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The ARRL Letter Vol. 13, No. 2 January 26, 1994

Appeals court sides with amateur; tower victory reinforces PRB-1;

     A federal appeals court in Minnesota has found in favor of an
amateur and against a local municipality, the latest round in a
three-year battle. The decision could affect how PRB-1, the federal
declaration preempting local regulations, may be applied in the future.
     Sylvia Pentel, N0MRW, applied in January 1991 for a zoning variance
for a 68-foot crank-up tower from the city of Mendota Heights. At the
time, she was using a roofmounted vertical which, she was unaware,
violated the city's zoning rules (since it was taller than 25 feet). The
city denied her application for a tower but granted a special-use permit
to allow her to keep the vertical.
     Pentel sued the city in US district court, saying that its ordinance
was preempted by PRB-1, which recognizes the needs of both municipalities
and amateurs, and which requires a "reasonable accommodation" of the
needs of amateurs. The district court found in favor of the city, and
Pentel appealed.
     In overturning the lower court's decision, the US Court of Appeals
for the 8th Circuit said that the FCC in PRB-1 "was attempting to strike
a balance" between the interests of municipalities and amateurs, and
exhorted Pentel and the city to work together to "arrive at a
satisfactory solution."
     The court of appeals said that its decision does not mean that the
city must necessarily grant Pentel's tower application as it stands, but
rather that the city must make a reasonable accommodation for her
interests. The court said that granting a special-use permit for Pentel's
vertical was not an accommodation "in any practical sense" because the
record showed it was inadequate for her purposes.
     Pentel's lawyer, John B. (Jay) Bellows Jr, K0QBE, said the
importance of this decision lies in the court's shifting the burden away
from the amateur and more toward the municipality.
     "PRB-1 really is not about 'balancing'" Bellows said, "and this
decision recognized that.
     "I was particularly impressed with the appeals court's grasp of the
overall subject," Bellows said.
     The court said the distinction between balancing a municipality's
and an amateur's interests, on the one hand, and accommodating an
amateur's interests "is important, because a standard that requires a
city to accommodate amateur communications in a reasonable fashion is
certainly more rigorous than one that simply requires a city to balance
local and federal interests when deciding whether to permit a radio antenna."
     Bellows has previously appeared with amateurs at town council
meetings and helped with the drafting of several local antenna
ordinances. He appeared with Pentel before both the Mendota Heights
planning commission and the city council in her quest for a permit.
     Bellows was assisted by an ARRL amicus curiae brief filed by General
Counsel Chris Imlay, N3AKD. Imlay also provided advice on strategy in the
case.
     "You never know how a court is going to be swayed by a friend of the
court brief," Bellows said. "In this case," the League's participation
did show that there was a national interest in such a matter, and
demonstrated that the decision of the court could have wide-ranging effects."
Does public service work
     Sylvia Pentel, an amateur since 1988, is primarily interested in
public service communication. She is National Communications Officer for
the Emergency Medical Preparedness Office of the National Disaster
Medical Service.
     She first became involved in public service communication after the
Loma Prieta (California) earthquake in October 1989. Her local work, on
VHF and UHF, expanded to the HF amateur bands, and she originally sought
to replace her vertical with a beam following the earthquake.
     "I especially wanted better HF coverage during the Desert Shield
buildup to the Persian Gulf War," she said, but the town denied her
permit at that time.
     Pentel has an illustrious Amateur Radio legacy. Her father was
Maurice Goldberg, 9APW and later 9ZG, a radio pioneer and early ARRL
official in his division. His name appears over several technical
articles in 1920s QSTs.
     Goldberg, who died in 1977, did not live to see his daughter become
a licensed amateur, but he did lay the groundwork. "Dad tried to teach me
CW when I was far too young," Pentel said. "I thought it was a family
thing, the 'Maurice code.'"
     Pentel said getting a permit for her tower has "been a long,
frustrating haul. I should have just gone ahead and put it up,
considering there are several other amateur towers in town.
     "Instead, I did the 'right thing,'" she said. "I got the ARRL
package of materials and made a comprehensive application to the town,
with engineering drawings and so on."
     After getting favorable signatures from nine neighbors, Pentel ran
into trouble when a couple of neighbors "began stirring things up at the
hearings," she said.
     But she is not to be deterred.
     Her lawyer, Bellows, said the next step is to sit down with the the
town fathers and "talk about accommodation."
League testifies at New Jersey RF hearing
     ARRL General Counsel Chris Imlay, N3AKD, and Northern New Jersey
Section Manager Rich Moseson, NW2L, have led a delegation of hams in
testifying against a proposed New Jersey state regulation which, they
argued, could effectively shut down Amateur Radio in the state.
     The regulation, proposed by the state Department of Environmental
Protection and Energy (DEPE) would require the owners of all
fixed-station transmitting antennas and certain RF-generating industrial
equipment to register with the state and pay a hefty annual fee. The fees
would pay for state inspections -- once every ten years -- to determine
whether each RF source is in compliance with state limits for exposure to
non-ionizing RF radiation. (The state limits are the same ones specified
by ANSI - the American National Standards Institute - in their 1984
standards.)
     The summary that was issued along with the proposed regulation
stated that amateurs would be exempted "at this time," but there was no
specific exemption in the regulation itself. And the department
specifically invited comments on whether hams should be subject to the
inspection program in the future.
     The appearance by Imlay, Moseson, and about 10 other hams at a
public hearing on January 11 in New Jersey's capital capped two weeks of
intense efforts to spread the word about the proposal and to organize the
ARRL response.
     The proposal first surfaced the week before Christmas. As details
emerged, it became obvious that the proposal posed a major threat to all
ham radio activities in New Jersey. ARRL Hudson Division Director Steve
Mendelsohn, WA2DHF, along with Moseson, asked ARRL President George
Wilson III, W4OYI, to authorize Imlay's testimony at the DEPE hearing.
Wilson agreed, noting the gravity of the threat to hams in New Jersey,
plus the likelihood that, if the measure was enacted, other states might
follow New Jersey's lead.
     Some 50 people attended the hearing and about 20 testified, half of
those being amateurs (although some hams appeared in their professional
capacities). All of the speakers opposed the proposal, generally arguing
that the state was duplicating FCC regulations and that those FCC rules
already assured that workers and the public were protected from excessive
RF radiation. They saw the fees as nothing more than a new tax on the
businesses and people of New Jersey.
     The first ham to testify was leadoff witness Vivian Lopez, N2NZN, a
lawyer familiar with the state regulatory process. She challenged the
DEPE's authority to enact the regulations at all, charging that the law
under which they were proposed had been written to deal with threats from
nuclear radiation, not RF.
     "If the department seeks to stretch that authority as a basis for
regulating whole industries," Lopez testified, "then the enabling
legislation ought to first be amended to specifically grant that power."
     Imlay and Moseson appeared on behalf of the ARRL. In his testimony,
Imlay cited numerous court decisions, dating back to 1927, giving the
federal government "exclusive" and "expansive" authority to regulate
radio and TV. He also noted that the FCC had categorically exempted
amateurs from routine reporting on compliance with RF exposure standards,
and that RF safety questions are included on amateur license exams.
     Moseson testified as to the likely impact of the regulation on
Amateur Radio in New Jersey, explaining that annual fees of $1000 or more
for a typical station would simply force most hams off the air. Without
ham radio, he said, the state would lose a vital emergency communications
resource as well as endanger millions of dollars in federal emergency
management aid, since backup communications abilities would be lost.
Measurements difficult
     Moseson also explained the difficulty of taking measurements at a
typical ham station, which can operate on many frequencies with
infinitely variable power levels and radiation patterns, as well as the
stifling effect that the regulation would have on station changes and
experimentation.
     Finally, the ARRL representatives reminded the department that FCC
rules limit state and local regulation of amateur antennas to the
"minimum practicable" extent required to achieve their purposes, and that
those regulations may not preclude amateur communication. Applying the
proposed regulation to hams, the League argued, would effectively
preclude amateur communication and would therefore be in violation of FCC
rules.
     The League's testimony concluded with a request that, if the
department decides to enact the regulation, then, at the very least, it
should specifically exempt any RF source that is "a component of a
federally licensed station in the Amateur Radio Service," as defined by
FCC rules.
     There also was testimony from representatives of broadcasters,
telephone companies, land-mobile users and municipal government. One
municipal spokesman was Bill Sohl, President of the Mt. Olive, New
Jersey, town council (as well as being K2UNK and an ARRL Local Government
Liaison). He told the panel that, if his town applied the reasoning
behind the proposed regulation to its police department, then each
motorist in the town would have to register and pay a fee to the town to
cover expenses in case the motorist violated a traffic law and a police
officer needed to take time to write a ticket.
     At the end of the hearing, department officials gave no indication
of how they might respond to the criticisms leveled at the proposal. At
the request of several witnesses, however, they did extend the deadline
for written comments from January 20 to February 22. A final decision on
the proposal must be made by December 6, 1994.
     One week after the hearing, a new governor took office and appointed
as DEPE commissioner a state legislator with a reputation for trying to
accommodate business as well as environmental concerns. Moseson said he
and others plan to work with the new state leadership.
     (This story was reported by ARRL Northern New Jersey Section Manager
Rich Moseson, NW2L.)

League seeks primary 902-MHz slots

     The ARRL has petitioned the FCC to provide the amateur service with
primary allocations from 902 to 904 MHz and from 912 to 918 MHz, with
certain geographic limitations.
     Amateurs already are allocated from 902 to 928 MHz on a shared basis
with several other services, including government radio-location; fixed
and mobile services; industrial, scientific and medical (ISM) equipment;
and various nonlicensed, low-power, "Part 15" devices.
     Last spring, the FCC proposed to expand Automatic Vehicle Monitoring
(AVM) systems in the 902 to 928 MHz range, and also has suggested
permitting non-government wind profiler systems in the band.  In June
1993 the ARRL said that further study of the band was needed.
     In its January 13, 1994, petition, the ARRL said that these FCC
proposals jeopardize Amateur Radio use of 902 to 904 and 912 to 918 MHz,
segments that the League said have not interfered with AVM systems and
which are critical to the development and continuation of specialized
communication techniques by amateurs.
     The ARRL petition said that since the 902 to 928 MHz band was made
available to amateurs in most of the US in 1985, its use has grown,
particularly for weak-signal work and television; the two primary
segments sought by the League would be aimed at those users.
     The League mentioned, again, that two current Commission agenda
items -- the first an inquiry into placing non-government wind profilers
on the band (in Docket 93-59), and the second, a proposal to expand AVM
systems in the band -- were a departure from the US position at the 1979
World Administrative Radio Conference, at which amateur access to the
band was first addressed.
     The League said that the adoption of the requested primary segments
for amateurs would not "prejudice" the development of AVM systems or wind
profilers.
     The ARRL petition said that the FCC had considered the availability
of 902 to 928 MHz to amateurs in its decision to take 220 to 222 MHz away
from them.
     And the League said since amateurs now rely more and more on the
902-MHz band, a significant reduction of its usefulness would "constitute
a breach of the Commission's previous assurances" of continued availability.
     The League cited as an example the Los Angeles area, where a local
band plan works around AVM operations. Use of the 902 to 903 MHz segment
is "heavy," the League said, with not only weak-signal operation there,
but point-to-point links and repeater inputs as well. Similarly, 912 to
918 MHz is heavily used, the League said, for digital wideband, ATV
simplex, and ATV repeater operation.
     This local band plan is an example of the sharing arrangements
necessary in a crowded RF environment, the League said, and it points up
the need for the primary amateur allocations being sought.
     The exceptions to the primary allocations for amateurs that the
League seeks in its petition would be restrictions in certain parts of
Texas and New Mexico, where such restrictions already are in effect to
protect government operations.

ARRL Board of Directors meeting highlights

     The ARRL Board of Directors met in Rocky Hill, Connecticut, on
January 21 and 22, 1994. The following is a summary of meeting
highlights. Details will appear in March QST.

     * The Board re-elected its present slate of officers: President
George Wilson III, W4OYI; First Vice President Rod Stafford, KB6ZV; Vice
President Jay Holladay, W6EJJ; Vice President Tom Frenaye, K1KI;
International Affairs Vice President Larry Price, W4RA; Treasurer Jim
McCobb, K1LLU; Secretary and Executive Vice President David Sumner, K1ZZ;
and Chief Financial Officer Barry Shelley.

     * Elected to the Executive Committee were Rocky Mountain Division
Director Marshall Quiat, AG0X; Hudson Division Director Stephen
Mendelsohn, WA2DHF; Delta Division Director Joel Harrison, WB5IGF; and
Great Lakes Division Director Al Severson, AB8P.

     * An interim report and band plan recommendation of an ad hoc
committee was adopted, looking to the early implementation of the
expected allocation of 219 to 220 MHz for limited amateur use.

     * The 1994-95 ARRL budget plan was adopted.

     * The Volunteer Resources Committee was tasked with studying the
feasibility of a system of technical awards to recognize achievement in
fields ranging from design and construction to the creation of innovative
communication systems, and to develop appropriate criteria.

     * The League will file a petition for rule-making seeking to remove
overly restrictive rule provisions concerning the use of spread spectrum
techniques, and an ad hoc committee was created to recommend technical
standards.

     * The Membership Services Committee will study the possibility of
relocating the
 40-meter Novice subband. The committee will report back to the Board in
July.
     * The Board approved a revision of the ARRL/Red Cross Statement of
Understanding.

     * ARRL Headquarters will begin to notify members of license
expirations, and will include a Form 610 to effect license renewals.

     * The Administration and Finance Committee will study the
feasibility of offering group legal defense insurance to ARRL members to
cover legal costs in antenna cases and RFI lawsuits.

     * The ARRL Letter will be offered to affiliated club newsletter
editors free of charge, on a trial basis.

     * The Administration and Finance Committee was asked to investigate
the development of a multi-media production capability for Headquarters,
to keep pace with the changing technology in today's personal computing
revolution.

     * Perry Williams, W1UED, was commended for 40 years of dedicated
service and congratulated on the occasion of his forthcoming retirement
from the Headquarters staff, in April 1994.
BRIEFS

     * Beginning March 1 the FCC will accept only the new version of its
Form 610, as explained in February QST (page 103). March QST "Exam Info"
reprints the new form and will have further information on its use. Use
of the new form applies to everyone, from new licensees to renewals, call
sign changes, etc.
     In early February the ARRL-VEC's newsletter, VE Express, will
include a full-size version of the new Form 610. The ARRL-VEC also will
mail bulk quantities of the new form to all of its 650-plus "field
stocked" VE teams. The ARRL-VEC will recommend that its VE teams begin
using the new form on February 12, to allow for sufficient turnaround time.

      * In 1993 ARRL members sent about 7.25 tons of QSLs to the ARRL
Outgoing QSL Service for shipment to bureaus overseas. This was 2,182,000
cards for DX destinations. The US Incoming QSL Bureau's volunteers sorted
just over two million cards in 1993, as well.
     Information about these services is on pages 98 and 99 of QST for
January 1994.

     * Tucson Amateur Packet Radio has scheduled its annual meeting for
March 4 through 6 in Tucson at the Best Western Inn at the Airport. The
annual meeting will feature presentations and papers on several new
hardware projects, discussions of projects in progress, hands-on
demonstrations, and a minisymposium on the future directions of amateur
packet radio. For more information contact Program Chairman Keith
Justice, KF7TP, at 602-461-8687.
     And TAPR has a new address: 8987-309 East Tanque Verde Road, No.
337, Tucson AZ 85749. Their voice mail system number is 817-383-0000; the
fax number is 817-566-2544.

  * Shack in the USSR: Tandy Corp. has opened its first Radio Shack in
Russia. The Moscow store, which officially opened January 14, is
"identical in look and layout" to stores in the US, according to Tandy.
The store is franchised to the Trident Group, a Florida-based
international distribution company, and is managed by Trident A/O, a
Russian company.

     * The American Digital Radio Society has acquired the RTTY Digital
Journal, and will retain Dale Sinner, W6IWO, as its editor. For more
information on the ADRS and a copy of its newsletter, write to ADRS, Box
2465, New York NY 10185 (BBS at 212-698-2102).

     * Fred Doob, AA8FQ, will once again run, for ICOM and charity, in
the Los Angeles Marathon on March 6. As in the New York Marathon last
November, Doob will operastore, with his son Don Busick, K5AAD, until his
death.

     * Two more shuttle astronauts have received their amateur call
signs: Charles Bolden is KE4IQB, and Ronald Sega is KC5ETH. Both are
members of the STS-60 crew, scheduled for a February 3 lift-off, and are
Technician class licensees. Russian cosmonaut Sergei Krikalev, U5MIR, is
also an STS-60 crew member.

     * NASA Television has moved to satellite Spacenet 2, transponder 5,
C Band, 69 degrees west longitude, on 3880 MHz, horizontal polarization,
with audio on 6.8 MHz. During space shuttle flights NASA Select TV
occasionally carries Shuttle Amateur Radio Experiment (SAREX) activity.

     * The Foundation for Amateur Radio will administer 49 scholarships
for the 1994-95 academic year to assist licensed amateurs who are
students. The awards, from $500 to $2000, are available to full-time
college students, including those who have been accepted for 1994.
Additional information and application forms should be requested before
April 30, 1994, from FAR Scholarships, 6903 Rhode Island Ave., College
Park MD 20740.

     * In the days following the earthquake near Los Angeles on January
17 you may have heard or read about an experimenter named Jack Coles, of
San Jose, California. Coles listens to the 10 to 12 kHz range for 0.5 to
2 second pulses and is one of a group of experimenters who think this may
be a way to predict earthquakes. Coles says he's always been interested
in radio and is currently studying for an amateur ticket.

10 Years Ago in The ARRL Letter

     The ARRL Executive Committee authorized the League's counsel, Chris
Imlay, N3AKD, to file friend of the court briefs in two local cases
involving Amateur Radio. One of them, involving John Thernes, WM4T, was
ultimately successful, and has been cited in later cases, including
Pentel v. Mendota Heights (see accompanying story).
     The first Shuttle Amateur Radio Experiment (SAREX) video was
unveiled, produced by Roy Neal, K6DUE. The 28minute film featured the
first SAREX flight, of W5LFL on STS-9. This film was superseded by one
titled "SAREX," a general-interest film that the ARRL still widely
circulates to clubs, and another, "Ham Radio in Space," which
concentrates on how schools can use the SAREX program.
  The League was meeting informally with the FCC to promote Amateur Radio
third-party message service at the Olympic Games that summer in Los
Angeles, although it was unclear if security concerns would allow
stations to be set up in the Olympic Village.
     ARRL membership rose in 1983 from 124,000 to 126,000, a 1.6%
increase, after a 12.5 percent decline in 1982 following a dues increase.
(League membership growth in the US for 1993 was 2.05 %).