Doug that is an *easy* argument to address, and one that we have had a consistent policy about for many, many years. I can prepare an FAQ on the subject but I would suggest that the thought expressed by your constituent is a very tiny minority view. I have just today put a good deal about this in my Board report that I am in the middle of writing now. If you need to get back to your constituent sooner, I will prepare you a memo that you can use. The bottom line is that these are not private contracts and they never have been. There is no meeting of the minds about antenna regulations in CC&Rs; they are no more than unilaterally imposed limits on the bundle of rights that a buyer of land would otherwise acquire from a seller; they are imposed at the time a subdivision plat is filed and there is no negotiability about them because they run with the land. They are not contracts in any sense of the term. Nor can a ham in many areas find a residence that is not encumbered by CC&Rs or HOAs. Most importantly,the Federal government has a superseding interest in Amateur Radio communications and it has the preemptive authority that it needs to require resasonable accommmodation. And it is not as simple as buying a parcel of land and "understanding the restrictions imposed." In most cases that is impossible. If I buy a house in a deed-restricted subdivision and the CC&R says (as they typically do) "no outdoor antennas without the approval of the HOA (or the architectural control committee) I have no idea whether I can put up a functional antenna or not. For background, I urge you to read our submission to FCC on this subject submitted in response to the legislation that required FCC and DHS to evaluate the impact of CC&Rs on Amateur antennas. That (without exhibits) is attached. Also, consider the briefing paper that we used some time ago which notes the exponential proliferation of CC&R-restricted communities. Not everyone gets to choose where they live. Finally, we are not trying to "invalidate" covenants. At all. We are attempting to get a place at the table to allow us to negotiate with HOAs and to require them to accommodate us. That might mean a wire antenna in a tree, but it is better than the knee-jerk answers that hams get now. We are not arguing that we are special, but there is a strong Federal interest in Amateur Radio communications and we are asking for regulatory parity. The Federal policy is well-established; it should be applied to all types of regulations, municipal and private, that fail to make reasonable accommodation for Amateur Radio communications. 73, Chris W3KD On Tue, Jul 1, 2014 at 4:33 PM, Doug Rehman <doug@k4ac.com> wrote:
I have received an interesting email from a member in the Southeastern Division that is also a volunteer counsel. He raises an interesting question that the Board needs to have a good, unified answer to—a FAQ similar to the RM-11708 one on the website might be in order.
Rather than attempt to paraphrase, here’s the pertinent part of his email:
“Second, I am concerned about federal legislation that wholesale invalidates private contracts. The federalism concerns which prompted the FCC to avoid interfering with CC&Rs in the first instance continue to exist even with Congressional fact-finding or action. It seems to me that if a ham moves to a development with CC&Rs, that is on him or her to exercise due diligence to understand the restrictions imposed, how they work and how they can be enforced.
Despite our public service, I struggle with what makes us think we are special and should not be bound by private contracts that we voluntarily enter into.”
What is the Board response, especially in view of that being a question that is likely to be asked by legislators and by opponents such as HOAs?
Doug
K4AC
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