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 =-

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

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.

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

On Tue, 19 Aug 2014 17:28:56 EDT, Foxs Mercantile
wrote:

Ok, I'm a little unclear on the concept here.
What is your basis for knowing violating the terms on a
contract you signed?

For a contract term to be valid and enforceable, it must, among other
things, be clear, be reasonable, not contrary to public policy, and
the contract cannot be a "contract of adhesion" where the affected
party has no other choice but to accept the terms rather than
negotiate them.

Does that sound familiar?

73 de K2ASP - Phil Kane
ARRL Volunteer Counsel

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

On 8/20/2014 7:22 AM, Phil Kane wrote:
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.

and previously in response to me:

For a contract term to be valid and enforceable, it must, among other
things, be clear, be reasonable, not contrary to public policy, and
the contract cannot be a "contract of adhesion" where the affected
party has no other choice but to accept the terms rather than
negotiate them.

So apparently, that one with the 75 tower was enforceable.

This leads back to my original question then, what part of having a
FCC grant of license gives amateurs the right to violate the terms
of a contract they signed?





--
Jeff-1.0
wa6fwi
http://www.foxsmercantile.com

On Wed, 20 Aug 2014 11:29:43 EDT, Foxs Mercantile
wrote:

So apparently, that one with the 75 tower was enforceable.

The restriction said that no antenna may exceed the height of the
one-story building that it is associated with or attached to. That in
itself is unreasonable, and we had technical testimony to back it up.
Dear Mrs. Hotz had none to refute that. The judge was dumb and blind,
but that's another story.

This leads back to my original question then, what part of having a
FCC grant of license gives amateurs the right to violate the terms
of a contract they signed?

A contract of adhesion has a high barrier for enforcement to take
place.

Note that the justification for PRB-1 and the impending extension to
private contracts is the exercise of Federal interest in amateur
radio, hence limited pre-emption. We tried to get this under
_Shelley_ where the SCOTUS ruled that contract terms that were against
public policy were unenforceable no matter if the affected party
signed it but the California Court of Appeal sent it back to the
Superior Court for trial. That's when the burden shifted. The
neighbors couldn't win at the city level, so they had to resort to the
CC&Rs of a development that was co-terminus with the city and whose
officers were the city council members. They actually passed the hat
for this lawsuit after we won at the city level. This nonsense will
disappear when the bill becomes law.

"Reasonable accommodation" is not total pre-emption. Nothing is
stopping any ham from not claiming the benefit of the limited (PRB-1
style) pre-emption.

73 de K2ASP - Phil Kane
ARRL Volunteer Counsel

On 8/20/2014 3:33 PM, Phil Kane wrote:
A contract of adhesion has a high barrier for enforcement to
take place.

Whether it's enforceable or not isn't the question Phil.

The question is what part of an FCC license gives you the right
to knowingly violate a contract you signed.





--
Jeff-1.0
wa6fwi
http://www.foxsmercantile.com