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 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 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

On Wednesday, August 20, 2014 10:01:19 PM UTC-5, Foxs Mercantile wrote:

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.


Which is, in fact, the very logic the FCC used to justify not
preempting CC&R's for hams. There isn't any part of your
license grant that makes me entitled to break a private contract.
It does entitle you to reasonable antennas, which may violate
local and state laws, they just said no to the private contracts,
at least for Hams. Of course, you can violate that private
contract and put up a TV antenna, no license required, and that's
by FCC rule.

HOWEVER, that's what it is now. If HR 4969 becomes law, then
getting an FCC license WILL make parts of some private contracts
illegal to enforce, just like the FCC already did for TV reception
antennas...

-= Bob =-