ARLB011 Amateur Radio Parity Act Language Inserted in National Defense Authorization Act

Do you guys know any ANTENNA PROFESSIONAL who deals with legal 'procedures' in the antenna industry?

I would love to have someone who is so involved, besides myself, GO ON RECORD here as saying:

1)HR555 is terrific;
2) We (hams) can make any reasonable (antenna) request we want and it will be granted;
3) there is no downside whatsoever to HR555.

Let's hear it.

Thank you.

73
Chip W1YW

 

I support a drive for an ARPA but am also very concerned about the flaws in the present HR555 language.

However, abandoning HR555 as stand-alone legislation and now including it a NDAA, despite copying the current controversial text, IMO also modifies or amplifies another aspect of its intent.

Per ARRL, "The amendment, offered by the bipartisan trio and accepted by the House Armed Services Committee by voice vote, will ensure that Amateur Radio operators will continue to play a vital role in disaster communication, when called upon. Amateur Radio has long-standing relationships with the Department of Defense through both the Military Auxiliary Radio Service (MARS) as well as spectrum sharing."

IMO insertion into the NDAA now raises the status of HR from just being a "hobby" and adds potentially significant legal leverage for being a recognized nationwide community service asset.

To be properly judged as "effective" for the purpose of this new legislation, ie backup for DHS-FEMA / DoD-MARS activity, it would seem obvious the allowed antennas at HOA sites must include those that can reasonably achieve reliable HF DX performance.

Being authorized for "National Defense" should push the FCC to further clarify the regs to include effective non-local 3-30 Mhz Hamming and mitigate any future HOA litigation.

Effective antennas for reliable HF comms during extended solar minimums just keep getting larger and larger.

73, John, WØPV

PS - Achieving this shouldn't require a LEAP OF FAITH! Apparently factions within the ARRL structure still want to ignore its fundamental power base of membership, and is playing too fast and loose with its destiny.

 

Yes, they do.

 

MARS is not covered under the wording of HR555.

MARS frequencies are not covered under Part 97 (.301).

THAT MEANS that if your antennas are dual-use with Part 97 AND MARS, then HR555 wording DOES NOT APPLY-- if you are MARS licensed.

You should assume that all those superstations will now become MARS stations too.

Here is the Army MARS application link:

http://www.netcom.army.mil/MARS/files/AR MARS Form 1 v2.2 Individual and Club.pdf

 

Man here we go again beating this dead horse. If it passes it won't effect me either way BUT lot's of ham's living under HOA/CC&R antenna restrictions will get screwed big time.

In this case receiving something bad is not better than receiving nothing.

 

What ever happened to the wording that said HOA's needed to reasonably accomodate ham antennas or something to that effect?

 

It went away with the previous versions of ARPA.

 

The devil as always is in the details. If wording of this sort is included in the final legislation, it should compel HOAs to enter into a negotiation. They may defer or delay, but they would have to talk. This seems to me (IANAL) like when parents request special ed services for a kid (NAL, but I know a lot about this). The school may disagree or delay, but federal law compels the school to reply and meet - they MUST do this. This seems to me to be a step forward; the HOAs could not ignore us or respond with a blanket “no.”

Then what is a reasonable accommodation? Depending on the details, here is what MIGHT happen. I cannot predict the future, but I will venture a guess. In some settings, I imagine that the parties will amicably agree on an EFHW or a vertical or such. In other cases it will go as far as litigation, until a body of case law is developed. At first, a few cases will cost as much in legal fees as a top-tier ham rig.

As more case law and precedents evolve, lawyers will be able to approach HOAs with documentation, and legal fees will drop to three figures. Eventually, as with OTARD antennas, HOAs will seldom contest unobtrusive antennas, and lawyers will not be needed. “Reasonable accomdation” will be written into HOA contracts, and there will be a sense of what sort of antennas will comply. Or maybe the FCC or the ARRL will come up with specs.

This prediction again reflects what has happened in special education. There are still disputes and sometimes people don’t get everything they want, but nobody can be ignored or shut out entirely. The feds produced a mandate (PL94-142), and over time the details got sorted out in case law. The analogy to special ed is applicable in that, in both cases, the feds have decided that the matter at hand is a public good, and that federal preemption of local laws and private contracts is warranted.

We’ll see.

 

HERE is HR555.

NOWHERE does it talk about a "reasonable accommodation" FOR the radio amateur. On the contrary--it allows the HOA to make "reasonable written rules" for the HOA (for example). IOW, restrictions on ham antennas. NOT accommodations. The language was totally reversed in favor of the CA.

H. R. 555
IN THE SENATE OF THE UNITED STATES
January 24, 2017
Received; read twice and referred to the Committee on Commerce, Science, and Transportation

AN ACT
To direct the Federal Communications Commission to amend its rules so as to prohibit the application to amateur stations of certain private land use restrictions, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.

This Act may be cited as the “Amateur Radio Parity Act of 2017”.

SEC. 2. FINDINGS.

Congress finds the following:

(1) More than 730,000 radio amateurs in the United States are licensed by the Federal Communications Commission in the amateur radio services.

(2) Amateur radio, at no cost to taxpayers, provides a fertile ground for technical self-training in modern telecommunications, electronics technology, and emergency communications techniques and protocols.

(3) There is a strong Federal interest in the effective performance of amateur stations established at the residences of licensees. Such stations have been shown to be frequently and increasingly precluded by unreasonable private land use restrictions, including restrictive covenants.

(4) Federal Communications Commission regulations have for three decades prohibited the application to stations in the amateur service of State and local regulations that preclude or fail to reasonably accommodate amateur service communications, or that do not constitute the minimum practicable regulation to accomplish a legitimate State or local purpose. Commission policy has been and is to require States and localities to permit erection of a station antenna structure at heights and dimensions sufficient to accommodate amateur service communications.

(5) The Commission has sought guidance and direction from Congress with respect to the application of the Commission’s limited preemption policy regarding amateur service communications to private land use restrictions, including restrictive covenants.

(6) There are aesthetic and common property considerations that are uniquely applicable to private land use regulations and the community associations obligated to enforce covenants, conditions, and restrictions in deed-restricted communities. These considerations are dissimilar to those applicable to State law and local ordinances regulating the same residential amateur radio facilities.

(7) In recognition of these considerations, a separate Federal policy than exists at section 97.15(b) of title 47, Code of Federal Regulations, is warranted concerning amateur service communications in deed-restricted communities.

(8) Community associations should fairly administer private land use regulations in the interest of their communities, while nevertheless permitting the installation and maintenance of effective outdoor amateur radio antennas. There exist antenna designs and installations that can be consistent with the aesthetics and physical characteristics of land and structures in community associations while accommodating communications in the amateur radio services.

SEC. 3. APPLICATION OF PRIVATE LAND USE RESTRICTIONS TO AMATEUR STATIONS.


(a) Amendment Of FCC Rules.—Not later than 120 days after the date of the enactment of this Act, the Federal Communications Commission shall amend section 97.15 of title 47, Code of Federal Regulations, by adding a new paragraph that prohibits the application to amateur stations of any private land use restriction, including a restrictive covenant, that—

(1) on its face or as applied, precludes communications in an amateur radio service;

(2) fails to permit a licensee in an amateur radio service to install and maintain an effective outdoor antenna on property under the exclusive use or control of the licensee; or

(3) does not constitute the minimum practicable restriction on such communications to accomplish the lawful purposes of a community association seeking to enforce such restriction.

(b) Additional Requirements.—In amending its rules as required by subsection (a), the Commission shall—

(1) require any licensee in an amateur radio service to notify and obtain prior approval from a community association concerning installation of an outdoor antenna;

(2) permit a community association to prohibit installation of any antenna or antenna support structure by a licensee in an amateur radio service on common property not under the exclusive use or control of the licensee; and

(3) subject to the standards specified in paragraphs (1) and (2) of subsection (a), permit a community association to establish reasonable written rules concerning height, location, size, and aesthetic impact of, and installation requirements for, outdoor antennas and support structures for the purpose of conducting communications in the amateur radio services.

SEC. 4. AFFIRMATION OF LIMITED PREEMPTION OF STATE AND LOCAL LAND USE REGULATION.

The Federal Communications Commission may not change section 97.15(b) of title 47, Code of Federal Regulations, which shall remain applicable to State and local land use regulation of amateur service communications.

SEC. 5. DEFINITIONS.

In this Act:

(1) COMMUNITY ASSOCIATION.—The term “community association” means any non-profit mandatory membership organization composed of owners of real estate described in a declaration of covenants or created pursuant to a covenant or other applicable law with respect to which a person, by virtue of the person’s ownership of or interest in a unit or parcel, is obligated to pay for a share of real estate taxes, insurance premiums, maintenance, improvement, services, or other expenses related to common elements, other units, or any other real estate other than the unit or parcel described in the declaration.

(2) TERMS DEFINED IN REGULATIONS.—The terms “amateur radio services”, “amateur service”, and “amateur station” have the meanings given such terms in section 97.3 of title 47, Code of Federal Regulations.

 

As always in these threads, we have the deafening silence coming from those this farce is supposed to help. Rather, we hear lots of uninformed opinion or worse, blatant distortion of the facts.

It should be apparent that people living in HOAs aren't beating this drum. Rather, it is those who don't live in HOAs who think we have a pervasive problem. We don't "need" this kind of help. Volunteer at a homeless shelter if you really want to help someone.

 

HR555 does not apply specifically to HOA's. It applies to CA's, which is a far wider spectrum of communal agreements, a vast majority of which do NOT invoke antenna restrictions---but if HR555 becomes law, ALL of these CA's will now have to deal with antennas from hams, for these agreements have wording of :"other matters as they arise", or similar.

That's the issue.

For example, I do NOT live in an HOA, but my farm in KY HAS several CA',s which meet the above. None of these agreements talk about antennas, All have 'other matters as they arise' langauge. Because of this and under advice of multiple counsel, I decided to can construction of a superstation. The prediction I got is that a court case--which would inevitably arise undr HR555-- would cost me about $400,000 and take 2-5 years. I can afford the cost, but can think of far more constructive ways to spend that bread. But-- I am 63. ^%*%^* waiting 5 years for resolution on something that should have been done properly in the first place.

Really a pity. The farm has a hill with the farmhouse, and a 60-80 foot gently sloping drop off in almost all directions. A limestone cave, too. True ham nerd-vana.

 

That is another in a series of unintended consequences arising from this effort. Call it a CA or an HOA - the result won't help anyone. Whether it was well-intended or simply a marketing ploy some delusional person though might expand their revenue stream is irrelevant.

We are 'treated' every day with groups foisting self-serving programs under the guise of moral superiority. This is ham radio's version of the Trojan Horse.

 

We will have to see how this plays out if the bill passes, but I have a bad feeling about all this. The ARRL is taking the risk of loosing a lot of members if they screw it up.

 

The opening title to this page really caught my attention:

"
ARLB011 Amateur Radio Parity Act Language Inserted in National Defense Authorization Act"

That opening ... National Defense Authorization Act ... wow. That is heavy. NOW to you wimps who tacked on the "with HOA approval" ...
Once again we miss a great opportunity with that organization on our side ... an endorsement from the NDAA would be so powerful.

I am sick and tired of common sense being left out of this entire subject.

73 and all the best !

DE K4ULP / Lanny

 

With regards to future litigation, wouldn't this be handled the same as the OTARD litigation? My understanding of OTARD is, all cases are automatically transferred to an FCC administrative law judge. There is no trial or even court appearance, just paper work. Would ARPA be handled differently?

For what its worth, reading through the OTARD case law, I'd say about 98% of the cases are decided for the property owner.