H.R.4006 S 3069

https://www.congress.gov/bill/118th-congress/senate-bill/3690/text

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Introduced in Senate (01/30/2024)

118th CONGRESS

2d Session

S. 3690

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 SENATE OF THE UNITED STATES

January 30, 2024

Mr. Wicker (for himself and Mr. Blumenthal) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

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 section 207 of the Telecommunications Act of 1996 (47 U.S.C. 303 note; Public Law 104–104), Congress provided guidance, direction, and authority to the Commission by directing the Commission to promulgate regulations 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) 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) Certain Restrictions Prohibited.—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 (c).

“(c) 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.

“(d) 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.

“(e) 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.

“(f) 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.

“(g) 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.

“(h) 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.

“(i) 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.”.

(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).