PRB-1
Attention Amateur Radio Operators, Affiliated and Special Service Clubs:
Memorandum Opinion and Order in PRB-1

Before the 
Federal Communications Commission               FCC 85-506 
Washington, DC  20554                           36149

In the Matter of                         
                                            
Federal preemption of state and                 PRB-1 
local regulations pertaining                
to Amateur radio facilities.              

MEMORANDUM OPINION AND ORDER

Adopted: September 16, 1985                ;Released: September 19, 1985

By the Commission:  Commissioner Rivera not participating.

Background

    1. On July 16, 1984, the American Radio Relay League, Inc 
(ARRL) filed a Request for Issuance of a Declaratory Ruling 
asking us to delineate the limitations of local zoning and other 
local and state regulatory authority over Federally-licensed 
radio facilities.  Specifically, the ARRL wanted an explicit 
statement that would preempt all local ordinances which provably 
preclude or significantly inhibit effective reliable amateur 
radio communications.  The ARRL acknowledges that local 
authorities can regulate amateur installations to insure the 
safety and health of persons in the community, but believes that 
those regulations cannot be so restrictive that they preclude 
effective amateur communications.
    2. Interested parties were advised that they could file 
comments in the matter.\fn 1/  With extension, comments were due 
on or before December 26, 1984,\fn 2/ with reply comments due on 
or before January 25, 1985 \fn 3/ Over sixteen hundred comments 
were filed.

Local Ordinances

    3. Conflicts between amateur operators regarding radio 
antennas and local authorities regarding restrictive ordinances 
are common.  The amateur operator is governed by the regulations 
contained in Part 97 of our rules.  Those rules do not limit the 
height of an amateur antenna but they require, for aviation 
safety reasons, that certain FAA notification and FCC approval 
procedures must be followed for antennas which exceed 200 feet in 
height above ground level or antennas which are to be erected 
near airports.  Thus, under FCC rules some antenna support 
structures require obstruction marking and lighting.  On the 
other hand, local municipalities or governing bodies frequently 
enact regulations limiting antennas and their support structures 
in height and location, e.g. to side or rear yards, for health, 
safety or aesthetic considerations.  These limiting regulations 
can result in conflict because the effectiveness of the 
communications that emanate from an amateur radio station are 
directly dependent upon the location and the height of the 
antenna.  Amateur operators maintain that they are precluded from 
operating in certain bands allocated for their use if the height 
of their antennas is limited by a local ordinance.
    4. Examples of restrictive local ordinances were submitted by 
several amateur operators in this proceeding.  Stanley J. Cichy, 
San Diego, California, noted that in San Diego amateur radio 
antennas come under a structures ruling which limits building 
heights to 30 feet.  Thus, antennas there are also limited to 30 
feet.  Alexander Vrenios, Mundelein, Illinois wrote that an 
ordinance or the Village of Mundelein provides that an antenna 
must be a distance from the property line that is equal to one 
and one-half times its height.  In his case, he is limited to an 
antenna tower for his amateur station just over 53 feet in 
height.
    5. John C. Chapman, an amateur living in Bloomington, 
Minnesota, commented that he was not able to obtain a building 
permit to install an amateur radio antenna exceeding 35 feet in 
height because the Bloomington city ordinance restricted 
"structures" heights to 35 feet.  Mr. Chapman said that the 
ordinance, when written, undoubtedly applied to buildings but was 
now being applied to antennas in the absence of a specific 
ordinance regulating them.  There were two options open to him if 
he wanted to engage in amateur communications.  He could request 
a variance to the ordinance by way of hearing before the City 
Council, or he could obtain affidavits from his neighbors 
swearing that they had no objection to the proposed antenna 
installation.  He got the building permit after obtaining the 
cooperation of his neighbors.  His concern, however, is that he 
had to get permission from several people before he could 
effectively engage radio communications for which he had a valid 
FCC amateur license.
    6. In addition to height restrictions, other limits are 
enacted by local jurisdictions--anti-climb devices on towers or 
fences around them; minimum distances from high voltage power 
lines; minimum distances of towers from property lines; and 
regulations pertaining to the structural soundness of the antenna 
installation.  By and large, amateurs do not find these safety 
precautions objectionable.  What they do object to are the 
sometimes prohibitive, non-refundable application filing fees to 
obtain a permit to erect an antenna installation and those 
provisions in ordinances which regulate antennas for purely 
aesthetic reasons.  The amateurs contend, almost universally, 
that "beauty is in the eye of the beholder."  They assert that an 
antenna installation is not more aesthetically displeasing than 
other objects that people keep on their property, e.g. motor 
homes, trailers, pick-up trucks, solar collectors and gardening 
equipment.

Restrictive Covenants

    7. Amateur operators also oppose restrictions on their 
amateur operations which are contained in the deeds for their 
homes or in their apartment leases.  Since these restrictive 
covenants are contractual agreements between private parties, 
they are not generally a matter of concern to the Commission.  
However, since some amateurs who commented in this proceeding 
provided us with examples of restrictive covenants, they are 
included for information Mr. Eugene O. Thomas of Hollister, 
California included in his comments an extract of the Declaration 
of Covenants and Restrictions for Ridgemark Estates, County of 
San Benito, State of California.  It provides:

    No antenna for transmission or reception of radio signals 
    shall be erected outdoors for use by any dwelling unit except 
    upon approval of the Directors.  No radio or television 
    signals or any other form of electromagnetic radiation shall 
    be permitted to originate from any lot which may unreasonably 
    interfere with the reception of television or radio signals 
    upon any other lot.

Marshall Wilson, Jr. provided a copy of the restrictive covenant 
contained in deeds for the Bell Martin Addition #2, Irving, 
Texas.  It is binding upon all of the owners or purchasers of the 
lots in the said addition, his or their heirs, executors, 
administrators or assigns.  It reads:

    No antenna or tower shall be erected upon any lot for the 
    purposes of radio operations.

William J. Hamilton resides in an apartment building in 
Gladstone, Missouri.  He cites a clause in his lease prohibiting 
the erection of an antenna.  He states that he has been forced to 
give up operation amateur radio equipment except a hand-held 2 
meter (144-148 MHz) radio transceiver.  He maintains that he 
should not be penalized just because he lives in an apartment.
    Other restrictive covenants are less global in scope than 
those cited above.  For example, Robert Webb purchased a home in 
Houston, Texas.  His deed restriction prohibited "transmitting or 
receiving antennas extending above the roof line."
    8. Amateur operators generally oppose restrictive covenants 
for several reasons.  They maintain that such restrictions limit 
the places that they can reside if they want to pursue their 
hobby of amateur radio.  Some state that they impinge on First 
Amendment rights of speech.  Others believe that a constitutional 
right is being abridged because, in their view, everyone has a 
right to access the airwaves regardless of where they live.
    9. The contrary belief held by housing subdivision 
communities and condominium or homeowner's associations is that 
amateur radio installations constitute safety hazards, cause 
interference to other electronic equipment which may be operated 
in the home (television, radio, stereos) or are eyesores that 
detract from the aesthetic and tasteful appearance of the housing 
development or apartment complex.  To counteract these negative 
consequences, the subdivisions and associations include in their 
deeds, leases or by-laws, restrictions and limitations on the 
location and height of antennas or, in some cases, prohibit them 
altogether.  The restrictive covenants are contained in the 
contractual agreement entered into at the time of the sale or 
lease of the property.  Purchasers or lessees are free to choose 
whether they wish to reside where such restrictions on amateur 
antennas are in effect or settle elsewhere.

Supporting Comments

    10. The Department of Defense (DOD) supported the ARRL and 
emphasized in its comments that continued success of existing 
national security and emergency preparedness telecommunications 
plans involving amateur stations would be severely diminished if 
state and local ordinances were allowed to prohibit the 
construction and usage of effective amateur transmission 
facilities.  DOD utilizes volunteers in the Military Affiliate 
Radio Service (MARS), \fn 4/ Civil Air Patrol (CAP) and the Radio 
Amateur Civil Emergency Service (RACES).  It points out that 
these volunteer communicators are operating radio equipment 
installed in their homes and that undue restrictions on antennas 
by local authorities adversely affect their efforts.  DOD states 
that the responsiveness of these volunteer systems would be 
impaired if local ordinances interfere with the effectiveness of 
these important national telecommunication resources.  DOD favors 
the issuance of a ruling that would set limits for local and 
state regulatory bodies when they are dealing with amateur 
stations.
    11. Various chapters of the American Red Cross also came 
forward to support the ARRL's request for a preemptive ruling.  
The Red Cross works closely with amateur radio volunteers.  It 
believes that without amateurs' dedicated support, disaster 
relief operations would significantly suffer and that its ability 
to serve disaster victims would be hampered.  It feels that 
antenna height limitations that might be imposed by local bodies 
will negatively affect the service now rendered by the 
volunteers.
    12. Cities and counties from various parts of the United 
States filed comments in support of the ARRL's request for a 
Federal preemption ruling.  The comments from the Director of 
Civil Defense, Port Arthur, Texas are representative:

    The Amateur Radio Service plays a vital role with our Civil 
    Defense program here in Port Arthur and the design of these 
    antennas and towers lends greatly to our ability to 
    communicate during times of disaster.  We do not believe 
    there should be any restrictions on the antennas and towers 
    except for reasonable safety precautions.  Tropical storms, 
    hurricanes and tornadoes are a way of life here on the Texas 
    Gulf Coast and good communications are absolutely essential 
    when preparing for a hurricane and even more so during 
    recovery operations after the hurricane has past.

    13. The Quarter Century Wireless Association took a strong 
stand in favor of the Issuance of a declaratory ruling.  It 
believes that Federal preemption is necessary so that there will 
be uniformity for all Amateur Radio installations on private 
property throughout the United States.
    14. In its comments, the ARRL argued that the Commission has 
the jurisdiction to preempt certain local land use regulations 
which frustrate or prohibit amateur radio communications.  It 
said that the appropriate standard in preemption cases is not the 
extent of state and local interest in a given regulation, but 
rather the impact of the regulation on Federal goals.  Its 
position is that Federal preemption is warranted whenever local 
government regulations relate adversely to the operational 
aspects of amateur communication.  The ARRL maintains that 
localities routinely employ a variety of land use devices to 
preclude the installation of effective amateur antennas, 
including height restrictions, conditional use permits, building 
setbacks and dimensional limitations on antennas.  It sees a 
declaratory ruling of Federal preemption as necessary to cause 
municipalities to accommodate amateur operator needs in land use 
planning efforts.
    15. James C. O'Connell, an attorney who has represented 
several amateurs before local zoning authorities, said that 
requiring amateurs to seek variances or special use approval to 
erect reasonable antennas unduly restricts the operation of 
amateur stations.  He suggested that the Commission preempt 
zoning ordinances which impose antenna height limits of less than 
65 feet.  He said that this height would represent a reasonable 
accommodation of the communication needs of most amateurs and the 
legitimate concerns of local zoning authorities.

Opposing Comments

    16. The City of La Mesa, California has a zoning regulation 
which controls amateur antennas.  Its comments reflected an 
attempt to reach a balanced view.

This regulation has neither the intent, nor the effect, of 
precluding or inhibiting effective and reliable communications.  
Such antennas may be built as long as their construction does not 
unreasonably block views or constitute eyesores.  The reasonable 
assumption is that there are always alternatives at a given site 
for different placement, and/or methods for aesthetic treatment.  
Thus, both public objectives of controlling land use for the 
public health, safety, and convenience, and providing an 
effective communications network, can be satisfied.  A blanket to 
completely set aside local control, or a ruling which recognizes 
control only for the purpose of safety of antenna construction, 
would be contrary to...legitimate local control.

    17. Comments from the County of San Diego state:

While we are aware of the benefits provided by amateur operators, 
we oppose the issuance of a preemption ruling which would elevate 
`antenna effectiveness' to a position above all other 
considerations.  We must, however, argue that the local 
government must have the ability to place reasonable limitations 
upon the placement and configuration of amateur radio 
transmitting and receiving antennas.  Such ability is necessary 
to assure that the local decision-makers have the authority to 
protect the public health, safety and welfare of all citizens.
    In conclusion, I would like to emphasize an important 
difference between your regulatory powers and that of local 
governments.  Your Commission's approval of the preemptive 
requests would establish a "national policy."  However, any 
regulation adopted by a local jurisdiction could be overturned by 
your Commission or a court if such regulation was determined to 
be unreasonable.

    18. The City of Anderson, Indiana, summarized some of the 
problems that face local communities:

I am sympathetic to the concerns of these antenna owners and I 
understand that to gain the maximum reception from their devices, 
optimal location is necessary.  However, the preservation of 
residential zoning districts as "liveable" neighborhoods is 
jeopardized by placing these antennas in front yards of homes.  
Major problems of public safety have been encountered, 
particularly vision blockage for auto and pedestrian access.  In 
addition, all communities are faced with various building lot 
sizes.  Many building lots are so small that established setback 
requirements (in order to preserve adequate air and light) are 
vulnerable to the unregulated placement of antennas.
    ...the exercise of preemptive authority by the FCC in 
granting this request would not be in the best interest of the 
general public.

    19. The National Association of Counties (NACO), the American 
Planning Association (APA) and the National League of Cities 
(NCL) all opposed the issuance of an antenna preemption ruling.  
NACO emphasized that federal and state power must be viewed in 
harmony and warns that Federal intrusion into local concerns of 
health, safety and welfare could weaken the traditional police 
power exercised by the state and unduly interfere with the 
legitimate activities of the states.  NLC believed that both 
Federal and local interests can be accommodated without 
preempting local authority to regulate the installation of 
amateur radio antennas.  The APA said that the FCC should 
continue to leave the issue of regulating amateur antennas with 
the local government and with the state and Federal courts.

Discussion

    20. When considering preemption, we must begin with two 
constitutional provisions.  The tenth amendment provides that any 
powers which the constitution either does not delegate to the 
United States or does not prohibit the states from exercising are 
reserved to the states.  These are the police powers of the 
states.  The Supremacy Clause, however, provides that the 
constitution and the laws of the United States shall supersede 
any state law to the contrary.  Article III, Section 2.  Given 
these basic premises, state laws may be preempted in three ways: 
First, Congress may expressly preempt the state law.  See Jones 
v. Rath Packing Co., 430 U.S. 519, 525 (1977).  Or, Congress may 
indicate its intent to completely occupy a given field so that 
any state law encompassed within that field would implicitly be 
preempted.  Such intent to preempt could be found in a 
congressional regulatory scheme that was so pervasive that it 
would be reasonable to assume that Congress did not intend to 
permit the states to supplement it.  See Fidelity Federal Savings 
& Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982).  Finally, 
preemption may be warranted when state law conflicts with federal 
law.  Such conflicts may occur when "compliance with both Federal 
and state regulations is a physical impossibility," Florida Lime 
& Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 143 (1963), 
or when state law "stands as an obstacle to the accomplishment 
and execution of the full purposes and objectives of Congress," 
Hines v. Davidowitz, 312 U.S. 52, 67 (1941).  Furthermore, 
federal regulations have the same preemptive effect as federal 
statues, Fidelity Federal Savings & Loan Association v. de la 
Cuesta, supra.
    21. The situation before us requires us to determine the 
extent to which state and local zoning regulations may conflict 
with federal policies concerning amateur radio operators.
    22. Few matters coming before us present such a clear 
dichotomy of view point as does the instant issue.  The cities, 
countries, local communities and housing associations see an 
obligation to all of their citizens and try to address their 
concerns.  This is accomplished through regulations, ordinances 
or covenants oriented toward the health, safety and general 
welfare of those they regulate.  At the opposite pole are the 
individual amateur operators and their support groups who are 
troubled by local regulations which may inhibit the use of 
amateur stations or, in some instances, totally preclude amateur 
communications.  Aligned with the operators are such entities as 
the Department of Defense, the American Red Cross and local civil 
defense and emergency organizations who have found in Amateur 
Radio a pool of skilled radio operators and a readily available 
backup network.  In this situation, we believe it is appropriate 
to strike a balance between the federal interest in promoting 
amateur operations and the legitimate interests of local 
governments in regulating local zoning matters.  The cornerstone 
on which we will predicate our decision is that a reasonable 
accommodation may be made between the two sides.
    23. Preemption is primarily a function of the extent of the 
conflict between federal and state and local regulation.  Thus, 
in considering whether our regulations or policies can tolerate a 
state regulation, we may consider such factors as the severity of 
the conflict and the reasons underlying the state's regulations.  
In this regard, we have previously recognized the legitimate and 
important state interests reflected in local zoning regulations.  
For example, in Earth Satellite Communications, Inc., 95 FCC 2d 
1223 (1983), we recognized that

    ...countervailing state interests inhere in the present 
situation...For example, we do not wish to preclude a state or 
locality from exercising jurisdiction over certain elements of an 
SMATV operation that properly may fall within its authority, such 
as zoning or public safety and health, provided the regulation in 
question is not undertaken as a pretext for the actual purpose of 
frustrating achievement of the preeminent federal objective and 
so long as the non-federal regulation is applied in a 
nondiscriminatory manner.

    24. Similarly, we recognize here that there are certain 
general state and local interests which may, in their even-handed 
application, legitimately affect amateur radio facilities.  
Nonetheless, there is also a strong federal interest in promoting 
amateur communications.  Evidence of this interest may be found 
in the comprehensive set of rules that the Commission has adopted 
to regulate the amateur service. \fn 5/  Those rules set forth 
procedures for the licensing of stations and operators, frequency 
allocations, technical standards which amateur radio equipment 
must meet and operating practices which amateur operators must 
follow.  We recognize the amateur radio service as a voluntary, 
noncommercial communication service, particularly with respect to 
providing emergency communications.  Moreover, the amateur radio 
service provides a reservoir of trained operators, technicians 
and electronic experts who can be called on in times of national 
or local emergencies.  By its nature, the Amateur Radio Service 
also provides the opportunity for individual operators to further 
international goodwill.  Upon weighing these interests, we 
believe a limited preemption policy is warranted.  State and 
local regulations that operate to preclude amateur communications 
in their communities are in direct conflict with federal 
objectives and must be preempted.
    25. Because amateur station communications are only as 
effective as the antennas employed, antenna height restrictions 
directly affect the effectiveness of amateur communications.  
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.  For example, an antenna array for international amateur 
communications will differ from an antenna used to contact other 
amateur operators at shorter distances.  We will not, however, 
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. \fn 6/
    26. Obviously, we do not have the staff or financial 
resources to review all state and local laws that affect amateur 
operations.  We are confident, however, that state and local 
governments will endeavor to legislate in a manner that affords 
appropriate recognition to the important federal interest at 
stake here and thereby avoid unnecessary conflicts with federal 
policy, as well as time-consuming and expensive litigation in 
this area.  Amateur operators who believe that local or state 
governments have been overreaching and thereby have precluded 
accomplishment of their legitimate communications goals, may, in 
addition, use this document to bring our policies to the 
attention of local tribunals and forums.
    27. Accordingly, the Request for Declaratory Ruling filed 
July 16, 1984, by the American Radio Relay League, Inc., IS 
GRANTED to the extent indicated herein and in all other respects, 
IS DENIED.
                                  FEDERAL COMMUNICATIONS COMMISSION
                                  William J. Tricarico
                                  Secretary

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