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USA HR-4969
In article ,
KC4UAI wrote: I was wondering though. Given the section on antennas in my CC&R's is largely illegal now that they where preempted by the FCC, could one argue that because the section is illegal, it cannot be enforced? Thought 1 - check for a "severability" clause. Thought 2 - the fact that parts of the section have been preempted, doesn't mean that they're "illegal" - simply that those specific sections cannot be enforced. There's no illegality (crime) in those sections being present in your CC&Rs, but they've been de-fanged. If your HOA were to try to enforce the preempted sections, and persisted in doing so even after being formally advised that these sections have been preempted, you might be in a position to counter-sue the HOA (for your costs, at least), and perhaps get a court order enjoining them from further attempts to enforce. I really doubt that any of this would help you, in dealing with the application of these rules to antennas which don't qualify for the OTARD preemption (e.g. ham antennas). |
#2
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USA HR-4969
On Thursday, August 14, 2014 5:23:44 PM UTC-5, David Platt wrote:
I really doubt that any of this would help you, in dealing with the application of these rules to antennas which don't qualify for the OTARD preemption (e.g. ham antennas). I figured that this would only let me put up a TV antenna. But I also know that to the untrained eye, a TV antenna and a VHF/UHF beam might look pretty similar. But I was also hoping to get the HOA used to thinking that the antenna restrictions where unenforceable. Then put up a vertical with a TV antenna on top for loading. Of course, if we could get congress to exempt ham radio from CC&Rs, that would be a good thing I think. For now, I'm going to have to dream about being active on HF with a reasonable antenna and make do with what I can hide in the attic and in the ever taller trees in the yard. Someday, maybe, I can move and do a real antenna farm, but then it will be the wife I have to contend with and I dare say she's tougher than the HOA. -= KC4UAI =- |
#3
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USA HR-4969
On Fri, 15 Aug 2014 18:08:49 EDT, KC4UAI wrote:
I figured that this would only let me put up a TV antenna. But I also know that to the untrained eye, a TV antenna and a VHF/UHF beam might look pretty similar. But I was also hoping to get the HOA used to thinking that the antenna restrictions where unenforceable. Then put up a vertical with a TV antenna on top for loading. In FCC Docket 96-83, the proceeding that established the FCC's OTARD rules (Section 1.4000) as directed by Section 207 of the Telecommunications Act of 1996, there was specific wording that the "preemption" applied to antennas used exclusively for TV/video reception or for transmission incidental to operation of such systems (subscriber feedback, download ordering, etc.) A "TV antenna" or look-alike used for ham radio is specifically not preempted nor is there any intent to preempt ham radio antennas even if used for TV reception. Good try but no cigar! 73 de K2ASP - Phil Kane ARRL Volunteer Counsel |
#4
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USA HR-4969
On Friday, August 15, 2014 11:38:58 PM UTC-5, Phil Kane wrote:
In FCC Docket 96-83, the proceeding that established the FCC's OTARD rules (Section 1.4000) as directed by Section 207 of the Telecommunications Act of 1996, there was specific wording that the "preemption" applied to antennas used exclusively for TV/video reception or for transmission incidental to operation of such systems (subscriber feedback, download ordering, etc.) A "TV antenna" or look-alike used for ham radio is specifically not preempted nor is there any intent to preempt ham radio antennas even if used for TV reception. I didn't figure it was "legal", only that it was unlikely for the HOA to know the difference between me using an old TV antenna to top load a small tower and actually using it for TV reception. If it looks like something that the FCC preempted, maybe they wouldn't say anything, or if I actually used it for TV reception at first and drew the objection, rightfully claimed the preemption, they'd unlikely try again and I'd be able to modify things for Ham use without too much worry. Old TV antennas still work on the new TV spectrum and seem like they would be worth at least some amount of top loading if shorted to the support structure. Arranging a shunt feed on the mast for a few bands shouldn't be too hard. The other option I've considered is to just go ask if I can put up a ground mounted vertical in the back yard, with the understanding that only about 20' of antenna might be visible from the road and I would take it down before I sold the house. Then there is the third approach, what I'm doing now. I just put up stuff that I don't think anybody would see and I that I don't mind taking down (i.e. they are cheap wire affairs). So far, that's worked as long as I didn't go too gaudy. The coax trap inverted V dipole with the 20' painter's pole center support was a bit much for them, but I did share a backyard fence with the board president so I didn't expect that to fly. When you get a warning letter, they give you 30 days to comply, then it takes 60 more days to actually get a fine, at least here in Texas. 90 days is plenty of time to cut down some wire if they got insistent about it. -= Kc4uai =- |
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USA HR-4969
On Sun, 17 Aug 2014 20:20:52 EDT, KC4UAI wrote:
I didn't figure it was "legal", only that it was unlikely for the HOA to know the difference between me using an old TV antenna to top load a small tower and actually using it for TV reception. I would never advise a client to knowingly violate a law or breach a contract obligation on the basis "they'll never know the difference". That's not how I personally practice law. Whether such law or provision is "reasonable" or not is a different matter. One thing to consider about whether "they" will catch you or not - it depends on how much money the HOA wants to invest up front (they can recover the costs of enforcement after litigation) and the companion reason - depends on how bad they want to get you. Firms like ours and our competitors are in the business of determining whether antennas are active and on what frequencies. With modern technology there is little need for the extended "stakeouts" of yore. 73 de K2ASP - Phil Kane From a Clearing in the Silicon Forest Beaverton (Washington County) Oregon |
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USA HR-4969
On Monday, August 18, 2014 2:45:35 PM UTC-5, Phil Kane wrote:
I would never advise a client to knowingly violate a law or breach a contract obligation on the basis "they'll never know the difference". No smart lawyer would tell his client that it was OK to proceed to violate the terms of a contract. If I was advising somebody, I would say the same as you and add that they might want to get legal advice from an attorney before doing anything rash. Whether such law or provision is "reasonable" or not is a different matter. In this case, I don't think my "it's unreasonable" claim would carry much weight. If we got to the imposition of a fine stage for this, I'd be unlikely to prevail in court. I know that. One thing to consider about whether "they" will catch you or not - it depends on how much money the HOA wants to invest up front (they can recover the costs of enforcement after litigation) and the companion reason - depends on how bad they want to get you. The process the HOA usually goes though is to 1. send a warning letter giving me 30 days to "fix" any problems. 2. Sending the "official" notice that they intend to fine me, setting the "final" deadline. 3. Then, they can start assessment of fines and/or fix the problem themselves at my expense. All this costs them $$ up front as the management company bills them at each stage. My general plan is to comply with all warnings I receive within the specified time. To this end, my current plan is to put up antennas I don't mind taking down and doing my best to not draw too much attention to what I'm doing. This means using "natural" supports (trees, house, fences etc) to hold up some cheap wire and trying to keep things out of sight as much as I can. Where I am knowingly violating the terms of the CC&R's (BTW something that is open to some debate as the Antenna policy is not in the deed restrictions directly, but in a separate Architectural document which has not actually been attached to my deed) I am not taking much of a risk, unless they decide to abandon their standard process for me and go straight to imposing fines without first requesting that I comply. Firms like ours and our competitors are in the business of determining whether antennas are active and on what frequencies. With modern technology there is little need for the extended "stakeouts" of yore. I'd like to hear about the equipment used for what used to take a physical presence to figure out. |
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USA HR-4969
On 8/19/2014 6:28 AM, KC4UAI wrote:
Where I am knowingly violating the terms of the CC&R's Ok, I'm a little unclear on the concept here. What is your basis for knowing violating the terms on a contract you signed? -- Jeff-1.0 wa6fwi http://www.foxsmercantile.com |
#8
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USA HR-4969
On Tue, 19 Aug 2014 07:28:35 EDT, KC4UAI wrote:
The process the HOA usually goes though is to 1. send a warning letter giving me 30 days to "fix" any problems. 2. Sending the "official" notice that they intend to fine me, setting the "final" deadline. 3. Then, they can start assessment of fines and/or fix the problem themselves at my expense. All this costs them $$ up front as the management company bills them at each stage. I am very familiar with this process because, inter alia, my sister-in-law's "s.o." is an attorney that represents HOAs in collecting those fines. We have had interesting discussions. In California at one time, the burden was on the HOA to show that the restriction was reasonable. While we were in the process of taking a significant CC&R case to retrial (Hotz v Rich, San Mateo Country, CA 1993) the California Supreme Court shifted the burden to the respondent (in this case, Jimmy Rich, the ham operator) to show that the restriction was "unreasonable". We tried very hard to do that because the restriction was totally unreasonable but the judge was unimpressed, and Jimmy had to take his 75 foot crank-up tower down. This in spite of the (pro bono) work of four attorneys, a professor of electromagnetic at a major university, and several neighbors and dignitaries testifying to the need for such an antenna height. When one starts with court trials, it's a crapshoot. 73 de K2ASP - Phil Kane ARRL Volunteer Counsel |
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