QRZ! Ham Radio 5/QRZ Ham Radio Callsign Database - Volume 5.iso/files/arrl/rib/prb_1.txt

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Memorandum Opinion and Order in PRB-1

Before the
Federal Communications Commission               FCC 85-506
Washington, DC  20554                           36149

In the Matter of                           )
                                           )
Federal preemption of state and            )    PRB-1
local regulations pertaining               )
to Amateur radio facilities.               )

MEMORANDUM OPINION AND ORDER

Adopted: September 16, 1985                ;Released: September 19, 1985

By the Commission:  Commissioner Rivera not participating.

Background

    1. On July 16, 1984, the American Radio Relay League, Inc
(ARRL) filed a Request for Issuance of a Declaratory Ruling
asking us to delineate the limitations of local zoning and other
local and state regulatory authority over Federally-licensed
radio facilities.  Specifically, the ARRL wanted an explicit
statement that would preempt all local ordinances which provably
preclude or significantly inhibit effective reliable amateur
radio communications.  The ARRL acknowledges that local
authorities can regulate amateur installations to insure the
safety and health of persons in the community, but believes that
those regulations cannot be so restrictive that they preclude
effective amateur communications.
    2. Interested parties were advised that they could file
comments in the matter.\fn 1/  With extension, comments were due
on or before December 26, 1984,\fn 2/ with reply comments due on
or before January 25, 1985 \fn 3/ Over sixteen hundred comments
were filed.

Local Ordinances

    3. Conflicts between amateur operators regarding radio
antennas and local authorities regarding restrictive ordinances
are common.  The amateur operator is governed by the regulations
contained in Part 97 of our rules.  Those rules do not limit the
height of an amateur antenna but they require, for aviation
safety reasons, that certain FAA notification and FCC approval
procedures must be followed for antennas which exceed 200 feet in
height above ground level or antennas which are to be erected
near airports.  Thus, under FCC rules some antenna support
structures require obstruction marking and lighting.  On the
other hand, local municipalities or governing bodies frequently
enact regulations limiting antennas and their support structures
in height and location, e.g. to side or rear yards, for health,
safety or aesthetic considerations.  These limiting regulations
can result in conflict because the effectiveness of the
communications that emanate from an amateur radio station are
directly dependent upon the location and the height of the
antenna.  Amateur operators maintain that they are precluded from
operating in certain bands allocated for their use if the height
of their antennas is limited by a local ordinance.
    4. Examples of restrictive local ordinances were submitted by
several amateur operators in this proceeding.  Stanley J. Cichy,
San Diego, California, noted that in San Diego amateur radio
antennas come under a structures ruling which limits building
heights to 30 feet.  Thus, antennas there are also limited to 30
feet.  Alexander Vrenios, Mundelein, Illinois wrote that an
ordinance or the Village of Mundelein provides that an antenna
must be a distance from the property line that is equal to one
and one-half times its height.  In his case, he is limited to an
antenna tower for his amateur station just over 53 feet in
height.
    5. John C. Chapman, an amateur living in Bloomington,
Minnesota, commented that he was not able to obtain a building
permit to install an amateur radio antenna exceeding 35 feet in
height because the Bloomington city ordinance restricted
"structures" heights to 35 feet.  Mr. Chapman said that the
ordinance, when written, undoubtedly applied to buildings but was
now being applied to antennas in the absence of a specific
ordinance regulating them.  There were two options open to him if
he wanted to engage in amateur communications.  He could request
a variance to the ordinance by way of hearing before the City
Council, or he could obtain affidavits from his neighbors
swearing that they had no objection to the proposed antenna
installation.  He got the building permit after obtaining the
cooperation of his neighbors.  His concern, however, is that he
had to get permission from several people before he could
effectively engage radio communications for which he had a valid
FCC amateur license.
    6. In addition to height restrictions, other limits are
enacted by local jurisdictions--anti-climb devices on towers or
fences around them; minimum distances from high voltage power
lines; minimum distances of towers from property lines; and
regulations pertaining to the structural soundness of the antenna
installation.  By and large, amateurs do not find these safety
precautions objectionable.  What they do object to are the
sometimes prohibitive, non-refundable application filing fees to
obtain a permit to erect an antenna installation and those
provisions in ordinances which regulate antennas for purely
aesthetic reasons.  The amateurs contend, almost universally,
that "beauty is in the eye of the beholder."  They assert that an
antenna installation is not more aesthetically displeasing than
other objects that people keep on their property, e.g. motor
homes, trailers, pick-up trucks, solar collectors and gardening
equipment.

Restrictive Covenants

    7. Amateur operators also oppose restrictions on their
amateur operations which are contained in the deeds for their
homes or in their apartment leases.  Since these restrictive
covenants are contractual agreements between private parties,
they are not generally a matter of concern to the Commission.
However, since some amateurs who commented in this proceeding
provided us with examples of restrictive covenants, they are
included for information Mr. Eugene O. Thomas of Hollister,
California included in his comments an extract of the Declaration
of Covenants and Restrictions for Ridgemark Estates, County of
San Benito, State of California.  It provides:

    No antenna for transmission or reception of radio signals
    shall be erected outdoors for use by any dwelling unit except
    upon approval of the Directors.  No radio or television
    signals or any other form of electromagnetic radiation shall
    be permitted to originate from any lot which may unreasonably
    interfere with the reception of television or radio signals
    upon any other lot.

Marshall Wilson, Jr. provided a copy of the restrictive covenant
contained in deeds for the Bell Martin Addition #2, Irving,
Texas.  It is binding upon all of the owners or purchasers of the
lots in the said addition, his or their heirs, executors,
administrators or assigns.  It reads:

    No antenna or tower shall be erected upon any lot for the
    purposes of radio operations.

William J. Hamilton resides in an apartment building in
Gladstone, Missouri.  He cites a clause in his lease prohibiting
the erection of an antenna.  He states that he has been forced to
give up operation amateur radio equipment except a hand-held 2
meter (144-148 MHz) radio transceiver.  He maintains that he
should not be penalized just because he lives in an apartment.
    Other restrictive covenants are less global in scope than
those cited above.  For example, Robert Webb purchased a home in
Houston, Texas.  His deed restriction prohibited "transmitting or
receiving antennas extending above the roof line."
    8. Amateur operators generally oppose restrictive covenants
for several reasons.  They maintain that such restrictions limit
the places that they can reside if they want to pursue their
hobby of amateur radio.  Some state that they impinge on First
Amendment rights of speech.  Others believe that a constitutional
right is being abridged because, in their view, everyone has a
right to access the airwaves regardless of where they live.
    9. The contrary belief held by housing subdivision
communities and condominium or homeowner's associations is that
amateur radio installations constitute safety hazards, cause
interference to other electronic equipment which may be operated
in the home (television, radio, stereos) or are eyesores that
detract from the aesthetic and tasteful appearance of the housing
development or apartment complex.  To counteract these negative
consequences, the subdivisions and associations include in their
deeds, leases or by-laws, restrictions and limitations on the
location and height of antennas or, in some cases, prohibit them
altogether.  The restrictive covenants are contained in the
contractual agreement entered into at the time of the sale or
lease of the property.  Purchasers or lessees are free to choose
whether they wish to reside where such restrictions on amateur
antennas are in effect or settle elsewhere.

Supporting Comments

    10. The Department of Defense (DOD) supported the ARRL and
emphasized in its comments that continued success of existing
national security and emergency preparedness telecommunications
plans involving amateur stations would be severely diminished if
state and local ordinances were allowed to prohibit the
construction and usage of effective amateur transmission
facilities.  DOD utilizes volunteers in the Military Affiliate
Radio Service (MARS), \fn 4/ Civil Air Patrol (CAP) and the Radio
Amateur Civil Emergency Service (RACES).  It points out that
these volunteer communicators are operating radio equipment
installed in their homes and that undue restrictions on antennas
by local authorities adversely affect their efforts.  DOD states
that the responsiveness of these volunteer systems would be
impaired if local ordinances interfere with the effectiveness of
these important national telecommunication resources.  DOD favors
the issuance of a ruling that would set limits for local and
state regulatory bodies when they are dealing with amateur
stations.
    11. Various chapters of the American Red Cross also came
forward to support the ARRL's request for a preemptive ruling.
The Red Cross works closely with amateur radio volunteers.  It
believes that without amateurs' dedicated support, disaster
relief operations would significantly suffer and that its ability
to serve disaster victims would be hampered.  It feels that
antenna height limitations that might be imposed by local bodies
will negatively affect the service now rendered by the
volunteers.
    12. Cities and counties from various parts of the United
States filed comments in support of the ARRL's request for a
Federal preemption ruling.  The comments from the Director of
Civil Defense, Port Arthur, Texas are representative:

    The Amateur Radio Service plays a vital role with our Civil
    Defense program here in Port Arthur and the design of these
    antennas and towers lends greatly to our ability to
    communicate during times of disaster.  We do not believe
    there should be any restrictions on the antennas and towers
    except for reasonable safety precautions.  Tropical storms,
    hurricanes and tornadoes are a way of life here on the Texas
    Gulf Coast and good communications are absolutely essential
    when preparing for a hurricane and even more so during
    recovery operations after the hurricane has past.

    13. The Quarter Century Wireless Association took a strong
stand in favor of the Issuance of a declaratory ruling.  It
believes that Federal preemption is necessary so that there will
be uniformity for all Amateur Radio installations on private
property throughout the United States.
    14. In its comments, the ARRL argued that the Commission has
the jurisdiction to preempt certain local land use regulations
which frustrate or prohibit amateur radio communications.  It
said that the appropriate standard in preemption cases is not the
extent of state and local interest in a given regulation, but
rather the impact of the regulation on Federal goals.  Its
position is that Federal preemption is warranted whenever local
government regulations relate adversely to the operational
aspects of amateur communication.  The ARRL maintains that
localities routinely employ a variety of land use devices to
preclude the installation of effective amateur antennas,
including height restrictions, conditional use permits, building
setbacks and dimensional limitations on antennas.  It sees a
declaratory ruling of Federal preemption as necessary to cause
municipalities to accommodate amateur operator needs in land use
planning efforts.
    15. James C. O'Connell, an attorney who has represented
several amateurs before local zoning authorities, said that
requiring amateurs to seek variances or special use approval to
erect reasonable antennas unduly restricts the operation of
amateur stations.  He suggested that the Commission preempt
zoning ordinances which impose antenna height limits of less than
65 feet.  He said that this height would represent a reasonable
accommodation of the communication needs of most amateurs and the
legitimate concerns of local zoning authorities.

Opposing Comments

    16. The City of La Mesa, California has a zoning regulation
which controls amateur antennas.  Its comments reflected an
attempt to reach a balanced view.

This regulation has neither the intent, nor the effect, of
precluding or inhibiting effective and reliable communications.
Such antennas may be built as long as their construction does not
unreasonably block views or constitute eyesores.  The reasonable
assumption is that there are always alternatives at a given site
for different placement, and/or methods for aesthetic treatment.
Thus, both public objectives of controlling land use for the
public health, safety, and convenience, and providing an
effective communications network, can be satisfied.  A blanket to
completely set aside local control, or a ruling which recognizes
control only for the purpose of safety of antenna construction,
would be contrary to...legitimate local control.

    17. Comments from the County of San Diego state:

While we are aware of the benefits provided by amateur operators,
we oppose the issuance of a preemption ruling which would elevate
`antenna effectiveness' to a position above all other
considerations.  We must, however, argue that the local
government must have the ability to place reasonable limitations
upon the placement and configuration of amateur radio
transmitting and receiving antennas.  Such ability is necessary
to assure that the local decision-makers have the authority to
protect the public health, safety and welfare of all citizens.
    In conclusion, I would like to emphasize an important
difference between your regulatory powers and that of local
governments.  Your Commission's approval of the preemptive
requests would establish a "national policy."  However, any
regulation adopted by a local jurisdiction could be overturned by
your Commission or a court if such regulation was determined to
be unreasonable.

    18. The City of Anderson, Indiana, summarized some of the
problems that face local communities:

I am sympathetic to the concerns of these antenna owners and I
understand that to gain the maximum reception from their devices,
optimal location is necessary.  However, the preservation of
residential zoning districts as "liveable" neighborhoods is
jeopardized by placing these antennas in front yards of homes.
Major problems of public safety have been encountered,
particularly vision blockage for auto and pedestrian access.  In
addition, all communities are faced with various building lot
sizes.  Many building lots are so small that established setback
requirements (in order to preserve adequate air and light) are
vulnerable to the unregulated placement of antennas.
    ...the exercise of preemptive authority by the FCC in
granting this request would not be in the best interest of the
general public.

    19. The National Association of Counties (NACO), the American
Planning Association (APA) and the National League of Cities
(NCL) all opposed the issuance of an antenna preemption ruling.
NACO emphasized that federal and state power must be viewed in
harmony and warns that Federal intrusion into local concerns of
health, safety and welfare could weaken the traditional police
power exercised by the state and unduly interfere with the
legitimate activities of the states.  NLC believed that both
Federal and local interests can be accommodated without
preempting local authority to regulate the installation of
amateur radio antennas.  The APA said that the FCC should
continue to leave the issue of regulating amateur antennas with
the local government and with the state and Federal courts.

Discussion

    20. When considering preemption, we must begin with two
constitutional provisions.  The tenth amendment provides that any
powers which the constitution either does not delegate to the
United States or does not prohibit the states from exercising are
reserved to the states.  These are the police powers of the
states.  The Supremacy Clause, however, provides that the
constitution and the laws of the United States shall supersede
any state law to the contrary.  Article III, Section 2.  Given
these basic premises, state laws may be preempted in three ways:
First, Congress may expressly preempt the state law.  See Jones
v. Rath Packing Co., 430 U.S. 519, 525 (1977).  Or, Congress may
indicate its intent to completely occupy a given field so that
any state law encompassed within that field would implicitly be
preempted.  Such intent to preempt could be found in a
congressional regulatory scheme that was so pervasive that it
would be reasonable to assume that Congress did not intend to
permit the states to supplement it.  See Fidelity Federal Savings
& Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982).  Finally,
preemption may be warranted when state law conflicts with federal
law.  Such conflicts may occur when "compliance with both Federal
and state regulations is a physical impossibility," Florida Lime
& Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 143 (1963),
or when state law "stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress,"
Hines v. Davidowitz, 312 U.S. 52, 67 (1941).  Furthermore,
federal regulations have the same preemptive effect as federal
statues, Fidelity Federal Savings & Loan Association v. de la
Cuesta, supra.
    21. The situation before us requires us to determine the
extent to which state and local zoning regulations may conflict
with federal policies concerning amateur radio operators.
    22. Few matters coming before us present such a clear
dichotomy of view point as does the instant issue.  The cities,
countries, local communities and housing associations see an
obligation to all of their citizens and try to address their
concerns.  This is accomplished through regulations, ordinances
or covenants oriented toward the health, safety and general
welfare of those they regulate.  At the opposite pole are the
individual amateur operators and their support groups who are
troubled by local regulations which may inhibit the use of
amateur stations or, in some instances, totally preclude amateur
communications.  Aligned with the operators are such entities as
the Department of Defense, the American Red Cross and local civil
defense and emergency organizations who have found in Amateur
Radio a pool of skilled radio operators and a readily available
backup network.  In this situation, we believe it is appropriate
to strike a balance between the federal interest in promoting
amateur operations and the legitimate interests of local
governments in regulating local zoning matters.  The cornerstone
on which we will predicate our decision is that a reasonable
accommodation may be made between the two sides.
    23. Preemption is primarily a function of the extent of the
conflict between federal and state and local regulation.  Thus,
in considering whether our regulations or policies can tolerate a
state regulation, we may consider such factors as the severity of
the conflict and the reasons underlying the state's regulations.
In this regard, we have previously recognized the legitimate and
important state interests reflected in local zoning regulations.
For example, in Earth Satellite Communications, Inc., 95 FCC 2d
1223 (1983), we recognized that

    ...countervailing state interests inhere in the present
situation...For example, we do not wish to preclude a state or
locality from exercising jurisdiction over certain elements of an
SMATV operation that properly may fall within its authority, such
as zoning or public safety and health, provided the regulation in
question is not undertaken as a pretext for the actual purpose of
frustrating achievement of the preeminent federal objective and
so long as the non-federal regulation is applied in a
nondiscriminatory manner.

    24. Similarly, we recognize here that there are certain
general state and local interests which may, in their even-handed
application, legitimately affect amateur radio facilities.
Nonetheless, there is also a strong federal interest in promoting
amateur communications.  Evidence of this interest may be found
in the comprehensive set of rules that the Commission has adopted
to regulate the amateur service. \fn 5/  Those rules set forth
procedures for the licensing of stations and operators, frequency
allocations, technical standards which amateur radio equipment
must meet and operating practices which amateur operators must
follow.  We recognize the amateur radio service as a voluntary,
noncommercial communication service, particularly with respect to
providing emergency communications.  Moreover, the amateur radio
service provides a reservoir of trained operators, technicians
and electronic experts who can be called on in times of national
or local emergencies.  By its nature, the Amateur Radio Service
also provides the opportunity for individual operators to further
international goodwill.  Upon weighing these interests, we
believe a limited preemption policy is warranted.  State and
local regulations that operate to preclude amateur communications
in their communities are in direct conflict with federal
objectives and must be preempted.
    25. Because amateur station communications are only as
effective as the antennas employed, antenna height restrictions
directly affect the effectiveness of amateur communications.
Some amateur antenna configurations require more substantial
installations than others if they are to provide the amateur
operator with the communications that he/she desires to engage
in.  For example, an antenna array for international amateur
communications will differ from an antenna used to contact other
amateur operators at shorter distances.  We will not, however,
specify any particular height limitation below which a local
government may not regulate, nor will we suggest the precise
language that must be contained in local ordinances, such as
mechanisms for special exceptions, variances, or conditional use
permits.  Nevertheless, local regulations which involve
placement, screening, or height of antennas based on health,
safety, or aesthetic considerations must be crafted to
accommodate reasonably amateur communications, and to represent
the minimum practicable regulation to accomplish the local
authority's legitimate purpose. \fn 6/
    26. Obviously, we do not have the staff or financial
resources to review all state and local laws that affect amateur
operations.  We are confident, however, that state and local
governments will endeavor to legislate in a manner that affords
appropriate recognition to the important federal interest at
stake here and thereby avoid unnecessary conflicts with federal
policy, as well as time-consuming and expensive litigation in
this area.  Amateur operators who believe that local or state
governments have been overreaching and thereby have precluded
accomplishment of their legitimate communications goals, may, in
addition, use this document to bring our policies to the
attention of local tribunals and forums.
    27. Accordingly, the Request for Declaratory Ruling filed
July 16, 1984, by the American Radio Relay League, Inc., IS
GRANTED to the extent indicated herein and in all other respects,
IS DENIED.
                      FEDERAL COMMUNICATIONS COMMISSION
                      William J. Tricarico
                      Secretary