous as to prevent the ham from communicating effectively—that is, laws should impose the minimal number of local restrictions needed to accomplish the local government’s purpose while allowing hams to operate.

The U.S. Department of Defense regards ham operations as part of national security and emergency preparedness and maintains that the effectiveness of these operations would be “severely diminished if state and local ordinances were allowed to prohibit the construction and usage of effective amateur transmission facilities” (Memorandum Opinion, FCC 8-506). RACES operators install radio equipment in their homes so undue restrictions on antennas by localities could render the installations inoperable.

The constitutional issues arise when the ARRL, government agencies and organizations such as the Red Cross urge federal preemption so that there will be a uniform policy regarding all amateur radio installations on U.S. private property and contend that the FCC has jurisdiction; thus, the FCC is urged to preempt certain local land use regulations that restrict or prohibit amateur communications (while acknowledging the localities’ right to safeguard their citizens’ health, welfare and safety). ARRL believes that the appropriate standard in preemption cases is not the extent of state and local interest in a given regulation; instead, it is the impact of that regulation on federal goals so that federal preemption should take place whenever local government regulations impede operations of ham radios. Such local regulations include antenna height restrictions, setback requirements to preserve air and light, conditional use permits, esthetic considerations, prohibition of blocking views (of traffic, for example) etc.

When considering federal preemption, the 10th amendment to the U.S. Constitution provides that any powers that the constitution does not delegate to the U.S. or does not prohibit the states from exercising are reserved to the states or to the people—these are the police powers of the states, enabling them to make laws regarding the health, welfare and safety of their citizens. However, the Supremacy Clause of the Constitution says that the laws and constitution of the United States shall supersede any state law to the contrary. Therefore, states’ laws and constitutions may be preempted expressly or implicitly by Congress (implicitly when Congress completely occupies a given field so that any state law within that field is implicitly preempted), and when state law conflicts with federal law. In the case of ham radio (see above), the FCC ruled that a limited preemption policy is warranted because “there is a strong federal interest in promoting amateur communications” and “state and local regulations that operate to preclude amateur communications in their communities are in direct conflict with federal objectives and must be preempted.” But local regulations involving placements, screening or height of antennas based on health, safety or aesthetic considerations may exist but must be crafted to reasonably accommodate amateur communications, and to represent the minimum practicable regulation to accomplish the local authority’s legitimate purpose.


So, what can you do about that radio installation next door to your bedroom window? Check your local zoning ordinances, but, if the installation is deemed to be permissible, then you will have to accept it. And, if you live in a homeowners’ association or rent an apartment, at present you do have recourse. But, should an emergency during which the services of hams are needed in your area occur, be grateful for the ham next door.

By Vivian J. Oleen

 Vivian J. Oleen is an associate broker at Sopher Realty.

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