ARRL Seeks FCC Review, Reversal of Wireless Bureau PRB-1 Denial

NEWINGTON, CT, Dec 22, 2000--The ARRL is asking the FCC to review part of an FCC Order that declined to include CC&Rs--covenants, conditions and restrictions--under the limited federal preemption known as PRB-1. Imposed by private homeowners' associations or by developers, CC&Rs--also known as "restrictive covenants" and "deed restrictions"--often impede or prohibit the installation of outside antennas.

"ARRL's petition relative to the application of its PRB-1 policy to private land use regulations has not, to date, been afforded a thorough review or a fair analysis," the ARRL said in its Application for Review, filed December 15. The ARRL maintains that the FCC should have the same interest in the effective performance of an Amateur Radio station and in the promotion of amateur communications regardless of whether the licensee's property is privately or publicly regulated.

In November, FCC Deputy Wireless Telecommunications Bureau Chief Kathleen O'Brien Ham--acting under "delegated authority"--turned down an ARRL Petition for Reconsideration that--among other things--called on the FCC to declare that PRB-1 applies to amateurs governed by CC&Rs or condominium regulations just as it does to hams regulated solely by local zoning laws. The ARRL now wants the full Commission to review--and reverse--O'Brien Ham's decision.

The ARRL has argued that since PRB-1 was promulgated in 1985, the FCC has made it clear that it has Congressional authority to prohibit restrictive covenants that could keep property owners and even renters from installing antennas to receive TV, satellite and similar signals. The same principle applies to Amateur Radio, the ARRL asserted.

The FCC cannot use the private contractual nature of covenants "as a justification for the arbitrary and disparate treatment of radio amateurs similarly situated," the League said.

The ARRL made it clear, however, that it's not seeking any kind of preferential treatment from homeowners associations, architectural committees or condominium boards. The League said it wants only equitable treatment under existing PRB-1 guidelines for amateurs living in housing regulated by CC&Rs. "It would be entirely consistent with PRB-1, for example, for a homeowners association to permit only a relatively small antenna in a planned community, such as a backyard, ground-mounted vertical antenna or one of the small Yagi configurations similar to an outdoor television antenna," the ARRL said.

The ARRL said that since the FCC already has jurisdiction to apply PRB-1 to all types of land-use regulation and has said it's willing to "encourage" private land-use authorities to apply PRB-1, "there is no legal or policy reason for continuing the distinction" between private and public land-use regulation with respect to amateur antennas. The ARRL asserts that Amateur Radio operators should be able to negotiate "reasonable accommodation" provisions with local homeowner's associations just as they now may do with governmental land-use regulators.

"Such clarification is consistent with Commission policy and precedent," the ARRL concluded.

In its most recent Order turning down the ARRL's reconsideration petition, the FCC said that regardless of the extent of the FCC's discretion with respect to CC&Rs generally, "we are not persuaded by ARRL's arguments that it is appropriate at this time to consider exercising such discretion with respect to amateur station antenna preemption."

In its Application for Review of that Order, the ARRL says the Commission, since 1985, has held--notwithstanding the private character of covenants--that it has the authority to preempt such private regulations when they conflict with federal communications policy. The "non-discriminatory application of that existing policy to all land use regulation of amateur antennas is logically mandated," the ARRL said. "There is no other way that the Commission could be said to effectuate the federal goals enunciated in PRB-1."

The problem of restrictive covenants has been exacerbated in recent years as planned developments have drawn new residents from among the growing number of retired hams, who then learn they may not install a tower or outside antenna of any type. Many amateurs now say it's impossible to find desirable housing that comes without CC&Rs. The League's Regulatory Information Branch reports that the topic of restrictive covenants and antennas is one of the most frequently raised by members contacting the ARRL for information.

A copy of the ARRL's Application for Review is available on the ARRLWeb

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