Having
read in detail the FCC’s “Report” that is being submitted to Congress, what
strikes me about it is its remarkably superficial content from beginning to end.
There is nary a shred of FCC analysis in this. I had thought that reports about
the draft document sent over to DHS were perhaps overly critical, not having
seen this at the time. But the gist of those early reports was entirely
accurate: the report contains no analysis at all. It merely reports on certain
of the comments and summarizes, rather than analyzes, the comments received.
There is zero original input into the document. It skews toward the CAI input
(and that of one individual HOA representative) because that input is
consistent with the FCC’s prior decisions refusing to preempt CC&Rs itself.
It
is to be expected that the FCC won’t want to make a recommendation to Congress
that makes its prior decisions look as though they were in error when made.
However, in order to avoid that, the Report ignores ARRL’s argument about the
pervasiveness of covenants and the severity of the language of covenants. Our
comments, if seriously analyzed by a responsible government employee reviewing
the record, would have justified a finding that there is not in many cases an
opportunity for an Amateur Radio operator to operate a station from his or her
residence. But the Report, without citation to any part of the record at all, concludes
in paragraph 39 that “Moreover, while commenters suggest that private land use
restrictions have become more common, our review of the record does not
indicate that amateur operators are unable to find homes that are not subject
to such restrictions.” That is a completely irresponsible conclusion, and it
indicates that it was somehow the commenters’ obligation to prove a negative,
rather than the FCC’s obligation to investigate this by doing more than just
reading the comments filed. How completely unimaginative and irresponsible.
There
are some helpful, quotable portions of the report pertaining to the value of
Amateur Radio in emergencies and in disaster relief. However, with respect to the impediments to
enhanced Amateur Radio emergency communications, and specifically relative to
the need to preempt CC&Rs, the report simply says, in effect, that “well,
one group says this and another group says that, so we can’t conclude that our
prior decisions refusing to preempt CC&Rs were wrong.” No one is asking the
Commission to admit that it was wrong, in 1985 or even in the 1990s when ARRL
asked FCC to review the matter. But unanimity in comments received is not a
prerequisite for, nor is it a substitute for, independent analysis. Congress
had every reason to expect much more from this report than the exceptionally
poor response of the agency.
Defensively,
FCC states in footnote 14 that drafts of the Public Notice and the report were “shared
with OEC prior to release, and OEC provided substantive comments and
suggestions throughout the process.” What the footnote does not say, however,
is that those OEC comments were not incorporated in the final version of the
Report. How collegial is that? The DHS input, (we are told on very good
authority) made reference to FCC’s OTARD decision to preempt CC&Rs, finding
that they were a significant impediment to video delivery to residences. FCC conveniently excised that from the final version
of the Report because it would have justified a recommendation that Congress
instruct FCC to preempt CC&Rs. Like the BPL proceeding, FCC simply sweeps
under the rug that which does not fit well with its preconceived outcomes.
It seems to me that
ARRL should consider submitting a critique of this Report to Congress, with a
copy to the Chiefs of WTB and PSHSB, who should be ashamed to submit to
Congress such a superficial and insubstantial Report.
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@ARRL.ORG
-----Original Message-----
From: Niswander, Rick <NISWANDERF@ecu.edu>
To: Sumner, Dave, K1ZZ, K1ZZ <dsumner@arrl.org>; arrl-odv <arrl-odv@arrl.org>
Sent: Tue, Aug 21, 2012 4:04 pm
Subject: [arrl-odv:21036] Re: FCC Report to Congress
Classic verbiage that appears to say one thing but actually has virtually no information content at all.
If 1,000 homes are for sale, and 990 of them have restrictions, the statement is factually correct – “the record does not indicate that amateur operators are unable to find homes that are not subject to such
restrictions.” In fact, that statement is factually correct as long as there are at least two homes not subject to restrictions.
Dr. Frederick (Rick) Niswander, Ph.D., CPA, CGMA
Vice Chancellor for Administration and Finance
Spilman 106
East Carolina University
Greenville, NC 27858
252-328-6975
252-328-4835 (FAX)
Attached is the FCC Report to Congress
Pursuant to Section 6414 of the Middle Class Tax Relief and Job Creation Act of 2012.
I have not yet read the entire document carefully but the following sentence jumped out at me from paragraph 39: “Moreover,
while commenters suggest that private land use restrictions have become more common,86 our review of the record does not indicate that amateur operators are unable to find homes that are not subject to such restrictions.”
They must be looking at a different record.
Dave