August 22, 2012

FCC View of CC&R Preemption - Score One For HOA's

In a report released August 20, 2012, the FCC has recommended taking no action regarding expanding preemption rules to cover to private land use restrictions contained in covenants, conditions, and restrictions (CC&Rs) in home ownership deeds and condominium bylaws regarding amateur radio antennas.

Amateur radio operators across the country are finding it increasingly difficult to pursue their interest in amateur radio due to these restrictive covenants.  As the saying goes, sometimes it has to get worse before it can be made better.  For this round, score one for the HOA's and zero for amateur radio....

Excerpt from the report:

Private land use restrictions. Some commenters recommend that CC&Rs be preempted if they prohibit antennas that are within certain limits.  Others suggest that private land use restrictions on amateur antennas should be permitted only for safety considerations, and not for aesthetic reasons.

As noted above, however, other commenters believe that it is not necessary to preempt private land use restrictions in order to promote amateur emergency communications, given the ways that even amateurs subject to CC&Rs can communicate effectively and the nature of amateur emergency communications.
Moreover, while commenters suggest that private land use restrictions have become more common our review of the record does not indicate that amateur operators are unable to find homes that are not subject to such restrictions. Therefore, at this time, we do not see a compelling reason for the Commission to revisit its previous determinations that preemption should not be expanded to CC&Rs.