On January 27, 2011, the California Court of Appeals, Second Appellate District, issued its Opinion in the antenna case of Alec Zubarau, WB6X. In several respects, it is a win for Amateur Radio in California. Working with his ARRL Volunteer Counsel, Len Shaffer, WA6QHD, Mr Zubarau is now considering their next course of action.

The Court found that the Palmdale antenna ordinance, as it pertained to the height limit for vertical antennas, was “unenforceable” because it allowed a radio amateur to have a vertical antenna up to 75 feet high when measured from the ground but limited the “active element of the antenna array” to 30 feet. The ordinance did not define “array” or “active element” and did not specify from where the 30 permitted feet for such “array” was to be measured. The Court found that if even one reasonable interpretation of the ordinance could be found, the ordinance could be upheld, but that in this case, no one could understand what the limitations were and how they could be applied. That portion of the City’s ordinance was therefore unconstitutional and unenforceable.

The Court also held that the ordinance was unenforceable to the extent that it attempted to regulate radio frequency interference. The City maintained that it could regulate RFI, but the Court, citing case law and argument in ARRL Amicus Curiae brief, held that only the FCC could regulate RFI. Any State or municipal law that attempts to regulate RFI is preempted.

Of some concern to Len Shaffer, however, is that the Court held that Palmdale properly ordered Zubarau to remove his permitted 55-foot crankup tower. The Court opined that the small, VHF/UHF vertical on the roof constituted “reasonable accommodation” under PRB-1 and California PRB-1 statute (California Government Code Section 65850.3). The Court said that leaving Zubarau with a VHF/UHF antenna constituted a reasonable accommodation because it allowed him to be active in some part of Amateur Radio. There was no analysis of the “minimum practicable regulation” test in PRB-1 and the California statute, so that part of the three-prong PRB-1 test was left unexamined. Because the Court reversed the trial court on this finding, Zubarau had no longer clearly “substantially prevailed” in this case and so the Court remanded the case to the trial judge to re-examine the issue of attorney’s fees claimed by Zubarau.

The Court’s application of the “reasonable accommodation” standard of PRB-1 in this case is, in the view of Len Shaffer and ARRL, both unique and very narrow. Said ARRL General Counsel Chris Imlay, W3KD:

“While this decision is positive for Amateur Radio in California in two significant respects, the record in this case shows that the small, roof-mounted VHF/UHF antenna at WB6X was insufficient to conduct any international communications. Alec’s tower is necessary in order to conduct international communications and to permit even a 50/50 chance of contacting Alec’s native Belarus on any given day. The Court ignored this evidence and it did not apply the “reasonable accommodation” test articulated by FCC and in prior case law, and it did not apply PRB-1’s “least practicable restriction” test at all. In essence, the Court applied a balancing test which FCC and several Federal courts have said is improper in conducting the PRB-1 analysis. It is not true that any accommodation for a radio amateur is reasonable accommodation, and it is not sufficient to simply permit a radio amateur “some participation” in our avocation. Instead, PRB-1 permits effective, reliable Amateur communications. It is hoped that the Court will revisit this portion of its otherwise favorable decision and get it right the second time.”

The court made three decisions that affect amateurs in California. First the court found that part of the Palmdale ordinance was unconstitutional because it was vague and could not be understood by a reasonable person. That part of the ordinance allowed an Amateur to have a vertical antenna up to 75 feet high when measured from the ground but limited the “active element of the antenna array” to 30 feet in height. The court found that the ordinance did not define “array” or “active element” and did not say where the height of such array was measured from. After a number of questions were submitted regarding this ordinance, the court determined that no one could really understand what it meant and declared it unconstitutional. This part of the decision, said ARRL Volunteer Counsel Shaffer, will affect only hams living in Palmdale.

The next issue decided by the court had to do with radio frequency interference. They said that only the Federal government could regulate RFI and any state or municipal law that tried to address it was preempted. That means it is not enforceable. That part of the decision affects hams throughout the state, according to Shaffer. He asks any California amateur whose municipality or county has an ordinance that limits Amateur Radio antennas or operations based on whether there is interference to consumer or other devices to contact Southwestern Division Vice Director Marty Woll, N6VI, at [email protected].

The final part of the decision had to do with whether Palmdale followed the law when they made Alec Zubarau take down his permitted tower but allowed him to keep a VHF/UHF vertical on his roof. The court said they thought this was a reasonable accommodation because it allowed him to be active in some part of Amateur Radio. “This decision is troubling,” said Shaffer, “and we are considering what options we may have regarding any further review of the issue. We will be conferring with various legal sources before any final determination is made.”