119-s459

[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 459 Introduced in Senate

    (IS) ]

<DOC>

119th CONGRESS
 1st Session
 S. 459

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

 February 6 (legislative day, February 5), 2025

 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) .
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