MEMORANDUM
Highly Confidential;
Attorney-Client Privileged Communication
To: Officers and Directors
From: Chris Imlay, W3KD
Re: Meeting with David Redl,
Majority Counsel, Communications and Technology
Subcommittee,
House Committee on Energy and Commerce on Thursday, November 14, 2013
Date: November
18, 2013
_____________________________________________________________________________
Greetings. This
memo will update you on what may be a breakthrough in our effort to
extend the PRB-1 limited preemption policy (that presently applies only to municipal
land use restrictions) to private land use restrictions (covenants, CC&Rs,
deed restrictions, homeowner’s association regulations, etc.). The
explanation of this requires some extensive background.
In April,
May and June of this year, John Chwat and I made a substantial number of
Congressional office visits on both the Senate and House sides of Capitol Hill
looking for initial sponsors for the draft Bill that we have been advocating. I
will attach a copy of the House version of this Bill to refresh your
recollections. I went along with John on these meetings because of the detailed
factual explanations required, which John was not really capable of doing. Though
we appeared to have been unsuccessful at the time (and I could never figure out
how John Chwat identified the targets of opportunity, frankly; they seemed to
be largely random except that most of the Senators and Representatives whose
offices we visited were on the committees of jurisdiction in the House and
Senate), we did meet and identify in the process two Hill staffers who were
hams and who understood our concerns and expressed sympathy with them. One of
these staffers was Josh Baggett, KK4NDB, who works for Rep. Adam Kinzinger, an
Illinois Republican and a member of the Energy & Commerce Committee. Josh
was a bit concerned that his status as a ham should not be mentioned by us to
anyone and we have respected that. He declined an invitation that Dave Sumner
had me extend to him to attend our Washington luncheon that we had earlier this
year at the National Association of Broadcasters.
We had not
heard back from Josh, apparently, for some time and I was critical of John Chwat
for not doing more followup with the numerous people we had visited (or if he
did any, he didn’t tell me about them) other than the Connecticut delegation, which
in the end declined to help us. But John called me the week before last and
said that he (John) had received a call from Dave Redl, the Majority Counsel to
the Communications and Technology Subcommittee of the House Energy and Commerce
Committee and that Redl wanted to see us. The C&T Subcomm is chaired of
course 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 I
had talked in detail to Redl’s predecessor (who left the Hill to lobby for the
motion picture industry) about the CC&R Bill and we had been told that
Walden didn’t normally sponsor bills that came before his subcommittee, but we
had no reason to think that Walden would be hostile to our Bill if we got it
introduced in the House through someone else.
John Chwat
viewed Redl’s call to us as a bad news situation. I didn’t, because if Redl was going to tell
us that the C&T Subcomm was not going to support our legislation, he could
have done it without calling us in to do so.
Meanwhile,
as a separate matter, following the July Board meeting, Director Fenstermaker
and President Craigie had prepared letters to Walden asking him for help with
FCC staff’s refusal to grant ARRL a special call sign commemorating our
Centennial anniversary. I had, at President Craigie’s request, hand delivered
those 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 overly
responsive afterward, and I thought perhaps Walden was not going to help us
with that special call sign matter.
Last
Thursday I met Chwat in the Rayburn Cafeteria before the Redl meeting. Chwat
read to me (but did not give me a copy) of some e-mail correspondence between
Chwat 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 was
willing to support it, and that Josh had spoken with “some people” about the
text of it. He said it could be introduced by Kinzinger, but that it would have
to be changed “drastically” in terms of the language. Chwat had responded to
Josh by asking Josh what the revised text looked like because Chwat had to
check with ARRL to see whether it could be supported by ARRL. Josh declined to
provide the text and said in essence that the language was still being
discussed, but that it would likely be non-negotiable. Chwat kept asking Josh, but
he didn’t get the revised text.
We went in
to see Dave Redl who was cordial and effusive as he usually is. Redl began by
saying that there were “three things” that we had on the Hill’s plate (which
turned 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 that
ARRL will be granted the special call sign authority from the Wireless Bureau but
it would have to wait just long enough for the new Wireless Bureau Chief Roger
Sherman (just appointed by new FCC Chairman Tom Wheeler) to take over at FCC. Redl
said that Roger Sherman was “still up here (i.e. on the Hill)” and that Sherman
would issue ARRL a letter granting the special call sign request we made. I
explained to Redl that FCC staff had said to Dave Sumner and me that “if we do
it for you we have to do it for everyone else.” Redl said that was absurd, and
that Redl himself had called WTB and asked them whether they really
thought it was a good idea for the Subcommittee with oversight jurisdiction
over the Commission to have to deal with an issue of such minor magnitude that
FCC should have been willing to deal with themselves. Apparently the skids are
greased on this. Redl said that our
issue with the special call sign was being handled and that we would get it. All
this will be resolved immediately once Sherman gets over to FCC. Sherman’s transition
from the C&T Subcomm to FCC WTB Chief seemed to be imminent, but I didn’t
get a timetable from Redl. I was too busy effusively praising him for getting the
whole thing done.
Redl then said
that our “second” issue, getting something in writing from Walden to FCC about
the Centennial Commemorative Call Sign was being handled as well; Redl said he
had drafted a letter for Walden’s signature on this “that has Walden’s call
sign” on it. Redl said that he refused to do what Walden asked him to do, which
was to sign the letter with “73” on it.
As to the
“third” issue, our CC&R bill, apparently Kinzinger had approached Walden or
the Subcommittee about it. Redl said
that Walden “wants to engage on this and get this done for you.” He said that
the problem is that their plate is totally full during the remainder of this
year and that it would have to be done next session, i.e. after January 1,
2014. What Redl said Walden wants to do ideally
is to have a bill introduced (probably by Kinzinger, but that wasn’t entirely clear) that wasn’t based on the
argument that Amateur Emcomm depends on this. Instead (and Redl said that in
his view, that this is the better argument) the Bill should be based on
achieving “regulatory parity.” The regulatory parity argument (and this is what
I understood Redl to be arguing) goes this way: (1) FCC in 1985 declared a
strong Federal interest in Amateur Radio communications; (2) on this premise it
issued a limited preemption policy that protected amateur radio communications
(not antennas, but communications)
from unreasonable municipal land use regulations; but (3) unreasonable private
land use regulations have the same preclusive effect on Amateur communication
as do municipal land use regulations, and (4) therefore there should be
regulatory parity and the policy should apply across the board because there is
no functional difference between the preclusion effect on Amateur
communications of unreasonable municipal land use regulations and the
preclusion effect of unreasonable private land use regulations.
We have
made that argument right along, but Redl said that it should be the entire thrust
of the Bill. Once the Bill is introduced, it will be endorsed by Walden.
However, rather than get Republicans all wired up about Federal government
intrusion into private contracts, Walden’s theory is that the introduction and
markup of the Bill will provide enough cover for FCC, at Walden’s urging, to
issue a Declaratory Ruling extending PRB-1 to CC&Rs (with the support of
Roger Sherman, the WTB Chief who is “their guy”). In other words, Walden ideally
doesn’t actually want the Bill to pass, but he wants to get FCC to do what we
ultimately want, and to give FCC enough “guidance” from Congress that they are
comfortable doing so themselves. This is of course a brilliant strategy if he
can make it happen, because it is the absolute fastest way for us to get PRB-1
protection from CC&Rs. There was no doubt in Redl’s mind that FCC now has
the jurisdiction to issue a declaratory ruling making it happen. They just need
“cover”.
We had a
long conversation about making sure that the effort doesn’t allow what Redl
called “199-foot towers with very large rotatable antennas on them” for anyone
that wants one. I made sure that he understood that FCC hadn’t allowed that in
PRB-1 before now, and I assured him that there is no effort to expand the
limited preemption policy, about which there is a lot of case law about what
must be permitted and what may not be. He need have no doubt that an HOA could
prohibit all but largely invisible wire antennas if they wanted to under a
universally applicable PRB-1 and likely get away with it.
What Walden
wants us to do is to stand down until
after the first of the year, and call off
any legislative efforts on this topic until then, and to work with them after
January 1. I told Redl that we would do as they asked, because we really
have no good alternative and this looked very good to me as a course of action
that incorporated Walden’s critical and welcome support.
Redl asked
if we had any other legislative issues. I told him that those were the Big Two
but that we had some minor issues we were tracking rather than advocating. I
mentioned the engineer/computer scientist in the Commissioners’ offices
legislation and he said that because that had a price tag it was not going
anywhere soon. I assured him that we were not surprised or concerned about that.
He then
proceeded to change the subject and asked me a bunch of questions about non-amateur
spectrum matters, during which I engaged him, as they are items I happened to
know something about. He asked if ARRL had any spectrum issues and I told him that
we didn’t have anything that merited his attention at the moment.
Chwat asked
Redl whether the Senate would balk at the process that Walden had in mind. Redl
was puzzled by the question but suggested that the Senate probably didn’t pay
much attention to Amateur Radio, so no, he didn’t anticipate any pushback.
That was
the extent of this. I think it was a very positive turn of events on all fronts.
While I
have complete trust in Dave Redl and I did not doubt anything Redl told me, I
did have on Friday last an opportunity to independently verify the essence of
what Redl told me. Chwat has been shepherding along some very well-intentioned
efforts by Mr. Mike Perry from Cincinnati, Ohio (apparently a big fan of
Director Weaver) who came to Washington
for a meeting on Friday with Mike’s congressperson, Rep. Wenstrup (who
is not on the Energy and Commerce Committee). Chwat had passed Mike on
to me to go with Mike to this meeting. I
had called Mike and asked him if we could call this meeting off because we were
now working a more promising angle with the House subcommittee. Mike said that
it would be very awkward to do that now because the meeting was called by
Wenstrup’s staff to answer questions about our Bill based on previous meetings
that Mike had had with Wenstrup directly, and with his Chief of Staff. I told
him I would go along but that I would have to ask that they hold off any action
on this until further notice, and in any case after the first of the year. Mike
was fine with that. He was here already and had flown out, in part for this
meeting. I really liked Mike, but I didn’t
want to urge Wenstrup’s office to do anything because of my commitment to Redl
that we would stand down for now. I needn’t have worried. Wenstrup’s
Legislative Assistant, Kate Raulin, had been in touch with Redl directly and
had been told that Walden “wanted to drive the bus on this” and that Wenstrup
was happy to help but that in their view, Walden and Redl had this well in
hand. I agreed and Mike was fine with that.
Finally, I
have been working with Director Lisenco, who had, also on Friday, a very
promising meeting with New York Representative Tonko’s staff. Tonko is on
Energy and Commerce and can be very helpful to us if need be. Mike knows of our
commitment to Redl and is acting consistently with that obligation.
Due to the
candor in this memo about our strategies, please under no circumstances share
this with anyone outside the Board Official Family. Thanks.
73, Chris W3KD