1. Fred Hopengarten, Esq., K1VR
Legislation: S.1534/H.R. 555
+ State PRB-1 Laws
May 19, 2017
Fred Hopengarten, Esq., K1VR
Some additions added over the summer of 2017

2. Gratuitous Plug:
Member since 1956 (61 years, for those of you who were communications majors). Life Member.

3. H.R. 555/S.1534 “Amateur Radio Parity Act of 2017”
§ 3 (a) [FCC shall add] a new paragraph that prohibits the application to amateur stations of any private land use restriction, including a restrictive covenant, that—
(1) on its face or as applied, precludes communications in an amateur radio service;
(2) fails to permit a licensee in an amateur radio service to install and maintain an effective outdoor antenna on property under the exclusive use or control of the licensee; or
(3) does not constitute the minimum practicable restriction on such communications to accomplish the lawful purposes of a community association seeking to enforce such restriction.

4. ARPA of (continued)
3(b) Additional requirements the Commission shall—
(1) require any licensee in an amateur radio service to notify and obtain prior approval from a community association concerning installation of an outdoor antenna;
(2) permit a community association to prohibit installation of any antenna or antenna support structure by a licensee in an amateur radio service on common property not under the exclusive use or control of the licensee; and
(3) , permit a community association to establish reasonable written rules concerning height, location, size, and aesthetic impact of, and installation requirements for, outdoor antennas and support structures for the purpose of conducting communications in the amateur radio services.
Amateur Radio Parity Act
3(b)(3) “subject to the standards specified in paragraphs (1) and (2) of subsection (a), permit a community . . .

5. Problem #1: Prior Approval
3(b)(1) [Ham must] notify and obtain prior approval from a community association concerning installation of an outdoor antenna;
NOTIFY
- Required [No stealth antennas.]
- When? [Prior to erection.]
- How? [Vote of Association. Maybe ARC first.]
OBTAIN PRIOR APPROVAL
- What if ultra vires? [Assoc. only does roads & trash]
- What if not ultra vires, but no active association?
- What if submitted, but no decision?
Word “notify” requires disclosure of stealth antennas. It is whatever the rules require to get an ARC approval.
Interesting thought – without PRIOR APPROVAL, the ham violates federal law. But a CB’er without prior approval violates only a covenant, and not federal law. CB’er is better off.
ARC= Architectural Review Committee

6. Problem #2: Exclusive Use or Control
3(b)(2) permit a community association to prohibit installation of any antenna or antenna support structure by a licensee in an amateur radio service on common property not under the exclusive use or control of the licensee
Issues:
Prohibit use of roof? Yes.
Prohibit use of “back yard” in townhouses? [Exclusive use?]
Prohibit use of deck, porch or lanai? [Exclusive use?]

7. Problem #3: Reasonable . . . Rules
3(b)(3) permit a community association to establish reasonable written rules concerning height, location, size, and aesthetic impact of, and installation requirements for, outdoor antennas and support structures for the purpose of conducting communications in the amateur radio services.
NOT PRB-1 test of “communications he or she desires”
(1985, ¶ 25)
May be only a 440 MHz whip, which (1) allows communications and is (2) “effective”
Note : 1 meter dish, or VHF/UHF TV Yagi (OTARD – 47 CFR § ) do NOT require prior approval
I suggest it would be unreasonable to prohibit that which is permitted under the OTARD rule.

8. Problem #4: “Or”
If HOA does not preclude communications [3(a)(1)] and allows an effective outdoor antenna [3(a)(2)], HOA does NOT have to meet test of 3(a)(3) [minimum practicable restriction], because of the word “or”
As written: 3(a)(1), 3(a)(2) or 3(a)(3)

9. If I Were King . . . Change Def
H.R. 555/S.1534 Definition of a Community Association: any non-profit mandatory membership organization composed of owners of real estate described in a declaration of covenants or created pursuant to a covenant or other applicable law with respect to which a person, by virtue of the person’s ownership of or interest in a unit or parcel, is obligated to pay for a share of real estate taxes, insurance premiums, maintenance, improvement, services, or other expenses related to common elements, other units, or any other real estate other than the unit or parcel described in the declaration.
DEFINITION IS TOO BROAD. I’d change it. What if Community Association formed only for plowing snow and collecting trash. Or paying taxes on common land? Would protect hams more if the definition of Community Association included “with a power of architectural review.”

10. If King , I’d Slice the Loaf
One size does not fit all:
MUD’s – apartments: roof and any porch
PUD’s – townhouses: the fenced backyard and deck/lanai, not to exceed 7’ over the height of the roof
Lots over one acre: back yard; not to exceed 70’
It should be unreasonable to prohibit that which is permitted under the OTARD rule.
Also regulate antenna size, reasonable wires and perhaps turning radius not to exceed 28’ (36’ for one acre lots)

11. New Topic State PRB-1 Statutes 20 States [40%]Without [Even if you live in a state with a law, perhaps you’ll find a useful amendment here.]
States +
Alabama
Georgia
New Jersey
Arizona
Hawaii
New York
Arkansas
Iowa
North Dakota
Connecticut
Kentucky
Rhode Island
Delaware
Maryland
South Carolina
D.C.
Minnesota
South Dakota
Florida
Nebraska
AK: Did SB 78 become law?
MS: Did HB 736 become law?
UT: Did HB 79 become law?

12. FCC – 47 C.F.R. § 97.15(b) Sec. 97.15 Station antenna structures.
(b) 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 communications and [not “OR”] must constitute the minimum practicable regulation to accomplish the state or local authority's legitimate purpose. See PRB-1, 101 FCC 2d 952 (1985) for details.)
We start with the federal law.

13. § 97.15(b) has THREE parts
1) a complete preemption of local regulation that precludes amateur service communications,
(2) a requirement that local regulations that involve placement, screening or height or antennas must be crafted to “reasonably accommodate” amateur communications, and
(3) local law must be the “minimum practicable regulation.” The federal courts have recognized this “minimum practicable regulation” test to be a form of “least restrictive means” test. (fn)
(fn) cf. Pentel v. City of Mendota Heights (MN), 13 F.3d 1261, 1265 (8th Cir. 1994).
Notice it has three elements.

14. BTW, Don’t Forget DA 99-2569 “Balancing of interests” forbidden (¶ 7)
Regulations must not “impinge on the needs of amateur operators” (¶ 9)
(fn) MODIFICATION AND CLARIFICATION OF POLICIES AND PROCEDURES GOVERNING SITING AND MAINTENANCE OF AMATEUR RADIO ANTENNAS
The FCC has subsequently clarified some issues.

15. So let’s propose a state law – better, but within § 97.15(b)
First, a title – An Act:
TO RECOGNIZE THE VALUE OF AMATEUR RADIO COMMUNICATIONS BY REQUIRING LOCAL UNITS OF GOVERNMENT TO REASONABLY ACCOMMODATE AMATEUR RADIO COMMUNICATIONS
OR (shorter)
RELATING TO LOCAL UNIT OF GOVERNMENT REGULATION OF AMATEUR RADIO ANTENNAS
The thing legislators are most afraid of is doing something new. So my proposals are pretty much based in existing law somewhere.

16. § 1. INTENT.
Recognizing the amateur radio service as a public benefit, amateur radio operation from residences, private vehicles and public areas must be facilitated and encouraged at all levels of government [fn] so as to promote the effective operation of a station by individual amateurs, and to meet the communications need of an authorized applicant seeking any necessary any necessary permission. 
Fn: Wording from P.L , Jooint Resolution of 103d Congress (1994), § 1(3).
Refers to (incorporates) the “will not impinge on the needs” language in DA

17. OR
The Long Form, if you have a cooperative legislative committee

18. § 1. INTENT.
Amateur radio station antenna structures may be erected at heights and dimensions sufficient to accommodate effective amateur service communications. As required by federal law, 47 CFR § 97.15(b), 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. 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. (See PRB-1, 101 FCC 2d 952 (1985) for details.) Among other purposes, this article is intended to conform state law to current federal law.
The word “effective” has been inserted to reflect language found in paragraph 25 of the original PRB-1 (1985), and U.S. Public Law (1994) §1 (3), found at Desires to engage in: A direct quotation of federal law found at ¶ 25, PRB-1, 101 FCC 2d 952 (1985), most readily found at

19. § 2. DEFINITIONS.
(a) An “amateur radio station” means a radio station operated by a duly authorized person interested in radio technique solely with a personal aim and without pecuniary interest, as defined in 47 USC § 153 (3). (b) An amateur radio station antenna structure and associated antennas are not part of a “commercial mobile service” regulated by 47 USC § 332, or wireless communication facility, such as cellular telephone facilities, and no local unit of government may regulate an amateur radio station antenna structure as a commercial facility.
Do not use the word licensee, as you may have a radio amateur who is authorized to operate in Arizona under, for example, the CEPT treaty, but is licensed by a different authority (his or her home country).

20. § 3. USES.
An amateur radio station antenna structure is an accessory use of a lot, but may also be a principal use of a lot.
Why? Deals with the “two lot” problem. Village of St. Louis Park v. Casey (MN), 218 Minn. 394, 16 N.W. 2d 459 (1944),
(“The two lots comprise but a single tract or parcel.”)
An amateur radio antenna system has long been considered an ordinary accessory use. Town of Paradise Valley v. Lindberg, 551 P.2d 60, (Ariz. Ct. App. 1976) (holding that the erection of a ninety-foot amateur radio tower in conjunction with a homeowner’s hobby as a ham radio operator is a permissible accessory or incidental use).
An amateur radio antenna system can also be a principal use of a lot (i.e., could be located on an otherwise vacant lot) because “State and local regulation of a station antenna structure must not preclude amateur service communications.” 47 CFR § (b) . Also, Village of St. Louis Park v. Casey (MN), 218 Minn. 394, 16 N.W. 2d 459 (1944), (“The two lots comprise but a single tract or parcel.”), or

21. § 4. HEIGHT AND DIMENSIONS.
Any code, ordinance or by-law must allow for heights and dimensions of such antenna structures sufficient to effectively accommodate amateur radio communications desired by the radio amateur.
Sources: “Heights and dimensions” from 47 CFR § 97.15(b)
“Desired by the radio amateur” from PRB-1 ¶ 25
The “heights and dimensions sufficient” language is a direct reflection and quotation from 47 CFR § 97.15(b).

22. § 5. ENCROACHMENTS.
Amateur radio station antenna structures shall be located such that guy wires and other accessories shall not cross or encroach upon any street or other public space, or over above-ground electric utility lines, or encroach upon any property not owned or controlled by the applicant, without the written consent of the owner of the encroached-upon property, space or above-ground electric utility lines.
This sub-section is intended to deal with the situation where a radio amateur owns two adjacent lots, or has permission from a friendly neighbor.

23. § 6. NUMBER OF ALLOWED STRUCTURES.
Nothing in this section shall preclude the installation of more than one amateur radio antenna support structure on any lot in the rural zoning districts, provided the standards of this section are met and there is at least 10,000 square feet of lot area for each newly-constructed antenna support structure. There is no limit to the number of amateur radio antennas mounted to a building and such structures shall be considered a building appurtenance.
Source: Alaska Stat. § 29.35
“Newly-constructed” is intended to make it clear that a wire hanging going to an existing garage, house, flag-pole or tree is permitted, in addition to antennas, usually Yagi-style, mounted on a station antenna structure.
Source: Alaska Stat. § 29.35
This wording avoids an ambiguity in the Alaska law. The “number of support structures for an amateur radio antenna” could imply that you may have two poles supporting a singular dipole, but not two towers, each with its own Yagi antenna(s).

24. Or, if you are not adventurous
A local unit of government may not restrict the number of support structures for an amateur radio antenna.
A local unit of government may not restrict the number of amateur radio station antenna structures.
“Station antenna structures” is the phrase used in 47 CFR § 97.15(b)

25. § 7. BALANCING NOT PERMITTED.
In accordance with 47 CFR § 97.15(b) requirements of reasonable accommodation and minimum practicable regulation, a balancing of interests approach is not appropriate when considering any building or use permit.
Source:
A direct reflection and quotation from ¶ 7, PRB-1 (1999), found at or

26. § 8. MINIMUM PRACTICABLE REGULATION; FEES.
In accordance with 47 CFR § 97.15(b) requirements of reasonable accommodation and minimum practicable regulation, unreasonable fees or onerous conditions are not permitted. Any application fee, review fee, or required payment must not be too high, and therefore unreasonable. No condition shall be more than the minimum practicable regulation.
Source: PRB-1, RM-8763 (2000) ¶ 6
A direct reflection and quotation from ¶ 6, PRB-1, RM 8753 (2000), found at

27. § 9. EFFECT; BURDEN.
Any ordinance, resolution, regulation, plan or other action adopted or taken by local unit of government in violation of the provisions of this section is void. Any local unit of government that denies an application for approval of an amateur station antenna structure shall state the reasons for the denial and shall, on appeal, bear the burden of proving that the authority's actions are consistent with this act.
Source: Ohio Rev. Code § (C)
A direct reflection and quotation from Ohio Rev. Code § (C)

28. § 10. CHOICE OF COURT.
Any lawsuit questioning the validity of an ordinance, resolution, regulation, plan or other action adopted or taken by local unit of government in violation of the provisions of this section may be brought in either federal or state court.
Why? DePolo v. Bd. of Sup’rs Tredyffrin Tp. , 835 F. 3d 381 (3d Cir. 2016)
Designed to avoid the problem faced in the Third Circuit by WN3A in DePolo v. BD. OF SUP'RS TREDYFFRIN TP. , 835 F. 3d 381 (3d Cir. 2016)

29. § 11. GRANDFATHER CLAUSE; REPAIRS.
Station antenna structures constructed prior to the effective date of this section are exempted from subsequent changes in zoning regulations by any local unit of government and may be repaired as required.
Source: Kan. Stat. Ann. § 12-16,126 (g)
A direct reflection and quotation from Kan. Stat. Ann. § 12-16,126 (g)

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