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THE AMERIC a N
<br />RADIO RELAY
<br />LEAGUE, INC.
<br />'re American Radio Relay League, Inc., is
<br />. mercial association of radio nalmalp-
<br />t. ized for the promotion of interest and Radio communication d experiments-
<br />t.a, the establishment of networks to provide
<br />c,vnmumations in the event of disasters or other
<br />e,.,erpencies, for the advertcun.nt of the radio art and
<br />or the public welfare, for the representation of the
<br />taS•o amateur in 1 g(siattvs matters, and for the
<br />- ntenance of fraternalism and a NO standard of
<br />C C∎nOuCt.
<br />ARRL is an incorporated association without capital
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<br />Federal Preemption
<br />While the federal regulation of our avocation has
<br />been accepted by radio amateurs for more than
<br />70 years, for almost as long we have resisted the
<br />efforts of state and local governments to add
<br />their own layer of restrictions on our activities.
<br />Our best defense has been a Constitutional doc-
<br />trine known as "federal preemption." Recently,
<br />we have used this defense to blunt state and local
<br />efforts to "prohibit" interference, to limit
<br />amateur antenna installations on questionable
<br />grounds, and to "protect" the public against a
<br />perceived, but ill- defined, threat of biological
<br />effects from RF radiation. Let's take a closer
<br />look at this doctrine of federal preemption, to
<br />better understand how we can defend ourselves
<br />against unreasonable government actions at the
<br />state and local levels.
<br />Federal preemption wasn't invented for the
<br />convenience of radio amateurs; its roots go back
<br />to the founding of the Republic. Article VI of
<br />the Constitution of the United States provides
<br />that the Constitution, the laws made pursuant
<br />to it, and the treaties made by the U.S. shall be
<br />the supreme law of the land. Where there is a
<br />conflict with state law, the state law must yield.
<br />The Supreme Court of the United States has ap-
<br />plied this general principle to innumerable
<br />specific decisions over the years. What has
<br />emerged is that there are at least two degrees of
<br />preemption. By acting to regulate a particular
<br />area, Congress either can be assumed to have
<br />completely occupied the regulation of that area,
<br />or to have left some room for state action within
<br />the framework of, and consistent with, federal
<br />law. The intent of Congress at the time legisla-
<br />tion is adopted is important. to this
<br />determination.
<br />Perhaps the most important legal case in-
<br />volving Amateur Radio was decided in 1927:
<br />W7itehurst v. Grimes. At the time, tensions were
<br />high between amateurs and broadcast listeners,
<br />and a number of communities had set out to pro-
<br />tect broadcast listeners from interference by
<br />restricting, licensing, taxing or prohibiting
<br />Amateur Radio operation. The ARRL Board,
<br />recognizing that this harassment had to be nipped
<br />in the bud, asked attorney (and Rocky Moun-
<br />tain Division Director) Paul M. Segal, 9EEA,
<br />to pick a suitable test case where the issue could
<br />be confronted squarely and with the best chance
<br />of success. A suit brought against Portland,
<br />Oregon, collapsed when Portland amended its
<br />ordinance so it would not apply to federally
<br />licensed stations. Segal then moved against the
<br />city of Wilmore, Kentucky, on behalf of R. B.
<br />Whitehurst, 9ALM, to overturn an ordinance re-
<br />quiring a $100 license to operate an amateur sta-
<br />tion within the city. The U.S. District Court deci-
<br />sion that Amateur Radio is interstate commerce,
<br />and thus is subject only to federal regulation,
<br />became the cornerstone of our defense against
<br />local "nuisance" ordinances. (Segal's success led
<br />to his appointment in 1928 as General Counsel
<br />of ARRL, an association that was to endure until
<br />1961.)
<br />Of course, Whitehurst v. Grimes did not mark
<br />the end of local efforts to regulate Amateur
<br />Radio; one need not look very far to find cur-
<br />rent examples that are not quite as outrageous
<br />as that of Wilmore, Kentucky, but are dangerous
<br />nonetheicss. An important weapon was added
<br />99
<br />❑ ❑
<br />to our arsenal with the enactment of Public Law
<br />97 -259 in 1982. Not only did Congress give the
<br />FCC specific authority to regulate the in-
<br />terference susceptibility of electronic devices; it
<br />also made clear that the field of RF interference
<br />has been fully preempted, and is not subject to
<br />local or state regulation. However, more remains
<br />to be done, and is being done, by ARRL.
<br />For several years, QST has chronicled the ef-
<br />forts of a blue -ribbon panel of volunteer League
<br />members, experts in the biological effects of RF
<br />energy, to have the federal government establish
<br />reasonable standards for exposure of the general
<br />public to nonionizing radiation. The need for
<br />such standards is not altogether clear; but what
<br />is clear is that, in the absence of such federally
<br />mandated standards, we (and others licensed to
<br />generate RF energy) will be subject to a crazy
<br />quilt of ill- conceived and poorly drafted state and
<br />local regulations on the same subject. Fighting
<br />such regulatory efforts at the local level is a ter-
<br />ribly costly and inefficient process; what is re-
<br />quired to prevent regulatory chaos is for the
<br />federal government to preempt the field by
<br />adopting standards that have a sound scientific
<br />basis and provide every reasonable measure of
<br />protection, but are not unduly restrictive. Such
<br />standards already have been developed by the
<br />American National Standards Institute (ANSI)
<br />and are known as ANSI -C95.1 -1982. In March,
<br />the League again urged FCC to take the long -
<br />overdue step of endorsing the work ANSI has
<br />done in this field.
<br />Antenna regulations are a more complex area,
<br />because local interest in the safety of an anten-
<br />na installation cannot be denied. In most cases,
<br />a municipality will not quarrel with the right of
<br />a federally licensed operator to have some sort
<br />of antenna on his property although this right
<br />can be signed away through a deed restriction,
<br />restrictive covenant or similar legal device.
<br />However, the size (and most especially, the
<br />height) of the antenna system is something else
<br />again. Somewhere between a roof - mounted whip
<br />and a 200 -foot tower on a city lot, local interest
<br />asserts itself — and existing federal law is little
<br />help in determining where the line is to be drawn.
<br />Because every situation is different, the line
<br />can never be drawn precisely. Even so, it would
<br />be an enormous help to radio amateurs
<br />throughout the country for Congress to establish
<br />that the federal interest precludes local regula-
<br />tion which would render our antennas ineffec-
<br />tive or unreliable. It was with this objective in
<br />mind that the ARRL Board established a Task
<br />Force on Federal Preemption at its meeting last
<br />October. The Task Force has been researching
<br />the issue and developing strategy, and a brief
<br />synopsis of its first report is contained in the
<br />Board Meeting minutes in this issue (see "Moved
<br />and Seconded ").
<br />Much as we may sometimes complain about
<br />our federal regulations, and the snail's pace at
<br />which even simple changes sometimes are made,
<br />it would be infinitely worse to be subject to the
<br />whims of tens of thousands of local govern-
<br />ments, most of them totally devoid of any
<br />understanding of radiocommunication. The next
<br />time you're thinking about the benefits of our
<br />Constitutional form of government, you can add
<br />one more to the list. — David Sumner. i.'IZZ
<br />May 1984 9
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