X-No-Archive: Yes
once again, local state law haS OVERRULED federal law. the court
ignored the "reasonable accomadation for amaateur radio" the fcc
requires and banned the ham from hf communications by making it
impossible for him to legally do so. all the while the court claimed
it was indeed "reasonalbe accomadation for ham radio" because it still
allows him to be involved in a part of amateur radio (local VHF and
UHF commuicastions)
http://www.arrl.org/news/mixed-decision-from-the-california-court-of-appeals-in-palmdale-california-antenna-case
Mixed Decision from the California Court of Appeals in Palmdale,
California Antenna Case
TAGS: court of appeals
02/08/2011
On January 27, 2011, the California Court of Appeals, Second Appellate
District, issued its Opinion in the antenna case of Alec Zubarau,
WB6X. In several respects, it is a win for Amateur Radio in
California. Working with his ARRL Volunteer Counsel, Len Shaffer,
WA6QHD, Mr Zubarau is now considering their next course of action.
The Court found that the Palmdale antenna ordinance, as it pertained
to the height limit for vertical antennas, was “unenforceable” because
it allowed a radio amateur to have a vertical antenna up to 75 feet
high when measured from the ground but limited the “active element of
the antenna array” to 30 feet. The ordinance did not define “array” or
“active element” and did not specify from where the 30 permitted feet
for such “array” was to be measured. The Court found that if even one
reasonable interpretation of the ordinance could be found, the
ordinance could be upheld, but that in this case, no one could
understand what the limitations were and how they could be applied.
That portion of the City’s ordinance was therefore unconstitutional
and unenforceable.
The Court also held that the ordinance was unenforceable to the extent
that it attempted to regulate radio frequency interference. The City
maintained that it could regulate RFI, but the Court, citing case law
and argument in ARRL Amicus Curiae brief, held that only the FCC could
regulate RFI. Any State or municipal law that attempts to regulate RFI
is preempted.
Of some concern to Len Shaffer, however, is that the Court held that
Palmdale properly ordered Zubarau to remove his permitted 55-foot
crankup tower. The Court opined that the small, VHF/UHF vertical on
the roof constituted “reasonable accommodation” under PRB-1 and
California PRB-1 statute (California Government Code Section 65850.3).
The Court said that leaving Zubarau with a VHF/UHF antenna constituted
a reasonable accommodation because it allowed him to be active in some
part of Amateur Radio. There was no analysis of the “minimum
practicable regulation” test in PRB-1 and the California statute, so
that part of the three-prong PRB-1 test was left unexamined. Because
the Court reversed the trial court on this finding, Zubarau had no
longer clearly “substantially prevailed” in this case and so the Court
remanded the case to the trial judge to re-examine the issue of
attorney’s fees claimed by Zubarau.
The Court’s application of the “reasonable accommodation” standard of
PRB-1 in this case is, in the view of Len Shaffer and ARRL, both
unique and very narrow. Said ARRL General Counsel Chris Imlay, W3KD:
“While this decision is positive for Amateur Radio in California in
two significant respects, the record in this case shows that the
small, roof-mounted VHF/UHF antenna at WB6X was insufficient to
conduct any international communications. Alec’s tower is necessary in
order to conduct international communications and to permit even a
50/50 chance of contacting Alec’s native Belarus on any given day. The
Court ignored this evidence and it did not apply the “reasonable
accommodation” test articulated by FCC and in prior case law, and it
did not apply PRB-1’s “least practicable restriction” test at all. In
essence, the Court applied a balancing test which FCC and several
Federal courts have said is improper in conducting the PRB-1 analysis.
It is not true that any accommodation for a radio amateur is
reasonable accommodation, and it is not sufficient to simply permit a
radio amateur “some participation” in our avocation. Instead, PRB-1
permits effective, reliable Amateur communications. It is hoped that
the Court will revisit this portion of its otherwise favorable
decision and get it right the second time.”
The court made three decisions that affect amateurs in California.
First the court found that part of the Palmdale ordinance was
unconstitutional because it was vague and could not be understood by a
reasonable person. That part of the ordinance allowed an Amateur to
have a vertical antenna up to 75 feet high when measured from the
ground but limited the “active element of the antenna array” to 30
feet in height. The court found that the ordinance did not define
“array” or “active element” and did not say where the height of such
array was measured from. After a number of questions were submitted
regarding this ordinance, the court determined that no one could
really understand what it meant and declared it unconstitutional. This
part of the decision, said ARRL Volunteer Counsel Shaffer, will affect
only hams living in Palmdale.
The next issue decided by the court had to do with radio frequency
interference. They said that only the Federal government could
regulate RFI and any state or municipal law that tried to address it
was preempted. That means it is not enforceable. That part of the
decision affects hams throughout the state, according to Shaffer. He
asks any California amateur whose municipality or county has an
ordinance that limits Amateur Radio antennas or operations based on
whether there is interference to consumer or other devices to contact
Southwestern Division Vice Director Marty Woll, N6VI, at
***@arrl.org.
The final part of the decision had to do with whether Palmdale
followed the law when they made Alec Zubarau take down his permitted
tower but allowed him to keep a VHF/UHF vertical on his roof. The
court said they thought this was a reasonable accommodation because it
allowed him to be active in some part of Amateur Radio. “This decision
is troubling,” said Shaffer, “and we are considering what options we
may have regarding any further review of the issue. We will be
conferring with various legal sources before any final determination
is made.”