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Parity Act of 2017 Introduced - HR 555

Discussion in 'Amateur Radio News' started by KK5JY, Jan 17, 2017.

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  1. KK5JY

    KK5JY Ham Member QRZ Page

    Hey, look at that...

    "Do Your Research - This is the most critical step of the process. The last thing you want to find out is that there is an undisclosed HOA or that the existing CC&Rs will not allow you to put up an antenna or operate."​

    Eh, I'm wasting my breath, and so was he. :(
     
  2. KK5JY

    KK5JY Ham Member QRZ Page

    By the way everybody, the text of 555 isn't quite the same as that in HR1301, as ARRL has led us to believe.

    As reported by ARRL, the text of 1301 (3)(b)(1) read as follows [arrl.org]:

    ...require any licensee in an amateur radio service to notify and obtain prior approval from a community association, if any, concerning installation of an outdoor antenna...

    The current 555 text before the Senate reads as follows [congress.gov]:

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

    The difference is highlighted. That sure is an interesting place to drop text.
     
    1 person likes this.
  3. N1FM

    N1FM Ham Member QRZ Page

    If I don't have an association currently, does this mean I'm required to seek one out?

    "Excuse me sir, I don't have an association, but... pursuant to FCC rules, I'm now required to notify and obtain approval from an association, so, would you mind signing here, indicating that I notified your association to obtain approval...?"

    ;)
     
    KK5JY likes this.
  4. KK5JY

    KK5JY Ham Member QRZ Page

    I'm glad somebody else appreciates how silly this bill has become.
     
    1 person likes this.
  5. N1FM

    N1FM Ham Member QRZ Page

    I think the bill also falls short of Constitutional authority. It's based on a specious set of opinions, which were contradicted by two expert agencies: DHS and FCC, just four and a half years ago, in the "Uses and Capabilities of Amateur Radio Service Communications in Emergencies and Disaster Relief: Report to Congress," as well as the 5th Amendment's "takings clause" and the 14th Amendment's "guarantee of rights."

    The very purpose of the bill is actually fully contraindicated by both DHS and FCC, and by the U.S. Constitution, in both the 5th and the 14th Amendments. Therefore, I think it could be successfully argued that this bill represents an unconstitutional overreach on the part of the author.

    http://www.heritage.org/constitution/#!/amendments/5/essays/151/takings-clause

    https://apps.fcc.gov/edocs_public/attachmatch/DA-12-1342A1_Rcd.pdf


    Constitutional Authority Statement: From the Congressional Record Online through the Government Publishing Office.

    [www.gpo.gov]

    By Mr. KINZINGER: H.R. 555.

    Congress has the power to enact this legislation pursuant to the following:

    The Fourteenth Amendment, Section 1 [Rights Guaranteed]; .. . the means employed to effect its exercise may be neither arbitrary nor oppressive but must bear a real and substantial relation to an end that is public, specifically, the public health, safety, or morals, or some other aspect of the general welfare.

    [Page H547]

    FCC said it developed its report to congress in conjunction with the DHS Office of Emergency Communications and subsequently, FCC concluded it's report with "Consequently, we do not believe that Congressional action is necessary to address any of these issues."

    At present, the courts cannot overrule the opinion of two expert agencies. See e.g., the Chevron and Auer doctrines which provide deference to expert federal agencies. Unless a new FCC study contradicts the previous study, undertaken only 4.5 years ago, a court cannot overrule the FCC/DHS opinion, because the opinions expressed in the Arp! Arp! bill are not expert opinions, and no "real and substantial relation" to the "public safety" has or ever will be established (pursuant to the requirements of the 14th Amendment) by amateurs using "effective" antennas at their homes.

    Q.E.D.
     
    Last edited: Feb 8, 2017
    KK5JY likes this.
  6. KK5JY

    KK5JY Ham Member QRZ Page

    So what you are saying is that FCC has already made the case against the Constitutionality of ARPA?
     
  7. N1FM

    N1FM Ham Member QRZ Page

    Yes - I think it could be argued by an association that any rule promulgated by the FCC would be "arbitrary and capricious" under the meaning of the Administrative Procedure Act, because the underlying reasoning for the rule conflicts with the opinion of 2 expert agencies, including the expert agency responsible for promulgating the rule.

    Moreover, the bill could also be unconstitutional under the the 14th Amendment, because it's not tied to a "real and substantial" relation to public safety and it could be unconstitutional under the 5th Amendment, because preempting private agreements qualifies as a "taking" of property value, without just recompense, which is also a no-go in the 5th's "takings clause."

    I studied law and I could sit for the bar, but I have a full pension as retired detective for 20 years, I make more $$ as a broker/realtor, so why bother?
    Anyway, just an opinion, but that's the basis for a suit opposing the rule in the DC Court of Appeals -- assuming Arp! Arp! ever passes.
     
  8. KK5JY

    KK5JY Ham Member QRZ Page

    What I am expecting to see is that it will be a group of hams who get together and make that argument to a court, because ARPA enabled their CA to restrict their antennas in a way that isn't in their CC&R, so they have to sue to get un-screwed from the new rule. We'll see. :cool:
     
  9. N5PZJ

    N5PZJ Premium Subscriber QRZ Page

    The rule in Chevron only prevents Courts from overruling Agency Determinations, Congress can still pass law which countermines the agency ruling. Chevron just keeps the court at bay.
     
    1 person likes this.
  10. KK5JY

    KK5JY Ham Member QRZ Page

    Perhaps, but in that case, the thing to do would be to argue in federal court that the enabling legislation was unconstitutional (an argument that would propagate to the rule enabled by the bill). Then Chevron [wikipedia.org] doesn't apply anymore, and the plaintiff gets the same relief, and in a possibly more permanent form.
     
    1 person likes this.
  11. N1FM

    N1FM Ham Member QRZ Page

    You're both right. Chevron and the A.P.A. would apply where any party challenged the rule because of contradictory and/or ambiguous conclusions. The A.P.A. voids any rule that's arbitrary and capricious, while the Constitution voids laws that are facially invalid due to precedential constitutional prohibitions.

    This is what Bill Nelson was talking about when he mentioned "endless litigation" -- and another part of the 5th Amendment that could invalidate the law and the rule, is the "void for vagueness" doctrine, where specific language is required so that people of average intelligence can understand what is allowed or prohibited, e.g. "effective" and "reasonable." Legally, what do those terms mean?

    Void for Vagueness Doctrine - Part of the due process clause of the 5th Amendment.

    Examples:


    Health Care Law (unconstitutional violation of commerce clause):

    "I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the act with the individual mandate... The principal dispute has been about how Congress chose to exercise that power here." Vinson wrote.

    Trans Bathrooms Law: (invalid under the Administrative Procedure Act):

    "The court in this case went further and concluded that the guidance documents are also invalid because they contradict the relevant statutory and regulatory text in Title IX and the DOE’s implementing regulations. I am not sure the court needed to reach this question once it concluded that the guidance documents were invalid under the Administrative Procedure Act. I am also not sure that the court was correct to conclude that either the statute or the relevant regulations were 'unambiguous.' "
     
    Last edited: Feb 8, 2017
  12. K4WWD

    K4WWD Ham Member QRZ Page

    We could send him back into space on a one-way Elon Musk rocket ship.
     
  13. K4DVW

    K4DVW Platinum Subscriber Platinum Subscriber QRZ Page

    Nelson needs to be voted out. His interests are always counter productive to Florida. He only likes to "get in the news" to seem popular. His non support of this bill was just plain stupid.
     
  14. KK5JY

    KK5JY Ham Member QRZ Page

    I guess that depends which side of the debate one happens to be on. :)
     

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