10th Circuit Court Upholds FCC RF Preemption
from
Cathy Gilliland, KB0FDU, Reporting for ARNewsLine
on
February 15, 2000
Website:
http://www.arnewsline.org
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RADIO LAW: COURT OF APPEALS UPHOLDS FEDERAL PREEMPTION
The United States Court of Appeals for the 10th Circuit upheld FCC preemption of
RFI issues.
It is a legal decision that could have wide repercussions anyplace that a state,
city or municipality tries to control radio frequency signals. And, it happened
out here in Johnson County Kansas. That's where the County Board of
Commissioners decided that a communications tower owned by Southwestern Bell
Telephone was causing interference to public safety communications. The county
then passed some laws and ordered the site to be shut down.
Southwestern Bell refused and took the matter into court. The telecommunications
giant asked the court to nullify the county's rules. It also obtained a
declaratory ruling that the regulation was preempted by federal law.
But it was not over yet. The county appealed the judges decision to the Tenth
Circuit Court of Appeals. But to Johnson County,s surprise, that court held that
Congress intended the F-C-C and only the F-C-C to have exclusive jurisdiction
over radio frequency interference matters. It went on to say that based on the
concept of federal preemption in communications matters, that there exists no
room for local regulation of radio frequency radiation by Johnson County and --
by inference -- any other non federal jurisdiction. Whether or not Johnson
County will appeal the issue of the tower to the United States Supreme court is
not known at press time.
And what does this mean for hams? We will have to wait to see if this becomes
what is known as a published decision. That's one that sets legal precedent
nationwide. If it is, then it could also be the basis for hams to use to obtain
reasonable antenna accommodations such as dipoles and verticals when a city or
county says "no".
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10th Circuit Court Upholds FCC RF Preemption
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by WI4NDS on February 22, 2000
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SET THAT PRECEDENT & MAKE IT STICK! There's good news around the bend folks!
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10th Circuit Court Upholds FCC RF Preemption
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by N7LT on February 21, 2000
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Great if it sticks! We need all the help we can get!
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RE: 10th Circuit Court Upholds FCC RF Preemption
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by N3JIY on May 10, 2000
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It certainly sets legal precedent in the states whose federal court deci-
sions are reviewed by the Tenth Circuit Court of Appeals.
It just won't apply to the rest of the U.S., unless the Supreme Court
hears the case (unlikely) and approves the appellate court's decision.
However, those nine folks are quite busy, so they probably would only
consider hearing cases with which they disagree with the lower court's
decision.
Which states are these, anyway?
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10th Circuit Court of Appeals
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by KB6TRR on May 18, 2000
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The juristiction covered by the 10th Circuit Court of Appeals include the following states: Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
While not trying to carry this too far, I wonder if those of us living under the juristiction of this court can now challenge the restrictive anti-antenna covenants in place in various developments around the country. While not a lawyer, I would interpret the ruling to state that only the FCC has the authority to regulate devices capable of transmitting radio waves. I would further interpret this to mean "all" radio waves, whether they are of the interfering kind or the communicating kind. I would love to hear from a lawyer especially one familiar with Appeals Court rulings, and how they affect common law.
If the Court states that cities and counties can not usurp the power of the Federal Government in the form of the FCC, how on earth can a homeowners association, or other pseudo public entity do it? At the very least the FCC should take a very close look at this ruling, and perform its legal, and now court mandated task of taking charge of all of the airwaves including those that happen to reside over covenant controlled communities.
As a resident of Colorado I see A glimmer of hope for those Hams confined to the boundaries of covenant controlled developments, which include virtually every development built within the last 15 years in this state.
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RE: 10th Circuit Court of Appeals
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by AC5WO on July 26, 2000
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In theory, restrictive covenants are private contracts between the buyer and seller of the property, so FCC preemption wouldn't apply. However, if restrictive covenant prohibited TRANSMITTING antennas or RADIO TRANSMITTERS, I suspect that one could argue that the contract should be preempted by FCC regulation. I've always felt that local regulations and restrictive covenants should only be able to regulate physical structures without regard to any RF current that may be flowing in them. Flagpoles and vertical antennas should be equal. Safety requirements for towers should be similar to safety requirements for trees.
Recently Plano Texas where I live passed a much more restrictive tower ordinance. 50ft maximum height without special permit, 75ft for crank up towers. However, we were able to preserve use of manufacturers recommended installation drawings in place of an independent structural engineering report. I suggested specifically excluding lightweight vertical antennas and wire antennas from any antenna permit requirement and the suggestion was adopted. Also lobbied to make height restrictions apply only to the tower structure before the antennas are added, but they wouldn't go for that! We were stupid and let some unnecessarily restrictive setback requirements get into the final regulations. If local antenna regulations get opened up for change, I recommend getting as many concessions as possible to reduce costs for the average ham while the public is focused on tall towers at a few big gun stations.
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10th Circuit Court Upholds FCC RF Preemption
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by KB2VXA on May 5, 2005
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Getting right to the point, federal (FCC) jurisdiction does not extend to antennas or supporting structures. Somebody has stars in his eyes, the following comment is comparing apples to oranges.
"And what does this mean for hams? We will have to wait to see if this becomes what is known as a published decision. That's one that sets legal precedent nationwide. If it is, then it could also be the basis for hams to use to obtain reasonable antenna accommodations such as dipoles and verticals when a city or county says "no"."
Then again there is absolutely no precident to be made here, the action is all about existing federal law being upheld or overturned. It's a case of 800mHz RFI which has existed from the time cell phones were invented, the new service interferes with existing public services on the shared band due to close antenna spacing. It's rather like putting a 2M repeater on the county radio tower and expecting it not to receive interference from and interfere with VHF radio systems already there.
There is no disinformation like no information, sensational journalism at it's best.
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