Of Note...

The November 11, 2006 edition of Radio World has published a Commentary written by Don Schellhartd of Hams For Action.

Read it here.

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HAMS FOR ACTION

"FCC Staff Denies Antenna Reform"

Details.

PETITION FOR RECONSIDERATION BY HAMS FOR ACTION

OF THE COMMISSION STAFF’S DECISION IN DA 07-898

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, DC 20554

In The Matter of:                       )

                                      )

Partial and Conditional Overrides of      )            Docket DA 07-898

Certain Bans on Amateur Radio Antennas  )

PETITION FOR RECONSIDERATION

BY HAMS FOR ACTION

OF THE COMMISSION STAFF’S DECISION IN DA 07-898

 HAMS FOR ACTION (HFA) is a small but nationwide advocacy group, composed of Amateur Radio operators (aka “hams”).  We advocate reasonable regulation of external ham antennas by Homeowners’ Associations (HOAs), and other private land use regulators, rather than the total bans on such antennas which now prevail in many privately regulated neighborhoods.

 On July 31, 2006, HFA filed a [corrected] Petition For Rulemaking with the Commission, urging a new rule to establish partial and conditional overrides of total bans on external ham antennas.  On February 28, 2007, the Petition was denied by the Commission’s staff.  Through this Petition For Reconsideration, we ask members of the full Commission to review and reverse the denial of HFA’s Petition For Rulemaking.

An Explanation of Our Appeal

 HFA is filing this Petition For Reconsideration for four primary reasons:

HFA challenges the Commission staff’s depiction of all private land use covenants, conditions and restrictions (CC&R’s) as “voluntary”.  Some are voluntary, but some are not.  Some are actually imposed by State, County or municipal law.  Others are effectively imposed by the de facto absence of market competition:  that is, the absence, in many geographical areas, of neighborhoods which do not have CC&Rs.  At a minimum, the FCC should address those CC&R’s which are not restrained by either market competition or government regulation.

HFA Petition For Reconsideration

Docket DA 07-898

April 5, 2007

Page Two

HFA further challenges the Commission staff’s assertion that CC&Rs which are truly voluntary may not be regulated by the FCC.  This is a self-imposed restriction.  The policy does not flow from either statutory law or a court decision, but rather from discretionary judgments made by the FCC in 2001 and previous years.  What the Commission put in place under its own authority can also be removed under the Commission’s own authority.

Since the Commission has the legal power to undo what it has done under its own discretionary authority, HFA contends that its Petition’s references to changed circumstances  --  such as the re-demonstrated importance of Amateur Radio operations during recent mega-disasters, and HFA’s preparation of a proposal which is more sensitive to HOA concerns than previous proposals  --  are indeed relevant and material.  The FCC’s staff should not have dismissed such new facts as irrelevant to the policy at issue.

As another implication of the fact that the Commission has the legal power to undo what it has done under its own authority, HFA also considers it relevant that none of the current full Commissioners were “on duty” when the previous policies on private land use CC&Rs were put in place.  HFA does not make the assumption that the current Commissioners will necessarily make exactly the same decisions that their predecessors made.  We urge the present Commissioners to take a new look at the policies they inherited.

The Need For The Commission To Address Involuntary CC&Rs

The Commission’s staff harkens back to earlier decisions by the Commission,

in 2001 and years before, which draw a distinction between State and/or local regulation of exterior Amateur Radio antenna regulations and those antenna regulations --  or even outright antenna prohibitions  --  which are imposed under private CC&Rs. 

The Commission’s staff reiterates the Commission’s standing belief that a ham “must comply” with State and local regulations, while CCR’s “are contractual terms to which an amateur operator voluntarily subjects him- or herself.”

HFA Petition For Reconsideration

Docket DA 07-898

April 5, 2007

Page Three

 This belief, however, is accurate for only some CC&Rs.  Other CC&Rs are not voluntary.

 First of all: 

The clearest cases of involuntary CC&Rs are those imposed by HOAs which are in turn imposed on all home buyers by State, County or municipal law.  In these cases, a home buying ham must agree to HOA regulation, which often includes total bans on ham antennas, because the law requires acquiescence to HOA regulation.

 We are aware of at least two jurisdictions, collectively governing millions of people, which require the establishment of HOAs in neighborhoods.  One such jurisdiction is Fairfax County, Virginia:  a huge suburban County, with which many Commissioners and Commission staff members are undoubtedly familiar.  The other jurisdiction is the entire State of Colorado.

 These are the only two jurisdictions of which HFA Members have direct knowledge, but we doubt our list is exhaustive.  If the full Commissioners decide to proceed with a Notice of Proposed Rulemaking on HOA antenna regulation, it seems likely that more information about governmentally required HOAs will be forthcoming through the public comment process.

 Second:

 Other CC&Rs are effectively rendered involuntary by the absence of market competition in many geographical areas, including Southern California and the suburbs of Washington, DC.  Just as housing developers in some geographical areas are uniformly required to establish HOAs in response to the mandates of governments, housing developers in other areas are uniformly required to establish HOAs in order to obtain financing from lending institutions.  

 In neither case is there really any negotiation  --  or, to use a term from contract law, any “meeting of the minds”  --  between the home seller and the home buyer. 

HFA Petition For Reconsideration

Docket DA 07-898

April 5, 2007

Page Four

In each case, the home seller is simply serving as the agent for third parties  --  governmental bodies and/or commercial lenders, respectively  --  with whom the home buyer is unable to negotiate directly.  Nor, in many instances, can the home buying ham go anywhere else for a different deal  --  because the uniformity of the applicable law, and/or the uniformity of the local commercial lending policies, has led to the establishment of HOAs in all of the suitable neighborhoods in his or her area. 

In short, in these cases, the home buying ham is trapped by an act of government and/or by an “adhesion contract”, in which the applicable contract provisions are so standardized that they acquire the market power of an oligopoly.

Once again:

HFA is a small, though nationwide, group.  HFA’s Members can speak of their own unsuccessful attempts to avoid HOAs, followed by their unsuccessful attempts (and/or the unsuccessful attempts of others) to erect external ham antennas, but we cannot report on the experience of every ham in every location.  

What HFA can state is that many individual hams, across the country, are agitated over this issue.  Indeed, enough hams were agitated enough to have prompted the Board of Directors of the AMERICAN RADIO RELAY LEAGUE (ARRL), during its Meeting in January 2007, to declare that antenna reform is now ARRL’s #1 priority in Congress. 

All of this smoke implies some actual fire: a real need for the FCC to act.

We are confident that actual issuance of a Notice of Proposed Rulemaking, with its public comment period, will produce many examples of antenna-banning HOAs whose authority has been involuntarily imposed by law and/or by adhesion contracts, which blocked competition among home sellers and thus denied choice to home buyers.

As we discuss below, HFA asserts that even voluntary private land use contracts may be regulated by the Commission when and if it is shown that the public interest demands such regulation. 

HFA Petition For Reconsideration

Docket DA 07-898

April 5, 2007

Page Five

Nevertheless, even if the Commission is not willing to regulate those CC&Rs which are indeed truly voluntary  --  that is, those CC&Rs which are not the product of laws and/or choice-denying “adhesion contracts”  --  it should at least take the minimum step of issuing a proposed rule to address the involuntary contracts.  

At the very least, the FCC should propose to override CC&R antenna regulations when and if antenna bans are imposed by HOAs which are required to be put in place by law in certain State, County or municipal regulations.  Preferably, the FCC should also propose to override CC&R antenna bans, as the product of another kind of involuntary contract, when a complainant can show that antenna bans are present in 80% or more of all housing developments within 10 miles of a given neighborhood.

The Need For The Commission To Reconsider Its Policy of Forbidding Itself

To Regulate Those CC&Rs Which Are Truly Voluntary

 The Commission’s staff, in denying HFA’s Petition For Rulemaking, acknowledges that HFA’s Petition is significantly different from Petititions which were denied in the past.  The Commission’s staff denies, however, that HFA’s Petition “addresses the Commission’s reasons for excluding CC&Rs in private covenants from its limited preemption policy”.  The staff clarifies that the Commission “is reluctant to preempt 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.”

 Actually, the Petition For Rulemaking did address this core concern of the Commission, by stating what HFA re-stated in this Petition For Reconsideration: 

That is, not all CC&Rs are the result of “voluntary” agreements. 

HFA Petition For Reconsideration

Docket DA 07-898

April 5, 2007

Page Six

Some antenna-banning CC&Rs result from State or local laws, and some result from adhesion contracts that block market competition and consumer choice, and some result from both.  In the former case:  Why should a State or local government be authorized to do indirectly, through a mandate for the imposition of mandatory CC&Rs, what the PRB-1 program would prevent that same government from doing directly?  In the latter case:  How is the Commission honoring “private parties’ freedom of contract” when the home buyers, and for that matter the home sellers, are blocked by third party practices from negotiating with each other?

In any event, even if these involuntary contracts are put to one side and addressed separately, there remains no inherent legal restriction on the Commission’s ability to regulate even voluntary private CC&Rs which adversely affect communications.

The Commission’s staff cites no statutory directive that the FCC must always honor “parties’ freedom to contract”.  Nor does the Commission’s staff cite any judicial mandate flowing from a court case.  It is clear, then, that the Commission’s policy of not pre-empting private land use CC&Rs is a self-imposed restriction:  that is, an exercise of the Commission’s discretionary authority.  It is not an iron directive, from Congress or the courts, that the Commission must follow.  

What the Commission has done, using its discretionary authority, can be undone through its use of the same discretionary authority.

The Commission’s staff recognizes this much in the second half of the statement we have quoted.   The staff states that the Commission’s will not pre-empt voluntary CC&Rs “unless there is another strong countervailing reason to do so”.

HFA states now, as it stated in the Petition For Rulemaking, that there are “strong countervailing reasons” to pre-empt even voluntary CC&Rs.  These reasons can be found among the arguments and evidence which the Commission’s staff has evidently regarded as irrelevant and/or immaterial.

HFA Petition For Reconsideration

Docket DA 07-898

April 5, 2007

Page Seven

Why Changed Circumstances Are Relevant and Material

The Commission’s staff mentions, but dismisses, the differences between HFA’s Petition For Rulemaking on antenna regulation and previous Petitions. 

These differences are indeed relevant and material, because they are designed to:

Make the proposed rule much more workable for HOAs than past proposals;

And

Assure, through the Emergency Communications nexus, a much more direct and definite public interest benefit for the neighborhoods that host the hams.

Even more relevant and material, however, are points in the Petition which the

Commission’s staff does not mention at all. 

 First of all:

 The Petition notes that the nation, and the world, seem to be shifting from an era of relatively conventional disasters to one marked by more frequent megadisasters.  Traditional levels of Emergency Communications preparation may no longer be enough. 

 A definition of “megadisaster” was provided by Don Schellhardt, now President of HFA, on page 13 of personal Written Comments filed on April 21, 2002  --  years before Huricane Katrina and the Asian Tsunami  --  in FCC Docket RM-10412:   

 A life-threatening disaster, either natural or man-made, of sufficient intensity and scale that it: (a) destroys or disables much, most or all of the basic infrastructure and services over an area of at least 10,000 square miles, for a period of at least weeks or months; and (b) prevents or significantly restricts the flow of relief supply and personnel, from areas which are not directly affected, for a period of at least two weeks.

Some of the heightened frequency of megadisasters is due to the natural timing of natural forces.  Geologically, the nation is literally overdue for “The Big One” in Southern California, another “Big One” in Northern California and a rare but huge

HFA Petition For Reconsideration

Docket DA 07-898

April 5, 2007

Page Eight

earthquake on the New Madrid Fault in Missouri.  The Pacific Northwest may be overdue for another major volcano eruption and/or another 9.0 quake in the Cascadia Subduction Zone, like the one that sent a tsunami all the way to Japan 300 years ago.

 Compounding these natural forces are the human ones.

 One of these human forces is population growth  --  and population density.  For example, many more people and structures dot a given megadisaster region than was true during the same region’s last megadisaster.  Further, a much higher percentage of those residents and guests are highly dependent on relatively vulnerable infrastructure  --  including transportation and communications  --  than was the case centuries ago.

 Even more serious, potentially, is advancing human technology, with its heightened potential for good or ill.  Human beings can now use a nuclear weapon to destroy a city  --  or even, through a high altitude Electromagnetic Pulse (EMP), use a thermonuclear weapon to destroy an entire nation’s electronics.

 Second:

 Through America’s “real world” encounter with Hurricane Katrina, we have seen how widely and quickly an established infrastructure, including the communications infrastructure, can collapse.  Yet we also saw how frequently Amateur Radio operators, with their decentralized and battery-operated equipment, were able to come through “when all else failed”.  One ham even connected the President of the United States with the Mayor of New Orleans after the American military’s communications went down.

 By quoting with approval a Commission comment from 2001, the Commission’s staff of 2007 shows that it is still thinking in terms of relatively temporary and small scale disasters, rather than the much broader and longer term consequences of a megadisaster. In the quotation from 2001, the FCC questioned why some hams insist on home-based antennas, operated indoors.  Alternatives, it was said, include transmitting at “a location other than their residence, mobile operations, and use of a club station.” 

HFA Petition For Reconsideration

Docket DA 07-898

April 5, 2007

Page Nine

Reliance on this pre-Katrina quotation implies that some at the FCC are still envisioning only relatively small scale and temporary disasters, such as a local tornado or power outage.  However, in the new era of more frequent megadisasters, hams need to consider whether they can go outdoors at all, let alone drive, during a major hurricane  -- or a period of nuclear fallout.

These are the relevant and material changed circumstances which justify HFA’s call for the Commission to act.

A “Thank You” To The Commission’s Staff

 This Petition For Reconsideration would not be complete without a “Thank You” to the Commission’s staff.

 Although HFA obviously disagrees with the Commission staff’s decision to reject HFA’s July 31, 2006 Petition For Rulemaking, we strongly commend the staff for not keeping HFA’s Petition in limbo. 

Within seven months of the date on which HFA’s Petition For Rulemaking was filed with the FCC, the Commission’s staff gave HFA a clear decision.  The staff acted with the promptness, decisiveness and clarity that the situation demands. 

While a “Yes” would have been more justifiable than the “No” we received, and while HFA urges the full Commissioners to change the staff’s “No” to a “Yes”, the fact remains that a “No” is still better than no answer at all.  HFA has at least been paid the courtesy of being told where it stands.

Also:  With the filing of this Petition For Reconsideration, HFA has now “exhausted its administrative options” at the FCC.  This puts HFA in a stronger position to seek other relief, including Congressional legislation, in the future.

HFA Petition For Reconsideration

Docket DA 07-898

April 5, 2007

Page Ten

Conclusion

 For the reasons that have been set forth herein, the undersigned Petitioner, HAMS FOR ACTION (HFA), urges the Commissioners of the FCC to reverse the Commission staff’s denial of HFA’s July 31, 2006 Petition For Rulemaking. Once the Commissioners have reversed the staff’s denial of the HFA Petition, we urge them to open a new Docket which solicits public comments on the Petition as a possible proposed rule.  

At a minimum, if the Commissioners are still unwilling to regulate those private land use CC&Rs which are truly voluntary, we urge the Commissioners to issue a proposed rule which at least overrides CC&R regulations when antenna bans are imposed by HOAs which are required to be in place by law in certain State, County or municipal jurisdictions.  Preferably, the FCC should also override CC&R antenna regulations when a complainant can show that antenna bans are present in 80% or more of all housing developments within 10 miles of a given neighborhood.

Respectfully submitted,

Don Schellhardt, Esquire

Acting President, HAMS FOR ACTION

1520 Porter Street

Richmond, VA 23224

 HYPERLINK "mailto:pioneerpath@hotmail.com" pioneerpath@hotmail.com

(804) 433-7268

Dated:  _____________

April 5, 2007