Condo Media - December 2014 - 39

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ongress is considering legislation that would exempt ham
radio operators from community association rules governing
the installation of radio towers and
antennas. The Community Associations
Institute (CAI) is working actively to
oppose the measure, which has approximately 20 co-sponsors and the
strong support of the American Radio
Relay League (ARRL) - a trade group
representing ham radio operators.
The legislation (HR 4969) would
preempt association rules that require ham operators to comply with
architectural controls or obtain prior
approval for non-conforming installations. Introduced by Rep. Adam
Kinzinger (R-Ill.), the measure directs
the Federal Communications Commission (FCC) to preempt "any private
land use restriction, including a restrictive covenant" that bars ham radio
communications, fails to "reasonably
accommodate" them, and "does not
constitute the minimum practicable
restriction on such communications
[necessary] to accomplish the legitimate purpose of the entity seeking [the
restrictions]."
That wording echoes the language in
a 1985 FCC policy creating a limited
preemption of local zoning ordinances
affecting ham radio equipment. The
ARRL wants that preemption to cover
community association covenants as well.
This is not a new issue, according to
Dawn Bauman, senior vice president
for government and public affairs at
CAI, which has made defeating the
pending legislation one of its top priorities for this year. The AARL has been
pressing the FCC for years to block
association restrictions on ham installations, Bauman notes, and the FCC has
consistently rejected those petitions.

FCC Rebuffs

The most recent rebuff came in a 2012
study mandated by Congress, directing the FCC to consider the role ham
operators play in the nation's emergency communications network and the
effects of unreasonable or unnecessary

private land use restrictions on residential antenna installations.
The ARRL got the endorsement it
sought that ham radio operators can be
helpful in emergencies, but the FCC
again rejected the group's argument
that community association covenants
restricting ham radio equipment represent a problem the agency should
address.
When the FCC decided to partly
preempt local zoning ordinances, the
study notes, the agency specifically
excluded association covenants from
that policy, concluding that unlike local
zoning ordinances, the covenants, conditions, and restrictions in homeowner
association bylaws "are voluntarily entered into by the buyer or tenant when
the agreement is executed and do not
usually concern the Commission."
The FCC found no evidence in 1985
that condominium covenants prohibited ham operators from pursuing their
hobby, and the 2012 study reached the
same conclusion, stating: "At this time,
we do not see a compelling reason for
the Commission to revisit its previous
determinations that preemption should
not be expanded to CC&Rs."
A recent CAI survey confirmed the
FCC's finding that few ham operators
are impeded by HOA restrictions. Of
the approximately 1,000 associations
responding to that survey, Bauman reports, more than 90 percent either had
regulations permitting the installation
of antennas and towers or had no restrictions at all governing them. Fewer
than 10 percent prohibited the installations outright. The pending legislation,
she contends, "targets a problem that
doesn't exist."
The ARRL points out that the FCC
has limited the ability of HOAs to regulate the installation of telecommunications equipment and should limit the
regulation of ham radio equipment in
the same way and for the same reason
- to protect essential communications.

No Federal Interest

But the two issues aren't comparable, Bauman responds. The FCC's

OTARD Rules (prohibiting associations from banning telecommunications equipment but allowing them to
reasonably regulate the location and
size) reflected a legitimate government interest in ensuring that every
household has access to the emergency information and news broadcast
over cable and satellite systems and
ensuring that these systems aren't
overpriced. Ham radio operations are
"a hobby," not a necessity, Bauman
notes, and there is no national interest
in protecting a hobby.
CAI doesn't dispute ARRL's contention that ham radio operators can
play a critical role in local emergency
response efforts.
"We saw that after 911," Bauman notes, "and we've seen it in the
aftermath of major storms." But those
amateur communications "are effective and have been effective under
current laws and requirements," she
argues, with no evidence that association regulations have created a serious
obstacle to them.
The ARRL estimates there are
approximately 700,000 ham radio
operators in the country, but there
are 65 million residents of community
associations who would be affected by
legislation limiting their ability to govern their communities, Bauman points
out. If ham operators think they are
impeded by the rules in a condominium community, she says, "they should
talk to their neighbors" about changing the rules.
"This is not a federal issue," she
emphasizes. And it goes beyond the
pending legislation dealing with ham
radio equipment.
If ham radio operators can carve out
special treatment for themselves, Bauman cautions, then any special interest
group could insist on being exempt
from rules they don't like. These
carve-outs threaten the "neighborsgoverning-neighbors" structure on
which common interest ownership
communities are based, Bauman says.
"The existing model works, and we
want to maintain it." CM
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