First Howard v City of Burlingame had to do with two things the first was a
local antenna ordinance and the second was Mr. Howard attempt to cover
attorney fees . It had nothing to do with the local or federal government's
attempt to regulate the content of the programming on the radio. Mr. Howard
believed he had the right under federal law to erect any antenna he wanted.
The court ruled that he did not have that right. The court said that the
city only had to accommodate Howard in some fashion, and suggested some
possible compromises. The Court of appeal said PRB-1 requires nothing more
than a balancing of the city's interest in promoting aesthetics and safety
against the amateur's desire for an effective antenna. If no suitable
compromise can be worked out with a particular amateur, his request for an
antenna can be rejected outright. No where in that ruling was it argued
about the content of a radio station or the first amendment right to uses a
radio. That court case had to do with PRB-1 and local antenna ordinances not
free speech and the content of a station. Howard believed he had a federal
right to erect an antenna as high as he wanted under PRB-1 (and not under
the first amendment) another misconception some amateurs have. I really didn't
look who was in the Dunifer case I was only concerned about the courts
ruling. It is ruling that other courts have looked upon when the FCC has
taken pirate operators to court. With the same results. That a person has no
right to broadcast without a license and has no right to challenge the rule
when that person hasn't applied for a license or a waiver. See Prayze FM vs.
FCC, Grid Radio vs. FCC, Any and All Radio Transmissions Vs FCC, Kind Radio
Vs FCC.

As for your question I have been very active in the micro broadcasting
movement and I'm very knowledgeable when it comes to radio law. I am current
working with a member of the House Subcommittee on Telecommunication in
regards to the FCC and the licensing processing including filing windows and
waivers.

Todd N9OGL


"Phil Kane" wrote in message
ganews.com...
On Wed, 22 Dec 2004 17:27:42 -0600, Todd Daugherty wrote:

That is one of the of the problem in the Amateur Radio service. The
Amateurs
only look at Part 97 and think that all these other rules don't apply to
them but in fact it does. Section 326 of the Communication Act of 1934 as
amended applys to all radio services. The same apply to section 301 and
section 501 or section 401....ect, ect

In _Howard v City of Burlingame_ (full citation given a while back
in another context) the Ninth Circuit clearly quoted the Comm Act
that an amateur license does not convey any rights other than that
which the FCC explicitly grants - Uncle Vern was attempting to
recover Section 1983 and 1988 damages for the City claiming that it
violated his "free speech rights" (which the court held non-existant)
by denying him a permit to erect an antenna structure of his own
choosing (which the court also held that he did not have any right
to).

And BTW, you quoted _Dunifer_ in your other post. If you read the
entire case, not just the decision, you would know that I was the
FCC's case supervisor in that case, and there's a lot more to that
case and how, when, and why the judge so ruled than appears in the
decision.

Where do you practice Communications Law, Todd?

--
73 de K2ASP - Phil Kane
Principal Attorney
Communications Law Center
San Francisco, CA






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