This letter responds to your petition for a declaratory ruling that private codes, covenants, and restrictions including homeowner association rules (CC&Rs) that restrict amateur radio facilities violate Section 310(d) of the Communications Act of 1934, as amended. You request that the Commission declare such CC&Rs to be contrary to the public safety and interest, thereby terminating their enforceability. For the reasons set forth below, we deny the petition. < snip >
Congress recently enacted the Middle Class Tax Relief and Job Creation Act of 2012, which requires the Commission to report to Congress regarding the uses and capabilities of Amateur Radio Service communications in emergencies and disaster relief. The statute requires that the study identify impediments to enhanced Amateur Radio Service communications and recommendations regarding the removal of such impediments, including "the effects of unreasonable or unnecessary private land use restrictions on residential antenna installations.” On April 2, 2012, the Wireless Telecommunications Bureau and Public Safety and Homeland Security Bureau issued a Public Notice seeking comments relating to the topics of the study to be submitted to Congress. Comments are due May 17, 2012.
In your petition, you argue that early comments to the Public Notice demonstrate a controversy regarding whether CC&Rs that restrict amateur radio facilities violate the Communications Act, and you request a declaratory ruling terminating the controversy by holding that such CC&Rs are unenforceable. Section 1.2 of the Commission’s Rules provides that the Commission may “issue a declaratory ruling terminating a controversy or removing uncertainty.” The Commission’s policy regarding preemption of CC&Rs that restrict amateur radio facilities is clear, and has not changed since 1985. The recent congressional directive to conduct a study that, inter alia, examines the effects of such CC&Rs does not change the Commission’s existing policy. Because there is no controversy to terminate or uncertainty to remove regarding the enforceability of CC&Rs, we deny your petition.
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Originally Posted by W3WN
