HAM Radio Legislation: Why it Matters to Community Associations
“Ham radio” refers to amateur radio operations and antennas, which has a surprisingly large following among local hobbyists and enthusiasts. While the federal Telecommunications Act of 1996 ( “Telecommunications Act”) is the ultimate authority on regulating satellite dishes and television antennas, it does not apply to amateur radio (“ham radio”) antennas. The Telecommunications Act prohibits community associations from restricting a property owner's right to install a satellite dish or television antenna on property exclusively within the property owner's control. The Act's protections, do not, however, extend to ham radio operations. The Federal Communication Commission's (the “Commission” or “FCC”) PRB-1 document, an 11 page Amateur Radio Memorandum Opinion and Order, provides that local governments must reasonably accommodate amateur operations, but these regulations do not extend to private land-use restrictions such as deed covenants, conditions, and restrictions (“restrictive covenants”).
The long standing belief held by condominium or homeowner's associations is that ham radio installations constitute safety hazards, cause interference to other electronic equipment, or are eyesores that detract from the aesthetic and tasteful appearance of the development/community. To avoid these negative consequences, community associations often enforce restrictive covenants or pass rules and regulations to govern the location and height of antennas or, in some cases, prohibit them altogether.
It is worth nothing that the Federal Communications Commission (“FCC”) passed a ruling that provides that local governments must reasonably accommodate amateur radio operations. But in the same ruling, the FCC noted that the ruling does not reach restrictive covenants in private contractual agreements. The FCC further stated that because restrictive covenants are entered into at the time of the sale or lease of the property and purchasers are free to choose whether they wish to reside where such restrictions on ham radio antennas are in effect or settle elsewhere, it was not within the scope of the FCC regulation to govern private agreements. This means that the governance of ham radio antennas by community associations is not subject to federal regulation.
Potential Legislative Changes Regarding Ham Radios
A bill before Congress, however, seeks to change that by extending the protections afforded to owners of satellite dishes to those who own ham radio communication hardware. The bill, the Amateur Radio Parity Act of 2016 (the “Ham Radio Act”), calls on the FCC to require that private parties acting under contract reasonably accommodate amateur radio operations in the same manner that it requires local governments to provide such reasonable accommodations. Whether this bill becomes law is something that associations, and their managers and attorneys, should watch out for.
Specifically, the Ham Radio Act directs the FCC to amend station antenna structure regulations to prohibit a private land use restriction from applying to ham radio operation if (i) the restriction precludes communications in an amateur radio service, (ii) fails to permit a licensee of amateur radio service to install and maintain an effective outdoor antenna on property under its exclusive use or control, or (iii) is not the minimum practicable restriction to accomplish the lawful purposes of a community association seeking to enforce the restriction. The bill does, however, require an amateur radio licensee to obtain a community association's prior approval before installing an outdoor antenna. In addition, the Ham Radio Act would still allow a community association to prohibit installations on common property not under the exclusive control of the licensee, and to establish installation rules for ham radio antennas and support structures.
What does this mean for community associations? If the Ham Radio Act becomes law, radio enthusiasts living in antenna-restricted communities may have the opportunity to install antennas that reasonably accommodate ham radio communication. For example, the Ham Radio Act would prohibit blanket restrictions against ham radio stations/antennas. Community associations would maintain the right to prohibit installations on common or limited common property, but would no longer be able to restrict a property owner from installing/maintaining an outdoor antenna on property that is under his or her exclusive use or control. Furthermore, any rules and regulations governing ham radio operation or installation would have to be limited to the minimum necessary to “accomplish the lawful purposes of a community association seeking to enforce the restriction.” This means community associations would bear the burden of demonstrating that a particular restriction is necessary to accomplish a lawful purpose before the restriction can be enforced. It is likely that this bill would be interpreted and enforced much like the Telecommunications Act. Therefore, community associations would have to carefully craft and execute their rules regarding ham radios.
The bottom line is that if the Ham Radio Act becomes law, community associations will have much less ability to regulate the installation and operation of radio antennas in their communities.
For now, community associations can continue to regulate ham radio installation and appearance in accordance with their governing documents. The Ham Radio Act was passed by the House of Representatives on September 12, 2016 and is currently in the Senate for review. It proposes significant changes to the current regulation of ham radio station antenna structure regulation and, if enacted into law, will likely have a significant impact on many existing covenants and restrictions. This is a bill that we are monitoring, and we recommend that community associations everywhere do the same in order to ensure that your association's restrictions are modified as necessary, up to date and enforceable.