I. AMATEUR RADIO PROFILE A. WHAT IS AMATEUR RADIO ? The Amateur Radio Service was authorized by the Federal Communications Commission(FCC) several decades ago, following the decision that regulation of radio communications was the responsibility of the Federal Government (Communications Act of 1934). As contained in FCC Rules and Regulations Part 97, the Amateur Radio Service was formed because of its unique ability to foster international goodwill and at the same time provide a valuable emergency communications system during times of disaster and other situations. The Amateur Radio Service is strictly a non-commercial service: There may be no business conducted over the system, and no payment for services may be accepted. Traditionally a proving ground for technological advancement, the Service is today carried out under strict regulation and licensing by the FCC. A stringent series of exams must be passed before one becomes licensed to transmit "ham radio" signals. Licenses today are divided by class: Novice, Technician, General, Advanced, and Extra. The Service today is working to develop even further communications techniques in the following areas: - Dependable worldwide communication. - FM, Single Sideband, Spread-Spectrum and other voice technologies. - Audioteletype and computer communications using teletype, ASCII, AMTOR, Packet(AX.25) and other sophisticated modes of transmission. - Satellite communications using over a dozen U.S. amateur-owned satellites and a like number of Soviet and other satellites to transmit and receive signals around the world, including communicating directly with several astronauts aboard the Space Shuttle. - Bouncing radio signals back from the moon. - Amateur television signals sent around the world. - Microwave and other similar technologies. - Extensive atmospheric and propagation experiments. - Reliable mobile and handheld communications through complex repeater systems with computerized control programs. These are only a few examples of the current technology in Amateur Radio. Important to note is that all these forms of communication are readily put to use in our communities to be of help. A few examples: - March 27, 1964: Alaska is struck by a monstrous earthquake. Normal communications lines are cut. Amateur Radio operators help coordinate rescue operations. - May 15, 1980: Mt. St. Helens erupts spread- ing damage over hundreds of miles. Hams who had been watching the mountain for the govern- ment services first spread the warning: one was killed in doing so. - September, 1981: Hurricanes Allen and David sweep through the Caribbean, heading for the U.S. Coast. First damage reports from battered islands come via ham radio, often a day or more before normal communications are restored. - September 29, 1985: A devastating earthquake strikes Mexico, leveling much of Mexico City and bringing death and destruction to the attention of the world. Amateur Radio became the only source of contact with the country for several days. Local hams quickly and efficiently conducted emergency communication in and between the various centers of activity. Thousands of "Health and Welfare" inquiries were handled by amateur operators for weeks following. - October 17, 1989: The 3rd largest earthquake in the continental U.S. this century struck San Francisco. Numerous buildings collapsed along with freeways and bridges. Amateurs were there immediately providing emergency communications. - January 17, 1994: An earthquake measuring 6.6 on the Richter Scale hits Los Angeles, the larg- est in the city's modern history. Two entire telephone area code blocks were knocked out. Amateur radio operators formed a network from around the U.S., and the world, to provide des- perately needed health and welfare traffic to frantic loved ones. Emergency communication is taken in stride by Amateur Radio operators who stand ready to be the only communications link into a stricken area. Hams provide tactical field assistance and provide health and welfare inquiries from the general public. B. WHO ARE RADIO AMATEURS ? Radio amateurs are progressive, technically proficient people of all walks of life. The brotherhood of Amateur Radio is worldwide, with representatives from every nation on earth and from all cultures, beliefs, colors and economic strata. "Hams" range in age from 8 to well over 80. Many handicapped people find a door to the world in Amateur Radio. Many famous people are amateur radio operators - Senators, Kings, and Astronauts. But more often that not, hams are just plain folks who like making friends around the world. This bond of communication can overcome political propaganda and repression. In fact, it is this ability to create and foster international goodwill which is one of the primary justifica- tions for establishing the Service. The Amateur Radio operator has proven skills. It is one of the few hobby pursuits which requires licensed proficiency in the form of successfully completed FCC exams, prior to engaging in radio activities. The training and skills of Amateur Radio operators make them a national resource in times of need - they may be called on by any of our governmental agencies to help in a communications emergency. But closer to home, hams don't wait for emergencies to get involved in their communities. Many individual hams and local Amateur Radio clubs work on a regular basis with a variety of community organizations. As a group, ham operators are willing to become a vital part of their community as "good citizens." II. BENEFITS TO THE COMMUNITY A. WHAT VALUE IS AMATEUR RADIO ? This widespread, technical hobby is far more than a series of radio experiments for kids carried out by a "special interest group." This Service is used on a daily basis for the safety and good of the citizens of Omaha. The Amateur Radio Service under FCC direction is a valuable adjunct to this area's safety and emergency forces. The most critical communication is that involving the pro- tection of life and property. It can range from rescue of a floundering ship at sea to medical attention for a South American girl, to communications from a major disaster site within the United States. It is a daily occurrence within Omaha: - Through computer-controlled telephone links which directly access Police, Fire and other safety departments, Ham Radio operators can call directly from the scene of an emergency. Amateur operators routinely report specific and accurate locations and assessments of emer- gencies. This accuracy helps make certain that the expensive safety division response is necessary, helping to prevent false alarms. - On a wider scale, the best example of direct protection of life and property is the Amateur Radio Emergency Service operating under the general direction of the National Weather Service, this activity responds instantly to the presence or threat of severe weather. Amateur Radio operators are requested to re- port to the National Weather Service office at Valley, Nebraska to monitor the progress of storms as they enter the area and receive reports from highly trained "ham" operators who act as spotters within a wide coverage area of eastern Nebraska and western Iowa. In actual practice, these spotters provide an early warning for severe weather and are able to diffuse misguided reports from the public to avoid false alarms and needless tornado sirens. - Amateur radio operators routinely provide disaster and emergency-related communications for the Disaster Services Division of the Red Cross, which maintains a well-equipped Amateur Radio station at its headquarters. In train- ing for this type of service, an organization called Amateur Radio Emergency Services oper- ates with the First Aid Corps of the Red Cross. - Emergency communications for the Disaster Ser- vices Agency is provided by a network of amat- eurs, on the local, state, and national levels. Operations centers support active amateur radio stations, manned by volunteers during tornados, blizzards, and other emergencies. - Emergency coordination may be provided for mun- icipalities within the area including fire dep- artments, police and command posts if their own communications capabilities become overloaded. These are just a few examples of what types of critical ser- vices have been provided to Omaha over the years by Amateur Radio operators without cost or obligation. Many of these events would otherwise overburden governmental service. The availability of Amateur Radio helps to reduce the government's financial and manpower requirements to coordinate these events and protect those participating and watching them. In addition to providing a direct and tangible service, Amateur Radio offers Omaha a more intangible benefit as well. Through individual contacts around the country and the world, our ability to present the Omaha metropolitan area with its technical advancement, thriving economy and secure resident- ial outlook serves to enhance our community's reputation. This area's high level of technical industries can be linked to Amateur Radio, because the innovators in industry are the Amateur Radio hobbyists who take their interests in elec- tronics, computers, and communications home with them. Quite obvious is the benefit of attracting this type of resident. III. REGULATIONS A. WHO REGULATES AMATEUR RADIO ? On a worldwide level, radio coordination is provided IARU, an organization consisting of representation from every nation. This organization meets at specified times and is the chief body to decide which frequencies are devoted to what service around the globe. It is important that these be coordinated in light of the increased use of the radio spectrum. From the beginning days of experimentation in radio (begun by Amateur Radio operators) it became apparent that there should be some regulation of the use of available radio spectrum. Within this nation the landmark decision of which governmental body would become primarily responsible for this regulation was the Communications Act of 1934, in which Congress assumed the responsibility on behalf of the Federal Government. From this act and the development of the Federal Communications Commission have come the rules and regula- tions. The FCC has authority to determine this nation's allocations of those limited radio spectrum segments. This agency de- termines where broadcast stations, public communication systems, and any type of communication system using radio broadcasting shall be assigned. With recent attention be- ing paid to the use of the radio spectrum, it is worthy to note that between 1983 and 1986, Amateur Radio (while still being considered a technical hobby) was granted three add- tional frequency ranges in which to operate. This reinforces the importance placed on Amateur Radio by the Federal Gov- ernment. Most recently, debate has intensified on who should be al- lowed to operate on which frequencies. There are so many different radio systems today, that the limited frequency spectrum is being stressed and overpopulated. Amateur Radio, typically, is the forefront of some highly technical methods of making more efficient use of the spectrum. Where a few years ago local communications were primarily handled through sophisticated "repeater" stations which rebroadcast signals through their own high power and excellent antennas, today's developments dictate a return to individual operation in digital formats. While it is more effective for the spec- trum, the result is an increased need for individual antennas which are as high as practicable above interfering terrain to maintain communication. B. WHAT IS PRB-1 ? Considering the many varied aspects present in the question of controlling antennas in our area is a complex task. There are obviously valid considerations on all sides, and these do not appear at times to be in concert with each other. The Federal Communications Commission, however, has recently taken action that provides considerable guidance which must be followed in the local zoning process. (FCC 85-5061) 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 exerc- ising 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 pre- empted in three ways: First, Congress may ex- pressly 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 encom- passed within that field would implicitly be pre- empted. Such intent to preempt could be found in a congressional regulatory scheme that was so per- vasive 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 & Avaccado 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 statutes, Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, supra. 21. The situation before us requires us to determine the extent to which state and local zon- ing regulations may conflict with federal policies concerning amateur radio operators. 22. Few matters coming before us present such a clear dichotomy of viewpoint as does the instant issue. The cities, counties, local com- munities and housing associations see an obligation to all of their citizens and try to address their concerns. This is accomplished through regula- tions, ordinances, or covenants oriented toward the health, safety, and general welfare of those they regulate. At the opposite pole are the in- dividual 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 reg- ulating local zoning matters. The cornerstone on which we will predicate our decision is that a reasonable accommodation may be made between the two sides. As the Federal Communications Commission repeated its authority in these matters, it also clearly established its interest in promoting Amateur Radio, along with constitutionally- provided rights of individuals to participate in any form of communications. This interest is similarly expressed in the FCC Docket 85-87 when dealing with the rights of individuals to have access to and receive satellite signals. (FCC 85-5061) 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 promot- ing 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. Those rules set forth pro- cedures 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 communication are only as effective as the antennas employed, antenna height restrictions directly affect the effective- ness of amateur communications. Some amateur ant- enna configurations require more substantial in- stallations than others if they are to provide the amateur operator with the communications that he or she desires to engage in. For example, an antenna array for international amateur communications will differ from an antenna used to contact other ama- teur 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 reg- ulations which involve placement, screening, or height of antennas based on health, safety, or aes- thetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose. We are not ignoring the FCC's support in this discussion of the legitimate concerns of local zoning officials. Indeed, the FCC does affirm that there are valid considerations particularly in the interest of the health and safety, and in some instances even aesthetics, which do constitute grounds for local zoning control. The concern, however, is clearly stated that these controls, as ordered in this doc- ument, must be the minimum practicable regulation. (FCC 85-5061) 26. Obviously, we do not have the staff or financial resources to review all state and local laws that affect amateur operations. We are con- fident, 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 unneces- sary 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 comm- unication goals may, in addition, use this document to bring our policies to the attention of local tribunals and forums. The general tone of PRB-1 is a clear statement to local government zoning bodies that they do have limited authority when it comes to regulating antenna structures. There is still the question, however, just what constitutes proper regulation. The document itself lends some guidance by in- cluding in its discussion examples of "restrictive legisla- tion" submitted during public comment. There were 1600 com- ments addressed to the FCC concerning this issue. It is significant, then, that the writers of the document chose several examples to include in their discussion. They serve both to justify the action itself, and to point out the type of activity on the local zoning level which is "restrictive" --thus, unreasonable. It is worthy of note that several of the examples are very similar to present zoning ordinances - suggesting that they, too, fall within the "restrictive" category. 1. The consideration of antennas with the same criteria as a building or structure. (usually limiting the height to that of a building or structure.) 2. Establishing a distance from the property line as a height limitation. 3. The assumption that because there was not a specific ordinance regulating antennas, that they did fall within ordinances regulating all structures. 4. Prohibitively expensive application fees. 5. Regulation strictly on the grounds of "aesthetics." This very strong statement reminding local government that radio is under the control of the FCC is being upheld in the courts. For example, in the case of (Salmon v. City of lake- wood, Colorado) Judge Ruthanne Polidori demanded that an am- ateur operator be permitted to use his stations' 65-foot tower. The matter was remanded to the city for relief. Lakewood had taken the position that a tower was the same as a building with a roof, walls or columns, and had limited towers to a 35-foot height. C. WHAT ARE THE COURTS RULING ? Following the release of PRB-1, a series of court cases have uniformly held that the preemption order PRB-1 was a proper exercise of the FCC's authority. In fact, courts are ruling in favor of antenna heights from 65-feet to 85-feet. 1. The first of these cases is Thernes v. City of Lakeside Park, Kentucky, et al., 779 F. 2d 1187, 59 Pike and Fischer Radio Regulation 2nd Series 1306 (6th Circuit, 1986); on remand, 62 Pike and Fischer Radio Regulation 2nd Series 284 (E.D. Kentucky,1986). In that case, an amateur was denied a building permit for an antenna support structure and associated antenna, although the city agreed to the continuation of a temporary 20 foot high wire antenna, which was clearly inadequate. The amateur had proposed a 73-foot support structure. The District Court (E.D. KY) found, (prior to the issuance of PRB-1), no ap- parrent federal preemption of local regulation of amateur radio antennas. Pending appeal in the Sixth Circuit, however, the FCC issued PRB-1. Upon consideration by the Sixth Circuit Court of Appeals of the FCC's PRB-1 the action by the city was declared unlawful, and the case was re- manded to the District Court for action consis- tent with the FCC's order. On remand, the Dis- trict Court ruled that: ...the defendants shall allow the plaintiff to erect, maintain and use an amateur radio antenna system (at 73 feet as proposed)... unaffected by any present or future ordin- ances of the city to the contrary, and shall issue to plaintiff all permits therefore. 2. Following Thernes, in Bodony v. Incorporated Village of Sands Point, et al., 681 F. Supp. 1009, 64 Pike and Fischer Radio Regulations 2nd Series 307 (E.D. NY, 1987), the United States District Court for the Eastern District of New York invalidated a 25-foot height limitation in a municipal ordinance, which interfered with the amateur's "right to the full use of his amateur extra class license and the license to use his property as an amateur radio station issued by the FCC. The Court based its ruling on Amateur Radio Preemption, and permitted an antenna 85-feet in height. There have been no cases declaring Amateur Radio Preemption, supra an unlawful exercise of FCC authority, or which even questioned the application of the ruling to limit municipal regulation of individual amateur radio stations through police power zoning authority. Those most recent cases on the sub- ject uniformly have held that local restrictions on amateur antennas that constitute effective prohibitions on communica- tions, and which involve fixed maximum height limitations are facially void as preempted. See, Evans v. Board of Commis- sioners, 752 F. Supp. 973, (D. Colo. 1990); MacMillan v. City of Rocky River, 748 F. Supp. 1241 (N.D. Ohio, 1990). The Eight Circuit United States Court of Appeals has tracked the history of cases and provided a reasonable interpretation of the FCC's preemption policy for amateur radio antennas in Pentel v. City of Mendota Heights, 13 F. 3d 1261 (8th Cir., 1994), in a case in which an amateur who had two small, in- effective amateur antennas was denied authority to install a proposed 68-foot antenna in her yard. The Court, in revers- ing a District Court summary judgement to the City, held, in part, as follows: Courts applying PRB-1 have discerned two means by which PRB-1 may preempt a local ordinance. First, the local regulation may be preempted on its face. The city's zoning ordinance does not conflict on its face with PRB-1 because it neither bans nor imposes an unvarying height restriction on amateur radio antennas. (citations omitted). Second, PRB-1 also preempts a zoning ordinance that a city has not applied in a manner that reasonably accom- modates amateur communications. (citations omitted). The FCC refused to specify a height below which local governments could not regulate, and instead declared that "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 auth- ority's legitimate purpose." PRB-1, para. 25. It is apparent that the essence of the FCC's preemptive intent as expressed in PRB-1 was to insure at least a basic guarantee that each amateur radio operator could install functional an- tennas at the licensee's residence. This was made clear in September of 1989, when the FCC revised its amateur radio rules to codify the essential holding of Amateur Radio Pre- emption, as follows: (e) Except as otherwise provided herein, a station an- tenna structure may be erected at heights and dimensions sufficient to accommodate amateur service communications. (state and local regulation of a station antenna struc- ture must not preclude amateur service communications. Rather, it must reasonably accommodate such communica- tions and must constitute the minimum practicable reg- ulation to accomplish the state or local authority's legitimate purpose. See, PRB-1, 101 FCC 2d 952 (1985) for details.) Nothing in this codification would exclude ordinances with fixed maximum height limitations from its protection for amateur radio licensees. D. WHAT OTHER REGULATIONS APPLY ? Federal interests and regulations apply to other considerations of operating an Amateur Radio station as well. One concern voiced by several local zoning boards has been the potential for interference with other lawful communications devices-- such as television and radio receivers in neighboring homes. While an understandable concern, interference is a matter to be left strictly to the FCC. Congress has, twice, in the Report of the Joint Committee of Conference, stated that only the FCC will have jurisdiction over radio frequency inter- ference (RFI). The Congress stated: Moreover, by virtue of this section, the Conferees wish to clarify that the exclusive jurisdiction over RFI (Radio Frequency Interference) incidents (including preemption of state and local regulation of such phenomena) lies with the FCC. H.R. Report No. 765, 97th Cong., 2nd Sess., at 33; Reprinted in 1982 U.S. Code Cong. & Ad. News, at 2267. The same report reiterated the preemptive intent of Congress: The Conference Substitute is further intended to clarify the reservation of exclusive jurisdiction to the Federal Communications Commission over mat- ters involving RFI. Such matters shall not be regulated by local or state law, nor shall radio transmitting apparatus be subject to local or state regulation as part of any effort to resolve an RFI complaint. The Con- ferees believe that radio transmitter operators should not be subject to fines, forfeitures, or other liability imposed by any local or state auth- ority as a result of interference appearing in home electronic equipment or systems. Rather, the Con- ferees intend that regulation of RFI phenomena shall be imposed only by the Commission. Id., 1982 U.S. Code Cong. & Ad. News, at 2277. Cases since then have uniformly held nuisance and other suits brought in state or Federal courts premised on RFI to have been preempted. The FCC has also held that it alone has jur- isdiction over RFI incidents (see appendix 1). FCC regulations comprehensively address RFI matters relative to home electronic equipment and otherwise in the Amateur Radio Service. See, 47 C.F.R. Section 97.121. An amateur station is certainly enough subject to FCC regulation, and a complaint to the FCC is the sole method of addressing the problem a neighbor of an FCC-licensed radio amateur may have. Inter- ference claimed to be suffered by a complaining neighbor, if in fact there is any, is almost exclusively due to RFI-suscept- ible home electronic equipment, such as televisions and tele- phones, that cannot be resolved by modification of an amateur station. There are a number of other regulations which are already in place to assure safety, health, and even aesthetic consider- ations are protected while allowing the constitutional guar- anteed right to participate in communications activities. Many of these regulations are cited in other zoning and reg- ulatory documents as being the base or standard on which to make decisions. They should be allowed to stand in this in- stance as well, since many cover the same aspects of loc- ation, construction and operational engineering as are en- visioned in this zoning regulation. Of primary concern, it is presumed, is the continued safety of the residents surrounding an antenna structure. These concerns are addressed by existing standards published by the Electronic Industries Association. It is our understanding that commercially manufactured antenna structures adhere to or exceed these standards as a matter of practice. Further, our investigation has revealed that these same standards are advocated by manufactures of other types of supporting towers such as aluminum and fiberglass. While not mentioned in the federal documents, there is further guidance for local regulators which might assure that safety standards are being retained-- that is the manufacturer's own specifications for the proper construction of a tower. It is our suggestion that a tower, properly erected within the limits of the manufacturer's documentation, should be cons- idered safe and properly installed with regard to the health and safety of the community. These construction details are something which serve also as a guide for conforming to the FCC dictate that our amateur stations be operated and con- structed "according to good engineering practices." IV. ANTENNA CONSIDERATIONS A. AMATEUR RADIO ANTENNAS Amateur Radio antennas are found in a wide variety of designs and configurations. There are several points concerning am- ateur antennas which directly bear on this consideration, and which show that restricting heights will produce a negative result. As explained PRB-1: "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 con- figurations require more substantial installations than others if they are to provide the amateur op- erators with the communications he/she desires to engage in. For example, an antenna array for inter- national amateur communications will differ from an antenna used to contact other amateur operators at shorter distances." Antenna heights needed, from a technical standpoint, for the frequencies allocated to the amateur by the FCC range from 35-feet to 500-feet. This represents one wave length of the frequency above ground which is needed for effective and reliable communications. The most reliable frequencies are in the 10 & 14 MHz range which require a height of 70-feet to 100-feet in order to be one wave length above ground. In this long distance frequency range the radio signal is bounced, or skipped, off of the ionosphere to the receiving station. For short range communication, as used by Omaha amateurs in supporting the National Weather Service in spotting tornados, radio signals are not skipped off the ionosphere, but are ac- tually transmitted and received by direct line of sight. As can be seen by Omaha's hilly terrain, antenna height plays a critical role in providing effective and reliable communica- tion. The higher the antenna, the more likely communications will be reliable in any given situation. It is our opinion, that the height of antenna support structures needed for effective and reliable communication, as mentioned above, fall in this 70-feet to 100-feet range. This represents the frequencies that will most likely be used by amateur radio operators when called on by Federal, State, or Local authorities in time of disaster or need. The negative result of reduced antenna heights, is the possibi- lity of increased RFI with home entertainment equipment. At half the antenna height there is four times the possibility of causing interference to neighboring electronic devices. This is so even though the transmitter is operating within legal requirements of the FCC. As the efficiency of antennas decrease, operators will likely increase the transmitter power in an attempt to make up for lost distance. Most amateurs now operate at transmitter output powers between 100 and 1000 watts. Power can be in- creased to the legal limit of 1500 watts. The potential for interference with susceptible home entertainment receivers will increase directly with the transmit power used. Restricting transmitting antennas to heights below optimum will result in reconfiguration to shapes and types of ant- ennas which have the most efficiency at low heights. These shapes are generally larger, contain more wire and support- ing parts, and therefore can present a more displeasing ap- pearance. It is also a simple optical fact that the higher above ground, the smaller the apparent size of the antenna. B. OTHER TYPES OF ANTENNAS There are numerous other types of antennas which might reason- ably appear in a residential application. These, too, may in many cases fall under the federal guidelines and interests as specified in the FCC documents. Care should be exercised in attempting any further definitions and guidelines because re- asonable control can be interpreted from these same documents. In the case of Citizen Band antennas, there is a clearly stat- ed federal guideline--CB antennas are limited to a height of 60 feet above ground. Amateur operators are limited to 200 feet, but can go higher with FCC approval. Another federal guideline for CB operators restricts communications to under 150 miles. In regard to satellite antennas, the FCC has released a Report and Order in Docket 85-87: Report and Order 1. ..The rule we are adopting is: State and local zoning or other regulations that differentiate between satellite receive-only antennas and other types of antenna facilities are pre- empted unless such regulations (a) Have a reasonable and clearly de- fined health, safety, or aesthetics objective; and (b) Do not operate to impose unreason- able limitations on, or prevent, reception of satellite delivered signals by receive-only antennas or to impose costs on the users of such antennas that are excessive in light of the purchase and installation cost of the equipment. B. Final Rule 35. ...a community is limited in the types of restrictions it can apply. It cannot un- reasonably limit or prevent reception by re- quiring, for example, that a receive-only antenna be screened so that line of sight is obscured. Moreover, an ordinance which dis- criminates cannot impose size restrictions only on receive-only antennas which would effectively preclude reception. While it is our concern that any FCC guideline be adhered to on a local level, we are specifically addressing the concerns of Amateur Radio as it benefits the community, and as it is regulated by the superseding interest of the Federal Govern- ment. It has always been the electrical necessity for anten- nas as high as possible for adequate worldwide as well as local communication on Amateur Radio frequencies. We firmly believe it is in the best interest of the community to en- courage the activities of Amateur Radio. There is no evidence, to our knowledge, that the presence of an Amateur Radio antenna has created a problem in this area as related to zoning mat- ters. The simple economics of financing an antenna structure, along with the majority of housing addition covenants restrict- ing antennas, serve to limit and deter the mass proliferation of extraordinarily high antenna systems, exclusive of any zoning regulations. However, the ability to construct such a system should not be restricted by artificial means such as arbitrary height limitations. The end result of such restrictions will be a reduction of our ability to provide this necessary emer- gency communication worldwide as well as area wide when it is most needed. V. CONCLUSIONS AND RECOMMENDATIONS The results of reading the federal objectives are clear, and are sustained in the courts: 1. An individual's right to participate in communications activities is assured under the con- stitution and substantiated through case law, and is an objective of the Federal Government. This pur- suit in the specific instance of Amateur Radio is a non-commercial (by nature of the FCC regulations) pursuit, and therefore is a use expected in a res- idential application. Proper allowances for the requirements of participating in Amateur Radio (such as the installation of adequate antenna systems) are REQUIRED by the FCC of local government. 2. Although retaining an interest in assuring the health and safety of local citizens, local gov- ernments may not interfere with the reasonable pur- suit of those rights. 3. Case history to date would indicate that blanket height restrictions on amateur antennas that do not provide for effective and reliable communica- tions is clearly unreasonable and preempted by the Federal Government. 4. Acceptable national standards already exist which both assure the health and safety of the sur- roudings of such antennas and which serve as a "min- imum standard" beyond which further regulation is clearly preempted by the Federal Government. 5. However worthy the valid local considera- tions may be regarding the aesthetic qualities of a residential district, the presence of an Amateur Radio operator in a neighborhood provides the community and its government with a valuable and accepted emergency communications resource both for the local community and the nation. For this reason, proven by the num- erous activities within the Omaha area, we suggest any potential aesthetic concerns of the area are superseded by the value and necessity of maintaining proper emergency communications. We further suggest the worthiness of considering an exemption from any restrictive controls beyond assurances of engineering and operating safety (which are already in effect) for the antennas of any "Federally Licensed Amateur Radio Station and Operator." This exemption would at the same time sustain your interests in establish- ing controls over antennas (meeting the non-disrimina- tion clause) and allow for the continued service to the community from Amateur Radio. VI. COMMENTS ON PROPOSED ORDINANCE The ordinance proposed was drafted by members of the Omaha area Amateur Radio Community. Public meetings were held within the amateur community and this proposed ordinance was the result. It should be noted, many members wanted the maximum antenna height to be in excess of 75 feet, with the highest height recommended being 90 feet. This 90 foot height has also been approved by zoning boards of several communities across the United States. However, as a committee, we have chosen a road of compromise, at the 75 foot level. We consider this height an attempt to fulfill the practicable minimum height requirements, as per PRB-1, when considering antenna effectiveness. We also believe, this is a balance between surrounding residential users and the amateur community. And finally, several communities in the immediate area of Omaha have approved this height. After considering all of these factors, the Omaha amateur radio community recommends, that as a general rule, amateur radio antenna support structures be allowed to a maximum height of 75 feet. E N D