Mustang officials have not answered an attorney's letter calling the city's actions regarding amateur radio an “error” and possible violation of federal law.
Maryland attorney Christopher Imlay, representing the Amateur Radio Relay League, sent a seven-page letter to Mustang city officials on Nov. 6 by e-mail and U.S. mail. Within the text, he urged the city to rescind a certified letter officials sent to Mustang Heights resident John Ripley on Oct. 30 telling him to stop transmitting from his radio tower.
If no action was taken, Imlay wrote the ARRL would seek a “declaratory ruling” from the Federal Communications Commission.
Imlay said he had not received any response from Mustang city officials and plans to send another letter before filing with the FCC.
“It's premature,” he said. “We are not going to do anything until we find out what the intention of city is.”
City Manager Mike Rutledge said he had received Imlay's letter and referred it to Mustang's attorney. He said any response to the letter is up to the city's legal counsel.
“It will work out,” he said. “I'm sure it will.”
Rutledge said the Council tabled the amateur radio proposal until its first meeting in December. He said the issue will appear on Tuesday's meeting agenda but expects it to be tabled again until city officials hear back from local ham operators.
Receive only?
A possible conflict between Mustang's city ordinances and federal regulations regarding amateur radio operators surfaced last spring when John Ripley and his son Richard Ripley contacted the city before erecting a ham tower and antenna.
They found an ordinance that went into effect in 2000 stating, “any tower, or antenna, not more than 70 feet in height,” can be owned and operated by a federally licensed amateur radio station operator if it is used exclusively as a receive only facility.
Imlay wrote the city that all radio and telecommunications are regulated by the federal Communications Act of 1934 and cited a half dozen federal cases supporting this position. One of the cases he cited included a 1936 lawsuit, Fisher's Blend Station v. Tax Commission of the State of Washington, in which the Supreme Court held, “By its very nature broadcasting transcends state lines and is national in its scope and importance — characteristics, which bring it within the purpose and protection, and subject to the control, of the commerce clause.”
This summer, city staff brought a new proposed ordinance to Council for consideration, but it was tabled when several amateur radio operators raised concerns. Council members directed city staff to meet with local hams and create a new proposal, but Ripley said those meetings didn't happen.
Complaints
In July, the Ripley family erected a 55-foot tower and installed the antenna in September. Several neighbors attended Council meetings in October and called the tower an eyesore and a safety concern.
Interim Development Director Melissa Helsel wrote in the certified letter dated Oct. 30 that other neighbors complained of radio frequency interference with home phones, cell phones and computers.
“In our communications with the FCC, they have informed the city of Mustang that they have no mechanism for over-riding municipal ordinances and that the zoning regulations of the local government must always be adhered to when erecting a tower,” she wrote. “Therefore, we are asking you to stop transmitting from your tower immediately to avoid interfering with neighbors' electronic devices. Please contact my office if you need further information.”
In his letter to the city, Imlay wrote: “Essentially, nothing about this letter is accurate.
“The city of Mustang in fact has absolutely no jurisdiction whatsoever over radio frequency interference, and no authority to limit, once an antenna support structure is erected in accordance with land use regulations in place at the time, whether the antenna is used for radio transmission or reception,” he continued. “Such regulation is exclusively within the jurisdiction of the Federal Communications Commission, and all regulation of radio transmission and interference phenomena is pre-empted by federal law.”
Ordinance proposal
After Mustang City Council tabled the proposed ordinance change on Nov. 3, Rutledge said city staff met with ham operators after and asked them to bring back suggestions for another draft. He said so far, the city has not received any feedback.
When the ordinance was proposed, Helsel said it would not affect amateur radio antennas that are “receive only” — operating within the city's existing law. Other operators will have to meet the new ordinance requirements.
According to FCC records, there are 93 amateur radio licenses issued to people living in the 73064 zip code. There are 200 active licenses for residents in the 73099 zip code.If the ordinance was approved:
Radio operators would have been required to pay a $150 fee and seek a conditional use permit.
The applicant would have also been required to include a site plan — a scaled drawing showing property boundaries, tower, existing and proposed structures, access roads, location, fences and existing land uses surrounding the site. The resident would also have presented evidence of their ownership of the location and a statement of the height of the proposed amateur radio tower from the ground and sea level.
Amateur radio towers would have been required to be installed on the land so the distance from all property lines is at least 125 percent of the tower's height. In other words, if the tower should fall, it would land on the operator's property.
Applicants would have had to show the radio tower would not cause interference with other equipment. The proposal would have required towers to be locked behind a 6-foot tall fence and a 5-foot buffer of landscaping.
uThe planning commission or City Council could have required the amateur radio hobbyist obtain a report from a licensed structural or electrical engineer.
Imlay wrote the proposal would not meet FCC policies, pointing out the $150 fee is higher than other conditional use fees charged by Mustang. He also wrote the “vegetative screening” would cost at least as much as installing the tower and antenna itself.
“ARRL has some substantial experience with antenna ordinances and with the FCC's preemption policies regarding antenna regulation,” Imlay wrote. “We would offer to assist the city in any respect in redrafting the proposed ordinance in the near term prior to its adoption.
“As it stands,” he continued, “there is a virtual certainty that the provisions currently included in the draft ordinance are subject to successful challenge.”
Article Source: http://www.mustangnews.info/CatIndex.aspx?pageType=1&id=3773
Other sources of this topic:
http://www.koco.com/news/21525855/detail.html
http://www.k5eok.org/docs/ARRL_Letter_to_City_of_Mustang.pdf
