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ARRL General Bulletin ARLB064 (2002)

ARLB064 FCC rejects amateur's Petition for Reconsideration on
CC&R issue

QST de W1AW  
ARRL Bulletin 64  ARLB064
From ARRL Headquarters  
Newington CT  October 17, 2002
To all radio amateurs 

ARLB064 FCC rejects amateur's Petition for Reconsideration on
CC&R issue

The FCC has turned down a Petition for Reconsideration filed by a
Florida amateur of the Commission's 2001 decision to deny the ARRL's
Application for Review in RM-8763. That proceeding concerned the
League's lengthy effort--ultimately stymied by the FCC--to have the
Commission include privately imposed deed covenants, conditions and
restrictions--CC&Rs--under the limited federal preemption known as
PRB-1. That policy, codified in Section 97.15(b) of the FCC's rules,
calls on municipalities to "reasonably accommodate" amateur
communication when regulating the installation of outdoor antenna
structures. The League subsequently sought a congressional solution
to the issue in the form of HR 4720.

The FCC dismissed the League's Application for Review on December
18, 2001, on the grounds that PRB-1 "adequately protects the
predominant federal interest in promoting amateur communications
from regulation s that would frustrate the important purposes
thereof." Not long after, and acting on his own, W. Lee McVey, W6EM,
of Bradenton, Florida, filed his Petition for Reconsideration,
claiming it presented additional evidence that the FCC had not
considered in dealing with the ARRL's petition.

"McVey's Petition fails to explain why he did not present his
arguments earlier and fails to present new facts or circumstances,"
said the Memorandum Opinion and Order (MO&O) by D'wana R. Terry, who
heads the Public Safety and Private Wireless Division of the FCC's
Wireless Telecommunications Bureau. Terry pointed out in the MO and
O that under FCC "delegated authority" she could dismiss as
repetitious any Petition for Reconsideration that "fails to rely
upon changed facts or new circumstances."

"McVey fails to explain why he could not have made his arguments by
commenting on ARRL's Petition for Rule Making," Terry contended.
"In this regard, we note that McVey did not attempt to participate
in this proceeding prior to filing the instant Petition for

Terry concluded that none of McVey's arguments warranted
reconsideration of the Order that denied the ARRL's Application for

The FCC said McVey filed his own Petition for Rule Making on the
CC&R issue while the ARRL's Application for Review was pending in
2001. The FCC dismissed that petition last February, reasoning that
it was substantially the same as the ARRL's. McVey, the MO&O noted,
"did not appeal or otherwise challenge" the FCC's decision.


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