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
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
_______________________________________________ arrl-odv mailing list arrl-odv@reflector.arrl.org http://reflector.arrl.org/mailman/listinfo/arrl-odv
-- Christopher D. Imlay Booth, Freret & Imlay, LLC 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG
Thanks Chris and Marty for some great information to use. If it’s ok with you Chris, I’ll do some cutting and pasting from your email to make a reply to the member and also send him the Response Comments from 2012. Since he’s an attorney, that document should contain a good explanation and evidence that his assertions are incorrect. I think we really do need a FAQ produced as quickly as possible for use by amateurs that might be contacting their congressmen to become co-sponsors. The better we can equip people, the more professional we will appear—especially when the HOA organizations begin to lobby against the bill. I’m already seeing chatter about contacting representatives as a result of the ARRL news article. Thanks, Doug K4AC From: Christopher Imlay [mailto:w3kd.arrl@gmail.com] Sent: Tuesday, July 1, 2014 5:48 PM To: k4ac Cc: arrl-odv Subject: Re: [arrl-odv:22907] HR 4969 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 _______________________________________________ arrl-odv mailing list arrl-odv@reflector.arrl.org http://reflector.arrl.org/mailman/listinfo/arrl-odv -- Christopher D. Imlay Booth, Freret & Imlay, LLC 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG
Yes, Doug, right you are. Because of the unexpected and very long delay in the introduction of the Bill, we are not ready with a grassroots effort that we now need to ramp up. We need the actual text of the Bill which should be soon and we are working up a short "how to" on soliciting one's congressperson for cosponsorship. 73, Chris W3KD Sent from my iPhone
On Jul 1, 2014, at 10:02 PM, Doug Rehman <doug@k4ac.com> wrote:
Thanks Chris and Marty for some great information to use.
If it’s ok with you Chris, I’ll do some cutting and pasting from your email to make a reply to the member and also send him the Response Comments from 2012. Since he’s an attorney, that document should contain a good explanation and evidence that his assertions are incorrect.
I think we really do need a FAQ produced as quickly as possible for use by amateurs that might be contacting their congressmen to become co-sponsors. The better we can equip people, the more professional we will appear—especially when the HOA organizations begin to lobby against the bill.
I’m already seeing chatter about contacting representatives as a result of the ARRL news article.
Thanks, Doug K4AC
From: Christopher Imlay [mailto:w3kd.arrl@gmail.com] Sent: Tuesday, July 1, 2014 5:48 PM To: k4ac Cc: arrl-odv Subject: Re: [arrl-odv:22907] HR 4969
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
_______________________________________________ arrl-odv mailing list arrl-odv@reflector.arrl.org http://reflector.arrl.org/mailman/listinfo/arrl-odv
-- Christopher D. Imlay Booth, Freret & Imlay, LLC 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG
Dan Henderson is the principal staffer on grassroots. He was planning to be on vacation for the rest of the week but told me in Friedrichshafen that he would come in tomorrow. We’ll have more for you all about strategy tomorrow afternoon. Dave From: arrl-odv [mailto:arrl-odv-bounces@reflector.arrl.org] On Behalf Of Imlay, Chris, W3KD Sent: Wednesday, July 02, 2014 7:12 AM To: Rehman, Doug, K4AC Cc: arrl-odv Subject: [arrl-odv:22911] Re: HR 4969 Yes, Doug, right you are. Because of the unexpected and very long delay in the introduction of the Bill, we are not ready with a grassroots effort that we now need to ramp up. We need the actual text of the Bill which should be soon and we are working up a short "how to" on soliciting one's congressperson for cosponsorship. 73, Chris W3KD Sent from my iPhone On Jul 1, 2014, at 10:02 PM, Doug Rehman <doug@k4ac.com<mailto:doug@k4ac.com>> wrote: Thanks Chris and Marty for some great information to use. If it’s ok with you Chris, I’ll do some cutting and pasting from your email to make a reply to the member and also send him the Response Comments from 2012. Since he’s an attorney, that document should contain a good explanation and evidence that his assertions are incorrect. I think we really do need a FAQ produced as quickly as possible for use by amateurs that might be contacting their congressmen to become co-sponsors. The better we can equip people, the more professional we will appear—especially when the HOA organizations begin to lobby against the bill. I’m already seeing chatter about contacting representatives as a result of the ARRL news article. Thanks, Doug K4AC From: Christopher Imlay [mailto:w3kd.arrl@gmail.com] Sent: Tuesday, July 1, 2014 5:48 PM To: k4ac Cc: arrl-odv Subject: Re: [arrl-odv:22907] HR 4969 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<mailto: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 _______________________________________________ arrl-odv mailing list arrl-odv@reflector.arrl.org<mailto:arrl-odv@reflector.arrl.org> http://reflector.arrl.org/mailman/listinfo/arrl-odv -- Christopher D. Imlay Booth, Freret & Imlay, LLC 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG<mailto:W3KD@ARRL.ORG>
Chris and Marty have covered this very well. There is a summary of the history of the issue from 1985 through mid-2012 in the August 2012 QST editorial, “Restrictive Covenants.” Of course, after that the FCC’s report to Congress consisted of just 15 pages and didn’t deal with the substance of our 128-page filing. I am planning to devote the August 2014 editorial to HR4969. Dave K1ZZ From: arrl-odv [mailto:arrl-odv-bounces@reflector.arrl.org] On Behalf Of Rehman, Doug, K4AC Sent: Tuesday, July 01, 2014 10:02 PM To: Imlay, Chris, W3KD Cc: arrl-odv Subject: [arrl-odv:22910] Re: HR 4969 Thanks Chris and Marty for some great information to use. If it’s ok with you Chris, I’ll do some cutting and pasting from your email to make a reply to the member and also send him the Response Comments from 2012. Since he’s an attorney, that document should contain a good explanation and evidence that his assertions are incorrect. I think we really do need a FAQ produced as quickly as possible for use by amateurs that might be contacting their congressmen to become co-sponsors. The better we can equip people, the more professional we will appear—especially when the HOA organizations begin to lobby against the bill. I’m already seeing chatter about contacting representatives as a result of the ARRL news article. Thanks, Doug K4AC From: Christopher Imlay [mailto:w3kd.arrl@gmail.com] Sent: Tuesday, July 1, 2014 5:48 PM To: k4ac Cc: arrl-odv Subject: Re: [arrl-odv:22907] HR 4969 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<mailto: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 _______________________________________________ arrl-odv mailing list arrl-odv@reflector.arrl.org<mailto:arrl-odv@reflector.arrl.org> http://reflector.arrl.org/mailman/listinfo/arrl-odv -- Christopher D. Imlay Booth, Freret & Imlay, LLC 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG<mailto:W3KD@ARRL.ORG>
I said August 2014 but I meant September 2014 – the advance copy of August is sitting on my desk! Dave From: arrl-odv [mailto:arrl-odv-bounces@reflector.arrl.org] On Behalf Of Sumner, Dave, K1ZZ Sent: Wednesday, July 02, 2014 8:42 AM To: Rehman, Doug, K4AC; Imlay, Chris, W3KD Cc: arrl-odv Subject: [arrl-odv:22912] Re: HR 4969 Chris and Marty have covered this very well. There is a summary of the history of the issue from 1985 through mid-2012 in the August 2012 QST editorial, “Restrictive Covenants.” Of course, after that the FCC’s report to Congress consisted of just 15 pages and didn’t deal with the substance of our 128-page filing. I am planning to devote the August 2014 editorial to HR4969. Dave K1ZZ From: arrl-odv [mailto:arrl-odv-bounces@reflector.arrl.org] On Behalf Of Rehman, Doug, K4AC Sent: Tuesday, July 01, 2014 10:02 PM To: Imlay, Chris, W3KD Cc: arrl-odv Subject: [arrl-odv:22910] Re: HR 4969 Thanks Chris and Marty for some great information to use. If it’s ok with you Chris, I’ll do some cutting and pasting from your email to make a reply to the member and also send him the Response Comments from 2012. Since he’s an attorney, that document should contain a good explanation and evidence that his assertions are incorrect. I think we really do need a FAQ produced as quickly as possible for use by amateurs that might be contacting their congressmen to become co-sponsors. The better we can equip people, the more professional we will appear—especially when the HOA organizations begin to lobby against the bill. I’m already seeing chatter about contacting representatives as a result of the ARRL news article. Thanks, Doug K4AC From: Christopher Imlay [mailto:w3kd.arrl@gmail.com] Sent: Tuesday, July 1, 2014 5:48 PM To: k4ac Cc: arrl-odv Subject: Re: [arrl-odv:22907] HR 4969 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<mailto: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 _______________________________________________ arrl-odv mailing list arrl-odv@reflector.arrl.org<mailto:arrl-odv@reflector.arrl.org> http://reflector.arrl.org/mailman/listinfo/arrl-odv -- Christopher D. Imlay Booth, Freret & Imlay, LLC 14356 Cape May Road Silver Spring, Maryland 20904-6011 (301) 384-5525 telephone (301) 384-6384 facsimile W3KD@ARRL.ORG<mailto:W3KD@ARRL.ORG>
Hi, Doug. The member’s statement is based on the presumption that every Ham can freely choose to live inside or outside a development governed by private deed restrictions. In some parts of the country, particularly in older cities and areas of slow to moderate growth that may be the case. However, in later-developed and faster-growing areas, finding suitable housing free of CC&Rs or HOA rules can be quite difficult. In some cities and even entire counties in the West Gulf and Southwest, practically all housing built in the last several decades is subject to deed restrictions that limit or preclude outside antennas. Developers impose these restrictions in order to control the appearance of the area in which they are trying to sell homes. Every few years, they begin another phase of building, and they keep the restrictions in place for all prior tracts, through which prospective buyers must drive to reach the currently offered homes. With build-out periods of twenty years or more, entire communities remain antenna-hostile. If a Ham wants or needs to live close to work, schools, health care facilities and other infrastructure, there may be no option but to buy in an area governed by covenants. Consider also that many new entrants into Amateur Radio are older these days, and they may have purchased their home and settled into their communities long before the ability to install effective antennas was a consideration. In some states, such as California, selling one’s home and buying another can trigger significant increases in property taxes that can make such a move impractical. School-age (and even older) youth living with their parents are stuck with whatever restrictions govern their parents’ homes. PRB-1 was written when suitable housing choices were the rule rather than the exception in most parts of the country. Its intent was to ensure that the overriding national interest in maintaining a thriving Amateur Radio Service was not frustrated by local regulation. That interest still exists for all the same reasons, but the major obstacle has morphed into something not anticipated – at least in magnitude – at the time of enactment. 73, Marty N6VI From: arrl-odv [mailto:arrl-odv-bounces@reflector.arrl.org] On Behalf Of Doug Rehman Sent: Tuesday, July 1, 2014 1:33 PM To: 'arrl-odv' Subject: [arrl-odv:22907] HR 4969 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
participants (5)
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Chris Imlay -
Christopher Imlay
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Doug Rehman -
Marty Woll -
Sumner, Dave, K1ZZ