MARYLAND LEGISLATION CONCERNING COVENANTS, CONDITIONS AND RESTRICTIONS AFFECTING AMATEUR RADIO

Q. What's this all about?

A. Amateur Radio's future is imperiled by the ban on visible antennas in most new developments for the past 25 years.

• Why must a federally-licensed public service be hidden from the neighbors? This loss of legitimacy cannot help our recruiting, which is in trouble.
• We’re down by more than 30 thousand nationwide since the peak in April 2003, according to www.ah0a.org: 687 thousand then, mid-650's throughout 2007.
• Our effectiveness is reduced because attic antennas don't work well. As a result, we lose people because they get discouraged. For the same reason, some of us can't participate in emergency communications drills because we can't reach the control station.
• Our neighbors are denied the benefit of having a visible emergency communicator in the community.
• Recruiting is affected, because when people can't see us, they forget about us. Antenna prohibitions are not the only reason we're shrinking -- we should be more energetic recruiters and mentors -- but restrictions can't be helping us.
• How can we be expected to recruit and retain future leaders for an activity, no matter how long-established and prestigous, if it must be concealed from the neighbors? Defenders of the status quo should be asked to provide facts that justify allowing these destructive, discriminatory restrictions to spread. The fact that seeing antennas makes them feel bad doesn't qualify.

Legislation will be introduced in Annapolis prohibiting antenna restrictions in new homeowners associations. This FAQ explains the legislation and how you can help get it passed.

Q. What makes these restrictions so troublesome?

A. They are usually recorded in the courthouse as covenants: restrictions on the use of the property that all subsequent purchasers must compy with. Although I am not an attorney and do not give legal advice, I can describe what I found when I examined some covenants in the Baltimore County courthouse two years ago. The covenants contained two things that concern us: rules about appearance and use of the property (such as no farm animals, no inoperable vehicles, no outside antennas except certain TV dishes); and a section describing the structure and powers of the homeowners association responsible for enforcing the covenants. Maryland law governs homeowners associations generally. The covenant tailors it to the particular commmunity. Wording of the covenants appears to vary considerably from one community to another, based on my sample. Note that developers believe that covenants enforced by homeowners associations help sell houses. A survey (sponsored by the HOA trade association) appears to support that premise. We're officially neutral on the desirability of HOAs, as long as they don't regulate antennas.

Q. Why not just change the covenants?

A. Lawyers tell me that it is almost impossible to change covenants, except maybe through action by a legislature or a high court, which requires a strong public consensus. Besides, there are too many covenants to deal with individually. The best estimate is more than a quarter million community associations across the nation, with six to eight thousand new ones being formed each year. (Maryland presumably has its proportionate share, around 4,000, according to the Community Associations Institute.) Associations enforce the covenants, they don't write them. Developers write them. In most cases, I'm told, if an association fails in its duty to enforce the covenants, it can be sued. So even if they cut you some slack on the covenant, it's temporary, until someone complains. Think about that before you confront a neighbor about dogs, noise, RFI, etc.

Q. So if there are covenants, but they say nothing about antennas, am I in the clear?

A. Maybe not, if there is an association that can make rules and enforce them. Local government is limited by PRB-1 and P.L. 103-408. They know that if they treat you arbitrarily, you can always take them to court. But associations are not under those restrictions. One way to influence the rules the association makes is to become active, perhaps as a board member, although that's a thankless job. Also, see the next item. Why draw attention to yourself?

Q. So what if they find my stealth antenna and write me a letter?

A. They can take you to court. In fact they may be obliged to do so, or the board members themselves could be sued for non-performance of duty. If you lose in court, you may be required to pay the association's legal fees.

Q. Are local governments really easier to deal with?

A. Generally, yes. Local government usually has better procedures such as formal hearings, right of appeal, etc. PRB-1 requires them to withstand the antenna phobia that we often encounter. We're already subject to local government, anyway. Most importantly, covenants usually prohibit all antennas, while local governments are generally concerned only with towers above a certain size.

Q. What does the legislation do about the problem?

A. The House and Senate bills are identical. They refer to P.L. 103-408 and state that local governments must comply with PRB-1. The meat is in four requirements:

• Developers may not write covenants restricting or prohibiting Amateur Radio equipment (including antennas and related items) in new homeowners associations;
• They must include certain specific language in the covenants that create homeowners associations stating that the association has no authority over Amateur Radio equipment, as it is defined in the law.
• The bills also state that existing associations may not enact rules increasing the restrictions on Amateur Radio equipment after the effective date of the law, October 1 of the year it passes. Existing covenants are not affected.
• PRB-1 is incorporated by reference into the Maryland Code.

Q. Why do we need absolute legislative protection – wouldn’t it be enough just to be allowed to negotiate with the architecture committees of the new HOAs?

A. We're outnumbered by normal human nature.

In a random group of 500, how many would you estimate believe very strongly that any change is likely to put their neighborhood on a slippery slope toward blight? These individuals would believe in ceaseless vigilance and strong action. Two out of 500?

In a similar group of 500, how many would be happy to bend another person to their will if it didn't involve any personal inconvenience? We all encounter frustrating situations where we feel powerless. From the 500, how many folks would quickly accept a chance to offset a bad day by making someone else feel powerless? Two more?

Technology is baked into our modern life. It's natural to feel that some of the ceaseless changes will turn out badly. (The Unabomber was convinced that technology was destroying human society.) From our hypothetical 500, how many feel strongly enough to act -- non-violently -- against a traditional symbol of technology, if a convenient opportunity arises? One out of 500?

These conservative estimates have just demonstrated why amateur radio needs absolute legislative protection. We're outnumbered more than 5 to 1 by highly motivated normal people, despite our lengthy and widely recognized service to the state and nation. Based on the latest census estimates, there are 547 Marylanders for each of the state's amateur radio operators. (5700K Marylanders / 10.4K Maryland hams - 1) Local zoning -- where regulations exist, as they do in the six largest jurisdictions -- provides ample protection for the public. Putting amateur radio under the control of HOAs is another way to accelerate our extinction.

The same information also demonstrates why hams must stick together and turn out for zoning hearings, legislative hearings, letter-writing campaigns, etc. It's a simple, non-confrontational way to remind potential bullies to seek softer targets. We also need to increase our visibility in every practical way so people will get used to us again.

Q. Can you explain this more concisely?

A. Amateur radio operators are an endangered species. Our population is declining and we're losing habitat to developers. We went to the General Assembly with a request for protection so we can rebuild our population. The senate, at the suggestion of the bar association, responded by proposing -- instead of a sanctuary -- an open season.

Q. What about condos?

A. Condos and coops are way too complex to be a good starting point. After this passes it will be time to see what (if anything) can be done.

Q. Does the legislation apply to existing associations or only to new ones?

A. Only associations formed after the act's effective date are affected. This is because the politicians were unanimous that many people would object on principle to a law altering existing contracts, even if they were sympathetic to the problem. This is disappointing, but consider what would have happened if this legislation had been passed in 1990, when the problem of covenant-restricted antennas really began to bite. Fast-forward to now, and more than half of today's covenant-controlled HOAs would permit outside antennas, including all the newest ones. The number of covenant-controlled communities has increased by one-third since 2000.

Q. The little TV dishes are acceptable, why not our antennas?

A. One thing that united Americans in the 80s and 90s was dislike of the cable TV companies. The Telecom Act of 1996 required the FCC to issue rules pre-empting local covenants regarding TV antennas. Practically every household in the metropolitan areas where most Americans live benefited from the law, because they gained an alternative source of TV programming. There was a national consensus. There is no national consensus regarding Amateur Radio, because most people have forgotten about it. Less than a quarter of 1% of the population is directly affected, anyway.

Q. This sounds fine, but how is it going to help me get my tower approved?

A. This legislation is not about towers. We will all still have to deal with the same zoning authorities as before where large towers are concerned, although the mention of PRB-1 in the bill may make it easier to encourage zoning authorities to "accommodate reasonably" our needs. This bill is aimed at the absolute prohibitions written into the land titles that prohibit wires, vertical antennas, satellite dishes, etc. in new communities, thereby limiting our emergency communication effectiveness and our recruiting.

Q. So how can I get my tower approved?

A. If you're planning a large tower, look at the book by Fred Hopengarten, K1VR, "Antenna Zoning for the Radio Amateur," published by ARRL. It is packed with strategy and tactics and the CD is loaded with all sorts of documents and exhibits. Fred emphasizes educating everyone involved, starting with the neighbors. You wouldn't build a K2 without the assembly manual, and you shouldn't prepare for a zoning hearing without K1VR's book. Some people read the assembly manual and decide to hire a builder, and after you read K1VR's book, you may decide to hire a lawyer. Like the K2 assembly instructions, K1VR's zoning book will make the assistance you hire much more efficient.

Q. How did this legislative effort get started?

A. It all started when Doug, N3VEJ, invited our senator to the Baltimore Amateur Radio Club's 2004 Field Day. (Doug had helped Sen. Klausmeier(D-8) in her first run for office - PTA president - back in the 20th century.) As we chatted I mentioned the difficulty we were having getting support from Baltimore congressmen for a cryptic federal antenna bill. Did she think it would be easier at the state level? The Senator was a staunch ally in the 2005 session and got an Amateur Radio resolution, SB 75, through the Senate, although it hit a stone wall in the House, a problem resolved prior to the 2006 session by Del. Kach (R-5b). Maryland amateurs were widely praised for the way we communicated with our delegates and senators. In 2006 and 2007, Sen. Klausmeier and Del Kach sponsored legislation described above. In 2008, Sen. Klausmeier introduced it again, and Del. Kach has agreed to sponsor it in the house.

Q. Why is this taking so long?

A. The General Assembly passes a small portion of the 2300-odd bills it considers each session. When we started on this project 3 years ago, an experienced politician told us that persistence gets you respect with legislators. They want to see if ignoring you will make you disappear. When they find out -- and it may take several years -- that you aren't going away empty-handed, they become more responsive. Even before our witnesses began to speak at the January 2008 session, we felt the atmosphere was more receptive. For one thing, we were first on the agenda instead of last as in past years.

Q. What happened in the 2007 session?

A. Four of the 11 members of the Senate committee voted for it - Sens. Mooney, Raskin, Simonaire and Stone. Two more votes would have produced a favorable report. Six of the 23 members of the House committee - Dels. Boteler, Frush, Hucker, Shewell, Stull and Weir - were named on the bill as co-sponsors. When the lead sponsor of the house bill learned of the unfavorable vote in the senate, he withdrew the house bill. This was unavoidable, since both houses must approve the bill.

Q. What was done to improve the bills' chances in 2008?

A. In November 2007, Jim Cross, WI3N, the MDC SM, and N3IJ met with a representative of the Community Associations Institute, the HOA "trade association" that testified against us in 2006. It was a cordial meeting, and their representative went away with a clear idea of the advantages to newly formed homeowners associations of having a communications link with local government ready in time of emergency.

Also in November, WI3N sent a letter to the Columbia Association, explaining the legislation and requesting a meeting. He eventually got a reply from the association's general counsel stating that they saw no reason to take a position either way. Which makes sense, since the legislation has little effect on Columbia. This position be reassuring to some members of the General Assembly.

In December, at the suggestion of Dave Prestel, W8AJR, Jon Wilson, KF3O, Art Goldman, N3OY and N3IJ met with Del. Liz Bobo (D-12b). She represents Jon and Art and other Columbia residents and the team wanted to explain the legislation and get her suggestions. Del. Bobo has spent her adult life in public service and is an informal leader of her party in the House of Delegates. She was supportive but not ready to co-sponsor. Jon offered to show her his station, which is in full compliance with the local regulations for his Columbia community.

Q. What have the delegates and senators been told?

A. They or their senior staff members were visited individually and asked to quickly read through earlier versions of these PowerPoint pages, which were then left behind for reference. (This is an unconventional use of PowerPoint.) Most legislators and their staffers appreciated the effort to make efficient use of their time and found they could learn more in less time by reading than by listening. The idea here was to give each individual as much information as quickly as possible in a concise, accessible self-paced format.

At the January 24, 2008 hearing with the senate Judicial Proceedings committee, Jim Cross, WI3N, testified about the importance of Amateur Radio in local emergency communications. Jerry Herman, N3BDW, was unable to attend but supplied prepared testimony about the international activities of the Hurricane Watch Net. Johnathan Mayo, AB3FX and his father, Bob Mayo, KB3NVH, testified about the continuing attractiveness of Amateur Radio to young people and their parents. Rick Hambly, W2GPS, described Amateur Radio's influence at the beginning of a career in science and engineering. N3IJ testified on the public policy aspects, but differently from past years, when he emphasized the rarity and inconspicuousness of our antennas and the protections afforded by local zoning. This approach was ineffective against the deeply felt concerns of the minority that prefers not to ever see antennas in any form. This time he emphasized the need to place the well-being of the general public ahead of the esthetic preferences of isolated individuals, with numerous examples of how this was done in other cases.

Q. How did the committee vote in 2008?

A. They voted the way they did in 2007, 7-4 against, with the same four supporters: Senators Mooney, Stone, Simonaire and Raskin. Senators Mooney and Stone co-sponsored the bill. Only five hams showed up at the hearing in addition to the five witnesses. As far as we can tell, only a few dozen e-mails went out to the senators before the vote, although Maryland is home to almost 10,000 hams. It appears that one of the committee members received no e-mails at all. One of the sponsors received only one, although 15 requests went out to hams in his district.

Q. What do we have to do to get this passed?

A. Please invite your local elected officials to Field Day, with special attention to the members of the House Environmental Matters Committee and the Senate Judicial Proceedings Committee. Be sure to designate someone - preferably a constituent - to host each invited guest on Saturday afternoon. Issue the invitation as soon as you know that you wil have a Field Day, even if the location is not certain yet. The idea is to get your guest to reserve the date. Be sure to follow up with the details as they solidify. Don't press for an RSVP, since politicians' calendars are usually overfilled.

Next year, when you receive a request to appear at a hearing, please do so. The Senate hearing room seats more than a hundred; the House hearing room, about 50. We should pack these rooms!

Q. How does Maryland's legislative process work?

A. See HOW A BILL BECOMES A LAW

Q. Do the Amateur Radio organizations mentioned on this web page endorse any candidates?

A. No. The organizations are non-partisan and do not attempt to influence elections. If the supervisor of this website expresses any opinions about candidates (here or elsewhere), he speaks for no one but himself.

Q. Where can I make a suggestion or get the answer to a question that isn't shown here?

A. Ask the Baltimore Amateur Radio Club Legislative Affairs Team.

Top