Memorandum Opinion and Order in PRB-1


     

Before the
Federal Communications Commission               FCC 85-506
Washington, DC  20554                           36149

In the Matter of                           )
                                           )
Federal preemption of state and            )    PRB-1
local regulations pertaining               )
to Amateur radio facilities.               )

MEMORANDUM OPINION AND ORDER

Adopted: September 16, 1985                ;    Released: September 19, 1985

By the Commission:  Commissioner Rivera not participating.

Background

    1. On July 16, 1984, the American Radio Relay League, Inc (ARRL) filed a 
Request for Issuance of a Declaratory Ruling asking us to delineate the 
limitations of local zoning and other local and state regulatory authority over 
Federally-licensed radio facilities.  Specifically, the ARRL wanted an explicit 
statement that would preempt all local ordinances which provably preclude or 
significantly inhibit effective reliable amateur radio communications.  The ARRL 
acknowledges that local authorities can regulate amateur installations to insure 
the safety and health of persons in the community, but believes that those 
regulations cannot be so restrictive that they preclude effective amateur 
communications.
    2. Interested parties were advised that they could file comments in the 
matter.\fn 1/  With extension, comments were due on or before December 26, 
1984,\fn 2/ with reply comments due on or before January 25, 1985 \fn 3/ Over 
sixteen hundred comments were filed.

Local Ordinances

    3. Conflicts between amateur operators regarding radio antennas and local 
authorities regarding restrictive ordinances are common.  The amateur operator 
is governed by the regulations contained in Part 97 of our rules.  Those rules 
do not limit the height of an amateur antenna but they require, for aviation 
safety reasons, that certain FAA notification and FCC approval procedures must 
be followed for antennas which exceed 200 feet in height above ground level or 
antennas which are to be erected near airports.  Thus, under FCC rules some 
antenna support structures require obstruction marking and lighting.  On the 
other hand, local municipalities or governing bodies frequently enact 
regulations limiting antennas and their support structures in height and 
location, e.g. to side or rear yards, for health, safety or aesthetic 
considerations.  These limiting regulations can result in conflict because the 
effectiveness of the communications that emanate from an amateur radio station 
are directly dependent upon the location and the height of the antenna.  Amateur 
operators maintain that they are precluded from operating in certain bands 
allocated for their use if the height of their antennas is limited by a local 
ordinance.
    4. Examples of restrictive local ordinances were submitted by several 
amateur operators in this proceeding.  Stanley J. Cichy, San Diego, California, 
noted that in San Diego amateur radio antennas come under a structures ruling 
which limits building heights to 30 feet.  Thus, antennas there are also limited 
to 30 feet.  Alexander Vrenios, Mundelein, Illinois wrote that an ordinance or 
the Village of Mundelein provides that an antenna must be a distance from the 
property line that is equal to one and one-half times its height.  In his case, 
he is limited to an antenna tower for his amateur station just over 53 feet in 
height.
    5. John C. Chapman, an amateur living in Bloomington, Minnesota, commented 
that he was not able to obtain a building permit to install an amateur radio 
antenna exceeding 35 feet in height because the Bloomington city ordinance 
restricted "structures" heights to 35 feet.  Mr. Chapman said that the 
ordinance, when written, undoubtedly applied to buildings but was now being 
applied to antennas in the absence of a specific ordinance regulating them.  
There were two options open to him if he wanted to engage in amateur 
communications.  He could request a variance to the ordinance by way of hearing 
before the City Council, or he could obtain affidavits from his neighbors 
swearing that they had no objection to the proposed antenna installation.  He 
got the building permit after obtaining the cooperation of his neighbors.  His 
concern, however, is that he had to get permission from several people before he 
could effectively engage radio communications for which he had a valid FCC 
amateur license.
    6. In addition to height restrictions, other limits are enacted by local 
jurisdictions--anti-climb devices on towers or fences around them; minimum 
distances from high voltage power lines; minimum distances of towers from 
property lines; and regulations pertaining to the structural soundness of the 
antenna installation.  By and large, amateurs do not find these safety 
precautions objectionable.  What they do object to are the sometimes 
prohibitive, non-refundable application filing fees to obtain a permit to erect 
an antenna installation and those provisions in ordinances which regulate 
antennas for purely aesthetic reasons.  The amateurs contend, almost 
universally, that "beauty is in the eye of the beholder."  They assert that an 
antenna installation is not more aesthetically displeasing than other objects 
that people keep on their property, e.g. motor homes, trailers, pick-up trucks, 
solar collectors and gardening equipment.

Restrictive Covenants

    7. Amateur operators also oppose restrictions on their amateur operations 
which are contained in the deeds for their homes or in their apartment leases.  
Since these restrictive covenants are contractual agreements between private 
parties, they are not generally a matter of concern to the Commission.  However, 
since some amateurs who commented in this proceeding provided us with examples 
of restrictive covenants, they are included for information Mr. Eugene O. Thomas 
of Hollister, California included in his comments an extract of the Declaration 
of Covenants and Restrictions for Ridgemark Estates, County of San Benito, State 
of California.  It provides:

    No antenna for transmission or reception of radio signals shall be erected 
    outdoors for use by any dwelling unit except upon approval of the Directors.  
    No radio or television signals or any other form of electromagnetic 
    radiation shall be permitted to originate from any lot which may 
    unreasonably interfere with the reception of television or radio signals 
    upon any other lot.

Marshall Wilson, Jr. provided a copy of the restrictive covenant contained in 
deeds for the Bell Martin Addition #2, Irving, Texas.  It is binding upon all of 
the owners or purchasers of the lots in the said addition, his or their heirs, 
executors, administrators or assigns.  It reads:

    No antenna or tower shall be erected upon any lot for the purposes of radio 
    operations.

William J. Hamilton resides in an apartment building in Gladstone, Missouri.  He 
cites a clause in his lease prohibiting the erection of an antenna.  He states 
that he has been forced to give up operation amateur radio equipment except a 
hand-held 2 meter (144-148 MHz) radio transceiver.  He maintains that he should 
not be penalized just because he lives in an apartment.
    Other restrictive covenants are less global in scope than those cited above.  
For example, Robert Webb purchased a home in Houston, Texas.  His deed 
restriction prohibited "transmitting or receiving antennas extending above the 
roof line."
    8. Amateur operators generally oppose restrictive covenants for several 
reasons.  They maintain that such restrictions limit the places that they can 
reside if they want to pursue their hobby of amateur radio.  Some state that 
they impinge on First Amendment rights of speech.  Others believe that a 
constitutional right is being abridged because, in their view, everyone has a 
right to access the airwaves regardless of where they live.
    9. The contrary belief held by housing subdivision communities and 
condominium or homeowner's associations is that amateur radio 
installations constitute safety hazards, cause interference to 
other electronic equipment which may be operated in the home 
(television, radio, stereos) or are eyesores that detract from 
the aesthetic and tasteful appearance of the housing development 
or apartment complex.  To counteract these negative consequences, 
the subdivisions and associations include in their deeds, leases 
or by-laws, restrictions and limitations on the location and 
height of antennas or, in some cases, prohibit them altogether.  
The restrictive covenants are contained in the contractual 
agreement entered into at the time of the sale or lease of the 
property.  Purchasers or lessees are free to choose whether they 
wish to reside where such restrictions on amateur antennas are in 
effect or settle elsewhere.

Supporting Comments

    10. The Department of Defense (DOD) supported the ARRL and emphasized in its 
comments that continued success of existing national security and emergency 
preparedness telecommunications plans involving amateur stations would be 
severely diminished if state and local ordinances were allowed to prohibit the 
construction and usage of effective amateur transmission facilities.  DOD 
utilizes volunteers in the Military Affiliate Radio Service (MARS), \fn 4/ 
Civil Air Patrol (CAP) and the Radio Amateur Civil Emergency Service (RACES).  
It points out that these volunteer communicators are operating radio equipment 
installed in their homes and that undue restrictions on antennas by local 
authorities adversely affect their efforts.  DOD states that the responsiveness 
of these volunteer systems would be impaired if local ordinances interfere with 
the effectiveness of these important national telecommunication resources.  DOD 
favors the issuance of a ruling that would set limits for local and state 
regulatory bodies when they are dealing with amateur stations.
    11. Various chapters of the American Red Cross also came forward to support 
the ARRL's request for a preemptive ruling.  The Red Cross works closely with 
amateur radio volunteers.  It believes that without amateurs' dedicated support, 
disaster relief operations would significantly suffer and that its ability to 
serve disaster victims would be hampered.  It feels that antenna height 
limitations that might be imposed by local bodies will negatively affect the 
service now rendered by the volunteers.
    12. Cities and counties from various parts of the United States filed 
comments in support of the ARRL's request for a Federal preemption ruling.  The 
comments from the Director of Civil Defense, Port Arthur, Texas are 
representative:

    The Amateur Radio Service plays a vital role with our Civil Defense program 
    here in Port Arthur and the design of these antennas and towers lends 
    greatly to our ability to communicate during times of disaster.  We do not 
    believe there should be any restrictions on the antennas and towers except 
    for reasonable safety precautions.  Tropical storms, hurricanes and 
    tornadoes are a way of life here on the Texas Gulf Coast and good 
    communications are absolutely essential when preparing for a hurricane and 
    even more so during recovery operations after the hurricane has past.

    13. The Quarter Century Wireless Association took a strong stand in favor of 
the Issuance of a declaratory ruling.  It believes that Federal preemption is 
necessary so that there will be uniformity for all Amateur Radio installations 
on private property throughout the United States.
    14. In its comments, the ARRL argued that the Commission has 
the jurisdiction to preempt certain local land use regulations 
which frustrate or prohibit amateur radio communications.  It 
said that the appropriate standard in preemption cases is not the 
extent of state and local interest in a given regulation, but 
rather the impact of the regulation on Federal goals.  Its 
position is that Federal preemption is warranted whenever local 
government regulations relate adversely to the operational 
aspects of amateur communication.  The ARRL maintains that 
localities routinely employ a variety of land use devices to 
preclude the installation of effective amateur antennas, 
including height restrictions, conditional use permits, building 
setbacks and dimensional limitations on antennas.  It sees a 
declaratory ruling of Federal preemption as necessary to cause 
municipalities to accommodate amateur operator needs in land use 
planning efforts.
    15. James C. O'Connell, an attorney who has represented several amateurs 
before local zoning authorities, said that requiring amateurs to seek variances 
or special use approval to erect reasonable antennas unduly restricts the 
operation of amateur stations.  He suggested that the Commission preempt zoning 
ordinances which impose antenna height limits of less than 65 feet.  He said 
that this height would represent a reasonable accommodation of 
the communication needs of most amateurs and the legitimate 
concerns of local zoning authorities.

Opposing Comments

    16. The City of La Mesa, California has a zoning regulation which controls 
amateur antennas.  Its comments reflected an attempt to reach a balanced view.

This regulation has neither the intent, nor the effect, of precluding or 
inhibiting effective and reliable communications.  Such antennas may be built as 
long as their construction does not unreasonably block views or constitute 
eyesores.  The reasonable assumption is that there are always alternatives at a 
given site for different placement, and/or methods for aesthetic treatment.  
Thus, both public objectives of controlling land use for the public health, 
safety, and convenience, and providing an effective communications network, can 
be satisfied.  A blanket to completely set aside local control, or a ruling 
which recognizes control only for the purpose of safety of antenna construction, 
would be contrary to...legitimate local control.

    17. Comments from the County of San Diego state:

While we are aware of the benefits provided by amateur operators, we oppose the 
issuance of a preemption ruling which would elevate `antenna effectiveness' to a 
position above all other considerations.  We must, however, argue that the local 
government must have the ability to place reasonable limitations upon the 
placement and configuration of amateur radio transmitting and receiving 
antennas.  Such ability is necessary to assure that the local decision-makers 
have the authority to protect the public health, safety and welfare of all 
citizens.
    In conclusion, I would like to emphasize an important difference between 
your regulatory powers and that of local governments.  Your Commission's 
approval of the preemptive requests would establish a "national policy."  
However, any regulation adopted by a local jurisdiction could be overturned by 
your Commission or a court if such regulation was determined to be unreasonable.

    18. The City of Anderson, Indiana, summarized some of the problems that face 
local communities:

I am sympathetic to the concerns of these antenna owners and I understand that 
to gain the maximum reception from their devices, optimal location is necessary.  
However, the preservation of residential zoning districts as "liveable" 
neighborhoods is jeopardized by placing these antennas in front yards of homes.  
Major problems of public safety have been encountered, particularly vision 
blockage for auto and pedestrian access.  In addition, all communities are faced 
with various building lot sizes.  Many building lots are so small that 
established setback requirements (in order to preserve adequate air and light) 
are vulnerable to the unregulated placement of antennas.
    ...the exercise of preemptive authority by the FCC in granting this request 
would not be in the best interest of the general public.

    19. The National Association of Counties (NACO), the American Planning 
Association (APA) and the National League of Cities (NCL) all opposed the 
issuance of an antenna preemption ruling.  NACO emphasized that federal and 
state power must be viewed in harmony and warns that Federal intrusion into 
local concerns of health, safety and welfare could weaken the traditional police 
power exercised by the state and unduly interfere with the 
legitimate activities of the states.  NLC believed that both 
Federal and local interests can be accommodated without 
preempting local authority to regulate the installation of 
amateur radio antennas.  The APA said that the FCC should 
continue to leave the issue of regulating amateur antennas with 
the local government and with the state and Federal courts.

Discussion

    20. When considering preemption, we must begin with two constitutional 
provisions.  The tenth amendment provides that any powers which the constitution 
either does not delegate to the United States or does not prohibit the states 
from exercising are reserved to the states.  These are the police powers of the 
states.  The Supremacy Clause, however, provides that the constitution and the 
laws of the United States shall supersede any state law to the contrary.  
Article III, Section 2.  Given these basic premises, state laws may be preempted 
in three ways: First, Congress may expressly preempt the state law.  See Jones 
v. Rath Packing Co., 430 U.S. 519, 525 (1977).  Or, Congress may indicate its 
intent to completely occupy a given field so that any state law encompassed 
within that field would implicitly be preempted.  Such intent to preempt could 
be found in a congressional regulatory scheme that was so pervasive that it 
would be reasonable to assume that Congress did not intend to permit the states 
to supplement it.  See Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, 
458 U.S. 141, 153 (1982).  Finally, preemption may be warranted when state law 
conflicts with federal law.  Such conflicts may occur when "compliance with both 
Federal and state regulations is a physical impossibility," Florida Lime & 
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 143 (1963), or when state law 
"stands as an obstacle to the accomplishment and execution of the full purposes 
and objectives of Congress," Hines v. Davidowitz, 312 U.S. 52, 67 (1941).  
Furthermore, federal regulations have the same preemptive effect as federal 
statues, Fidelity Federal Savings & Loan Association v. de la Cuesta, supra.
    21. The situation before us requires us to determine the extent to which 
state and local zoning regulations may conflict with federal policies concerning 
amateur radio operators.
    22. Few matters coming before us present such a clear dichotomy of view 
point as does the instant issue.  The cities, countries, local communities and 
housing associations see an obligation to all of their citizens and try to 
address their concerns.  This is accomplished through regulations, ordinances or 
covenants oriented toward the health, safety and general welfare of those they 
regulate.  At the opposite pole are the individual amateur operators and their 
support groups who are troubled by local regulations which may inhibit the use 
of amateur stations or, in some instances, totally preclude amateur 
communications.  Aligned with the operators are such entities as the Department 
of Defense, the American Red Cross and local civil defense and emergency 
organizations who have found in Amateur Radio a pool of skilled radio operators 
and a readily available backup network.  In this situation, we believe it is 
appropriate to strike a balance between the federal interest in promoting 
amateur operations and the legitimate interests of local governments in 
regulating local zoning matters.  The cornerstone on which we will predicate our 
decision is that a reasonable accommodation may be made between the two sides.
    23. Preemption is primarily a function of the extent of the conflict between 
federal and state and local regulation.  Thus, in considering whether our 
regulations or policies can tolerate a state regulation, we may consider such 
factors as the severity of the conflict and the reasons underlying the state's 
regulations.  In this regard, we have previously recognized the legitimate and 
important state interests reflected in local zoning regulations.  For example, 
in Earth Satellite Communications, Inc., 95 FCC 2d 1223 (1983), we recognized 
that

    ...countervailing state interests inhere in the present situation...For 
example, we do not wish to preclude a state or locality from exercising 
jurisdiction over certain elements of an SMATV operation that properly may fall 
within its authority, such as zoning or public safety and health, provided the 
regulation in question is not undertaken as a pretext for the actual purpose of 
frustrating achievement of the preeminent federal objective and so long as the 
non-federal regulation is applied in a nondiscriminatory manner.

    24. Similarly, we recognize here that there are certain general state and 
local interests which may, in their even-handed application, legitimately affect 
amateur radio facilities.  Nonetheless, there is also a strong federal interest 
in promoting amateur communications.  Evidence of this interest may be found in 
the comprehensive set of rules that the Commission has adopted to regulate the 
amateur service. \fn 5/  Those rules set forth procedures for the licensing of 
stations and operators, frequency allocations, technical 
standards which amateur radio equipment must meet and operating 
practices which amateur operators must follow.  We recognize the 
amateur radio service as a voluntary, noncommercial communication 
service, particularly with respect to providing emergency 
communications.  Moreover, the amateur radio service provides a 
reservoir of trained operators, technicians and electronic 
experts who can be called on in times of national or local 
emergencies.  By its nature, the Amateur Radio Service also 
provides the opportunity for individual operators to further 
international goodwill.  Upon weighing these interests, we 
believe a limited preemption policy is warranted.  State and 
local regulations that operate to preclude amateur communications 
in their communities are in direct conflict with federal 
objectives and must be preempted.
    25. Because amateur station communications are only as effective as the 
antennas employed, antenna height restrictions directly affect the effectiveness 
of amateur communications.  Some amateur antenna configurations require more 
substantial installations than others if they are to provide the amateur 
operator with the communications that he/she desires to engage in.  For example, 
an antenna array for international amateur communications will differ from an 
antenna used to contact other amateur operators at shorter distances.  We will 
not, however, specify any particular height limitation below which a local 
government may not regulate, nor will we suggest the precise language that must 
be contained in local ordinances, such as mechanisms for special exceptions, 
variances, or conditional use permits.  Nevertheless, local regulations which 
involve placement, screening, or height of antennas based on health, safety, or 
aesthetic considerations must be crafted to accommodate reasonably amateur 
communications, and to represent the minimum practicable regulation to 
accomplish the local authority's legitimate purpose. \fn 6/
    26. Obviously, we do not have the staff or financial resources to review all 
state and local laws that affect amateur operations.  We are confident, however, 
that state and local governments will endeavor to legislate in a manner that 
affords appropriate recognition to the important federal interest at stake here 
and thereby avoid unnecessary conflicts with federal policy, as well as time-
consuming and expensive litigation in this area.  Amateur operators who believe
that local or state governments have been overreaching and thereby have 
precluded accomplishment of their legitimate communications goals, may, in 
addition, use this document to bring our policies to the attention of local 
tribunals and forums.
    27. Accordingly, the Request for Declaratory Ruling filed July 16, 1984, by 
the American Radio Relay League, Inc., IS GRANTED to the extent indicated herein 
and in all other respects, IS DENIED.
                      FEDERAL COMMUNICATIONS COMMISSION
                      William J. Tricarico
                      Secretary