[GreenKeys] Fwd: Fw: [SCCC] The Case Against HR-555

Fri Aug 4 00:42:36 EDT 2017

I hope these issues are going to be brought out in QST.

 Wayne
WB4OGM

-----Original Message-----
From: Jeffrey Angus <jdangus at att.net>
To: greenkeys <greenkeys at mailman.qth.net>
Sent: Thu, Aug 3, 2017 8:28 pm
Subject: [GreenKeys] Fwd: Fw: [SCCC] The Case Against HR-555

      -------- Forwarded Message --------

 On Wednesday, August 2, 2017                  5:52 PM, Marty Woll <n6vi at socal.rr.com> wrote:

Now that I am a former ARRL Vice                  Director, I am free to speak my mind on

this matter.  As a long-time proponent of                  antenna rights, it is with great

disappointment that I say I do not favor                  passage of HR-555. I should add up

front, by way of disclaimer, that I am                  not an attorney.  

I was a big supporter of the original                  Amateur Radio Parity Act - the PRB-1

version.  The ability to put up outdoor                  antennas and the structures

necessary to support them on your                  property is crucial to being an active Ham

for many licensees.  Since 2010 I have                  visited the offices of numerous

elected officials, sent over a thousand                  e-mail messages, spent entire

convention weekends generating letters                  from Hams to their elected

representatives and spoken at countless                  club meetings to drum up support for

this legislation.  It's fair to say that                  I invested a major chunk of my time

in support of the original Parity Act,                  and I certainly respect ARRL

leadership for its persistence in seeking                  relief for all impacted Amateurs,

whether League members or not.  However,                  in February of 2016 the language

that mirrored PRB-1 was removed from                  HR-1301 (now HR-555), and this is a

critique of the result, not of the intent                  or effort.

Last year, ARRL found itself at odds with                  one senator over the bill and was

required to negotiate compromise language                  with CAI, a national trade

association of homeowner associations                  (HOAs) and similar groups.  While I

had some major misgivings at the time, I                  did not object to the compromise

language because I believed it would help                  at least those Amateurs who live

in homes with developer-imposed deed                  restrictions not within the purview of

an active HOA.  

Since that time, however, some                  high-profile, competent and very

knowledgeable attorneys (all of them Hams                  but none associated with the ARRL

Board) have evaluated the compromise                  language and found that it may do more

harm than good.  They have pointed out                  some serious shortcomings in HR-555

that significantly restrict how many Hams                  may benefit from its passage and

that, if uncorrected, could actually                  diminish the rights of some Amateurs

and grant the right to regulate Amateur                  antennas to HOAs that do not now

have that right.

What follows is an abbreviated                  description of the issues surrounding HR-555,

the current version of the Parity Act.                   For those who want to dig deeper

into the matter, I have a version I can                  e-mail you separately that include

attachments containing (1) the original                  bill language, (2) the compromise

language in the current bill, and (3) an                  analysis prepared by former FCC

attorney and active Amateur Radio                  operator Jim Talens N3JT for the Potomac

Valley Radio Club.  Many of the points in                  Jim's critique were also made by

Fred Hopengarten K1VR (author of Antenna                  Zoning for the Radio Amateur) at

his presentation to the Legal Forum at                  the May 2017 Dayton Hamvention.

Suffice it to say that the expert                  Ham-attorneys are NOT all lining up in

support of HR-555 in its current form.

The original bill pretty much paralleled                  PRB-1, the Federal Preemption

Statute.  It required the FCC to revise                  its regulations to prohibit private

deed restrictions that preclude or fail                  to reasonably accommodate Amateur

Radio communications or that do not                  constitute the minimum practicable

restriction on such communications to                  accomplish the legitimate purpose of

the private entity seeking to enforce                  such restriction.

On the other hand, the compromise bill                  that CAI insisted on does the

following: 

1)  It grants HOAs the right to use                  aesthetics as a basis for antenna

decisions, even to those associations                  whose rules do not now have any

provisions concerning antennas.  This                  grant of power to HOAs is

unprecedented in Federal law, and it adds                  a right - as a matter of Federal

law - for HOA's that has never been                  previously approved in Federal law.

That right cannot be undone by state law.

2)  It requires a deed-restricted Amateur                  to notify and seek prior

permission from the HOA before installing                  any outdoor antenna, with no

grandfathering for those already                  installed.

3)  It does not establish a time frame                  within which the HOA must render a

decision; an HOA can stall indefinitely                  and do so without adverse

consequence.

4)  It does not grant or guarantee to an                  Amateur the right to operate on the

band(s) of his or her choice.

5)  It permits but does not require the                  HOA to establish written rules

regarding antenna size, type and                  location.

6)  It does not establish or require an                  HOA administrative process for

redress if an HOA denies a Ham's                  requested antenna.  The decision of the HOA

is final.

Under HR-555, if passed, Hams who have                  existing "stealth" antennas, even

with the concurrence of their immediate                  neighbors, would now be in violation

of Federal law and FCC regulations.  

HOAs will be legally able to write their                  own rules with no objective

criteria and no standards, and they will                  have the unrestricted power of

Federal law to back them up.

The band(s) on which the Amateur wishes                  to operate need not be a

consideration in any HOA decision; they                  could limit you to a small UHF whip

a few inches long on your gutter and say                  that have accommodated Amateur

Radio.

An HOA that previously existed only to                  conduct limited activities, such as

maintaining roads, utilities and exterior                  landscaping, one that has never

held any power to regulate Amateur Radio,                  would be granted the power to

demand the removal of existing antennas                  and to demand that an Amateur seek

its approval to install any Amateur                  antennas or supports.  Imagine having

moved into a neighborhood because the HOA                  had no regulatory power over

Amateur Radio antennas, only to have                  Federal law now grant the HOA that

power! 

The compromise bill expressly disconnects                  itself from PRB-1.  Unfortunately,

that means that none of the Ham-friendly                  court decisions interpreting PRB-1

would be binding on an HOA.

It has been argued that the FCC, in                  writing the regulations required by

HR-555, could eliminate some of the above                  risks.  However, the FCC has

opposed restricting the rights of HOAs                  for over thirty years, and I don't

think it is prudent to count on the                  Commission to reverse itself and

interpret the law in our favor.  Neither                  can we count on CAI, having won the

rights it demanded, to sit by and make no                  attempt to influence the

post-enactment regulatory process in its                  favor.  Wishful thinking to the

contrary is hardly a sound basis on which                  to make our decisions.  

Because of the aforementioned                  shortcomings of HR-555 and the likely adverse

consequences of its passage, I cannot                  support it any longer.  There may be a

better path than the one the League is                  now pursuing; I don't know if we can

ever get there, but I certainly don't                  want us to make things worse for a

significant number of Amateurs or expose                  them to being found in violation of

Federal law and FCC regulations.  Please                  consider these points when you are

asked to write letters of support for                  HR-555 to your legislators.

As an aside, I want to remind you that                  some licensees have been successful

in selling the advantages of Amateur                  Radio-based disaster communication

capability to their HOA boards.  Offering                  benefits can be much easier and

less costly than demanding one's rights.                  

73,

Marty N6VI

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