The Amateur Radio Parity Act - Could become reality...

Discussion in 'Amateur Radio News' started by AA7BQ, Aug 9, 2017.

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  1. AA7BQ

    AA7BQ Administrator Staff Member Administrator Platinum Subscriber QRZ Page


    Earlier today, ARRL President Rick Roderick, K5UR, sent out an urgent message to all league members to encourage them to call their senator in Washington to voice support for the Amateur Radio Parity Act.

    August 8, 2017

    Dear ARRL Member:

    Based on feedback I’ve received, it seems to me that some members still don’t fully understand certain features of the Amateur Radio Parity Act (ARPA) and what it is meant to do. To make things clearer, we have developed an FAQ in the format of questions and answers. Please take a few minutes and read the FAQ to learn more about the ARPA.

    Here is the direct link to the PDF (reprinted below in this article):
    http://www.arrl.org/files/file/Regulatory/The%20Amateur%20Radio%20Parity%20Act%20FAQ.pdf

    Here is another link with additional information:
    http://www.arrl.org/amateur-radio-parity-act

    Thanks to those of you who have written your Senators in support of the ARPA. If you have not done so, please do so by clicking on the link below. It only takes a minute.

    https://arrl.rallycongress.net/ctas/urge-us-senate-to-support-amateur-radio-parity-act

    Thanks. Let’s keep the effort moving!

    73,

    Rick - K5UR
    - - - - - - - - - - - - - - -
    Rick Roderick, K5UR
    President
    ARRL - The national association for Amateur Radio®

    (Below reprinted verbatim from Rick's memo)


    The Amateur Radio Parity Act: Setting the Record Straight

    ARRL has been diligently working toward passage of the Amateur Radio Parity Act (ARPA) for
    the past 3 and a half years. Our view is that this legislation is, in its current form, extremely
    beneficial and necessary — right now — for many thousands of radio amateurs, and for future
    generations of hams. The future of Amateur Radio is indeed dim without it. Now, 90 percent of
    new housing starts in the United States are subject to private land-use restrictions. Virtually all of
    these have provisions that either prohibit outdoor Amateur Radio antennas outright, or else
    subject amateurs to the unlimited discretion of Homeowners’ Associations (HOAs) which can,
    and almost always do, reject requests for outdoor antennas (except over the air video delivery
    antennas, which they can’t prohibit any longer due to Congressional action in 1996). When FCC
    enacted its PRB-1 policy in 1985 for municipal land-use regulation of amateur antennas, it
    refused to apply the “no prohibition, reasonable accommodation, least practicable restriction”
    requirements of that policy to private land-use regulations. That was a mistake by FCC then, and
    ARRL has been working toward fixing it ever since. We now have a chance to do that.

    But placing Federal restrictions on private land-use regulations is not an easy task. Covenants
    and deed restrictions — or CC&Rs, as they are commonly referred to — have been found
    enforceable for centuries because they are restrictions placed on the land itself, and bind all
    subsequent owners of that land. While the FCC does have the jurisdiction to limit covenants
    where they conflict with Federal telecommunications policy, that jurisdiction is exercised very
    seldom. The ARPA is necessary in order to cause FCC to exercise that jurisdiction.

    The ARPA, in the form passed by the House last session (H.R. 1301) and passed again in
    January of this year without dissent (H.R. 555), and which is now before the Senate (S.1534) is
    actually far better than the rather vague provisions of PRB-1, which necessitated a good deal of
    litigation since 1985. The Parity Act would literally guarantee every single radio amateur who
    lives in a deed-restricted community the right to erect and maintain an “effective outdoor antenna
    on property under the exclusive use or control of the licensee,” regardless of what the covenants
    say. That is an exceptional benefit to the many thousands of hams living in deed-restricted
    communities.

    Some self-appointed “experts” on this subject have recently suggested that the legislation is
    flawed for various reasons. It is time to set the record straight. Here are a few myths about
    ARPA, debunked.

    Q. Deed restrictions are agreed to by hams when they buy property regulated by an HOA.
    Why shouldn’t hams be required to abide by the agreements they voluntarily entered into?


    A. There are several answers to this. (1) Courts have held that covenants are subject to being
    limited or even invalidated where they conflict with Federal telecommunications policy. (2) In
    many instances, one can’t know whether an HOA will or will not allow an antenna in advance of
    buying the property and applying for one, so they haven’t agreed to forego Amateur Radio just
    by buying land. (3) Often, hams have no choice where to buy property due to family, job, and
    school locations. Many become licensed after already purchasing property in a deed-restricted
    community. The proliferation of covenants limits their options and precludes the use of their
    FCC licenses.

    Q. ARPA gives HOAs the right to use aesthetics as a basis for antenna decisions, even
    where HOA rules do not now have any provisions concerning antennas. Doesn’t this give
    HOAs an entitlement that they don’t now have?


    A. No. Deed restrictions are based solely on aesthetics. The reason they are required by lenders
    for land use developers is that the lender wants to make sure that the aesthetics of the
    neighborhood don’t change until the developer sells all the lots in the subdivision and pays the
    lender back. HOAs have always been able to regulate aesthetic impact of land uses; it is not
    something conferred by ARPA. ARPA is simply stating the situation as it is now and has always
    been. FCC has held that private land-use regulations are entitled to less deference than zoning
    regulations because covenants address aesthetic concerns while zoning addresses both safety and
    aesthetics. There are very, very few declarations of covenants that do not include antenna
    regulations. Now, and going forward, virtually all do, because lenders require them.

    Q. ARPA requires a deed-restricted amateur to notify and seek prior approval from an
    HOA before installing any outdoor antenna, with no grandfathering of those already
    installed. Why?

    A. Because HOA rules and covenants almost exclusively provide for prior approval of structures
    anyway. In the zoning context, antenna approvals are always based on a building permit
    application. The situation with accessory structures is no different in the HOA context. HOAs
    have a legitimate interest in the aesthetic impact of antenna installations, and while they have to
    allow an amateur an effective outdoor antenna under ARPA, that entitlement is not unlimited. As
    to grandfathering, there is no backward application of ARPA proposed. If one already has an
    approved antenna in a deed-restricted community, nothing else is required. If one has a nonapproved
    antenna that violates the covenants, the amateur can choose to continue with that, or to
    avail himself or herself of the entitlement to be provided by the FCC rules enacted pursuant to
    ARPA to legitimize the antenna.

    Q. ARPA does not require a time limit on HOAs for approval or disapproval of a
    particular antenna proposal. Couldn’t an HOA stall indefinitely without any adverse
    consequence?

    A. No, although the question reflects a misunderstanding of the proper role of legislation. There
    is no indication that an HOA has ever simply failed to adjudicate an antenna proposal and no
    indication that a timetable is necessary. Even if that was a real issue, not all details of
    implementation of ARPA should be specified in the legislation. ARPA merely calls on FCC to
    implement the policy within a fixed time frame. FCC has to do rulemaking to do that. The details
    of the implementation are for FCC to address. However, even if FCC didn’t do that, and the rules
    implementing ARPA were adopted without imposing a time limit on HOAs, an indefinite stall
    would violate the entitlement to an effective outdoor antenna and the amateur could enforce the
    entitlement in court.

    Q. Why does ARPA not guarantee an amateur the right to operate on the band(s) of his or
    her choice?


    A. This argument is a bit hard to understand. FCC licenses entitle a radio amateur to operate on a
    wide variety of amateur allocations. The entitlement to operate on all amateur bands or to
    maintain antennas that are effective on all amateur bands at the same time is far beyond the
    scope of either PRB-1 or ARPA. There is a very definite limit to what is achievable in any
    legislative limitation on private land-use regulation. It simply is an unreasonable expectation that
    any legislation will invalidate covenants completely and allow a radio amateur to erect whatever
    he or she wishes to install. That said, an amateur’s expectation for the types of effective outdoor
    antenna that the HOA will be obligated to permit differs depending on the type of land use
    involved. In a condominium, perhaps a whip antenna on a balcony is the best that can be
    accommodated. On a 10-acre, single family lot in a deed-restricted, wooded subdivision, a far
    more elaborate antenna and support structure should be expected. The specification of the need
    to operate on multiple bands throughout the radio spectrum is not a matter that is properly
    included in legislative language. It will have to be addressed in FCC rulemaking or in report
    language accompanying the legislation.

    Q. I have heard a lawyer mention CC&Rs that empower HOAs only to maintain roads,
    utilities, or landscaping, with no power to regulate antennas. If ARPA passes, wouldn’t that
    HOA be able to demand that an amateur seek its approval to install amateur antennas?
    Why create Federal approval obligations where they don’t now exist under the covenants?


    A. There are several answers to this: (1) Those limited CC&Rs are few and far between. The
    normal provision of CC&Rs and virtually all new ones now include prohibitions on, or complete
    control by the HOA of antennas. Worrying about HOAs without antenna jurisdiction is the tail
    wagging the dog. (2) If a radio amateur who lives in a deed-restricted community where the
    CC&Rs do not empower an HOA to regulate antennas chooses to not avail himself or herself of
    the provisions of the FCC rules enacted pursuant to ARPA, there is no obligation to do that. Nor
    would the FCC rule create any new jurisdiction that is not conferred on the HOA by the
    declaration of covenants, from where the HOA derives its authority. No FCC enforcement agent
    is going to sanction a ham because he or she didn’t contact their HOA before putting up an
    antenna.

    Q. Because the preamble to the legislation distinguishes ARPA from PRB-1, would the
    court decisions applying PRB-1 apply to the FCC rules adopted pursuant to ARPA?

    A. That is not entirely clear. There are similarities between PRB-1 and ARPA, in that ARPA
    would preempt the application to hams of covenants which, on their face or as applied, preclude
    communications in the Amateur Radio or Amateur Satellite Services and where the covenants do
    not “constitute the minimum practicable restriction on such communications to accomplish the
    lawful purposes” of an HOA (which are aesthetics). Where ARPA is actually better for hams
    than PRB-1 is that ARPA includes a specific guarantee of an “effective outdoor antenna” for
    every ham in a deed-restricted community. PRB-1 only mentioned “reasonable accommodation,”
    and that has been interpreted in different ways by different courts. If there is litigation about
    ARPA, some of the PRB-1 case law will be instructive at least.

    Q. Why should we rely on the FCC to enact provisions favorable to hams in implementing
    ARPA, given that the FCC has not been helpful in addressing the preclusive effects of
    private land-use regulations for more than 35 years? Won’t the HOAs show up during the
    rulemaking and attempt to restrict hams’ entitlements?


    A. The FCC is not given much leeway in implementing ARPA’s basic provisions, which are
    specifically stated in the House and Senate Bills. In any event, Congress can be very instructive
    in the report language accompanying the legislation when it passes. FCC Chairman Ajit Pai has
    publicly praised H.R. 555 when it passed the House in January. Sure, there are some
    uncertainties in the FCC rulemaking process, and there are concerns that HOAs (and some hams)
    may oppose the rulemaking; but ARPA has minimized the flexibility that FCC has and made
    some policy statements early in the bills that are very helpful in guiding the FCC.

    Q. Why doesn’t ARPA allow me to put an antenna on common areas? In my condominium,
    I would like to put a dipole on the roof, but I can’t because this is not under my “exclusive
    use or control.”


    A. The simple answer is that you don’t own common area property. Even the over-the-air TV
    reception devices rule prohibits installation of antennas in common areas. That would be a
    completely unreasonable expectation of a homeowner or renter. PRB-1 doesn’t allow hams to
    put antennas in public areas, but only on property that the ham owns or rents. ARPA allows
    every amateur living in a deed-restricted community the ability to have an effective outdoor
    antenna on property over which the licensee has exclusive use or control. This is an effective tool
    that allows a radio amateur to negotiate terms with his or her HOA that work for everyone.

    Q. Isn’t there an alternative to ARPA that better protects Amateur Radio operators living
    in deed restricted communities?


    A. Not that ARRL has been able to find in more than 35 years of looking. In our view, other than
    international and domestic spectrum threats, there is no greater threat to Amateur Radio looking
    forward than private land use regulations. Case law that ARRL has supported over the years has
    provided very little relief to hams generally and antenna prohibitions in new subdivisions are
    now the new normal. Without ARPA, there is literally no limit on an HOA’s ability to deny
    Amateur Radio antennas. It has been argued that an alternative to ARPA would be by individual
    radio amateurs attempting to “sell” the benefits of Amateur Radio disaster communications
    networks to their HOAs. Here is why that won’t work: HOAs answer to all residents of the deedrestricted
    community. Given the language of covenants found all over the country, HOAs are
    either unable to accommodate Amateur Radio because the covenants prohibit it, or else
    disapproving them is the safest thing to do, so that a neighbor, offended at the appearance of an
    antenna, won’t be able to sue the HOA. The objections that have been floated very recently by a
    few individuals are misguided. They are, as can be seen above, details. Some can be managed,
    some not, and some are simply red herring arguments. But make no mistake: ARPA deserves the
    support of every single radio amateur, whether you are fortunate enough to live on property
    without deed restrictions or not. Those who think that there is a better solution, let’s hear about
    it. Otherwise, help us get this passed.
     
    N0TZU and W5BIB like this.
  2. AA7BQ

    AA7BQ Administrator Staff Member Administrator Platinum Subscriber QRZ Page

    I read Rick's email and the accompanying fact sheet twice. The reason I read the fact sheet twice is because when I first saw it, it was apparent that I'd need some quiet time to study it. I fear that many others have felt the same way, and that many of them probably won't get back to it.

    Rick's message is pretty simple. The ARPA bill is the best we can hope to get after years of lobbying, and that having already passed in the House, it's time to call our senators to voice our support.

    The fact sheet is well written and it makes some great points. I see a problem, however, and it's emblematic of the way things work these days. First, Rick should know that few league members will ever read the fact sheet. That's because it's too long, too deep in the weeds, and it doesn't have a central rallying cry.

    As someone who's written words that are read by hundreds of thousands of individuals, I've been disappointed countless times by people who simply are too lazy to read. The problem is endemic and frustrating. A lot of people put in a lot of hard work to create something, only to have it largely ignored because the explanation can't be condensed into a few quick sentences.

    What works to get things done is to create a meme, a simple idea that has legs, and then promote it. It's no different than selling toothpaste. It's mass marketing 101. If you're explaining, you're losing and this fact sheet explains a lot. Again, the memo had all good points, but collectively they're not something that many will remember after 24 hours. The arguments all win the debate, but the problem isn't the debate, it's the packaging. The proposed bill has all the sizzle of day-old Big Mac. Politicians might be used to this kind of mumble-speak, but the rank-and-file, i.e. those who we really need to mobilize, are falling asleep halfway through the explanation. Heck, I bet I've lost half the readers of this article by this point.

    My advice is for the ARRL to hire a publicist to figure out a way to sell this thing, for OUR own good. We need an over-the-top rallying cry, "Help Save Amateur Radio", or "Help Protect Emergency Communications". DO NOT mention HOA's in the slogan, as such direct provocations don't help. Keep it simple, clear, and memorable. The gory details are just too much to mass market.

    Sincerely,

    Fred Lloyd, AA7BQ
     
    N9MB, AG7KO, K7ART and 8 others like this.
  3. WA7PRC

    WA7PRC Ham Member QRZ Page

    I'm still waiting for someone to indicate an actual public need for more hams using outdoor antennas at their locations. So far, all there has been is "ham radio provides public service". At most, during the 2016 flooding in LA, public emergency response agencies stated they could've used more hams operating portable/mobile stations at/near the disaster locations. Also, if more hams were needed on the air during emergencies, you'd think ARES would be crying loudly. So far, not so much.
     
  4. KO6WB

    KO6WB Premium Subscriber QRZ Page

    Okay, fine, you've had the experience of having someone try to call another station and they just can't be heard.
    The station that barely hears the presence of the calling station will usually ask if someone can relay that person in. There is no reply except, perhaps, other stations stating they have exactly the same problem.
    So, here's the question. What if that difficult to copy station was having some type of emergency?
    Having more stations in more places would make it more likely that station would be heard and assistance rendered.
    Chances are you can't do that with a remote, because it's in the wrong place, a mobile, same reason nor a club station, which you may not be at anyway.
    Having more stations with better quality antennas would be helpful even if emergencies are rare, they still occur.
    If I'm having an emergency you'd bet I'd want someone to be able to help. That someone may just be that one in an HOA.

    Have fun
    73
    Gary
     
    AG7KO likes this.
  5. WA7PRC

    WA7PRC Ham Member QRZ Page

    That's a lot of "what ifs". You missed one, "what if all other forms of communication are down". Then, you'd better hope a ham is listening to the frequency on which you're transmitting at the time you're transmitting, and is willing/able to help. That's even more what ifs. ;)
     
    W9JTC likes this.
  6. AB3TQ

    AB3TQ Subscriber QRZ Page

    Fred

    Do you understand how difficult it is to get legislation through the Senate when just one Senator is determined to block it? It can be done. It is time consuming. It has to be important enough to 60 Senators to overcome the one.

    I am not convinced that there is enough political weight in the entire ham community to make this a big enough issue to quash that one objection. And there don't seem to be enough hams in Florida to sway him or to vote him out. So it doesn't matter if you are for or against this legislation. It has no chance of passage under the current conditions.
     
  7. K6CLS

    K6CLS Ham Member QRZ Page

    Good news. I'm against the legislation because I think it is a handoff to the HOAs and does nothing for hams. But since my opinion doesn't matter, I can be happy knowing that faulted law won't pass.
     
    WD4ED, N0EKO, KK5JY and 1 other person like this.
  8. KC5NOA

    KC5NOA Ham Member QRZ Page

    I am the HOA and my word is the law,and I say put up as many antennas as I want! Opps I own my own land 25 miles out in the boonies,my bad!
     
  9. KW1NG

    KW1NG Ham Member QRZ Page

    I urge everyone to do as I have done; write to their senators (ARRL has made this easy) and post to Twitter or Facebook.. It could help. Thx
     
    AG7KO likes this.
  10. W1YW

    W1YW Ham Member QRZ Page

    Fred,

    To give a BALANCED VIEW, kindly post, on the main page, the POSTED NEWS about K1VR. Its not on the 'main page', as this post is.

    K1VR is a world famous antenna and tower attorney, well-known to the US ham community.

    IMO the hams in the US are owed the opportunity to have the opposing view just as prominently available.

    Thanks you,
    Chip W1YW
     
    NL7W, N0EKO, K6CLS and 1 other person like this.

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