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[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4006 Introduced in House (IH)]
<DOC>
118th CONGRESS
1st Session
H. R. 4006
To amend the Communications Act of 1934 to prohibit the application of
certain private land use restrictions to amateur station antennas, and
for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 12, 2023
Mr. Johnson of Ohio (for himself and Mr. Courtney) introduced the
following bill; which was referred to the Committee on Energy and
Commerce
_______________________________________________________________________
A BILL
To amend the Communications Act of 1934 to prohibit the application of
certain private land use restrictions to amateur station antennas, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Amateur Radio Emergency Preparedness
Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) More than 770,000 amateur operators in the United
States are licensed by the Federal Communications Commission
(in this section referred to as the ``Commission'') in the
amateur radio services, and, by treaty, amateur operators
licensed by other countries are authorized to operate within
the United States.
(2) Amateur radio, in addition to providing life-saving
emergency communications at no cost to taxpayers, provides a
fertile ground for technical self-training in modern
telecommunications, electronics technology, and emergency
communications techniques and protocols.
(3) There is a strong Federal interest in the effective
performance of amateur stations established at the residences
of amateur operators. Among other reasons, when an emergency
arises, it can be too late, and too dangerous, to erect an
effective antenna. However, amateur stations have been shown to
be frequently and increasingly precluded by unreasonable
private land use restrictions, including restrictive covenants.
(4) Commission regulations have for more than 3 decades
prohibited State and local regulation of amateur station
antenna structures that precludes or fails to reasonably
accommodate amateur service communications, or that does not
constitute the minimum practicable regulation to accomplish a
legitimate State or local purpose. The policy of the Commission
has been and is to require States and localities to permit
erection of a station antenna structure at heights and
dimensions sufficient to reasonably accommodate amateur service
communications. The Commission struck an appropriate balance by
enabling effective use of the amateur service without burdening
localities and adjoining properties.
(5) The Commission has sought guidance and direction from
Congress with respect to the application of the Commission's
limited preemption policy regarding amateur service
communications to private land use restrictions, including
restrictive covenants.
(6) In 1996, Congress provided guidance, direction, and
authority to the Commission by directing the Commission to
promulgate regulations (Public Law 104-104, title II, section
207, 110 Stat. 114; 47 U.S.C. 303 note) that have preempted all
private land use restrictions applicable to exterior
communications facilities that impair the ability of citizens
to receive television broadcast signals, direct broadcast
satellite services, or multichannel multipoint distribution
services, or to transmit and receive wireless internet
services.
(7) To further the public interest benefits that amateur
radio brings to society, private land use restrictions that
prohibit, restrict, or impair amateur operators from operating,
installing, or maintaining effective outdoor amateur station
antenna structures should also be preempted.
SEC. 3. APPLICATION OF PRIVATE LAND USE RESTRICTIONS TO AMATEUR STATION
ANTENNAS.
(a) In General.--Part I of title III of the Communications Act of
1934 (47 U.S.C. 301 et seq.) is amended by adding at the end the
following:
``SEC. 346. APPLICATION OF PRIVATE LAND USE RESTRICTIONS TO AMATEUR
STATION ANTENNAS.
``(a) In General.--A private land use restriction that prohibits,
restricts, or impairs, or has the effect of prohibiting, restricting,
or impairing, an amateur operator from operating, installing, or
maintaining any amateur station antenna on property subject to the
control of the amateur operator may not be adopted or enforced, except
as permitted by subsection (b).
``(b) Permissible Restrictions.--
``(1) In general.--Subject to paragraph (2), the following
private land use restrictions applicable to amateur station
antennas may be adopted or enforced:
``(A) A restriction that requires an amateur
station antenna to be installed in compliance with the
specifications of the manufacturer of the antenna,
applicable zoning ordinances, amateur radio tower
ordinances (if any), and governmentally adopted
building codes.
``(B) A restriction that requires an amateur
station antenna to be maintained in a structurally safe
condition.
``(C) A restriction that requires any deteriorated
or structurally unsafe component of an amateur station
antenna to be repaired, replaced, or removed.
``(D) A restriction that requires an amateur
station antenna to be removed if the property on which
the antenna is located ceases to be subject to the
control of an amateur operator.
``(E) A restriction that requires an amateur
station antenna ground-mounted electrical enclosure,
ground-mounted control enclosure, or guy wire anchor to
be visually screened if such enclosure or anchor--
``(i) is visible from the street faced by
the dwelling; or
``(ii) is located in an unfenced side or
rear yard and is visible from an adjoining
property.
``(2) Reasonable application and enforcement.--A private
land use restriction permitted by paragraph (1) shall be
reasonably applied and enforced.
``(c) Limitations on Prior Approval.--
``(1) Requirement not present in land records at time of
purchase or lease.--A requirement in a private land use
restriction for an amateur operator to obtain prior approval
for the installation of an amateur station antenna may not be
adopted or enforced if such requirement for prior approval was
not present in the publicly recorded land records prior to the
purchase or lease of the property by the amateur operator.
``(2) Information required for prior approval.--A private
land use restriction that requires an amateur operator to
submit an application for approval of an amateur station
antenna prior to installation may not be adopted or enforced if
the information required to be submitted as part of the
application is greater or more detailed than the information
required to be submitted as part of an application for any
other improvement.
``(3) Deemed approval.--If a community association or other
person authorized to enforce a private land use restriction
applicable to an amateur station antenna does not approve or
deny an application of an amateur operator for approval of the
installation of an amateur station antenna by the day that is
45 days after the date on which the application is submitted,
the application shall be deemed to be approved on the 45th day.
``(4) Existing approval.--If a private land use restriction
requires an amateur operator to submit an application for
approval of an amateur station antenna prior to installation,
after a community association or other person authorized to
enforce the restriction approves the application, no further
approval of the antenna may be required, unless there is a
material change in the dimensions or structural integrity of
the antenna.
``(d) Antennas That Do Not Require Prior Approval.--A requirement
in a private land use restriction for an amateur operator to obtain
prior approval for the installation of an amateur station antenna may
not be adopted or enforced with respect to any of the following types
of amateur station antennas:
``(1) 1 meter or less in diameter or diagonal
measurement.--An antenna for use by an amateur operator that is
less than 1 meter in diameter or diagonal measurement, or
having other measurements prescribed by the Commission.
``(2) Flagpole antennas.--A flagpole, capable of dual use
as a flagpole and an amateur station antenna, not greater than
43 feet in height above ground.
``(3) Wire antennas.--Minimally obtrusive wire antennas, of
a length necessary for the frequency of use intended.
``(4) Vertical antennas.--Vertical antennas, not to exceed
43 feet in height above ground, including collapsible whip and
tilt-over antennas.
``(e) Rules of Construction.--
``(1) Control of property.--For purposes of this section,
property is subject to the control of an amateur operator if
the amateur operator is an owner, lessee, or legal resident of
the property.
``(2) Impairment of installation, maintenance, or
operation.--For purposes of this section, a private land use
restriction prohibits, restricts, or impairs the installation,
maintenance, or operation of an amateur station antenna if the
restriction--
``(A) unreasonably delays or prevents installation,
maintenance, or operation of the antenna;
``(B) unreasonably increases the costs or
difficulty of installation, maintenance, or operation
of the antenna; or
``(C) prevents or degrades reception or
transmission of a signal acceptable to the amateur
operator.
``(3) Limited common area.--
``(A) In general.--For purposes of this section, if
there exists, within the property for which a community
association is responsible, a limited common area to
which an amateur operator has the right to exclude use
by others, the limited common area shall be treated as
property under the control of the amateur operator.
``(B) Permission access.--For purposes of
subparagraph (A), access by a community association for
roof repairs, landscaping, or other maintenance
activities shall be treated as a permission, or
authorized access, which does not limit or destroy the
control of the amateur operator.
``(f) Enforcement.--
``(1) Stay of enforcement.--If an action is initiated to
seek a declaratory ruling from the Commission or a court of
competent jurisdiction regarding whether a private land use
restriction complies with this section, any community
association or other person seeking to enforce the restriction
shall suspend all enforcement efforts with respect to the
restriction until a ruling in the action has become final.
``(2) Prohibition on accrual of penalties or other costs.--
No penalty or other cost related to an amateur station antenna
may accrue against an amateur operator under a private land use
restriction while an action described in paragraph (1) is
pending to determine whether the restriction complies with this
section.
``(3) Burden of proof.--
``(A) Regarding compliance with this section.--In
any action before the Commission or a court of
competent jurisdiction involving the interpretation of
any provision of this section, the burden of
demonstrating that a particular private land use
restriction complies with this section shall be on the
party that seeks to impose, maintain, or enforce the
restriction.
``(B) Regarding violation of private land use
restriction.--In any action before the Commission or a
court of competent jurisdiction to determine whether an
amateur station antenna violates a private land use
restriction, the party alleging the violation bears the
burden of proof.
``(g) Private Right of Action.--A person harmed by a violation of
this section may bring an action against the person alleged to have
committed the violation in an appropriate district court of the United
States without first exhausting remedies under State law.
``(h) Affirmation of Limited Preemption of State and Local Land Use
Regulation.--Nothing in this section shall be construed to modify or
otherwise limit the applicability of section 97.15(b) of title 47, Code
of Federal Regulations, or any successor regulation.
``(i) Definitions.--In this section:
``(1) Amateur operator.--The term `amateur operator'--
``(A) has the meaning given such term in section
97.3 of title 47, Code of Federal Regulations, or any
successor regulation; and
``(B) includes any other person authorized to
operate an amateur station in the United States.
``(2) Amateur station.--The term `amateur station' has the
meaning given such term in section 97.3 of title 47, Code of
Federal Regulations, or any successor regulation.
``(3) Antenna.--The term `antenna' includes--
``(A) the transmitting and receiving elements;
``(B) any feedline, control enclosures, or
electrical enclosures necessary for effective
transmission or reception; and
``(C) any support structure, guy wire, anchor, or
tie-off.
``(4) Community association.--The term `community
association' means--
``(A) a condominium association (as defined in
section 604 of the Condominium and Cooperative Abuse
Relief Act of 1980 (15 U.S.C. 3603));
``(B) a cooperative association (as defined in such
section); and
``(C) a residential real estate management
association (as defined in section 528 of the Internal
Revenue Code of 1986).
``(5) Lessee.--The term `lessee' means a person who, in
exchange for payment--
``(A) takes temporary possession of residential
real estate through a lease; or
``(B) takes possession, in whole or in part, by
lease or purchase, of residential real estate subject
to a ground lease.
``(6) Private land use restriction.--The term `private land
use restriction' means--
``(A) a publicly recorded provision (whether such
provision is denoted as a covenant, deed restriction,
declaration, use restriction, covenant that runs with
the land, or otherwise) that--
``(i) touches or concerns the real estate
to which the provision applies; and
``(ii) limits or restricts the use of the
real estate or imposes conditions on the use of
the real estate; or
``(B) a rule or regulation of a community
association, whether publicly recorded or not, that
limits or restricts the use of real estate or imposes
conditions on the use of real estate.''.
(b) Regulations.--Not later than 180 days after the date of the
enactment of this Act, the Federal Communications Commission shall
promulgate regulations to implement the amendment made by subsection
(a).
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Energy and Commerce.
Referred to the Subcommittee on Communications and Technology.
ASSUMING FIRST SPONSORSHIP - Mr. Pfluger asked unanimous consent that he may hereafter be considered as the first sponsor of H.R. 4006, a bill originally introduced by Representative Johnson (OH), for the purpose of adding cosponsors and requesting reprintings pursuant to clause 7 of rule XII. Agreed to without objection.
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