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The FCC has recognized the special role of the amateur radio operator by granting limited antenna siting protections under its "PRB-1" policy.
PRB-1 (1985)PRB-1 (at the time the rules were adopted, PRB stood for "Personal Radio Branch") was adopted by the FCC in September, 1985. The rules responded to a 1984 petition by the American Radio Relay League ("ARRL"), the largest organization representing ham operators, which "... wanted an explicit
statement that would preempt all local ordinances which provably
preclude or significantly inhibit effective reliable amateur
radio communications." (FCC PRB-1 [1985] @ 1).
The FCC didn't go as far as the ARRL wanted, but did provide policy and limited federal preemption, but did opine in FCC 85-506 that
[The Commission] will not . . .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. (PRB-1 [1985] @ 25)
The FCC did not preempt homeowner association CC&Rs that controlled or prohibited amateur antennas. The Commission said that "Purchasers or lessees are free to choose whether they wish to reside
where such restrictions on amateur antennas are in effect or settle
elsewhere." (PRB-1 [1985] @ 9)
In 1985, the FCC adopted 47 CFR § 97.15(b) dealing with antenna structures. That rule says
Except as otherwise provided herein, a station antenna structure may be erected at heights and dimensions sufficient to accommodate amateur service communications. (State and local regulation of a station antenna structure must not preclude amateur service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state or local authority's legitimate purpose.)
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PRB-1 (1999) In November, 1999, the FCC revisited its 1985 PRB-1 policy in FCC Order 99-2569.
Once again, the ARRL petitioned the Commission "to review and modify the policies and procedures pertaining to the Commission's limited preemption of state and local regulations affecting amateur radio facilities. " (PRB-1 [1999] @ 1). This time, a key argument offered by the ARRL was the court enforcement of a CC&R amounted to "state action".
The Commission responded by saying,
The Petitioner argues that enforcement of a covenant by the court
constitutes "state action", thus converting what otherwise would be a private matter into a matter of state regulation and, thus, subject to the Commission's limited preemption policy. Notwithstanding the clear policy statement that was set forth in PRB-1 excluding restrictive covenants in private contractual agreements as being outside the reach of our limited preemption, we nevertheless strongly encourage associations of homeowners and private contracting parties to follow the principle of reasonable accommodation and to apply it to any and all instances of amateur service communications where they may be involved. Although we do not hesitate to offer such encouragement, we are not persuaded by the Petition or the comments in support thereof that specific rule provisions bringing the private restrictive covenants within the ambit of PRB-1 are necessary or appropriate at this time. Having reached this conclusion, we need not resolve the issue of whether, or under what circumstances, judicial enforcement of private covenants would constitute "state action." (PRB-1 [1999] @ 6)
Next, the Commission turned to the ARRL's request to revisit local zoning controls on amateur radio antenna. It said,
Petitioner further requests a clarification of PRB-1 that local authorities must not engage in balancing their enactments against the interest that the Federal Government has in amateur radio, but rather must reasonably accommodate amateur communications. We do not believe a clarification is necessary because the PRB-1 decision precisely stated the principle of "reasonable accommodation". In PRB-1, the Commission stated: "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." Given this express Commission language, it is clear that a "balancing of interests" approach is not appropriate in this context. (PRB-1 [1999] @ 7)
Next, the ARRL wanted the Commission to set a minimum height limit for amateur antenna structures so that local governments could not regulate tower below that height. The ARRL suggested 60 or 70 feet in metropolitan areas.
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