Dear ODV,
Rick Roderick has asked that I bring you up to date on the Legislative front as he is currently in transit to HQ.
What follows is the memo Chris and I sent to the Executive Committee yesterday informing them of surprising developments in the continuing saga of H.R. 1301 / S.1685. Please read the full memo, which follows. Short form basically is this; a meeting was held last Friday between Dave Redl, Majority Party Counsel to the House Telecommunications subcommittee, Josh Baggett, Legislative Director for Congressman Kinzinger, and representatives of CAI.
As explained to us by Frank McCarthy of The Keelen Group, Mr. Redl applied pressure to CAI to accept our last proposal of March 30, 2016 with two exceptions explained below. The Executive Committee has agreed that we should accept the exceptions and move forward, which we are doing.
Chris and I will be meeting with Dave Redl on Thursday. We will let him know that ARRL approves moving forward with his confirmation that “CAI not only accept the language, but proactively work for its passage - including letters of support and gaining Nelson's buy in.”
If we do not accept the changes, quite frankly the bill is dead this session. With the expected change in the make-up of the Senate and possibly the House next year, we will more than likely not get another chance at this for some years to come.
Rick wrote me the following earlier today. “I've given this a lot of consideration. I've also talked to Chris about what is now on the table. I believe we need to move forward with it. The point that with this language we will have a firm right to erect an effective outdoor antenna versus having one based on reasonable accommodation seems positive. Further, Chris confirmed my understanding that this in no way will impact PRB-1.”
Your thoughts are welcome. We will continue to keep you posted.
(Also please find attached the proposed amended H.R. 1301. The two changes are redlined.)
73 de Mike
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Mike Lisenco, N2YBB
Director, Hudson Division
Chairman, ad hoc Legislative Advocacy Committee
ARRL - The national association for Amateur Radio™
917-865-3538
n2ybb(a)arrl.org
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(MEMO TO EXECUTIVE COMMITTEE May 2, 2016 and approved May 3, 2016)
Hello - -
While Chris and I are very reluctant to keep coming to the EC and the Legislative Advocacy Committee with changed circumstances and different recommendations, we have given you fair warning that the situation on Capitol Hill that we have been diligently following in real time changes very fast and, as now, very unpredictably. We are now coming back to you with a recommendation that we believe is the only path that will get us a good solid CC&R Bill through Congress this term, right away. Your acceptance of the attached Substitute Amendment that Dave Redl of Congressman Walden’s staff and Josh Baggett of Congressman Kinzinger’s staff negotiated directly with CAI will avoid the virtual certainty otherwise of failure of our legislative effort over the past two years in this Congress, and the very high probability that we would not be able to duplicate this effort successfully in the next term of Congress.
We will explain the details of the very unexpected deal that Redl and Baggett have brought to the table in this memo, but first some background that leads up to how we got to this point.
The last time we briefed you about the status of our Bills, we had reached an impasse in our negotiations for language for a Substitute Amendment. The crux of the breakdown was that we were insisting that the rules that the HOAs would be able to enact governing antennas in deed-restricted communities had to be unconditionally subject to the standards guaranteeing (1) no preclusion of amateur communications; (2) the right to install an effective, efficient outdoor antenna; and (3) that the CC&Rs had to be the least practicable regulation in order to accomplish the lawful purposes of the community association seeking to enforce the restriction. CAI wanted HOAs to be able to enact rules that were not necessarily subject to those three absolute standards, though they were happy to leave the standards in place as a preemption policy governing CC&Rs generally. We developed what we thought was some rather elegant language to address this impasse in response to CAI’s March 28 proffer. Our March 30 Substitute Amendment (which the EC approved) however, was flatly rejected by CAI’s former president who made enough obnoxious (and false) allegations about our motives that it became obvious to us that CAI had no intention of voluntarily compromising with us; they just wanted to eat up as much time as possible (which they were successful in doing for two months). So we never responded to the scoundrels.
What we did to was to meet with Dave Redl and Josh Baggett (separately) about this. Each (also separately) said that it became plain to them that CAI didn’t want a deal; they just wanted to kill time. Josh’s advice to us was to use the remainder of this term of Congress to get as many cosponsors in the House for H.R. 1301 as we could, and to commence a letter blitz on Florida Senator Nelson to try to convince him to change his mind and support our existing Bill, S. 1685. If we got letters to Nelson from hundreds of hams and from first responder organizations, the Red Cross, the National Hurricane Center, and other public safety groups among our served agencies, or letters to us that we could take to Nelson, he might change his mind. It was a long shot. Mike Corey is working on getting us those letters now. Dan Henderson is working on getting letters from Florida hams sent to Nelson. Doug Rehman and Mike Lee are arranging a meeting with Nelson. We are doing the full court press on this, but it is a very, very long shot indeed.
Redl first asked us if there was any way we could support CAI’s last version of a Substitute Amendment, and get that passed and then work on remedial legislation to fix any problems with it next term. We said no, that wouldn’t work because CAI’s last over to us was an illusion; we would be almost as badly off as we are now. That was a bit of an exaggeration, but we didn’t want to accept a severely compromised Bill. We told Redl that we thought we were extremely close to a deal with our March 30 Substitute Amendment, but CAI effectively cut off the negotiations. Redl said he would consider beating up CAI once more but basically said that without Nelson’s buy-in, our Bill was simply not going to pass this Congress and there was no point in trying to pass the House Bill because it would dead-end in the Senate.
Chris Imlay, Frank McCarthy, and I left that meeting rather discouraged but Frank said that he and Matt Keelen would speak with Walden directly about this. They did that at a TKG event and received some encouragement from Walden, at least about passing the Bill in the House. So we wanted to follow up with Walden on that and last week Chris presented Walden with a very nice plaque that Dave Sumner had brought to Washington during our recent Washington area ham luncheon, and left with TKG to be presented to Walden at the right time. The plaque was to thank him for arranging for a special call sign for W100AW that FCC had refused to give us for our Centennial.
Frank and Matt arranged that presentation to Walden and while there, they asked Walden what we could do about our Bill. Walden said essentially the same thing that Redl told us: that we had to find a way to get Nelson to change his mind, and to keep getting House cosponsors. Walden was quite averse to passing the House Bill unless there was some way to get Nelson to support us. Walden said that it would not be good for any of us to have the House Bill pass and to get stymied in the Senate. We outlined our advocacy plan for Nelson and Walden said keep at it.
Then, late Friday, Frank McCarthy contacted us and told us that Redl had called the CAI people in for a meeting. Redl did what he said he would do. He beat them up to take ARRL’s March 30 Substitute Amendment. He beat them up hard. CAI has accepted virtually all of our March 30 Substitute Amendment, with two exceptions. Chris explains those two exceptions and you can see them for yourself in the attached redlined copy. The redlines show the changes that represent, in effect, what Redl describes as the best possible Substitute Amendment that can be had. He suggests we accept this. Here is how Frank McCarthy describes the situation to us as of this morning:
See the attached, which represents what Redl called his "last, best attempt" at finding a compromise with CAI. He also added that he believes this is the last chance for us to get something done this Congress.
He assured me that CAI is willing to accept it. They will be having their national convention this week and Canady and Perl will be taking the attached to their board and are confident they will get it done. After I asked, he also said that he insisted that CAI not only accept the language, but proactively work for its passage - including letters of support and gaining Nelson's buy in.
Redl also tells me that he, Baggett & Eshoo are ready to accept it and move forward, pending ARRL's acceptance. He also said he'd get the bill marked up in the full committee and moved if we were to find the language acceptable.
If we do accept it, here is how Frank McCarthy explains the process from here on:
I can't say CAI won't renege, but Redl has them at their word that they will proactively support the legislation - including with Eshoo & Nelson. There won't be a deal without their full cooperation.
If we were to accept the language and go down this legislative road, a prerequisite would be a commitment from Thune & Nelson to move the bill. The pathway to passage would likely go thusly:
• In the Full Committee of House E&C, a Manager's Amendment would be offered and agreed to without objection. It would strike the existing language of HR 1301 and replace it with the language that we are now discussing.
• HR 1301, as amended, would then be put to a vote in the full committee.
• After passing the Committee, the bill would be placed on the Suspension Calendar - a mechanism for expediting less controversial legislation. Under suspension, a bill would need the support of 2/3 of present Members in order to pass. There are no amendments, just an up or down vote. Many suspensions are passed by voice vote every morning when the House is in session.
• After House passage, the bill (HR 1301, as amended) would be Hotlined in the Senate and brought to the floor under Unanimous Consent.
• Once passed, it goes to the president's desk for his signature.
So here is the way that Redl’s negotiated Substitute Amendment (copy attached) differs from our last presentation to CAI:
(1) Instead of the second of the three standards guaranteeing an “effective, efficient outdoor antenna” it would guarantee hams the ability to install and maintain an “effective outdoor antenna”. Since there is no definition in the Bill of what constitutes an effective outdoor antenna, that is something that would have to be established on a case-by-case basis. We liked the additional criterion of an efficient antenna because it helped establish the need for antennas of certain physical size. But it is arguably redundant since the concept of an “effective” outdoor antenna remains. We will have to test this in case law inevitably. Any way you look at it, however, having a firm right to install and maintain an “effective outdoor antenna” is far better than an entitlement to only “reasonable accommodation.”
(2) The reasonable written rules that an HOA could enact pursuant to Subsection (b)(3) would be subject to the no preclusion of Amateur communications standard and the guarantee of an effective outdoor antenna standard but not the “least practicable regulation” standard. This requires some explanation. If the Bill were to pass in the form attached, CC&R language would have to be subject to all three standards (no preclusion, guaranteed effective outdoor antenna and minimum practicable regulation to accomplish HOA’s lawful purposes). However, HOAs enacting reasonable rules governing installation, height, location size and aesthetic impact would not have to demonstrate why each provision of their rules is valid because there is not a less burdensome alternative. This does not save a CC&R that isn’t the least practicable regulation but it does relieve the HOA from having to defend each and all of its reasonable rules on the basis that there is not some less burdensome limit. This is in my view inadequate to get CAI where it wants to go but we don’t really care.
In summary, we recommend that ARRL buy into this, subject to the condition that Bill Nelson agrees to support it and agree to allow the Bill to pass the Senate unanimously. If this Bill passes, we are arguably better off than we would be with our existing Bills. And if we reject this offer, our chances of passing this Bill this term are negligible. Next year, as the TKG folks put it, there is a good likelihood that the Democrats will retake the Senate. If that happens, Bill Nelson becomes the Chair of the Senate Commerce Committee rather than Senator Thune. You can see how that disaccommodates a second run at our legislation.
Please let us know very soon how to proceed. Chris and I are meeting with Redl on Thursday of this week and we and TKG need your instruction.
73 de Mike N2YBB and Chris W3KD
