HomeMy WebLinkAbout11/16/1983 P&Z Minutes•
DATE November 16, 1983
TO All Planning & Zoning Board Members
FROM Peter Kluegel, Building Official
SUBJECT: Special Planning & Zoning Board Meeting
Christmas Party
There will be a special meeting to discuss the sign ordinance
draft on Wednesday, December 7, 1983 at 7:00 P.M.
The Planning and Zong Board Christmas Party will be held at
Kozlaks Supper Club on Friday, December 16, 1983 at 7:30 P.M.
Please confirm reservations with Jan Klaus at 780 -2296.
•
THE AMERIC a N
RADIO RELAY
LEAGUE, INC.
're American Radio Relay League, Inc., is
. mercial association of radio nalmalp-
t. ized for the promotion of interest and Radio communication d experiments-
t.a, the establishment of networks to provide
c,vnmumations in the event of disasters or other
e,.,erpencies, for the advertcun.nt of the radio art and
or the public welfare, for the representation of the
taS•o amateur in 1 g(siattvs matters, and for the
- ntenance of fraternalism and a NO standard of
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Federal Preemption
While the federal regulation of our avocation has
been accepted by radio amateurs for more than
70 years, for almost as long we have resisted the
efforts of state and local governments to add
their own layer of restrictions on our activities.
Our best defense has been a Constitutional doc-
trine known as "federal preemption." Recently,
we have used this defense to blunt state and local
efforts to "prohibit" interference, to limit
amateur antenna installations on questionable
grounds, and to "protect" the public against a
perceived, but ill- defined, threat of biological
effects from RF radiation. Let's take a closer
look at this doctrine of federal preemption, to
better understand how we can defend ourselves
against unreasonable government actions at the
state and local levels.
Federal preemption wasn't invented for the
convenience of radio amateurs; its roots go back
to the founding of the Republic. Article VI of
the Constitution of the United States provides
that the Constitution, the laws made pursuant
to it, and the treaties made by the U.S. shall be
the supreme law of the land. Where there is a
conflict with state law, the state law must yield.
The Supreme Court of the United States has ap-
plied this general principle to innumerable
specific decisions over the years. What has
emerged is that there are at least two degrees of
preemption. By acting to regulate a particular
area, Congress either can be assumed to have
completely occupied the regulation of that area,
or to have left some room for state action within
the framework of, and consistent with, federal
law. The intent of Congress at the time legisla-
tion is adopted is important. to this
determination.
Perhaps the most important legal case in-
volving Amateur Radio was decided in 1927:
W7itehurst v. Grimes. At the time, tensions were
high between amateurs and broadcast listeners,
and a number of communities had set out to pro-
tect broadcast listeners from interference by
restricting, licensing, taxing or prohibiting
Amateur Radio operation. The ARRL Board,
recognizing that this harassment had to be nipped
in the bud, asked attorney (and Rocky Moun-
tain Division Director) Paul M. Segal, 9EEA,
to pick a suitable test case where the issue could
be confronted squarely and with the best chance
of success. A suit brought against Portland,
Oregon, collapsed when Portland amended its
ordinance so it would not apply to federally
licensed stations. Segal then moved against the
city of Wilmore, Kentucky, on behalf of R. B.
Whitehurst, 9ALM, to overturn an ordinance re-
quiring a $100 license to operate an amateur sta-
tion within the city. The U.S. District Court deci-
sion that Amateur Radio is interstate commerce,
and thus is subject only to federal regulation,
became the cornerstone of our defense against
local "nuisance" ordinances. (Segal's success led
to his appointment in 1928 as General Counsel
of ARRL, an association that was to endure until
1961.)
Of course, Whitehurst v. Grimes did not mark
the end of local efforts to regulate Amateur
Radio; one need not look very far to find cur-
rent examples that are not quite as outrageous
as that of Wilmore, Kentucky, but are dangerous
nonetheicss. An important weapon was added
99
❑ ❑
to our arsenal with the enactment of Public Law
97 -259 in 1982. Not only did Congress give the
FCC specific authority to regulate the in-
terference susceptibility of electronic devices; it
also made clear that the field of RF interference
has been fully preempted, and is not subject to
local or state regulation. However, more remains
to be done, and is being done, by ARRL.
For several years, QST has chronicled the ef-
forts of a blue -ribbon panel of volunteer League
members, experts in the biological effects of RF
energy, to have the federal government establish
reasonable standards for exposure of the general
public to nonionizing radiation. The need for
such standards is not altogether clear; but what
is clear is that, in the absence of such federally
mandated standards, we (and others licensed to
generate RF energy) will be subject to a crazy
quilt of ill- conceived and poorly drafted state and
local regulations on the same subject. Fighting
such regulatory efforts at the local level is a ter-
ribly costly and inefficient process; what is re-
quired to prevent regulatory chaos is for the
federal government to preempt the field by
adopting standards that have a sound scientific
basis and provide every reasonable measure of
protection, but are not unduly restrictive. Such
standards already have been developed by the
American National Standards Institute (ANSI)
and are known as ANSI -C95.1 -1982. In March,
the League again urged FCC to take the long -
overdue step of endorsing the work ANSI has
done in this field.
Antenna regulations are a more complex area,
because local interest in the safety of an anten-
na installation cannot be denied. In most cases,
a municipality will not quarrel with the right of
a federally licensed operator to have some sort
of antenna on his property although this right
can be signed away through a deed restriction,
restrictive covenant or similar legal device.
However, the size (and most especially, the
height) of the antenna system is something else
again. Somewhere between a roof - mounted whip
and a 200 -foot tower on a city lot, local interest
asserts itself — and existing federal law is little
help in determining where the line is to be drawn.
Because every situation is different, the line
can never be drawn precisely. Even so, it would
be an enormous help to radio amateurs
throughout the country for Congress to establish
that the federal interest precludes local regula-
tion which would render our antennas ineffec-
tive or unreliable. It was with this objective in
mind that the ARRL Board established a Task
Force on Federal Preemption at its meeting last
October. The Task Force has been researching
the issue and developing strategy, and a brief
synopsis of its first report is contained in the
Board Meeting minutes in this issue (see "Moved
and Seconded ").
Much as we may sometimes complain about
our federal regulations, and the snail's pace at
which even simple changes sometimes are made,
it would be infinitely worse to be subject to the
whims of tens of thousands of local govern-
ments, most of them totally devoid of any
understanding of radiocommunication. The next
time you're thinking about the benefits of our
Constitutional form of government, you can add
one more to the list. — David Sumner. i.'IZZ
May 1984 9