"Phil Kane" wrote in
et:

On 24 Nov 2004 01:27:16 GMT, Alun wrote:

Do not forget that holding an amateur license does not convey any
civil rights - _Howard v City of Burlingame_

I'm not sure what implications that has. I think I'd better try and find
that case and read it.

_Howard v City of Burlingame_, 937 F2nd 1376, (9th Cir., 1991)

"Uncle Vern" Howard got into a dispute with the city about getting
a permit for his tower as against neighbor complaints. (In the
meanwhile he put up a 65 foot tower where the original dispute was
over a 51 foot tower).

The District Court held that under the "reasonable accommodation"
factor in PRB-1 the permit had to be granted but it denied Vern's
claim for damages under 42 U.S.C. s. 1963 which awardss damages
where a local government (but not Federal) violates an individual's
civil rights "under color of law" and for attorney fees under 42 U.S.C.
s. 1988.

The parties cross-appealed to the 9th Circuit , the city appealing
the PRB-1 preemption and Vern appealing to reinstate his claim
for a declaration of protected rights and therefore eligibility for
1963 damages and 1988 fee award.

The 9th Circuit upheld the lower court but also ruled that holding
an amateur license did not confer any protected right (such as First
Amendment rights) to the licensee, and specifically the right to put
up any antenna of choice - the jurisdiction must still consider those
factors specified in PRB-1 to reach a "reasonable accommodation":

"In fact, the most significant section of the [Communications
Act] forecloses rather than supports Howard's claim: "no such
license shall be construed to create any right, beyond the terms,
conditions, and periods of the license." 47 U.S.C. Sec. 301. Such
language is evidence that no enforceable right exists under Sec.
1983, and that Congress intended to foreclose claims such as
Howard's. See Golden State, 110 S. Ct. at 449; Wilder, 110 S. Ct.
at 2523. Cf. Wright, 479 U.S. at 430. The Act thus grants no Sec.
1983 right to licensees to erect antennas."

Vern was getting up in years and didn't want to carry this to the
SCOTUS - it was a shot in the dark, as he said - so there it stands.

--
73 de K2ASP - Phil Kane



Thanks for the info. I couldn't find the case on FindLaw.com, but I didn't
know which circuit to look under. I will try searching it under the 9th.

Getting somewhat back on topic, we were discussing civil rights of foreign
hams in the US. I beleive that someone suggested that we be given
distinctive calls.

As I understand it, Howard v Burlingame said that a ham licence didn't
cause any protected civil right to arise, on the ground that the
Communications Act foreclosed that possibility by it's statutory language.

That seems to be correct, but it doesn't seem to rule out the application
of due process rights (for example) in obtention of a licence.

BTW, do you think the equal protection clause of the 14th amendment could
ever be applied to the feds, or do you think that as it says the states it
can only be applied to the states? The due process clause of the 5th
amendment seems to be the fallback position that can be used against the
federal govt., as it doesn't contain that language.

These two clauses have been held to apply to aliens, as they don't use the
word 'citizen', even though other clauses within the 14th amendment do.

Alun