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Author Topic: No radio transmissions allowed  (Read 34392 times)
W9PMZ
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Posts: 575


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« Reply #15 on: February 19, 2014, 12:53:30 PM »

Why doesn't the ARRL et. al. up the ante with the FCC in regards to this nonsense?  Seems that if hams made a case statement that since these organizations ban radio, then hams should ban themselves from providing emergency relief.

It seems to me that the emergency aspect of the hobby is in conflict with Federal Interest.

Oh, I know, money talks, nonsense walks...

Here's a situation i have seen, the mission statement of the HOA states the the overriding decision shall be to comply with local zoning and local regulations.

But then later down the document bans transmitting structures.  So if local regulations must comply with PRB-1, who wins?  I think they should be made to rip off all of their aluminum gutters and flagpoles...

73,

Carl - W9PMZ
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W9FIB
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Posts: 899




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« Reply #16 on: February 19, 2014, 05:10:28 PM »

It is simple. The FCC has the power to override local government regulations based in the Communications Act. However they have no legal standing to override a contract that a buyer and a seller agree upon.

If anyone signs the contract to buy a house with CCR and/or an HOA, you have signed away any rights to do anything that is not permitted by the CCR and/or HOA. A contract is a contract whether you like what is in it or not.  And signing it is your decision. No one is holding a gun to your head to sign it.

If you don't agree with the contract and all its provisions, and you sign the contract anyway, why do you think the government should bail you out for your own poor decision? Why should anyone give a flying .... that your poor decision is not what you wanted?

Next thing you know, people will want the FCC to force radio equipment dealers to take back the Kenwood because your unhappy and want an Icom. No one forced anyone to get the Kenwood instead of the Icom. Same with real estate. No one forced you to buy it. And if you did buy, why should I care? It is not my contract, but the buyers contract.

However you make your bed is what you have to lay in. And that's your problem, and nobody elses. Plain and simple.
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KF5ZYS
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Posts: 33




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« Reply #17 on: February 19, 2014, 05:20:36 PM »

First off a contract is on legal if its a leagle contract. An illegal contract can not be in forced.
Seems like there may be an issue with freedom of speech with this rule as well
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KI6LZ
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Posts: 601




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« Reply #18 on: February 19, 2014, 05:25:16 PM »

I'm rolling on the floor hearing the freedom of speech issue.
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W9FIB
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Posts: 899




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« Reply #19 on: February 19, 2014, 05:29:55 PM »

First off a contract is on legal if its a leagle contract. An illegal contract can not be in forced.
Seems like there may be an issue with freedom of speech with this rule as well

It is only illegal if it causes an illegal act. A prohibition of ham radio is not an illegal act. It is a legal choice of the developer and the governing authority within the HOA. They could just as easily ban model railroading and it is perfectly legal.

Free speech argument has been tried and rejected by the courts. Why? As I said before, you sign your rights away when you sign the contract.
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KC9YTJ
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Posts: 82




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« Reply #20 on: February 19, 2014, 05:33:41 PM »

Yeah, there is no 1st Amendment violation in an HOA contract. You agreed to it, you have to live by its terms.

But it does seem to me that, if the FCC were to modify PRB-1 (or even create a new order altogether) that was inclusive of amateur radio structures, the following would likely hold true:

1. Existing HOA contracts would NOT be automatically nullified because they would be grandfathered

2. Restrictions on amateur radio structures in new or renegotiated HOA contracts executed AFTER the issuance of the new or revised order would be invalid.  (Not the entire contract, just the part that violated PRB-1a or PRB-2 or whatever it would be called.)

IANAL, but this just seems logical to me.  (Yeah, I know, who said the law is logical...)
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KI6LZ
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Posts: 601




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« Reply #21 on: February 19, 2014, 05:34:32 PM »

Besides trying say that the 1st amendment gives a right to a ham radio.
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K1ZJH
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Posts: 1149




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« Reply #22 on: February 19, 2014, 07:44:06 PM »

The first poster said the members were given an UPDATE to the rules... that wouldn't have been in the contract they agreed to. Can they legally change a contract without both parties being in agreement?
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W9FIB
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Posts: 899




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« Reply #23 on: February 20, 2014, 03:56:49 AM »

The only way to know if the UPDATE is valid or not is to have a complete understanding of the original contract. The amending process varies widely from 1 HOA to another. If the UPDATE was given out, chances are very good that there was a provision in the original contract that allowed them to do that. So basically you probably don't have the ability to challenge it unless you have a specific clause in the original contract that allows you to challenge.

Contracts can tell you anything they want as long as it does not cause an illegal act. They can tell you which side of your bread should be buttered. If you sign the contract, you agree to anything and EVERYTHING in it, and you agree to abide by it. And that is what the courts will rule on and enforce is what is in the contract.
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KF7CG
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Posts: 866




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« Reply #24 on: February 20, 2014, 05:22:52 AM »

That was what I found to be a major sticking points in places with HOAs that did not currently ban antennas or their structures, the CC&Rs gave the HOA the power to amend the rules at the discretion of the board and these rules were then effective retroactively.

I other words if you did something that an influential portion of the neighborhood found uncomfortable the rules would be changed to force you to stop. All legal under the contract.

Also totally legal under all laws is for Amateurs to decline to offer assistance to those areas that by one means or another prohibit, penalize, or actively discourage Amateur Radio. Volunteer, unless you signed a contract, means that you serve at your discretion.

David
KF7CG
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AG6WT
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Posts: 475




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« Reply #25 on: February 20, 2014, 12:15:01 PM »

Well if they actually said "no radio transmissions allowed" then cell phones would not be permitted. I doubt that any CC&R like that would hold up in court because only the FCC (in the U.S.) has jurisdiction over radio transmissions.


I bet that if you asked the folks who wrote the "no radio transmissions allowed" rule, they'd say that cell phones, car key clickers, WiFi routers, etc., were wireless and not radio, and were therefore OK.

And they'd be dead serious.

73 de Jim, N2EY

Long ago wireless was synonymous with radiotelegraphy. So set up your spark gap transmitter and pound away!
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K2GWK
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Posts: 529


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« Reply #26 on: February 20, 2014, 05:09:45 PM »

Why doesn't the ARRL et. al. up the ante with the FCC in regards to this nonsense?  Seems that if hams made a case statement that since these organizations ban radio, then hams should ban themselves from providing emergency relief.

That will be the day I give up Amateur Radio......Why would we want to lower ourselves to the same level as the HOA Nazis?
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Guy
Lawn Guyland, New York

K2GWK Website
KE4DRN
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Posts: 3734




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« Reply #27 on: February 20, 2014, 05:43:58 PM »

The FCC won't take any action on the CCR issue, they want Congress to deal with it.

73 james
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K0KUZ
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Posts: 4




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« Reply #28 on: February 27, 2014, 08:03:10 PM »

How about the electric smartgrid smartmeters?

don
k0kuz
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AA4PB
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Posts: 12985




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« Reply #29 on: February 28, 2014, 06:49:36 AM »

I think that the FCC lawyers have already determined that the FCC has no jurisdiction over HOA private contracts. In other words, if you sign an contract with your neighbor agreeing that you will never put and antenna on your property then there is nothing the FCC can do. It actually will take an "act of Congress".
 
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