MEMORANDUM
Highly Confidential;Attorney-Client Privileged Communication
To: Officers and Directors
From: Chris Imlay, W3KD
Re: Meeting with David Redl,Majority Counsel, Communications and TechnologySubcommittee,
House Committee on Energy and Commerce on Thursday, November 14, 2013
Date: November18, 2013
_____________________________________________________________________________
Greetings. Thismemo will update you on what may be a breakthrough in our effort toextend the PRB-1 limited preemption policy (that presently applies only to municipalland use restrictions) to private land use restrictions (covenants, CC&Rs,deed restrictions, homeowner’s association regulations, etc.). Theexplanation of this requires some extensive background.
In April,May and June of this year, John Chwat and I made a substantial number ofCongressional office visits on both the Senate and House sides of Capitol Hilllooking for initial sponsors for the draft Bill that we have been advocating. Iwill attach a copy of the House version of this Bill to refresh yourrecollections. I went along with John on these meetings because of the detailedfactual explanations required, which John was not really capable of doing. Thoughwe appeared to have been unsuccessful at the time (and I could never figure outhow John Chwat identified the targets of opportunity, frankly; they seemed tobe largely random except that most of the Senators and Representatives whoseoffices we visited were on the committees of jurisdiction in the House andSenate), we did meet and identify in the process two Hill staffers who werehams and who understood our concerns and expressed sympathy with them. One ofthese staffers was Josh Baggett, KK4NDB, who works for Rep. Adam Kinzinger, anIllinois Republican and a member of the Energy & Commerce Committee. Joshwas a bit concerned that his status as a ham should not be mentioned by us toanyone and we have respected that. He declined an invitation that Dave Sumnerhad me extend to him to attend our Washington luncheon that we had earlier thisyear at the National Association of Broadcasters.
We had notheard back from Josh, apparently, for some time and I was critical of John Chwatfor not doing more followup with the numerous people we had visited (or if hedid any, he didn’t tell me about them) other than the Connecticut delegation, whichin the end declined to help us. But John called me the week before last andsaid that he (John) had received a call from Dave Redl, the Majority Counsel tothe Communications and Technology Subcommittee of the House Energy and CommerceCommittee and that Redl wanted to see us. The C&T Subcomm is chaired ofcourse by Greg Walden of Oregon, W7EQI. We are well-acquainted with Dave Redl,who is a candid and very affable person for someone in his position. John and Ihad talked in detail to Redl’s predecessor (who left the Hill to lobby for themotion picture industry) about the CC&R Bill and we had been told thatWalden didn’t normally sponsor bills that came before his subcommittee, but wehad no reason to think that Walden would be hostile to our Bill if we got itintroduced in the House through someone else.
John Chwatviewed Redl’s call to us as a bad news situation. I didn’t, because if Redl was going to tellus that the C&T Subcomm was not going to support our legislation, he couldhave done it without calling us in to do so.
Meanwhile,as a separate matter, following the July Board meeting, Director Fenstermakerand President Craigie had prepared letters to Walden asking him for help withFCC staff’s refusal to grant ARRL a special call sign commemorating ourCentennial anniversary. I had, at President Craigie’s request, hand deliveredthose letters to Walden’s office and to his Senior Policy Advisor, Ray Baum,with whom I had worked on another project unrelated to ARRL. Ray was not overlyresponsive afterward, and I thought perhaps Walden was not going to help uswith that special call sign matter.
LastThursday I met Chwat in the Rayburn Cafeteria before the Redl meeting. Chwatread to me (but did not give me a copy) of some e-mail correspondence betweenChwat and Josh Baggett of Rep. Kinsinger’s office. Paraphrasing the e-mails,Josh told Chwat that Josh was working on our CC&R Bill; that Kinzinger waswilling to support it, and that Josh had spoken with “some people” about thetext of it. He said it could be introduced by Kinzinger, but that it would haveto be changed “drastically” in terms of the language. Chwat had responded toJosh by asking Josh what the revised text looked like because Chwat had tocheck with ARRL to see whether it could be supported by ARRL. Josh declined toprovide the text and said in essence that the language was still beingdiscussed, but that it would likely be non-negotiable. Chwat kept asking Josh, buthe didn’t get the revised text.
We went into see Dave Redl who was cordial and effusive as he usually is. Redl began bysaying that there were “three things” that we had on the Hill’s plate (whichturned out to be two). First, he said ARRL has the “special call sign” request.He said “we have taken care of that so that will happen for you.” He said thatARRL will be granted the special call sign authority from the Wireless Bureau butit would have to wait just long enough for the new Wireless Bureau Chief RogerSherman (just appointed by new FCC Chairman Tom Wheeler) to take over at FCC. Redlsaid that Roger Sherman was “still up here (i.e. on the Hill)” and that Shermanwould issue ARRL a letter granting the special call sign request we made. Iexplained to Redl that FCC staff had said to Dave Sumner and me that “if we doit for you we have to do it for everyone else.” Redl said that was absurd, andthat Redl himself had called WTB and asked them whether they reallythought it was a good idea for the Subcommittee with oversight jurisdictionover the Commission to have to deal with an issue of such minor magnitude thatFCC should have been willing to deal with themselves. Apparently the skids aregreased on this. Redl said that ourissue with the special call sign was being handled and that we would get it. Allthis will be resolved immediately once Sherman gets over to FCC. Sherman’s transitionfrom the C&T Subcomm to FCC WTB Chief seemed to be imminent, but I didn’tget a timetable from Redl. I was too busy effusively praising him for getting thewhole thing done.
Redl then saidthat our “second” issue, getting something in writing from Walden to FCC aboutthe Centennial Commemorative Call Sign was being handled as well; Redl said hehad drafted a letter for Walden’s signature on this “that has Walden’s callsign” on it. Redl said that he refused to do what Walden asked him to do, whichwas to sign the letter with “73” on it.
As to the“third” issue, our CC&R bill, apparently Kinzinger had approached Walden orthe Subcommittee about it. Redl saidthat Walden “wants to engage on this and get this done for you.” He said thatthe problem is that their plate is totally full during the remainder of thisyear and that it would have to be done next session, i.e. after January 1,2014. What Redl said Walden wants to do ideallyis to have a bill introduced (probably by Kinzinger, but that wasn’t entirely clear) that wasn’t based on theargument that Amateur Emcomm depends on this. Instead (and Redl said that inhis view, that this is the better argument) the Bill should be based onachieving “regulatory parity.” The regulatory parity argument (and this is whatI understood Redl to be arguing) goes this way: (1) FCC in 1985 declared astrong Federal interest in Amateur Radio communications; (2) on this premise itissued a limited preemption policy that protected amateur radio communications(not antennas, but communications)from unreasonable municipal land use regulations; but (3) unreasonable privateland use regulations have the same preclusive effect on Amateur communicationas do municipal land use regulations, and (4) therefore there should beregulatory parity and the policy should apply across the board because there isno functional difference between the preclusion effect on Amateurcommunications of unreasonable municipal land use regulations and thepreclusion effect of unreasonable private land use regulations.
We havemade that argument right along, but Redl said that it should be the entire thrustof the Bill. Once the Bill is introduced, it will be endorsed by Walden.However, rather than get Republicans all wired up about Federal governmentintrusion into private contracts, Walden’s theory is that the introduction andmarkup of the Bill will provide enough cover for FCC, at Walden’s urging, toissue a Declaratory Ruling extending PRB-1 to CC&Rs (with the support ofRoger Sherman, the WTB Chief who is “their guy”). In other words, Walden ideallydoesn’t actually want the Bill to pass, but he wants to get FCC to do what weultimately want, and to give FCC enough “guidance” from Congress that they arecomfortable doing so themselves. This is of course a brilliant strategy if hecan make it happen, because it is the absolute fastest way for us to get PRB-1protection from CC&Rs. There was no doubt in Redl’s mind that FCC now hasthe jurisdiction to issue a declaratory ruling making it happen. They just need“cover”.
We had along conversation about making sure that the effort doesn’t allow what Redlcalled “199-foot towers with very large rotatable antennas on them” for anyonethat wants one. I made sure that he understood that FCC hadn’t allowed that inPRB-1 before now, and I assured him that there is no effort to expand thelimited preemption policy, about which there is a lot of case law about whatmust be permitted and what may not be. He need have no doubt that an HOA couldprohibit all but largely invisible wire antennas if they wanted to under auniversally applicable PRB-1 and likely get away with it.
What Waldenwants us to do is to stand down untilafter the first of the year, and call offany legislative efforts on this topic until then, and to work with them afterJanuary 1. I told Redl that we would do as they asked, because we reallyhave no good alternative and this looked very good to me as a course of actionthat incorporated Walden’s critical and welcome support.
Redl askedif we had any other legislative issues. I told him that those were the Big Twobut that we had some minor issues we were tracking rather than advocating. Imentioned the engineer/computer scientist in the Commissioners’ officeslegislation and he said that because that had a price tag it was not goinganywhere soon. I assured him that we were not surprised or concerned about that.
He thenproceeded to change the subject and asked me a bunch of questions about non-amateurspectrum matters, during which I engaged him, as they are items I happened toknow something about. He asked if ARRL had any spectrum issues and I told him thatwe didn’t have anything that merited his attention at the moment.
Chwat askedRedl whether the Senate would balk at the process that Walden had in mind. Redlwas puzzled by the question but suggested that the Senate probably didn’t paymuch attention to Amateur Radio, so no, he didn’t anticipate any pushback.
That wasthe extent of this. I think it was a very positive turn of events on all fronts.
While Ihave complete trust in Dave Redl and I did not doubt anything Redl told me, Idid have on Friday last an opportunity to independently verify the essence ofwhat Redl told me. Chwat has been shepherding along some very well-intentionedefforts by Mr. Mike Perry from Cincinnati, Ohio (apparently a big fan ofDirector Weaver) who came to Washington for a meeting on Friday with Mike’s congressperson, Rep. Wenstrup (whois not on the Energy and Commerce Committee). Chwat had passed Mike onto me to go with Mike to this meeting. Ihad called Mike and asked him if we could call this meeting off because we werenow working a more promising angle with the House subcommittee. Mike said thatit would be very awkward to do that now because the meeting was called byWenstrup’s staff to answer questions about our Bill based on previous meetingsthat Mike had had with Wenstrup directly, and with his Chief of Staff. I toldhim I would go along but that I would have to ask that they hold off any actionon this until further notice, and in any case after the first of the year. Mikewas fine with that. He was here already and had flown out, in part for thismeeting. I really liked Mike, but I didn’twant to urge Wenstrup’s office to do anything because of my commitment to Redlthat we would stand down for now. I needn’t have worried. Wenstrup’sLegislative Assistant, Kate Raulin, had been in touch with Redl directly andhad been told that Walden “wanted to drive the bus on this” and that Wenstrupwas happy to help but that in their view, Walden and Redl had this well inhand. I agreed and Mike was fine with that.
Finally, Ihave been working with Director Lisenco, who had, also on Friday, a verypromising meeting with New York Representative Tonko’s staff. Tonko is onEnergy and Commerce and can be very helpful to us if need be. Mike knows of ourcommitment to Redl and is acting consistently with that obligation.
Due to thecandor in this memo about our strategies, please under no circumstances sharethis with anyone outside the Board Official Family. Thanks.
73, Chris W3KD
Christopher D. Imlay
Booth, Freret, Imlay & Tepper. P.C.
14356 Cape May Road
Silver Spring, Maryland 20904-6011
(301) 384-5525 telephone
(301) 384-6384 facsimile
W3KD(a)ARRL.ORG
