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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 C C∎nOuCt. ARRL is an incorporated association without capital t• xi chartered under the taws of the Stat. at Con- "r:14,-$11- arc is an saemot tegeth zn0n under Section ',: +•:LT 01 the Internal Re emar Code of 1954. 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MtAM.t Woraereir tip.• .erav et0.e eIr«..anaa teAgis aaa..arrw •dear • atr, taq...., teArAluo. towro.•. • aa.r,..,otS . -:la- Ax71 a 1►clnr. a..•v..• O C v*211 as r A resew sa+.•+•s.gi err w is r...e tl+r ale QQ 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