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

Rush Creek Golf Club v. City of Corcoran and Fraasch (MN, 1996), ie, one of my best friends, Steve, KØSF. There are links to the relevant court decisions on the web page of Fred, K1VR,

http://www.antennazoning.com/main/page_amateur_radio_legal_library.html

Here they are directly,

http://www.antennazoning.com/docs/Rush-Creek-Golf-v-Corcoran-and-Fraasch.pdf

http://www.antennazoning.com/attachments/Rush_Creek_v_Corcoran_MNFraasch_Written_Argmnt.pdf

It became a VERY complicated case because of 1) the plaintiff / owner of the golf course was VERY WEALTHY, and, get this irony, 2) also a HAM! (now SK)

After complying with all their code and application requirements, to their credit the city stood by their decision for the permit and did not fold.

Pay particular attention to whom the attorney defending KØSF was - he is now an ARRL VP.

73, John, WØPV

 

And that's the unfortunate bit... the one success story we have (so far) became a legal mess for the ham in question, just like the Zubarau case... so much so that the legal expenditures had to be recovered after the fact. If PRB-1 was so effective, why does it not "just work?" That argument extends completely to ARPA if and when it passes into law and then into a Part 97 rule. If a lawsuit is required to even invoke PRB-1, anybody can sue already, without PRB-1.

If the majority of hams who are affected by CC&R have that kind of spare time and cash to fight a long and expensive legal battle, it again begs the question -- why not just move?

The judgment you linked contains a final decision that appears to rely entirely on Minnesota law, factual arguments about the structure and its surroundings, and things other than PRB-1. In other words, PRB-1 doesn't seem to have helped the antenna-aggrieved ham at all? In fact, he used his engineering degree as a substantial part of his PRB-1 claim, which is clever but irrelevant to PRB-1.

Until FCC starts enforcing 97.15(b) and the presumed future rule for ARPA, neither are general tools for the general use of the common amateur.

 

This illustrated a COURTROOM success story - as said previously, there are many other Ham antenna successes that can be linked to PRB-1 that never have had to be adjudicated. And THAT is its real success.

In the MN case cited, PRB-1 played a very decisive role in obtaining permission from the city, and then enlisting their full support as the private civil case came to be.

Right now I have no time to get you more official documentation on other PRB-1 stories unless you will accept them as anecdotal. For example I have a good OTA buddy in my city with a lot not bigger then that of WB6X. He has had for years not one but two shorter towers, with tribander / 17m Yagi. The difference is his neighborhood has a moderate level of old growth TREES which conceal the antennas just above their canopies.

However, recently, in a bold move IMO, he put up a self-supporting 70 ft tower IN FRONT OF THE HOUSE. On top will go a TH-11. Of course somebody complained to the city. They came out but once they learned he was a Ham, there were no more questions. (PRB-1) They just asked for him to get permit. He applied and unfortunately that required engineering docs, which cost some $$$. But, hey ... its UP!

Regarding WB6X again, especially taking into consideration what looks like a slight hillside QTH, if that is an multiband HF vertical @ 40ft AGL on the roof tripod, while not the dream fantasy of a DX / contester, if in context of this discussion, ie in an HOA, compared to being QRT, that would have to be considered as a (very) EFFECTIVE antenna. He put up the chips, spun the wheel, and didn't get more. But he is probably QRV on HF with a decent signal (see the QRO in Zed pic).

 

So he sued, and succeeded. PRB-1 didn't help, it was just mentioned in his initial argument. That's not a PRB-1 success story, that's a "get a good lawyer and pay him well" success story.

So a rich guy living near a country club spent lots of money and got his way. That's not really helpful to the subject at hand.

Thanks for the links, tho.

If PRB-1 was a success on its own merits, there should be a raft of case law that can be easily accessed and quoted by anybody, each case of which clearly shows that PRB-1 was decisive in helping a normal ham (the kind who doesn't have tends or hundreds of thousands of dollars in spare "antenna legal defense fund" at the bank) to obtain and keep an otherwise-prohibited outdoor antenna for typical HF bands, and in a reasonable amount of time.

 

WHAT? The rich guy LOST!! (read again)

AND they had to pay all the defending atty fees.

Without PRB-1 it wouldn't have even gotten that far. Getting the city to comply was not trivial either, but it worked without any court action. And then they were all in. It was fully a PRB-1 success.

This case blazed a trail for other Hams in that same city and the surrounding area too.

 

I didn't see that in the final order at all. Only in the initial argument. Perhaps I missed that, too?

And by the way, anybody who can front the cost of numerous trials and appeals on his own, and only recover those costs after the final judgement, is richer than most people in the US. Most people in the US can't even produce $500 in an emergency, much less 10's of thousands for a legal battle over an antenna.

If PRB-1 requires the amateur in question to be rich, in order to function properly, then it is useless.

 

Look up KØSF on the Zed and zoom in on photos or map satellite photo. The tall rotating Rohn 55G tower with a full compliment of stacked Yagi's can be seen. Been up for 20 years now.

Steve and Jay played their cards tight and right, did not overplay the hand with the city. Then after agreeing and committing to them the city threw substantial legal weight against the case of the JEALOUS RICH LID

 

Perhaps all of that is true. None of it means that PRB-1 was decisive, or even useful in the proceedings. The ham in question certainly mentioned it in his initial argument, but I see no evidence that PRB-1 was any factor at all in the final judgment. The ordering judge mentioned several findings of fact and legal conclusions, not one of which had anything to do with PRB-1.

I think if you dig into the legal procedure a bit, you'll discover that a court can't make a decisive judgment in favor of a ham under PRB-1, because it's an administrative rule, not a law, and as such requires FCC enforcement to be decisive in a dispute over an antenna.

So again, I point out that if PRB-1 has been successful, there should be a raft of case over the past 30y in which the rule was decisive in allowing a ham to obtain and keep an outdoor antenna, without undue financial or time expenditure. To date, I still haven't seen one. The case you mentioned is great reading, but it doesn't appear to be relevant to PRB-1.

 

Ham radio is not the only leisure time activity that can become expensive. PRB-1 has amazingly cut the costs when dealing with municipalities. But applications, permits, and their requirements are not always cheap. Depends on what is being done. Applies to building a backyard "She Shack" for the XYL as well!

 

Then again, there should be a raft of cases where that is documented for all to see. I'm still waiting to see one case where a legal battle was decided by PRB-1.

There may be municipalities who have decided to comply with PRB-1 out of fear of FCC enforcement, but to my knowledge there is no actual FCC enforcement to fear. It's all a bluff, at best.

You have my sympathies on that subject.

 

I suggest you contact those who have put up towers within municipalities in the last 30 years and ask them about the process. The vast majority do not require court action. Again the success of PRB-1 seems to have been established long ago, most authorities, or at least their attorneys, now know of it, and the process is well greased. HOA's are of course a different story.

 

If PRB-1 was decisive in any significant number of cases, that information should be available for all to see. If nothing else, the League would have compiled that information for the purposes of proving they were "right" about PRB-1, and to prove that ARPA will be effective. They haven't, it wasn't, and it won't be.

And yet, the ARPA language is virtually identical when it comes to requirements placed upon the regulating authority.

The Zubarau case is clear -- PRB-1 is no obstacle to any municipality that is willing to resist its requirements. It's near-twin brother ARPA will likewise be no obstacle to any CA that is willing to resist its requirements. 47 CFR 97.15(b) is a rule, but it's a complete bluff. FCC is not going to enforce it or any similar rule upon anybody. We've been waiting three decades to see a single test case.

 

Disagree - ask a municipal attorney (non-Ham) for their opinion on PRB-1. I have attended several city council / county commission meetings when their own atty has researched and then counseled the board members that they have to "accommodate", and they usually do, because they have tight budgets too.

Disagree - current ARPA language, with the exception of a few common words, overall will not at all provide the same legal standing as PRB-1

Agree - the League has done a PISS POOR job at logically explaining and defending its mistaken handling of ARPA, and has a times admitted that it likely will be NOTHING like PRB-1 in effect. (or worse, it could likely be a step backward)

 

Great. But they do that voluntarily, and they are under no practical obligation to do so. If they check the case law for people who have tried to use using PRB-1 as a basis, they will see that there is no danger of adverse FCC action should they fail to comply. The same applies to any CA who(se legal counsel) dares do their homework.

Our own municipality has dropped nearly all references to amateur radio antennas from their ordinances. But nobody made them do it. If anything, the number of active hams in town has fallen to such a low number, that they have plenty of legal tools to deal with any "outlier" under other portions of the municipal code. It makes much more sense to deal with a tower under safety and nuisance provisions (like the case you cited), and not even bother considering that the structure is for ham radio purposes.

The requirements placed upon the regulators under ARPA are nearly identical to those in PRB-1. The requirements placed upon the amateur licensees are quite different between the two.

It's like I told the guy who built my house -- if you did it right the first time, you wouldn't have to come back and fix things.

 

The first "test cast" for PRB-1 was on the K1VR "Legal Library" web page. Here is the text and links copy/pasted from it,

MacMillan v. Rocky River (OH) (USDC, Northern District of Ohio, 1990)

• Photo of the "PRB-1 victory antenna" - WA8ZHN PRB1 antenna photo.JPG
• Order with Opinion - PDF

WA8ZHN won when Court found "significant federal interest in amateur radio communications" expressed in PRB-1. MacMillan I may be found at 748 F.Supp. 1241 (1990). This is MacMillan II, a grant of attorney's fees under §1988 by a Federal District Court after finding the bylaw valid but preempted as applied. Courtesy of Atty. Robert M. Winston, W2THU.

Please browse ALL the links to material I post a little more carefully. I am going out to do other stuff now