Allan & TLARC members,
In this document I will make an argument for proposed changes to the existing TVPOA ACC blue book rules related to antennas in the village.
Making any changes to the existing ACC rules should in my opinion be made slowly and methodically, ensuring adequate input has been digested to produce a legally enforceable document that serves the needs and desires of the villagers. To this end, I would suggest breaking the antenna section of the blue book (chapter 6) into two parts. Chapter 6.1 would address direct broadcast satellite service and over the air television broadcast antennas. Chapter 6.2 would address transmitting antennas.
Chapter 6.1 is what the existing blue book rules presently cover. These rules were written prior to the FCC adopting the Over-The-Air Reception Devices (OTARD) rule in October 1996. See https://www.fcc.gov/media/over-air-reception-devices-rule to review the Rule and the very insightful Q&A. These rules were further amended in 1999 and 2000. To summarize, the rule allows local governments, community associations and landlords to enforce restrictions that do not impair the installation, maintenance or use of the types of antennas described above, as well as restrictions needed for safety or historic preservation.
The rule prohibits restrictions that impair a person's ability to install, maintain, or use an antenna covered by the rule. The rule applies to state or local laws or regulations, including zoning, land-use or building regulations, private covenants, and homeowners' association rules. A restriction impairs if it: (1) unreasonably delays or prevents use of; (2) unreasonably increases the cost of; or (3) precludes a person from receiving or transmitting an acceptable quality signal from an antenna covered under the rule. The rule does not prohibit legitimate safety restrictions.
Clearly defined, legitimate safety restrictions are permitted even if they impair installation, maintenance or use provided they are necessary to protect public safety and are no more burdensome than necessary to ensure safety. The safety reason for the restriction must be written in the text, preamble or legislative history of the restriction, or in a document that is readily available to antenna users, so that a person who wishes to install an antenna knows what restrictions apply.
As I read the OTARD rule, practically everything in the existing blue book would be thrown out the window. The only possible exception would be the set back requirements. An argument could be made that if a neighbor’s house (or tree) is taller than the distance to the property line, than the antenna could be as well.
The OTARD rule clearly limits the size of dish antennas to one meter or less. There are (to my knowledge) no commercially available satellite dish antennas on the market greater than one meter, and given the advances in satellite technology, one would be hard pressed to see one ion the future.
Recommendation: Remove ALL existing language presently in section 6 of the blue book, as it would not withstand a legal challenge.
Chapter 6.2 would then become chapter 6. It would address transmitting antennas, both amateur and non-amateur. Most of us are familiar with the FCC order known as PRB-1. Issued in 1985, it has withstood many legal challenges and has been used on multiple occasions to defend amateur stations from unreasonable enforcement attempts. You previously stated that “PRB-1 is directed at municipal/county gov't. Our potential issues are not with the local gov't but with the Tellico Village POA which is not a gov't entity. Hence PRB1 does not apply to us. Everyone in TV has accepted the covenants and restrictions of this planned community by purchasing property here.” I would take exception to this statement. While the TVPOA can place additional covenants and restrictions on us, they cannot override county, state, or federal law. PRB-1 is the law of the land, and we live in that land. TVPOA can no more ignore PRB-1 than they could impose a height standard for residents.
In 2003 the State of Tennessee passed HB1010, http://www.arrl.org/files/file/HA0070.pdf. While HB1010 only applies to municipalities, the point is that TN has adopted the PRB-1 philosophy, and I propose we have TVPOA embrace it as well.
Regardless of this, you have presented the amateur radio community the opportunity to be involved in formulating standards in the blue book that more fairly represent the needs and desires of the hams within the village, while respecting the visual harmony of our community.
To that end, I propose that language be crafted for the blue book section 6 that mirrors the intent of PRB-1, with thresholds for when a permit would be required, and the criteria for approval or rejection of such a permit. If requested, I would attempt to craft this language, but that would be a venture for another document.
Very respectfully submitted,
David Andrews, N1ESK