Mixed Decision from the California Court of Appeals in Palmdale,
California Antenna Case
TAGS: court of appeals
02/08/2011

On January 27, 2011, the California Court of Appeals, Second Appellate
District, issued its Opinion in the antenna case of Alec Zubarau, WB6X.
In several respects, it is a win for Amateur Radio in California.
Working with his ARRL Volunteer Counsel, Len Shaffer, WA6QHD, Mr Zubarau
is now considering their next course of action.

The Court found that the Palmdale antenna ordinance, as it pertained to
the height limit for vertical antennas, was “unenforceable” because it
allowed a radio amateur to have a vertical antenna up to 75 feet high
when measured from the ground but limited the “active element of the
antenna array” to 30 feet. The ordinance did not define “array” or
“active element” and did not specify from where the 30 permitted feet
for such “array” was to be measured. The Court found that if even one
reasonable interpretation of the ordinance could be found, the ordinance
could be upheld, but that in this case, no one could understand what the
limitations were and how they could be applied. That portion of the
City’s ordinance was therefore unconstitutional and unenforceable.

The Court also held that the ordinance was unenforceable to the extent
that it attempted to regulate radio frequency interference. The City
maintained that it could regulate RFI, but the Court, citing case law
and argument in ARRL Amicus Curiae brief, held that only the FCC could
regulate RFI. Any State or municipal law that attempts to regulate RFI
is preempted.

Of some concern to Len Shaffer, however, is that the Court held that
Palmdale properly ordered Zubarau to remove his permitted 55-foot
crankup tower. The Court opined that the small, VHF/UHF vertical on the
roof constituted “reasonable accommodation” under PRB-1 and California
PRB-1 statute (California Government Code Section 65850.3). The Court
said that leaving Zubarau with a VHF/UHF antenna constituted a
reasonable accommodation because it allowed him to be active in some
part of Amateur Radio. There was no analysis of the “minimum practicable
regulation” test in PRB-1 and the California statute, so that part of
the three-prong PRB-1 test was left unexamined. Because the Court
reversed the trial court on this finding, Zubarau had no longer clearly
“substantially prevailed” in this case and so the Court remanded the
case to the trial judge to re-examine the issue of attorney’s fees
claimed by Zubarau.

The Court’s application of the “reasonable accommodation” standard of
PRB-1 in this case is, in the view of Len Shaffer and ARRL, both unique
and very narrow. Said ARRL General Counsel Chris Imlay, W3KD:

“While this decision is positive for Amateur Radio in California in two
significant respects, the record in this case shows that the small,
roof-mounted VHF/UHF antenna at WB6X was insufficient to conduct any
international communications. Alec’s tower is necessary in order to
conduct international communications and to permit even a 50/50 chance
of contacting Alec’s native Belarus on any given day. The Court ignored
this evidence and it did not apply the “reasonable accommodation” test
articulated by FCC and in prior case law, and it did not apply PRB-1’s
“least practicable restriction” test at all. In essence, the Court
applied a balancing test which FCC and several Federal courts have said
is improper in conducting the PRB-1 analysis. It is not true that any
accommodation for a radio amateur is reasonable accommodation, and it is
not sufficient to simply permit a radio amateur “some participation” in
our avocation. Instead, PRB-1 permits effective, reliable Amateur
communications. It is hoped that the Court will revisit this portion of
its otherwise favorable decision and get it right the second time.”

The court made three decisions that affect amateurs in California. First
the court found that part of the Palmdale ordinance was unconstitutional
because it was vague and could not be understood by a reasonable person.
That part of the ordinance allowed an Amateur to have a vertical antenna
up to 75 feet high when measured from the ground but limited the “active
element of the antenna array” to 30 feet in height. The court found that
the ordinance did not define “array” or “active element” and did not say
where the height of such array was measured from. After a number of
questions were submitted regarding this ordinance, the court determined
that no one could really understand what it meant and declared it
unconstitutional. This part of the decision, said ARRL Volunteer Counsel
Shaffer, will affect only hams living in Palmdale.

The next issue decided by the court had to do with radio frequency
interference. They said that only the Federal government could regulate
RFI and any state or municipal law that tried to address it was
preempted. That means it is not enforceable. That part of the decision
affects hams throughout the state, according to Shaffer. He asks any
California amateur whose municipality or county has an ordinance that
limits Amateur Radio antennas or operations based on whether there is
interference to consumer or other devices to contact Southwestern
Division Vice Director Marty Woll, N6VI, at .

The final part of the decision had to do with whether Palmdale followed
the law when they made Alec Zubarau take down his permitted tower but
allowed him to keep a VHF/UHF vertical on his roof. The court said they
thought this was a reasonable accommodation because it allowed him to be
active in some part of Amateur Radio. “This decision is troubling,” said
Shaffer, “and we are considering what options we may have regarding any
further review of the issue. We will be conferring with various legal
sources before any final determination is made.”