> I happen to agree that the FCC should have preempted antenna
> restrictions for amateur radio just as they did for direct
> broadcast (satellite) television. In fact, I believe that the
> ARRL screwed up when they asked the Commission to extend the
> preemption rather than picking an easy test case and going to
> the courts using the existing preemption. I also believe that
> Congress should legislate the pre-emption since the Commission
> seems to lack the balls to do their job right.
Putting myself in the position of the FCC for a moment, I would have ruled
as they did. In my opinion, only the state and federal legislatures should
have the authority to void a private contract term. The legislatures, by
their vested authority as specified in the first Articles of the U.S.
Constitution and in most state's constitutions, then may grant that power to
the state or federal agencies within the competent jurisdiction of the
legislature.
Recall that federal preemption in the off-air TV and satellite TVRO issue
was a mandate from Congress in which Congress passed the authority onto the
FCC. No problem here. However, Congress did not intent for the FCC to
overrule and void every homeowner's contract with his/her homeowners'
association or developer. In my opinion, more damage was done by the Leauge
in petitioning the FCC in what is clearly a contract law matter. The time,
energy, and financial resources would have been better directed to Congress
in the first place. The League had already faced this dilema during the
long-standing spectrum protection issue. Again, the FCC declined to rule on
the matter and the effort was reorganized and directed to Congress, where it
presently resides.
Contracts between parties is as old as the law itself. It is no trivial
matter to begin tampering with legally enforceable agreements between
people.
Have many homeowner's associations accrued an unnecessary and unreasonable
amount of power? The answer is clearly and emphatically, Yes. When
so-called private associations begin taking on the function, appearance and
most importantly, the "smell" of municipal government, they in fact become
government.
In one example, a rather large private community in a Miami suburb is more
than 3,000 homeowners strong. In it's privitization, they have developed
and managed their own police and fire departments, water utilities, and
local post office. A great many municipalities do not even have these
resources and must rely on county government for thier services. My point
is that when a "private" 3,000 member community behaves and holds itself out
as a governmental municipality....well then "a rose by another name is..."
So, what's the significance of all this? Due Process rights as granted to
all citizens as a protective measure against *any form of government* under
the U.S. Constitution's 5th Amendment as it aplies to federal government and
Constitution's 14th Amendment as directed to the States. Local municipal
governments MUST affort a minimum level of substantive and procedural due
process rights to its citizens. This is why PRB-1 can be invoked at your
local or county level. On the other hand, a private homoeowners'
association, even though it takes on the functions of a municipal government
in the administration of traditional municipal services, is under no
authority to assure due process. Why? Because, 1) a private group is under
no obligation to protect your due process rights, and 2) you have in effect
waived any due process rights when you signed the contract to purchase your
deed-restricted home, inclusive of CC&Rs.
Once again, the solution is in the hands of Congress. Congress needs to
recognize that our due process rights are being compromized by these
quasi-municipalites. Congress needs to draft a set of guideleines that
determines when a nice, cute homeowners' association becomes a mean and
smelly municipality. If Congress fails to address the issue, then in time,
a precedent-setting case will be accepted for judicial review by the U.S.
Supreme Court and they will figure it out for them.
73,
-Paul W9AC
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