> Of course, one could argue that amateur radio towers is a first
> amendment and separation of powers issue. The federal government
> has authorized us to operate an amateur radio station and no other
> government (state, county, township, city, etc.), individual, or
> group may deny or modify that right. If a tower (antenna) is necessary
> to the effective exercise of that right, then no other government,
> individual or group may prevent the erection of that tower.
>
I don't see the First Amendment issue - a religion? right of association?
possibly speech, but that is a stretch. If anything, it is a preemption
issue. States (and political subdivisions of states - counties, cities, . .
.) cannot make laws that frustrate, or burden federal legislation, unless
the federal legislation envisions state participation, and is consistent
with the federal purpose. I won a preemption case against the County of Los
Angeles in the court of appeal, these are not easy cases - courts try to
avoid deciding a case on constitutional grounds.
But CC&Rs are another matter entirely - the federal gov't cannot interfere
with the rights of citizens in contracting, unless it is illegal, or burdens
some fundamental right, or a suspect class, or some other constitutional
issue. (In this regard, PB-1 type cases would have a much better chance -
clearly, there is state action). For example, restrictive covenants that
would restrict home ownership to a particular race (or exclude a particular
race). In my opinion, ham radio just does not rise to that level; the
exception would end up, as they say, swallowing the rule (your neighbor is
taking drum lessons at a music academy, funded by federal gov't veteran's
benefits, he must practice, and the only place he can practice is at home -
the only thing separating your townhouse from his is a shared paper-thin
wall, and the only time he can practice is from 2:30 am - 4:30 am).
It becomes even more murky, and if there were a case up to this point,
fatal, when one considers that the CC&Rs do not completely deny
participation in the hobby - it perhaps limits the range or effectiveness,
as Rick KC5AJX aptly points out. I think Kris N5KM, made some excellent
points about the impact on people who would not have envisioned any interest
in an antenna at the time of purchase, however, articles about stealth
antennas, indoor antennas, etc., or statements such as those by Rick would
be used against hams because they demonstrate that it is possible to engage
in the hobby and yet comply with CC&Rs. Maybe one cannot earn his or her
DXCC in one year (or even at all), but hams are engaging in the hobby all
the time - the number of articles on the subject prove it. Once the issue
is not one of complete denial, but a reduction in the quality of engagement,
there is much more difficulty (again, assuming that the other hurdles have
been cleared). Another example would be that hams in areas where they are
free to put up any antenna they wish, do not act accordingly, with a 150
tower and stacked array.
> > Seems to me that the question of erecting towers is really a property
> > rights issue. Not really sure though how private property is protected
> > under the U.S. Constitution. With a few noteable exceptions, it
> > is sparsley mentioned in the text:
> >
> > "No person shall be deprived of life, liberty, or PROPERTY without
> > 'due process of law.' " - U.S. Constitution, Fifth Amendment
>
The 14th Amendment (protection against the states), not the Fifth Amendment
(protection against the federal gov't) would appy here. As stated above,
there must also be some kind of state action - the deprivation of the
property interest or justified property expectation, must be at the hands of
the state (or a private actor who is in a symbiotic relationship with the
state, or performs a state function). [This is a very interesting area of
the law, and perhaps one could make the case that a CC&R committee peforms a
function akin to that of a gov't zoning board - such that there is a finding
of state action] Assuming that that hurdle is cleared, and the underlying
action is by the state, there must be a justifiable expectation which is
frustrated or denied as a result of the state action. The expectation of
engaging in some serious contesting or dxing may be valid, or the
expectation of utilizing ALL the privileges of one's FCC license might also
hold some validity and certainly, there are perhaps other much more noble
things I have not even considered. However, a valid CC&R in place at the
time the property was purchased would negate an argument of "justifiable,"
the property owner had notice that antennas were prohibited in the
particular area.
But even assuming that due process has in fact been denied, the question, is
what process is due? "Due process" means notice, and, depending upon the
right being deprived, a hearing, before the deprivation occurs. Again, a
valid CC&R in place at the time the property was purchased, may satisfy the
due process requirement of notice. In that there is not a complete bar to
engaging in ham radio, one may not be entitled to the due process of say, a
criminal arrest.
Perhaps, this battle cannot be won in this arena. I might suggest a two or
three step process - some legislative advocacy, beefing up the
emergency/preparedness aspect of the law where an express purpose of Part 95
is that each ham is able to provide nationwide communication. In such a
case, denying a tower would frustrate or prevent accomplishing an expressly
stated purpose of the law.
When unions strike, say for example, in the airline industry, burdening a
national interest - travel, even though this is a matter of private
contracting, you can bet the government will step in (I'm not stating an
opinion - pro or con - about unions). You have to make the interest much
more important to the American people. For example, the internet issues get
much more consideration. Many people have never heard of ham radio - but
find an American who has not heard of the internet. I've enjoyed reading
this thread, and up to now, haven't given much thought to this issue.
Thanks for bringing it up. Tom W6EIJ
----- Original Message -----
From: "Joe Subich, K4IK" <w8ik@subich.com>
To: "Mike" <W4EF@dellroy.com>; "TOWERTALK" <TOWERTALK@contesting.com>
Sent: Monday, December 31, 2001 9:31 PM
Subject: RE: [TowerTalk] Is the FCC sharp? Is ARRL counsel swift?
>
>
>
> >
> > Seems to me that the question of erecting towers is really a property
> > rights issue. Not really sure though how private property is protected
> > under the U.S. Constitution. With a few noteable exceptions, it
> > is sparsley mentioned in the text:
> >
> > "No person shall be deprived of life, liberty, or PROPERTY without
> > 'due process of law.' " - U.S. Constitution, Fifth Amendment
> >
>
> Of course, one could argue that amateur radio towers is a first
> amendment and separation of powers issue. The federal government
> has authorized us to operate an amateur radio station and no other
> government (state, county, township, city, etc.), individual, or
> group may deny or modify that right. If a tower (antenna) is necessary
> to the effective exercise of that right, then no other government,
> individual or group may prevent the erection of that tower.
>
> Of course, I'm no lawyer ...
>
>
>
>
> AN Wireless Self Supporting Towers are now available! Windloading tables,
> foundation diagrams and charts, along with full details are now at the
> AN Wireless Web site: http://www.ANWireless.com
>
> -----
> FAQ on WWW: http://www.contesting.com/FAQ/towertalk
> Submissions: towertalk@contesting.com
> Administrative requests: towertalk-REQUEST@contesting.com
> Problems: owner-towertalk@contesting.com
>
AN Wireless Self Supporting Towers are now available! Windloading tables,
foundation diagrams and charts, along with full details are now at the
AN Wireless Web site: http://www.ANWireless.com
-----
FAQ on WWW: http://www.contesting.com/FAQ/towertalk
Submissions: towertalk@contesting.com
Administrative requests: towertalk-REQUEST@contesting.com
Problems: owner-towertalk@contesting.com
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