I JUN, 2002 - 1645 CDT
I received this letter yesterday and I thought about it quite a bit
before I wrote my reply. Even now, I'm not totally satisfied with my
answer. But I felt Mr. Swartz deserved a reasonably prompt response.
Perhaps the legal eagles amongst us would like to send John Swartz
their views on this issue. We all know this is not going to be a
cakewalk, but we all know how vital sucess in this area is to the
future of amateur radio. Any ensuing discussion might even turn up
a new idea or approach to the CC&R issue.
My reply to him is in a second message to the ODV reflector.
73 - Dick, W9GIG
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Delivered-To: dick(a)pobox.com
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Date: Fri, 31 May 2002 22:31:51 -0500
From: John Swartz <jswartz(a)eosinc.com>
Reply-To: wa9aqn(a)arrl.net
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To: Dick Isely <dick(a)pobox.com>
Cc: w5jbp(a)arrl.org
Subject: Covenants, pre-emption, and League policy
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Dick,
I want to give you my 2 cents, since you are the one with the vote at the
Board.
I urge caution in the League's approach to the proposed legislation which
would legally equate private covenants with municipal regulation in the
field of amateur antenna restrictions.
I fear that the League, and its members, may divert valuable resources from
pursuits that probably have greater liklihood of encouraging growth in the
amateur service. That is not to say that the legislation should not be
supported, but that it should not be a major focus of policy to protect the
future of amateur radio.
First, lobbying for this measure will pit the League against an array of
very powerful, connected, and politically savvy interests. Real estate
developers and brokers, mortgage bankers and financing interests are likely
to view a federal assault on the primacy of private contracts to be a juicy
target. I would imagine that anyone with any political experience would
caution that the lobbying effort could become extremely expensive. That
kind of drain on League resources should be examined very carefully. And, a
part of me says that without a PAC, our efforts are doomed anyway, but that
is just too cynical an approach.
Second, the measure may raise false expectations in the amateur population
about the prospects for success. The adoption of the bill may give some
amateurs an advantage in negotiating for some relief from covenants and
restrictions, but in the end, the courts will be called upon to examine the
measure and to pronounce upon its constitutionality. Some amateurs will
spend a lot of money in lawyers
fees chasing this Holy Grail. Some will lose, and some will lose big. Some
may prevail by achieving settlements if they can afford to outspend the
homeowners' associations. Someone will eventually pay a very big price for
a long, drawn out legal battle which may be doubtful in its outcome. The
League should not underestimate the depth of our legal system's protection
of private property interests and the sanctity of covenants and
restrictions on uses of property. It is extremely doubtful that the courts
will treat the minority interest of amateur radio operators as anything
akin to the interests of suspect classifications such as race, religion, or
ethnicity. And, we simply do not have a First Amendment right to whatever
aluminum sculptures our hearts desire to tickle the ion layers. Nor am I
aware of any court holding such covenants or restrictions to be "contracts
of adhesion." Rulings of that nature would threaten the foundations of the
real estate industry, and you can bet all your antennas and more that those
interests will not stand by without some very expensive fights.
Amateurs who then rely on such legislation, assuming it could be passed,
run the risk of some very expensive litigation, for which they will
undoubtedly seek help from the League. The failure of amateurs in court
battles could certain damage the League with its members and prospective
members.
Amateur radio must evolve, and the impact of covenants and restrictions
must not be allowed to strangle amateur radio when alternative strategies
may help save, or help our hobby to evolve in the new electronic age.
Covenants and restrictions certainly do inhibit the growth of the hobby in
some measure. How significant that is may be debated. Perhaps the future
of amateur radio will not include the powerful HF-DX-contest capable shacks
of single family residences that we have largely enjoyed for almost 100
years. That seems more likely in our populated urban and suburban settings,
but it is not something entirely new. I recall that the Chicago suburb in
which I grew up adopted a zoning regulation restricting antennas to 15 feet
above the roof peak in about 1966 or 1967. Developers have been including
restrictive covenants since the proliferation of community antenna or cable
television. This is not a problem that has developed overnight.
It is a shame that adults who become interested in amateur radio may be
limited in their antenna choices because they had purchased homes in
antenna restricted developments prior to being bitten by the radio bug. But
it is worse for the future of our hobby that young people, teens and high
school kids, may be prevented from achieving their antenna dreams because
of the real estate choices of their parents.
The League needs to focus greater attention on alternatives, particularly
for our youth, the next generation of electronic geniuses and
communications wizards. They should have adequately equipped club stations
with teams of competent, engaging and enthusiastic Elmers and Elmerettes to
spur them on. With modern technology, they can operate the school club
stations from their home computers or through their HT's if they want. We
have begun to develop that path with the Big Project. I continue to believe
that our youth will be more attracted by the prospects of working their
contemporaries 3500 miles away than by working their friends across
town. They can do that with FRS radios and CB sets. They can't make those
priceless encounters with someone in Sierra Leone, or with the
International Space Station except with a ticket from the FCC.
Yes, we should resist the proliferation of unreasonable private
restrictions on amateur radio activities, but we should be mindful of
alternative strategies that focus more positively on emerging technologies
to encourage the growth of our hobby. I believe that it would be unwise to
divert too many of the League's scarce resources to the legislative arena;
there will be a long and expensive battle which will not be over until
after the courts have addressed the language that may emerge into law if
the legislative battle is successful. The primary focus of our available
resources should be on the Big Project, and on the development of the club
concept. In other parts of the world where individuals are less able to
afford good equipment, clubs are successful and exciting ventures. We are
truly blessed to be able to afford our glorious HF-DX-Contest palaces, but
we should be mindful of the fact that the next generations of amateurs may
have something different in their futures.
73,
John Swartz
WA9AQN
Volunteer Counsel, Volunteer Examiner
Central Division
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John Swartz, wa9aqn(a)arrl.net
