Androscoggin EMA Letter RE: RFI regulation Page 1 of 7

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1 Androscoggin EMA Letter RE: RFI regulation Page 1 of Original Message From: Timothy Bubier To: Joanne G. Potvin Cc: Ivan Lazure N1OXA ; Cory Golob Sent: Monday, April 14, :43 PM Subject: Council Letter regarding RACES 14 April, 2008 City Council Members City of Lewiston 27 Pine Street Lewiston, ME Dear Council Members, It has been brought to our attention that the Lewiston City Council is currently considering an amendment to the city s Zoning and Land Use Codes to further regulate the construction and use of Wireless Communications Facilities (WCF) within its jurisdiction. Our concern is that the amendment needlessly, and possibly in direct violation of federal rules and regulations, includes amateur radio communications. Amateur radio operators, and particularly the Radio Amateur Civil Emergency Service (R.A.C.E.S), have long been an integral and invaluable part of our emergency communications plan. This group of volunteers has augmented the Emergency Management Agency s communications during many events of catastrophic impact on the city, as well as provided assistance to public safety during non-emergent events such as parades, charity events and festivals. We host monthly meetings of this group and maintain an amateur radio station in your EOC. We are, therefore, concerned about the undue burden potentially placed on radio amateurs by this amendment. Current FCC rules and regulations already restrict harmful and malicious radio interference. Amateurs must demonstrate knowledge of proper radio operation and the avoidance of interference when applying for an FCC license, and face revocation of operating privileges for violation of FCC rules. The proposed amendment would both be redundant in the case of amateur radio and potentially counter to federal law in this regard.

2 Androscoggin EMA Letter RE: RFI regulation Page 2 of 7 Public Law gave the FCC jurisdiction over radio frequency interference (RFI) susceptibility of nearly all electronic equipment. The legislative history of the law states, in relevant part: "This law clarifies the reservation of exclusive jurisdiction over RFI matters to the Federal Communications Commission. Such matters shall not be regulated by local or state law, nor shall radio transmitting apparatus be subject to local or state regulation as a part of any effort to resolve an RFI complaint. The FCC believes that radio operators should not be subject to fines, forfeitures or other liability imposed by any local or state authority as a result of interference appearing in home electronic equipment or systems. Rather, the Commission's intent is that regulation of RFI phenomena shall be imposed only by the Commission." Thus, by legislation, Congress has given the FCC preemptive power to regulate RFI to the exclusion of Local Laws and Ordinances. Only the FCC has the right to regulate this matter. Municipal zoning authorities, including local law enforcement officials, do not have that authority. The FCC, through a directive from Congress, has preempted any concurrent state or local regulation of RFI pursuant to the provisions of 302(a) of the Communications Act of 1934, as amended. The legal cite is: 47 USC 302(a) and it provides that the: Commission may, consistent with the public interest, convenience, and necessity, make reasonable regulations (1) governing the interference potential of devices which in their operation are capable of emitting radio frequency energy by radiation, conduction, or other means in sufficient degree to cause harmful interference to radio communications; and (2) establishing minimum performance standards for home electronic equipment and systems to reduce their susceptibility to interference from radio frequency energy. Such regulations shall be applicable to the manufacture, import, sale, offer for sale, or shipment of such devices and home electronic equipment and systems, and to the use of such devices. Furthermore, the legislative history of 302(a) provides explicitly that the Commission has exclusive authority to regulate RFI. In its Conference Report No , Congress declared:

3 Androscoggin EMA Letter RE: RFI regulation Page 3 of 7 The Conference Substitute is further intended to clarify the reservation of exclusive jurisdiction to the Federal Communications Commission over matters involving RFI. Such matters shall not be regulated by local or state law, nor shall radio transmitting be subject to local or state regulation as part of any effort to resolve an RFI complaint. The legal cite for this report is: H.R. Report No. 765, 97th Cong., 2d Sess. 33 (1982), reprinted at 1982 U.S. Code Cong. & Ad News State laws and local ordinances that require amateurs to cease operations or incur penalties as a consequence of radio interference thus have been entirely preempted by Congress. An ordinance similar to the one now proposed by the City of Lewiston was enacted by the City of Pierre, South Dakota in Then-FCC General Counsel Robert L. Pettit offered his legal opinion of that ordinance in a letter dated February 14, 1990 to ARRL General Counsel Chris Imlay:

4 Androscoggin EMA Letter RE: RFI regulation Page 4 of 7 FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C FEB In reply to: Christopher D. Imlay, Esquire American Radio Relay League, Inc. Office of Legal Counsel 1920 N. Street, N.W. Suite 150 Washington, D.C Re: Ordinance Regulating Radio Frequency Interference Pierre, South Dakota Dear Mr. Imlay: This is in response to your letter of January 16, 1990, concerning an ordinance enacted in Pierre, South Dakota, empowering the City Inspector to investigate and prohibit emissions by radios and other electronic devices which cause or create interference to television or radio reception. You state that the City Inspector has enforced this ordinance against an amateur radio operator licensed by the Commission, and you seek an opinion concerning the validity of the ordinance. Congress has preempted any concurrent state or local regulation of radio interference pursuant to the provisions of the Communications Act. See 47 U.S.C. 302(a). Section 302(a)(1) of the Act provides that the "Commission may, consistent with the public interest, convenience, and necessity, make reasonable regulations (1) governing the interference potential of devices which in their operation are capable of emitting radio frequency energy by radiation, conduction, or other means in sufficient degree to cause harmful interference to radio communications..." 47 U.S.C. 302(a)(1). The legislative history of Section 302 (a) provides explicitly that the Commission has exclusive authority to regulate frequency interference (RFI). In its Conference Report No , Congress declared:

5 Androscoggin EMA Letter RE: RFI regulation Page 5 of 7 The Conference Substitute is further intended to clarify the reservation of exclusive jurisdiction to the Federal Communications Commission over matters involving RFI. Such matters shall not be regulated by local or state law, nor shall radio transmitting be subject to local or state regulation as part of any effort to resolve an RFI complaint. H.R. Report No. 765, 57th Cong., 2d Sess. 33 (1982), reprinted at 1982 U.S. Code Cong. & Ad News State laws that require amateurs to cease operations or incur penalties as a consequence of radio interference thus have been entirely preempted by Congress. Of course, any member of the public may seek the Commission's assistance in resolving interference problems. The Commission's Field Operations Bureau (FOB) frequently investigates radio interference complaints and has prepared the enclosed pamphlets describing the various remedies available to address radio interference matters. Members of the public in Pierre experiencing interference may also wish to contact Dennis P. Carlton, Engineer -- in- Charge of FOB's Denver Office at (303) I trust the foregoing is responsive to you inquiry. Sincerely yours, Robert L. Pettit General Counsel

6 Androscoggin EMA Letter RE: RFI regulation Page 6 of 7 cc: City Inspector, Pierre, South Dakota Congress has also granted the FCC preemption of restrictive antenna ordinances. Local governments must reasonably accommodate amateur operations in zoning decisions as documented by the partial preemption called PRB-1. The legal cite for PRB-1 is: 101 FCC 2d 952 (1985) provides that an amateur station antenna structure may be erected at heights and dimensions sufficient to accommodate effective amateur service communications. Local authorities may adopt regulations pertaining to placement, screening, or height of antennas, if such regulations are based on health, safety, or aesthetic considerations and reasonably accommodate amateur communications. Local governments may not, however, base their regulation of amateur service or other communication antenna structures on the causation of interference to home electronic equipment, or even public safety communications, as the Council now proposes. A good summation of FCC preemption of RFI regulation as it pertains to public safety communications appears in the Memorandum Opinion and Order in WT Docket (See attached file or It is common for local governments to mistakenly believe that if an amateur antenna is lowered, the potential for interference decreases. The FCC has gone on record as stating that there is no reasonable connection between requiring an amateur to reduce the height of his tower and reducing the amount of interference to his neighbor's electronic equipment. On the contrary, antenna height is inversely related to the strength of the radio signal that serves as a catalyst for interference in susceptible home electronic equipment. The higher that antenna is, the farther away is it from most other electronic equipment, and the less potential there is the interference. It is a matter of technical fact that the higher an amateur antenna, the less likely it is that RFI will appear in home electronic equipment. This statement was made in an October 25, 1994 letter from former FCC Private Radio Bureau Chief Ralph Haller.

7 Androscoggin EMA Letter RE: RFI regulation Page 7 of 7 Based on this and other documentation which our office can provide upon request, the Androscoggin Unified Emergency Management Agency, as a public safety agency of the county and the Cities of Lewiston and Auburn, would like to go on record as being opposed to this and other, similar ordinances, regulations and codes that may seek to regulate amateur radio operators and stations. While we recognize the Council s legitimate concern for the avoidance of interference by telecommunications providers with public safety communications, we find it both unnecessary and counter to public safety s broader interests to include amateur radio stations and operators in this amendment. We also wish to bring to the Council s attention the fact that any attempt to regulate radio frequency interference would likely be preempted by federal law, and that perhaps some other method of regulating WCF s would be both advisable and prudent. Respectfully, Joanne G. Potvin, CEM, Director Androscoggin Unified Emergency Management Agency