After having the same antenna up for nearly 10 years, a friend of mine recently got a threatening letter from City Hall. Apparently someone had complained to the city about his antenna, and a city "code enforcement officer" discovered that he didn't have the required permit for it. Even worse, his antenna (a modest tribander on a 50-foot tower) was in violation of the city's 35-foot height limit. 

My friend--who will remain nameless here--was told to apply for a conditional use permit ("CUP") or take the antenna down immediately! To apply for this permit, he had to pay a $500 application fee, submit engineering drawings, and invite every property owner within 300 feet to attend a public hearing concerning his antenna application! 

No one had ever complained to my friend about his antenna, but on the night of the public hearing, a lot of his neighbors showed up at City Hall and urged the city council to free them of this eyesore, this blight in their midst. Several also complained about interference to their telephones, television sets, and other electronic gadgets. 

When his turn came, my friend told the city council he was shocked by the testimony he had just heard, because none of these people had ever complained to him. With support from other amateurs, he also described his public service activities and mentioned "PRB-1," the Federal Communications Commission policy that says local governments must reasonably accommodate amateur communications. 

After the public hearing ended, one council member asked the city attorney about "this PRB-1 thing." 

The city attorney had done her homework. "Yes," she said, "the FCC issued a limited federal preemption order about ten years ago, but the courts have generally held that it does not require a city to allow any particular ham operator to have any particular type of antenna." She also said a "federal circuit court of appeals" had ruled that a 17-foot height limit was a reasonable accommodation of amateur radio, and that another circuit court had held that a city could reject a ham's antenna application altogether if the ham was unwilling to go along with the city's requirements to conceal the antenna from public view. 

The council members then rejected my friend's permit application and ordered him to take down his antenna. The mayor suggested that he could apply for a permit for a 35-foot-high antenna that had "less visual impact." 

My friend was shocked; he had no idea a city could do that in spite of PRB-1. "How can a city ignore federal law," he asked. 

I told him that, unfortunately, the city wasn't really ignoring federal law. The city attorney was right: several important court decisions have limited the impact of PRB-1. Nevertheless, I said he could sue the city in federal court, but it would probably cost a LOT of money, and there was no certainty he would win. I also told him that even if he did win, he could not recover his attorney's fees from the city because one of the landmark court decisions had virtually precluded the award of attorney's fees in PRB-1 lawsuits. In the end, my friend took down his 50-foot tower and put up several small, low-profile antennas. 
 

RECENT PRB-1 COURT DECISIONS

Sad to say, this story is not unique. Many other amateurs have had similar experiences in recent years. Going in, almost all of them assumed they had a federally protected right to put up a substantial antenna because of PRB-1. 

Just where does PRB-1 stand today--about ten years after it was adopted by the FCC? 

The short answer is that PRB-1 has been badly weakened by recent court decisions. To explain the importance of those court decisions, it's necessary to describe the judicial pecking order in America. As every high school civics student knows, the nation's highest court is the U.S. Supreme Court. But just below the Supreme Court there are a dozen U.S. Courts of Appeals, each serving a geographic region of the United States that is called a circuit. For example, the second circuit includes New York, Connecticut and Vermont. The ninth circuit includes California and eight other western states. In each region, the circuit court of appeals is the final authority on all federal legal matters that have not been ruled on by the Supreme Court. When any of these circuit courts establishes a legal precedent, lower federal courts throughout the region are obliged to follow that precedent (by deciding similar cases in the same way). Although decisions of one circuit court are not binding precedents in other circuits, they still carry considerable legal weight. 

This is an important point, because the Supreme Court has never ruled on PRB-1--but three different federal circuit courts have recently ruled against amateurs in lawsuits based on PRB-1. On the other hand, one appellate court (the eighth circuit U.S. Court of Appeals) recently handed down a decision that strengthened PRB-1 in seven midwestern states. In much of the United States, though, PRB-1 has not fared well in the federal appellate courts. For example, in 1991 the ninth circuit U.S. Court of Appeals decided a case called Howard v. Burlingame⁽¹⁾ that established a very bad legal precedent for amateurs seeking antenna permits in the western states. 

Howard v. Burlingame began when Vernon Howard, W6ERS, applied for a permit for a 51-foot tower in Burlingame, Calif. According to the summary of the case in the appellate court's written opinion, Howard was initially given a permit, but his neighbors appealed to the city council, which revoked the permit. Howard then sued in federal court, contending that the city had violated PRB-1 by denying him an effective antenna. A federal judge ruled that the city did have to accommodate Howard in some fashion, and suggested some possible compromises. 

Rather than pursue the matter further, the city then granted Howard's permit. But Howard went back to court, seeking a court order requiring the city to pay his attorney's fees. That request was denied by a federal judge, and Howard appealed to the ninth circuit U.S. Court of Appeals. The city responded by appealing the ruling that PRB-1 required the city to accommodate Howard's request for an antenna permit. 

The resulting decision was a disaster for amateur radio. In essence, the appellate court handed down a precedent-setting decision that said a city could deny a ham an antenna permit altogether. PRB-1 does not guarantee any particular amateur the right to put up any particular type of antenna, the court held. The court 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. 

But that wasn't all. The court went on to say that, inasmuch as there is no federally protected right to erect an antenna, an amateur who sues under PRB-1 and wins is not entitled to have the city pay his attorney's fees. This directly contradicts the conclusion of the federal court that decided the widely publicized early PRB-1 case of Thernes v. City of Lakeside Park.⁽²⁾ And the Howard case is a binding precedent in nine western states, rendering the Thernes decision irrelevant there. It also seriously weakens the Thernes case as a legal precedent elsewhere. 

In the end, the ninth circuit Court of Appeals--a court just one notch below the Supreme Court in judicial authority--said that a city need not do more under PRB-1 than consider an amateur's antenna application, investigate the matter fully, and attempt to negotiate a compromise that takes into account the city's zoning concerns as well as the amateur's desire for a substantial antenna. 

Although the Howard case was bad news for radio amateurs, it was not the only bad news. Perhaps even worse--for amateurs living in the mid-Atlantic states, anyway--was a 1990 decision of the fourth circuit U.S. Court of Appeals, Williams v. City of Columbia.⁽³⁾ In that case, John Williams, KE4BR, requested a "special exception" to the city's 17-foot height limit so he could erect a 65-foot telescoping tower. He was turned down by the zoning board in Columbia, SC. He sued in federal court, and the court ordered the city to reconsider his application in light of PRB-1. The city did that, and the zoning board offered to grant the permit if Williams would agree to keep the tower fully nested (at 28 feet) except at night. Williams rejected that compromise. He also said he was not involved in emergency communications--an admission that proved unfortunate later. The city then denied his permit again and he went back to court. 

Williams' case was eventually decided by the fourth circuit Court of Appeals, which upheld the city's position. The court concluded that the city had adequately weighed Williams' need for an antenna against the city's legitimate concern about neighborhood aesthetics. Given the fact that the city and Williams could not reach a compromise, the court held that PRB-1 was not violated by the city limiting Williams to an antenna height of 17 feet! The appellate court in essence agreed with the city's conclusion that because Williams used his amateur radio station only for "recreational purposes" and because there were other amateurs in the area who did provide emergency communications, Williams did not have any right to a 65-foot-high antenna under PRB-1. 

In adopting PRB-1, the FCC never said that amateurs must engage in regular emergency preparedness work to have antenna rights. However, in the Williams case a federal appellate court interpreted PRB-1 in that fashion, thereby undercutting DXers, contesters and others who would be happy to make their stations available in a real emergency, but who don't routinely take part in emergency drills. 

In addition to the Howard and Williams cases, there has been another adverse decision that established a very bad legal precedent: Evans v. County of Boulder.⁽⁴⁾ In this case, the tenth circuit Court of Appeals rejected an appeal by David "Doc" Evans, NQI, for an antenna higher than 35 feet--the maximum that officials in Boulder County, Colorado, would allow on his 1.28-acre lot! In effect, the court held that a 35-foot-high antenna on a 1.28-acre lot in a semi-rural area is an adequate accommodation of amateur radio under PRB-1. 

The Evans case bounced back and forth between county authorities and the federal courts for six years before the ultimate ruling against Evans in 1993. In that 1993 ruling--which received little coverage in the amateur radio press--the court dismissed PRB-1 as a "vague federal regulation" that should not be given much weight against "precise, specific local ordinances." The Evans decision was sweeping enough--and bad enough for amateur radio--that at least one FCC official said publicly that PRB-1 needed to be rewritten and strengthened. However, the Commission had not done that at this writing. 

Evans first requested a permit for a 125-foot tower in the mid-1980s, but several neighbors opposed his application early on. For his part, Evans made some excellent arguments. As a native of the U.K., he needed reliable interational communications capability to keep in touch with family members who were amateurs there. And as an astrophysicist with a Ph.D. degree, he had legitimate research interests that required a substantial antenna. Evans even offered to compromise in various ways, such as by accepting a smaller tower, but the county never approved any compromise that Evans could live with. County officials contended that Evans lived in a unique area with spectacular mountain views--views that would be impaired by a large radio tower. The county didn't seem to notice that the mountain views were already obstructed by large power lines in the area. Another complicating factor was the fierce winds that sometimes roar down those beautiful mountainsides, rendering the typical self-supporting crankup tower impractical there. (In some view-conscious communities, amateurs have won the right to have substantial antennas by agreeing to use crankup towers--and keep them cranked down most of the time.) 

When the Evans case ended up in the U.S. Court of Appeals, the county argued that other amateurs were able to live with the 35-foot height limit. Also, county officials said there were other less view-sensitive areas in Boulder County where they would allow a larger tower. But in Evans' circumstances, they were unwilling to allow anything more than 35 feet for aesthetic reasons. After years of protracted litigation, the tenth circuit Court of Appeals eventually upheld the county's position, PRB-1 notwithstanding. 

In early 1994, still another federal Court of Appeals ruled on PRB-1, but the case went the other way: an amateur actually won one of these precedent-setting cases! In Pentel v. City of Mendota Heights,⁽⁵⁾ the eighth circuit Court of Appeals ordered Mendota, Minn. officials to reconsider an application by Sylvia Pentel, NMRW, for a 68-foot crank-up tower. The court did not order the city to grant the permit, but the court did say that the city had to do more than merely allow Pentel to keep a vertical antenna that she already had on her roof. 

Pentel had erected the vertical without a city permit, but the city eventually offered to give her a permit for that antenna after she applied for a permit for the 68-foot tower and beam antenna. However, the city flatly denied her application for the tower and beam without providing any justification for its decision. She sued, but she lost in a federal district court (a trial court). She appealed, and the Court of Appeals ruled in her favor. 

The appellate court pointed out that the city's denial of Pentel's application seemed arbitrary--the city had shown no factual basis for its decision. On the other hand, Pentel had presented considerable evidence in the city hearings to explain why she needed something better than her vertical antenna for reliable long-distance communication. Pentel also offered evidence of her public service work to buttress her application. Moreover, there were other large towers in the city, but the city would not authorize hers. In the face of all this evidence, the appellate court concluded that the city had not made a reasonable accommodation of her need for an adequate antenna, as required by PRB-1. The city was directed to reconsider her application for a tower. Significantly, this federal court said that the city had to accommodate the amateur in some fashion; a balancing of the city's interests against the amateur's interests was not enough. This legal distinction could prove important in future cases. 

Why did Pentel win in a high federal court when other amateurs had lost? There are several possible reasons, including the luck of the draw: not all judges will reach the same conclusion, even given the same facts and the same legal arguments. Pentel's case was obviously heard by a sympathetic three-judge panel of the Court of Appeals. But Pentel also had an exceptionally strong case. She had a good record of public service, and she wasn't asking for a tower bigger than others in her area. The court was clearly influenced by her argument that she needed a directional antenna to facilitate her public service work. Nor was the city in a position to make the kind of aesthetic arguments about mountain views that were so persuasive to the court in the Evans case. In fact, the city council made no factual findings to justify rejecting Pentel's permit. City Hall just said no! The result: Pentel won, whereas several other amateurs lost in the federal appellate courts--establishing legal precedents that are bad for other amateurs seeking antenna permits. 

Even the Pentel decision, which is clearly the most important victory of this decade for an amateur in an antenna lawsuit, had its dark side. The court dismissed the city's concerns about potential r.f.i. problems with this observation: "...(T)he city had no reason to fear that the antenna would interfere with other residents' television and radio reception; the city's planning report states that Pentel was prohibited by the FCC from causing, and that she could lose her license if she failed to correct, such a problem." 

Under the FCC's rules, the responsibility for resolving r.f.i. problems is not nearly as clear as that language in the Pentel case suggests. The last thing amateurs facing r.f.i. problems need is precedent-setting federal appellate court decisions that misstate the law on r.f.i. responsibility. 

Taken together, these four appellate court decisions illustrate how difficult it can be for an amateur to win an antenna case in the face of strong local opposition. Federal appellate courts are often reluctant to overrule local elected officials about local land-use issues, which is what an amateur really has to ask the court to do. As the law stands today, local officials who turn down an antenna application have some major legal precedents to back them up. 

Even worse, radio amateurs who go to City Hall seeking antenna permits often assume that their legal position is stronger than it really is in light of the recent court decisions--because the adverse court decisions have received so little publicity. On the other hand, any city attorney who is even marginally competent can find out about these federal appellate court decisions in a few minutes, thanks to the power of legal databases such as Lexis and Westlaw. Amateurs often underestimate the obstacles they face when they apply for an antenna permit, while city officials are becoming more and more sophisticated about finding legal ways around PRB-1. 

Nevertheless, many amateurs obtain antenna permits without any great difficulty. And of the amateurs who are denied an antenna permit, only a small percentage hire lawyers and sue in federal court. Many hams who lose a battle with City Hall either move elsewhere or put up an antenna small enough to be acceptable to local officials. However, the cases that do end up in an appellate court often go badly, establishing legal precedents that can make life harder for other hams. 
 

DEED RESTRICTIONS AND PRB-1

If local governments were the only obstacle standing between amateurs and their antennas, the problem would be difficult enough. But in many communities government regulations are not even the main problem. More and more housing tracts (not to mention condominium developments) have deed restrictions that forbid all outdoor antennas. Unfortunately, PRB-1 is of little value in these situations. 

Deed restrictions (often called restrictive covenants or covenants, conditions and restrictions--CC&Rs) seem to be showing up almost everywhere: studies in several major metropolitan areas have shown that virtually all new developments have these covenants.⁽⁶⁾

They are prepared by real estate developers, often with the strong encouragement of local governments and lending institutions, in an attempt to protect property values and prevent neighborhood deterioration. They often require all homeowners to keep their homes and yards attractive, and they may impose restrictions on excessive noise. Farm animals are often prohibited, and there are sometimes restrictions on the number of domestic pets as well. Sometimes boats, travel trailers, motor homes and inoperable cars cannot be storied in driveways--or anywhere else where they can be seen. In some tracts, there are even restrictions on the types of shrubs and trees that may be planted--and on the colors that houses may be painted. Unfortunately for radio amateurs, ever since cable television service became widespread, radio and television antennas have also been a prime target of deed restrictions. 

Deed restrictions are said to run with the land. That is, they are binding on all future homeowners unless they are revoked, waived or abandoned. Often the task of enforcing the restrictions is given to a homeowners' association, which has the power to sue violators. Associations usually have the right to collect their attorney's fees from the homeowner if a lawsuit is necessary to enforce the rules. Individual property owners also have the right to sue to halt alleged violations, should the association fail to act. 

There are various legal defenses in lawsuits over alleged covenant violations. Among other things, the law in many states requires deed restrictions to be reasonable.⁽⁷⁾ And if the rules have been ignored for years and are widely violated, a court may declare that the deed restrictions have been waived or abandoned. However, it usually requires a full-blown lawsuit--and thousands of dollars in legal expenses--to get a court to declare them invalid. Also, the odds of winning in court are not high: deed restrictions are often upheld by courts. 

PRB-1 specifically rules out any federal preemption of deed restrictions. The FCC said they are voluntary land use restrictions. In the FCC's view, people should be free to live in a neighborhood without cows, broken-down cars or ham radio antennas if they so choose! The only real problem with the FCC's reasoning is that, at a time when virtually all newer neighborhoods have deed restrictions forbidding antennas, the rules cease to be voluntary: many homebuyers don't have much of a choice. 

Does that mean the courts are willing to overturn deed restrictions forbidding antennas? Unfortunately, that doesn't happen often. In one notable 1992 California case, a state appellate court upheld the FCC's determination that PRB-1 should not apply to deed restrictions. In Hotz v. Rich,⁽⁸⁾ the court ruled that a radio amateur in Foster City, Calif. was not freed from his tract's restrictions by PRB-1. The court upheld the right of neighbors to sue to prevent a tower from being erected in defiance of the rules. However, the appellate court did return the case to a lower court to consider whether such an across-the-board ban on antennas might be unreasonable. 

That might offer some hope for amateurs in California, at least, because another California appellate court did rule that a restrictive covenant forbidding all satellite antennas was unreasonable when it was enforced against a homeowner whose backyard dish was so well screened by landscaping that it could not be seen from the street or from anyone else's property. That happened in a case called Portola Hills Community Assn. v. James⁽⁹⁾ Of course, it isn't often possible to completely screen a typical amateur radio antenna from public view without seriously degrading its performance. Also, this is a fairly unusual court decision that turned out as it did at least in part because the court thought the Homeowner's Association had acted in bad faith. 

Because courts often uphold deed restrictions, homeowners who challenge them risk ending up deeply in debt: they may have to pay not only their own attorney's fees but also those of the homeowners' association. On the other hand, if there is no homeowners' association, an amateur may have a better chance to get away with ignoring the rules. For instance, I know of one new neighborhood in Southern California where outdoor antennas are strictly forbidden, but there is no association to enforce the rules. As soon as the last home was sold and the developer went away, a ham put up an antenna--and he has gotten away with it for several years now. At first, he only had a small loop antenna on his balcony, but when nobody said anything about that he put up a tribander on a 40-foot tower. Oh, the neighbors grumble behind his back (I know; I own a house down the block as an investment, and nobody there knows I'm a ham), but no one is angry enough to hire a lawyer and sue him to make him take down his antenna. Not yet, anyway... 
 

"UNDOCUMENTED" ANTENNAS, HIDDEN ANTENNAS AND OTHER OPTIONS

As antenna restrictions have proliferated in recent years, more and more amateurs have found that they have only two choices: 1) forget having an amateur radio station at home or 2) ignore the rules and put up some kind of hidden or "bootleg" antenna. 

Actually, the word "bootleg" has bad connotations among radio amateurs, so let's not use it here. Although government officials routinely refer to anything that is built without the proper permits as being "bootlegged," let's use a term that is more politically correct these days: we'll just call antennas erected without permits undocumented antennas, not bootleg antennas! That gives this the proper "spin," doesn't it? 

Basically, undocumented antennas fall into two categories: outdoor antennas erected without permits, and antennas hidden indoors or in an attic. For obvious reasons, no one knows how many undocumented amateur radio antennas are in use today, but the number must be enormous. At one time or another almost all of us have put up some sort of antenna without getting all of the proper permits. 

Unfortunately, hidden antennas may create problems that almost nobody thought about until recently. Aside from the fact that indoor antennas are often so badly obstructed by buildings or landscaping that they perform poorly, there are also growing concerns about the electromagnetic radiation hazards they may pose. New studies of the effects of low-level electromagnetic fields (EMFs) are being published in medical journals almost weekly now. It seems certain that when the health effects of EMFs are fully understood, hidden antennas will turn out to be hazardous in some circumstances because they are often placed in inhabited areas. Unless the transmitter power is very low (say 10 watts or so), an indoor or attic antenna is likely to expose the amateur and perhaps other persons to high EMFs. Nevertheless, thousands of amateurs must be using hidden antennas on a regular basis at this point. There are simply too many amateurs living in places where antennas are banned for that not to be the case. 

From a safety standpoint, undocumented outdoor antennas are a different matter. They can be just as safe as any other antenna; they're just erected without official approval. Given the enormity of the regulatory hurdles that exist today, probably half of all the towers and beam antennas that are erected these days go up sans permits! But that, too, creates some potential problems. For one thing, if an undocumented antenna should come down and cause property damage, a homeowner's insurance policy may not cover the losses. And, of course, the owner of an undocumented antenna has to be prepared to take it down--or else fight City Hall--at any time. 

Fortunately for amateurs with undocumented antennas, few local governments have enough resources to send code enforcement officers out scouring the community for undocumented antennas on a pro-active basis. ("Pro-active" is bureaucratese. It means to go out looking for code violations without waiting for someone to complain). Most often, undocumented antennas are ignored until someone does complain, typically because of an r.f.i. problem. Once the local authorities receive a complaint, though, an enforcement action is likely. The amateur can expect to receive a letter directing him either to take down the antenna or to apply for the proper permits within 30 days or less. If the antenna disappears quickly, that is usually the end of the matter; few cities file criminal charges against code violators who correct the violation promptly, except in egregious cases. 

If, on the other hand, the antenna owner decides to seek the proper permits retroactively, the process could be painful. If the antenna complies fully with the local codes, it might be a routine matter of providing suitable plans and drawings, paying the normal permit fee plus a penalty, and getting the permit signed off. More often, though, the amateur is directed to apply for some kind of special permit that is expensive and requires notice to neighbors. If what triggered the enforcement action was a complaint from a neighbor, there will probably be an ugly scene at a public hearing if the amateur tries to legalize an undocumented antenna by seeking a variance, conditional use permit or similar special dispensation from City Hall, because the neighbors will probably come out in force. If a permit can be obtained prior to antenna-raising day--before anyone in the neighborhood is angry--the amateur is surely better off. 

While some amateurs are unlucky enough to get caught up in a hassle over an undocumented antenna, many amateurs with undocumented antennas never hear from their local authorities. I once had five towers on a half-acre property within the Los Angeles City limits, all sans permits. My antenna farm was hard to miss: four of the towers were higher than 70 feet. Although two of them were on tower trailers and could have been removed quickly, I worried about the potential for conflicts with City Hall. However, I also knew I would only be living there a few years, so I took my chances. Sure enough, I never heard from the city, and I took my antennas down--voluntarily--when I was ready to sell the property. Frankly, that took more chutzpah than I have now (almost 20 years later), but I know amateurs who still do have that much chutzpah--and who have gotten away with it so far. 

In rural areas, of course, there is a lot less risk of running into a code enforcement officer. I have several towers up now in a place so isolated that almost nobody there even bothers to get building permits for their houses, much less for antennas. Not long ago my nearest neighbor there (who is a quarter of a mile away) built a beautiful new house, complete with a large deck overlooking the valley below, without a single permit. It's one of the nicest bootleg (oops, sorry, undocumented) houses I've ever seen. 

Given the deed restrictions and municipal ordinances that we now face in urban areas, the easiest way to have a big signal these days may be to head for the boondocks. There are all sorts of places where land is still cheap and nobody seems to care if you put up a tower or two--or three or four! Those places just aren't in the cities where most of us live. 
 

REFERENCES

1. Howard v. City of Burlingame, 937 F.2d 1376 (9th Cir. 1991). 

2. Thernes v. City of Lakeside Park, 779 F.2d 1187 (6th Cir. 1986). 

3. Williams v. City of Columbia, 906 F.2d 994 (4th Cir. 1990). 

4. Evans v. County of Boulder, 994 F.2d 755 (10th Cir. 1993). 

5. Pentel v. City of Mendota Heights, 1993 U.S. App. Lexis 35367. 

6. In 1987, the author conducted studies of the deed restrictions governing new housing tracts in greater Los Angeles, San Francisco, and Dallas-Ft. Worth, and found that almost all new housing tracts had rules prohibiting amateur radio antennas. 

7. For example, see California Civil Code Section 1354. 

8. Hotz v. Rich, 4 Cal.App.4th 1098 (1992). 

9. Portola Hills Community Association v. James, 4 Cal.App.4th 289 (1992).