Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | > RM-8763                    |
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| Modification and Clarification   | ) |                              |
| of Policies and Procedures       | * |                              |
| Governing Siting and Maintenance | * |                              |
| of Amateur Radio Antennas and    |   |                              |
| Support Structures, and          | * |                              |
| Amendment of Section 97.15 of    | * |                              |
| the Commission's Rules Governing | ) |                              |
| the Amateur Radio Service        | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** December 18, 2001 **Released:** December 26, 2001

By the Commission:

**I. INTRODUCTION**

1.  The Commission has before it an Application for Review filed on
    December 15, 2000, by the American Radio Relay League (ARRL).[^1]
    ARRL requests review of the November 13, 2000, decision[^2] of the
    Deputy Chief, Wireless Telecommunications Bureau (Bureau), which
    partially granted ARRL's petition for clarification of the
    Commission's limited preemption policy of state and local regulation
    of the siting and maintenance of antennas and antenna support
    structures used by licensees in the Amateur Radio Service, but
    denied it in all other respects.[^3] Specifically, ARRL requests
    that we expand the Commission's limited preemption policy for
    antennas and antenna support structures used in the Amateur Radio
    Service to include covenants, conditions and restrictions (CC&Rs)
    contained in deeds, bylaws of homeowner associations (HOA) or
    regulations of an architectural control committee (ACC). Based on
    the record in this proceeding, we find no basis to reverse the
    Bureau's decision. Accordingly, ARRL's Application for Review is
    denied.

**II. BACKGROUND**

2.  In a *Memorandum Opinion and Order*, adopted September 16, 1985
    (PRB-1), the Commission established a policy of limited preemption
    of state and local regulations governing amateur station facilities,
    including antennas and support structures.[^4] In that proceeding,
    the Commission expressly decided not to extend its limited
    preemption policy to CC&Rs in home ownership deeds and in
    condominium bylaws because "\[s\]uch agreements are voluntarily
    entered into by the buyer or tenant when the agreement is executed
    and do not usually concern the Commission."[^5]

3.  On February 7, 1996, ARRL filed a petition for rule making seeking a
    review of the Commission's limited preemption policy and an
    expansion of the policy to include CC&Rs in private covenants.[^6]
    In an *Order*, released November 19, 1999, the Deputy Chief,
    Wireless Telecommunications Bureau, denied the petition for rule
    making on the grounds that specific rule provisions bringing private
    restrictive covenants within the scope of *PRB-1* were neither
    necessary nor appropriate.[^7] On December 20, 1999, ARRL filed a
    petition for reconsideration of the Bureau's decision; the
    Gorodetzers filed a petition for reconsideration on December
    17, 1999. On November 13, 2000, the Bureau denied both petitions
    insofar as they had requested bringing CC&Rs within the scope of
    *PRB-1*.[^8]

    **III. DISCUSSION**

4.  ARRL believes that the Commission policy set forth in *PRB-1* is
    discriminatory because it does not encompass private covenants.[^9]
    Further, it appears that ARRL assumes that the only reason the
    Commission did not extend *PRB-1* to CC&Rs in 1985 was that "the
    Commission believed it did not have the [authority]{.underline} to
    preempt private agreements . . ."[^10] ARRL goes on to argue, based
    upon the Commission's actions with respect to over the air reception
    devices (OTARDs) that the Commission in fact has jurisdiction to
    preempt CC&Rs.[^11] As a result, it asks the Commission to require
    that private covenants found in deeds, HOA bylaws and ACC
    regulations state that amateur communications and antennas are
    subject to the Commission's limited preemption policy, as expressed
    in the contexts of "reasonable accommodation" and "minimum
    practicable regulation of amateur antennas and support
    structures.[^12]

5.  We recognize that the Amateur Radio service is a voluntary,
    noncommercial communication service that plays an important role in
    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. Accordingly, we agree with ARRL that there
    is a strong federal interest in promoting amateur radio
    communications.[^13] However, we believe that *PRB-*1 adequately
    protects that predominant federal interest from regulations that
    would frustrate the important purposes of the Amateur Radio
    Service,[^14] by preempting state and local regulations that
    preclude amateur communications in their communities.

6.  We disagree with ARRL's analysis in that *PRB-1* did not base the
    decision to exclude CC&Rs from the Commission's preemption policy
    upon the Commission's jurisdiction, or lack thereof. Rather, the
    Commission's decision was premised upon the fundamental difference
    between state and local regulations, with which an amateur operator
    must comply, and CC&Rs, which are the product of a voluntary
    agreement involving the amateur operator. ARRL argues that whether
    CC&Rs are "voluntary" is "irrelevant . . . to whether the
    municipality is violating Federal communications policy."[^15] While
    we agree that the voluntary nature of CC&Rs do not always preclude
    preemption,[^16] we believe it is a relevant factor in preemption
    analysis. In OTARD, for example, there was a strong statutory policy
    against restrictions that impaired a viewer\'s ability to receive
    over the air video services. Here, there has not been a sufficient
    showing that CC&Rs prevent amateur radio operators from pursuing the
    basis and purpose of the amateur service.[^17] In this regard, we
    note that there are other methods amateur radio operators can use to
    transmit amateur service communications that do not require an
    antenna installation at their residence. These methods include,
    among other things, operation of the station at a location other
    than their residence, mobile operations, and use of a club station.

7.  ARRL argues, "The private contractual nature of covenants was,
    however, shown not to be a limiting factor in the OTARD decision. It
    cannot, therefore, in the context of *PRB-1* serve as a
    justification for the arbitrary and disparate treatment of radio
    amateurs similarly situated, save for the source of the land use
    regulations applicable to their residential station locations."[^18]
    We believe the OTARD decision does not support ARRL's request
    because the decision to preempt restrictions on OTARDs was based
    upon significant policy objectives that are not present in this
    case, and which could not be adequately accomplished without the
    Commission's intervention. Indeed, the Commission does not exercise
    its preemption power lightly,[^19] and employs this power only as
    necessary to carry out the provisions of the Communications Act. The
    OTARD rule "\[was\] designed to promote two complementary federal
    objectives: (a) to ensure that consumers have access to a broad
    range of video programming services, and (b) to foster full and fair
    competition among different types of video programming
    services.[^20] The Commission concluded that preemption was
    necessary in order to meet those objectives. Thereafter, the
    Commission extended the OTARD protections to antennas used to
    transmit or receive fixed wireless signals to further one of the
    primary goals of the 1996 Communications Act, which is to promote
    telecommunications competition and encourage the commercial
    deployment of new telecommunications technologies.[^21] In contrast,
    none of these objectives applies to the Amateur Radio Service, which
    is a voluntary noncommercial service.[^22] Furthermore, ARRL has not
    demonstrated that private covenants have a substantial impact on the
    ability of amateurs to fulfill the fundamental purposes of the
    Amateur Radio Service set forth in Section 97.1 of the Commission's
    Rules.[^23] Thus, we conclude that, in the instant case, while
    preemption is appropriate with respect to state and local
    regulations, it is not similarly appropriate with respect to CC&Rs.

8.  ARRL also objects to the Bureau's reliance upon the fact that some
    amateur antennas can be much larger than OTARDs.[^24] ARRL
    characterizes the examples of different types of antennas given in
    the Bureau's *Recon Order* as 'incendiary references' to exceptional
    types of amateur antennas that do not reflect what would be
    permitted by *PRB-1* in densely-populated residential areas.[^25]
    While we do not believe that the size of the antennas is a
    decisional difference, in our view, the Bureau's reliance upon the
    distinctions in antenna size between amateur antennas and OTARDs was
    reasonably based on legitimate policy considerations. In *PRB-1*,
    the Commission explicitly discussed the interests HOAs and ACCs had
    in imposing "restrictions and limitations on the location and height
    of antennas."[^26] We believe that in using examples of antenna
    configurations and arrays, the Bureau merely amplified what was
    already alluded to in *PRB-1*, as originally adopted. Thus, we find
    that no new ground was broken in the Bureau's *Recon Order*. We note
    that ARRL is proposing a policy of reasonable accommodation, as
    opposed to the total preemption imposed in the OTARD
    proceeding.[^27] Nonetheless, given the great variance in the size
    and configuration of amateur antennas, we are concerned that such a
    policy would be considerably more complicated for HOAs and ACCs to
    administer. Finally, we note that ARRL has submitted no specific
    evidence that would persuade us to abandon our long-standing policy
    of excluding CC&Rs in private covenants from our ruling in *PRB-1*.
    We recognize the importance of preserving the integrity of
    contractual relations. We are therefore reluctant to pre-empt
    private parties\' freedom of contract unless it is shown that
    private agreements will seriously disrupt the federal regulatory
    scheme or unless there is another strong countervailing reason to do
    so, a showing that has not been made here. However, should Congress
    see fit to enact a statutory directive mandating the expansion of
    our reasonable accommodation policy, the Commission would
    expeditiously act to fulfill its obligation thereunder.

    **IV. CONCLUSION AND ORDERING CLAUSES**

9.  Accordingly, for the reasons discussed above, we conclude that the
    Bureau's denial of the subject petitions for reconsideration,
    insofar as they pertain to inclusion of CC&Rs in private covenants,
    was correct and should be affirmed. Therefore, the scope of the
    limited preemption policy of *PRB-1* for amateur radio stations
    remains applicable only to regulations of state, county, municipal
    and other local governing bodies, and is not applicable to HOA
    bylaws and ACC regulations.

10. **ACCORDINGLY, IT IS ORDERED** that, pursuant to the authority of
    Section 4(i) of the Communications Act of 1934, as amended, 47
    U.S.C. § 154(i), and Section 1.115 of the Commission's Rules, 47
    C.F.R. § 1.115, that the Application for Review filed by The
    American Radio Relay League on December 15, 2000, **IS DENIED.**

11. **IT IS ORDERED** that, pursuant to the authority of Section 4(i) of
    the Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and
    Section 1.115 of the Commission's Rules, 47 C.F.R. § 1.115, that the
    Application for Review filed by Barry Gorodetzer and Kathy
    Conard-Gorodetzer on January 3, 2001, **IS DISMISSED.**

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas

    Secretary

[^1]: Application for Review (filed Dec. 15, 2000) (ARRL AFR).

[^2]: Modification and Clarification of Policies and Procedures
    Governing Siting and Maintenance of Amateur Radio Antenna and
    Support Structures, and Amendment of Section 97.15 of the
    Commission's Rules Governing the Amateur Radio Service, *Order on
    Reconsideration*, 15 FCC Rcd 22151 (2000) (*Recon Order*). In a
    related matter, on January 3, 2001, Barry Gorodetzer and Kathy
    Conard-Gorodetzer filed a letter seeking Commission review of the
    *Recon Order* (Gorodetzer AFR). Section 1.115(d) of the Commission's
    Rules requires that applications for review of actions pursuant to
    delegated authority be filed within 30 days of public notice of the
    action. In this case, public notice of the *Recon Order* was given
    on November 13, 2000, the release date. *See* 47 C.F.R. § 1.4(b)(2).
    The Gorodetzer AFR is untimely because it was filed more than 30
    days after public notice of the *Recon Order* was given. The
    Gorodetzers also failed to seek a waiver or extension of the
    deadline to file an application for review. Accordingly, we will
    dismiss the Gorodetzer AFR.

[^3]: *Recon Order* at 5 ¶ 11.

[^4]: *See* Federal Preemption of State and Local Regulations Pertaining
    to Amateur Radio Facilities, *Memorandum Opinion and Order,* PRB-1,
    101 FCC 2d 952 (1985) (*PRB-1*).

[^5]: *Id*. at 960 n.6.

[^6]: ARRL Petition for Rule Making, filed Feb. 7, 1996.

[^7]: Modification and Clarification of Policies and Procedures
    Governing Siting and Maintenance of Amateur Radio Antennas and
    Support Structures, and Amendment of Section 97.15 of the
    Commission's Rules Governing the Amateur Radio Service, *Order*, 14
    FCC Rcd 19413, 19415 ¶ 6, 19417 ¶ 11 (1999).

[^8]: *Recon Order* at 5 ¶ 11.

[^9]: ARRL AFR at 5.

[^10]: *Id.* at 11 (emphasis in original).

[^11]: *Id.* at 7-8.

[^12]: *Id*. at 10.

[^13]: *Id.* at 9.

[^14]: *PRB-1*, 101 FCC 2d at 959-60 ¶¶ 23-24.

[^15]: ARRL AFR at 15.

[^16]: *See* In the Matter of Promotion of Competitive Networks in Local
    Telecommunications, *First Report and Order and Further Notice of
    Proposed Rule Making in WT Docket No. 99-217, Fifth Report and Order
    and Memorandum Opinion and Order in CC Docket No. 96-98, and Fourth
    Report and Order and Memorandum Opinion and Order in CC Docket No.
    88-57*, FCC 00-366, 15 FCC Rcd 22983 (2000) (*Competitive Networks
    Fixed Wireless Order*).

[^17]: S*ee infra* n.23.

[^18]: *Id*. at 19.

[^19]: *See* *Gregory v. Ashcroft*, 501 U.S. 452, 460 (1991) (opining
    that courts must assume that Congress does not exercise the power to
    preempt lightly).

[^20]: Preemption of Local Zoning Regulation of Satellite Earth
    Stations, *Report and Order, Memorandum Opinion and Order, and
    Further Notice of Proposed Rulemaking*, 11 FCC Rcd 19276, 19281 ¶ 6
    (1996).

[^21]: *See Competitive Networks Fixed Wireless Order*, 15 FCC Rcd at
    23028.

[^22]: *See* 47 C.F.R. § 97.1(a).

[^23]: The fundamental purposes of the Amateur Radio Service are
    expressed in the following principles: (a) Recognition and
    enhancement of the value of the amateur service to the public as a
    voluntary noncommercial communication service, particularly with
    respect to providing emergency communications; (b) Continuation and
    extension of the amateur\'s proven ability to contribute to the
    advancement of the radio art; (c) Encouragement and improvement of
    the amateur service through rules which provide for advancing skills
    in both the communication and technical phases of the art; (d)
    Expansion of the existing reservoir within the amateur radio service
    of trained operators, technicians, and electronics experts; and (e)
    Continuation and extension of the amateur\'s unique ability to
    enhance international goodwill. *See* 47 C.F.R. § 97.1.

[^24]: ARRL AFR at 11-12.

[^25]: *Id*. at 12.

[^26]: *See* *PRB-1* at 955 ¶ 9.

[^27]: ARRL AFR at 11-12.