[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3690 Introduced in Senate (IS)]

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118th CONGRESS
  2d Session
                                S. 3690

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

                            January 30, 2024

 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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