Jed Margolin 1981 Empire Rd. VC Highlands, NV 89521-7430
Phone: 775-847-7845 Email: email@example.com February 22, 2011
Storey County Planning Commission
Storey County, NV
The following comments are directed to Tom Taormina’s application for a Special Use Permit to install additional towers at 370 Panamint Rd., listed on the agenda for the March 3, 2011 meeting of the Planning Commission as:
2011-010 SPECIAL USE PERMIT: By Taormina, Thomas (Highland Ranches) Request for Special Use Permit to maintain existing amateur ham radio antenna towers and to install two additional amateur ham radio antenna towers, all of which will exceed the 45 foot height limitation established by Title 17 of the County Code. Project is located at 370 Panamint Road (APN 003-431-18), Highland Ranches.
If you do not have time to read the whole thing, please go directly to page 14:
J. Why does Tom need a 198 foot tower?
K. What this is really about.
I will start with Tom’s SUPPLEMENTAL INFORMATION FOR AN AMATEUR RADIO FACILITY ACCOMPANYING AN APPLICATION FOR A SPECIAL USE PERMIT (“Supp. Info.”) dated December 30, 2010.
A. Standard of Review
Tom has applied for a special use permit under Section 17.12.044 of the County Code because (Supp. Info. page 4, para. 1):
A special use permit is necessary because Section 17.12.044 requires such a permit where a radio mast extends more than forty five feet above grade level. In Taormina v. Storey County, the United States District Court for the District of Nevada ruled that the Applicants “may apply for a special use permit pursuant to section 17.62.010.” Slip opinion at 7. Section 17.62.010 is the applicable section for Applicants' application. Id. at n.7.
As Tom notes (Supp. Info. page 4, para. 2):
The standard, or test, for whether an applicant may receive a special use permit pursuant to section 17.62.010 is whether the use is “deemed essential or desirable for the public convenience or welfare."
Thus, Tom’s application stands or falls solely on section 17.62.010 .
B. Tom Mis-States Communications Law
In order to get an amateur radio license you have to take and pass a test given by a volunteer examiner. The test comprises technical questions and questions about the rules. Passing the test does not constitute a Finding by the FCC that the “public interest, convenience or necessity” is being served. Once you get an amateur radio license you have to follow the rules. An amateur radio license is not a license to do whatever you want by asserting that what you want is in the “public interest, convenience or necessity.”
Tom mis-states and/or twists Communications Law when he asserts (Supp. Info. page 4, para. 3)
Federal law is unequivocal in defining Amateur Radio as an activity that is "in the public interest, convenience or necessity." The Communications Act, under which Part 97 of the FCC's rules governing Amateur Radio are promulgated, explicitly states in 47 U.S.C. § 303 that radio licenses are issued only where the public interest, convenience or necessity require. Possession of an Amateur Radio license, therefore, demonstrates a finding by the FCC that the public convenience is being served. Indeed, the United States Supreme Court has expounded in any number of cases that granting a radio license constitutes a finding in favor of the public interest. See, e.g., Red Lion Broadcasting Co. v. FCC, 395 US 367, 379-380 (1969). Therefore, by Congressional action, FCC rules and case law from the United States Supreme Court, the licensing and operation of amateur radio stations is in the “public convenience, interest, or necessity.” The standard of section 17.62.010 is satisfied.
Let’s start with 47 U.S.C. § 303.
47 U.S.C. § 303 does not explicitly state that “radio licenses are issued only where the public interest, convenience or necessity require.” 47 U.S.C. § 303 is about the Powers and Duties of [the] Commission and requires that the Commission act “from time to time, as public convenience, interest, or necessity requires, …” 47 U.S.C. § 303 (from the Cornell University Web site) is reproduced herein as Exhibit 1.
Part 97 refers to the Code of Federal Regulations (47 CFR Part 97 Amateur Radio Service).
The requirements for getting an amateur radio license are in § 97.9 .
Title 47: Telecommunication
PART 97—AMATEUR RADIO SERVICE
Subpart A—General Provisions
§ 97.9 Operator license grant.
(a) The classes of amateur operator license grants are: Novice, Technician, General, Advanced, and Amateur Extra. The person named in the operator license grant is authorized to be the control operator of an amateur station with the privileges authorized to the operator class specified on the license grant.
(b) The person named in an operator license grant of Novice, Technician, General or Advanced Class, who has properly submitted to the administering VEs a FCC Form 605 document requesting examination for an operator license grant of a higher class, and who holds a CSCE indicating that the person has completed the necessary examinations within the previous 365 days, is authorized to exercise the rights and privileges of the higher operator class until final disposition of the application or until 365 days following the passing of the examination, whichever comes first.
[75 FR 78169, Dec. 15, 2010]
To get an amateur radio license you take written tests administered by a volunteer examiner.
The application process is detailed in § 97.17 (from http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr;sid=f7ba89728031c12732435f6b2f5ceeea;rgn=div8;view=text;node=47%3A184.108.40.206.220.127.116.11;idno=47;cc=ecfr
§ 97.17 Application for new license grant.
(a) Any qualified person is eligible to apply for a new operator/primary station, club station or military recreation station license grant. No new license grant will be issued for a Novice or Advanced Class operator/primary station.
(b) Each application for a new amateur service license grant must be filed with the FCC as follows:
(1) Each candidate for an amateur radio operator license which requires the applicant to pass one or more examination elements must present the administering VEs with all information required by the rules prior to the examination. The VEs may collect all necessary information in any manner of their choosing, including creating their own forms.
(2) For a new club or military recreation station license grant, each applicant must present all information required by the rules to an amateur radio organization having tax-exempt status under section 501(c)(3) of the Internal Revenue Code of 1986 that provides voluntary, uncompensated and unreimbursed services in providing club and military recreation station call signs (“ Club Station Call Sign Administrator ”) who must submit the information to the FCC in an electronic batch file. The Club Station Call Sign Administrator may collect the information required by these rules in any manner of their choosing, including creating their own forms. The Club Station Call Sign Administrator must retain the applicants information for at least 15 months and make it available to the FCC upon request. The FCC will issue public announcements listing the qualified organizations that have completed a pilot autogrant batch filing project and are authorized to serve as a Club Station Call Sign Administrator.
(c) No person shall obtain or attempt to obtain, or assist another person to obtain or attempt to obtain, an amateur service license grant by fraudulent means.
(d) One unique call sign will be shown on the license grant of each new primary, club and military recreation station. The call sign will be selected by the sequential call sign system. Effective February 14, 2011, no club station license grants will be issued to a licensee who is shown as the license trustee on an existing club station license grant.
[63 FR 68978, Dec. 14, 1998. as amended at 64 FR 53242, Oct. 1, 1999; 65 FR 6549, Feb. 10, 2000; 75 FR 78170, Dec. 15, 2010]
The examinations are as follows (from http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr;sid=f7ba89728031c12732435f6b2f5ceeea;rgn=div5;view=text;node=47%3A18.104.22.168.6;idno=47;cc=ecfr#47:22.214.171.124.126.96.36.199)
§ 97.501 Qualifying for an amateur operator license.
Each applicant must pass an examination for a new amateur operator license grant and for each change in operator class. Each applicant for the class of operator license grant specified below must pass, or otherwise receive examination credit for, the following examination elements:
(a) Amateur Extra Class operator: Elements 2, 3, and 4;
(b) General Class operator: Elements 2 and 3;
(c) Technician Class operator: Element 2.
[65 FR 6550, Feb. 10, 2000, as amended at 72 FR 3082, Jan. 24, 2007]
§ 97.503 Element standards.
A written examination must be such as to prove that the examinee possesses the operational and technical qualifications required to perform properly the duties of an amateur service licensee. Each written examination must be comprised of a question set as follows:
(a) Element 2: 35 questions concerning the privileges of a Technician Class operator license. The minimum passing score is 26 questions answered correctly.
(b) Element 3: 35 questions concerning the privileges of a General Class operator license. The minimum passing score is 26 questions answered correctly.
(c) Element 4: 50 questions concerning the privileges of an Amateur Extra Class operator license. The minimum passing score is 37 questions answered correctly.
[54 FR 25857, June 20, 1989, as amended at 61 FR 41019, Aug. 7, 1996; 65 FR 6550, Feb. 10, 2000; 72 FR 3082, Jan. 24, 2007]
After you pass the test you are required to follow the rules in Subpart B, Subpart C, Subpart D, and Subpart E.
Subpart B—Station Operation Standards
§ 97.101 General standards.
§ 97.103 Station licensee responsibilities.
§ 97.105 Control operator duties.
§ 97.107 Reciprocal operating authority.
§ 97.109 Station control.
§ 97.111 Authorized transmissions.
§ 97.113 Prohibited transmissions.
§ 97.115 Third party communications.
§ 97.117 International communications.
§ 97.119 Station identification.
§ 97.121 Restricted operation.
Subpart C—Special Operations
§ 97.201 Auxiliary station.
§ 97.203 Beacon station.
§ 97.205 Repeater station.
§ 97.207 Space station.
§ 97.209 Earth station.
§ 97.211 Space telecommand station.
§ 97.213 Telecommand of an amateur station.
§ 97.215 Telecommand of model craft.
§ 97.217 Telemetry.
§ 97.219 Message forwarding system.
§ 97.221 Automatically controlled digital station.
Subpart D—Technical Standards
§ 97.301 Authorized frequency bands.
§ 97.303 Frequency sharing requirements.
§ 97.305 Authorized emission types.
§ 97.307 Emission standards.
§ 97.309 RTTY and data emission codes.
§ 97.311 SS emission types.
§ 97.313 Transmitter power standards.
§ 97.315 Certification of external RF power amplifiers.
§ 97.317 Standards for certification of external RF power amplifiers.
Subpart E—Providing Emergency Communications
§ 97.401 Operation during a disaster.
§ 97.403 Safety of life and protection of property.
§ 97.405 Station in distress.
§ 97.407 Radio amateur civil emergency service.
Thus, you get an amateur radio license by taking and passing a test given by a volunteer examiner. The test comprises technical questions and questions about the rules. Passing the test does not constitute a Finding by the FCC that the “public interest, convenience or necessity” is being served. And once you get an amateur radio you have to follow the rules. An amateur radio license is not a license to do whatever you want by asserting that what you want is in the “public interest, convenience or necessity.”
Tom’s assertion that “radio licenses are issued only where the public interest, convenience or necessity require” comes from the case he cited: Red Lion Broadcasting Co. v. FCC, 395 US 367, 379-380 (1969).
Red Lion was a SCOTUS case involving a Broadcaster (Red Lion Broadcasting) and the Fairness Doctrine (now deceased).
Starting at Page 395 U. S. 371 (from http://supreme.justia.com/us/395/367/case.html):
The Red Lion Broadcasting Company is licensed to operate a Pennsylvania radio station, WGCB. On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of a "Christian Crusade" series. A book by Fred J. Cook entitled "Goldwater -- Extremist on the Right" was discussed by Hargis, who said that Cook had been fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency, and that he had now written a "book to smear and destroy Barry Goldwater." [Footnote 2] When Cook heard of the broadcast, he
Page 395 U. S. 372
concluded that he had been personally attacked and demanded free reply time, which the station refused. After an exchange of letters among Cook, Red Lion, and the FCC, the FCC declared that the Hargis broadcast constituted a personal attack on Cook; that Red Lion had failed to meet its obligation under the fairness doctrine as expressed in Times-Mirror Broadcasting Co., 24 P & F Radio Reg. 404 (1962), to send a tape, transcript, or summary of the broadcast to Cook and offer him reply time, and that the station must provide reply time whether or not Cook would pay for it. On review in the Court of Appeals for the District of Columbia Circuit, [Footnote 3] the
Page 395 U. S. 373
FCC's position was upheld as constitutional and otherwise proper. 127 U.S.App.D.C. 129, 381 F.2d 908 (1967).
SCOTUS ruled that:
1. The history of the fairness doctrine and of related legislation shows that the FCC's action in the Red Lion case did not exceed its authority, and that, in adopting the new regulations, the FCC was implementing congressional policy. Pp. 395 U. S. 375-386.
2. The fairness doctrine and its specific manifestations in the personal attack and political editorial rules do not violate the First Amendment. Pp. 395 U. S. 386-401.
The Court explained:
Page 395 U. S. 394
It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern. To condition the granting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press. Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions. The statute, long administrative practice, and cases are to this effect.
Licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them. 47 U.S.C. § 301. Unless renewed, they expire within three years. 47 U.S.C. § 307(d). The statute mandates the issuance of licenses if the "public convenience, interest, or necessity will be served thereby." 47 U.S.C. § 307(a). In applying this standard, the Commission for 40 years has been choosing licensees based in part on their program proposals. In FRC v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266, 289 U. S. 279 (1933), the Court noted that, in "view of the limited number of available broadcasting frequencies, the Congress has authorized allocation and licenses." In determining how best to allocate frequencies, the Federal Radio Commission considered the needs of competing communities and the programs offered by competing stations to meet those needs; moreover, if needs or programs shifted, the Commission could alter its allocations to reflect those shifts. Id. at 289 U. S. 285. In the same vein, in FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 309 U. S. 137-138 (1940), the Court noted that
Page 395 U. S. 395
the statutory standard was a supple instrument to effect congressional desires "to maintain . . . a grip on the dynamic aspects of radio transmission" and allay fears that, "in the absence of governmental control, the public interest might be subordinated to monopolistic domination in the broadcasting field." Three years later, the Court considered the validity of the Commission's chain broadcasting regulations, which, among other things, forbade stations from devoting too much time to network programs in order that there be suitable opportunity for local programs serving local needs. The Court upheld the regulations, unequivocally recognizing that the Commission was more than a traffic policeman concerned with the technical aspects of broadcasting and that it neither exceeded its powers under the statute nor transgressed the First Amendment in interesting itself in general program format and the kinds of programs broadcast by licensees. National Broadcasting Co. v. United States, 319 U. S. 190 (1943).
Red Lion is about Broadcast stations, not Amateur Radio stations.
See the case for the complete ruling.
And, BTW, The Fairness Doctrine and the Equal Time provision of 47 USC § 315 have never applied to amateur radio. A radio amateur is subject only to the FCC obscenity rules and the general rules regarding slander, libel, and defamation.
Tom is using Red Lion as a red herring.
C. Tom’s achievements as a radio amateur.
Tom states (Supp. Info. page 5, first full paragraph):
In 2007, Taormina was inducted into an amateur radio Hall of Fame for his contributions and innovations to ham radio over nearly five decades. 3
The amateur radio Hall of Fame that Tom was inducted into was the CQ Contest Hall of Fame. It was for contesting. See Exhibit 2 for the page at the link that Tom provided: http://www.contestdinner.com/page_hall_of_fame.html Tom is #50, where he was inducted in 2007 along with three other contesters.
D. Straw Men Down
Tom sets up a number of Straw Men so he can knock them down.
1. Amateur Radio is not a Commercial Use (Supp. Info. Page 9)
No one said it was.
2. No Covenant, Condition, or Restriction Applies (Supp. Info. Page 9)
Even if there were, they could not supersede the County Code by allowing actions prohibited by the County Code.
3. All Structures Will Comply with the Storey County Code. (Supp. Info. Page 10)
But only if you let Tom decide what the Storey County Code is and which codes apply to him.
Besides, he has already said that his amateur radio license, bestowed upon him by an Act of Congress, gives him the right to do whatever he wants. All he has to do is assert that it is essential or desirable for the public convenience or welfare.
E. SECTION 17.62.010 IS THE ONLY APPLICABLE ORDINANCE
From Supp. Info. Middle of page 11:
The U.S. District Court has declared that the applicable law “specifies that an individual seeking to
build a radio antenna over forty-five feet may obtain a special use permit [and] may apply for such a
permit under section 17.62.010.” Slip Opinion at 8. For the purposes of this application, the Court’s
ruling settles the matter as to what standard the County must apply to this application.
The test for a special use permit in this case was stated by the Court, and appears in section 17.62.010:
Certain uses may be permitted by the board of county commissioners in zones in which they are not permitted by this title where such uses are deemed essential or desirable for the public convenience or welfare.
The only legal question is whether the proposed Amateur Radio use is "deemed essential or desirable
for the public convenience or welfare."
Ok so far.
But then he says: “Federal law answers that question for us, as shown below.” Then he offers various quotes to make the illogical argument that, since the FCC is required to act in the public interest, and since the FCC granted him an amateur radio license, everything Tom does is, therefore, in the public interest.
Then he repeats his discussion of 47 U.S.C. § 303, Part 97, and Red Lion.
His arguments were misleading the first time, and have not improved in the intervening pages.
Even if a radio amateur were explicitly required to act in the public convenience or welfare, that does not mean that everything a radio amateur does is, by definition, in the public convenience or welfare.
Amateur Radio licenses are good for ten years. Then they have to be renewed. It requires filing a form, either on paper or online. The form does not ask, “What have you done that is in the public convenience or welfare?” No bureaucrat then decides whether what you have done merits renewing your license.
See Exhibit 3 for Form 605 Renewal. Note that Form 605 is also used for ship and aircraft radio operator licenses.
F. Tom’s pictures of his antenna farm and other people’s structures are misleading (Exhibits_v7.pdf).
1. The pictures of his antenna farm from different locations are taken at long range. The pictures of other people’s structures are taken at shorter range, making the structures appear to be very tall.
2. No graphics illustrations were provided to show how his proposed 198 foot tower will appear from his selected locations.
3. The pictures taken from the mail shed place the mail shed directly between the viewer and the antenna farm and close to the mail shed. This makes the antenna farm look small.
G. Tower Lighting
Tom states that his towers will be unlighted. (Supp. Info. bottom of page 17)
The FAA standards for tower marking are contained in a document labeled as an Advisory. However the FCC mandates that for radio and television towers, the FAA Advisory is mandatory. (47 C.F.R 17.23 available at http://edocket.access.gpo.gov/cfr_2004/octqtr/47cfr17.23.htm
CHAPTER I--FEDERAL COMMUNICATIONS COMMISSION
PART 17_CONSTRUCTION, MARKING, AND LIGHTING OF ANTENNA STRUCTURES--Table
Subpart C_ Specifications for Obstruction Marking and Lighting of Antenna Structures
Sec. 17.23 Specifications for painting and lighting antenna structures.
Unless otherwise specified by the Commission, each new or altered antenna structure to be registered on or after January 1, 1996, must conform to the FAA's painting and lighting recommendations set forth on the structure's FAA determination of ``no hazard,'' as referenced in the following FAA Advisory Circulars: AC 70/7460-1J, “Obstruction Marking and Lighting,” effective January 1, 1996, and AC 150/5345-43E, “Specification for Obstruction Lighting Equipment,” dated October 19, 1995. These documents are incorporated by reference in accordance with 5 U.S.C. 552(a). The documents contain FAA recommendations for painting and lighting structures which pose a potential hazard to air navigation. For purposes of this part, the specifications, standards, and general requirements stated in these documents are mandatory. ………
47 C.F.R. 17.23 refers to FAA Advisory circulars AC 70/7460-1J, “Obstruction Marking and Lighting,” effective January 1, 1996, and AC 150/5345-43E, “Specification for Obstruction Lighting Equipment,” dated October 19, 1995.
AC 70/7460-1J was updated, effective 2/1/2007. Does Congress intend for the marking and lighting standards for new and modified radio and television towers to be frozen with the FAA’s 1996 Advisory or have they simply been too busy to update the Code of Federal Regulations to note the new edition of the FAA Advisory?
This is important because the standards in the FAA’s Advisory Circular AC 70/7460-1K (effective 2/1/07) are different than the ones in the 1996 Advisory.
The FAA’s Advisory Circular AC 70/7460-1K (effective 2/1/07), Section 53 says:
53. POLES, TOWERS, AND SIMILAR SKELETAL STRUCTURES
The following standards apply to radio and television towers, supporting structures for overhead transmission lines, and similar structures.
a. Top Mounted Obstruction Light.
1. Structures 150 Feet (46m) AGL or Less. Two or more steady burning (L-810) lights should be installed in a manner to ensure an unobstructed view of one or more lights by a pilot.
2. Structures Exceeding 150 Feet (46m) AGL. At least one red flashing (L-864) beacon should be installed in a manner to ensure an unobstructed view of one or more lights by a pilot.
3. Appurtenances 40 Feet (12m) or Less. If a rod, antenna, or other appurtenance 40 feet (12m) or less in height is incapable of supporting a red flashing beacon, then it may be placed at the base of the appurtenance. If the mounting location does not allow unobstructed viewing of the beacon by a pilot, then additional beacons should be added.
4. Appurtenances Exceeding 40 Feet (12m). If a rod, antenna, or other appurtenance exceeding 40 feet (12m) in height is incapable of supporting a red flashing beacon, a supporting mast with one or more beacons should be installed adjacent to the appurtenance. Adjacent installations should not exceed the height of the appurtenance and be within 40 feet (12m) of the tip to allow the pilot an unobstructed view of at least one beacon.
b. Mounting Intermediate Levels. The number of light levels is determined by the height of the structure, including all appurtenances, and is detailed in Appendix 1. The number of lights on each level is determined by the shape and height of the structure. These lights should be mounted so as to ensure an unobstructed view of at least one light by a pilot.
1. Steady Burning Lights (L-810).
(a) Structures 350 Feet (107m) AGL or Less. Two or more steady burning (L-810) lights should be installed on diagonally or diametrically opposite positions.
(b) Structures Exceeding 350 Feet (107m) AGL. Install steady burning (L-810) lights on each outside corner of each level.
2. Flashing Beacons (L-864).
(a) Structures 350 Feet (107m) AGL or Less. These structures do not require flashing (L-864) beacons at intermediate levels.
(b) Structure Exceeding 350 Feet (107m) AGL. At intermediate levels, two beacons (L-864) should be mounted outside at diagonally opposite positions of intermediate levels.
FAA Advisory Circular AC 70/7460-1K (2007) is available at:
I have reproduced the cover page and Section 53 in Exhibit 4.
The County should get a definitive statement from the FAA about tower lighting before taking any action on Tom’s application.
H. The Operative Federal statute is 47 C.F.R. § 97.15.
Here is what 47 C.F.R. § 97.15 says (http://edocket.access.gpo.gov/cfr_2002/octqtr/47cfr97.15.htm):
[Code of Federal Regulations]
[Title 47, Volume 5]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
PART 97--AMATEUR RADIO SERVICE--Table of Contents
Subpart A--General Provisions
Sec. 97.15 Station antenna structures.
(a) Owners of certain antenna structures more than 60.96 meters (200 feet) above ground level at the site or located near or at a public use airport must notify the Federal Aviation Administration and register with the Commission as required by part 17 of this chapter.
(b) Except as otherwise provided herein, a station antenna structure may be erected at heights and dimensions sufficient to accommodate amateur service communications. (State and local regulation of a station antenna structure must not preclude amateur service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state or local authority's legitimate purpose.
See PRB-1, 101 FCC 2d 952 (1985) for details.)
[64 FR 53242, Oct. 1, 1999]
Here is the “Amateur Radio Preemption, 101 F.C.C. 2d 952 (1985)” as issued by the Federal Communications Commission. [http://www.arrl.org/prb-1]
This is the important part:
25. Because amateur station communications are only as effective as the antennas employed, antenna height restrictions directly affect the effectiveness of amateur communications. Some amateur antenna configurations require more substantial installations than others if they are to provide the amateur operator with the communications that he/she desires to engage in. For example, an antenna array for international amateur communications will differ from an antenna used to contact other amateur operators at shorter distances. We will not, however, specify any particular height limitation below which a local government may not regulate, nor will we suggest the precise language that must be contained in local ordinances, such as mechanisms for special exceptions, variances, or conditional use permits. Nevertheless, local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose. \fn 6/
It doesn't say that Tom can do whatever he wants. It says that local regulations cannot prohibit ham antennas but that local regulations are permissible which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations as long as they are crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose.
I. The Operative Nevada statute is NRS 278.02085
NRS 278.02085 Amateur radio: Limitations on restrictions on amateur service communications; limitations on regulation of station antenna structures; exception.
1. A governing body shall not adopt an ordinance, regulation or plan or take any other action that precludes amateur service communications or that in any other manner does not conform to the provisions of 47 C.F.R. § 97.15 and the limited preemption entitled “Amateur Radio Preemption, 101 F.C.C. 2d 952 (1985)” as issued by the Federal Communications Commission.
2. If a governing body adopts an ordinance, regulation or plan or takes any other action that regulates the placement, screening or height of a station antenna structure based on health, safety or aesthetic considerations, the ordinance, regulation, plan or action must:
(a) Reasonably accommodate amateur service communications; and
(b) Constitute the minimum level of regulation practicable to carry out the legitimate purpose of the governing body.
3. The provisions of this section do not apply to any district organized pursuant to federal, state or local law for the purpose of historic or architectural preservation.
4. Any ordinance, regulation or plan adopted by or other action taken by a governing body in violation of the provisions of this section is void.
5. As used in this section:
(a) “Amateur radio services” has the meaning ascribed to it in 47 C.F.R. § 97.3.
(b) “Amateur service communications” means communications carried out by one or more of the amateur radio services.
(c) “Amateur station” has the meaning ascribed to it in 47 C.F.R. § 97.3.
(d) “Station antenna structure” means the antenna that serves an amateur station, including such appurtenances and other structures as may be necessary to support, stabilize, raise, lower or otherwise adjust the antenna.
(Added to NRS by 2001, 596)
J. Why does Tom need a 198 foot tower?
This question is addressed in Showing of Need for Height of Amateur Radio Antenna Support Structure, dated August 12, 2008, by R. Dean Straw.
My analysis of this document is lengthy and will be attached to my present comments.
The short version is that:
1. Tom needs to have direct communications with China in the event of an emergency.
2. The technical quality of the communications must be comparable to what the Voice of America strives for in their Short Wave Broadcasts.
What possible kind of emergency could Storey County have that would require direct communications between the County and either Europe or Asia?
The assumptions underlying this need are:
1. Communications with the
rest of North America is no longer possible.
2. There has been a catastrophe, everyone else is dead, and there is no one to operate the satellite networks or the undersea fiberoptic cables linking the continents.
3. Europe and Asia have escaped the catastrophe that has befallen all of North America (except for Storey County).
What kind of emergency aid does Tom think Europe and Asia will be able and willing to provide to Storey County?
The only emergency I can think of is that Tom and his friends need to contact more stations in Europe and Asia so they can win the Contests they are so passionate about participating in.
One of the events that could destroy the North American Infrastructure would be a nuclear war. If there were a war it would probably be with China. In such a war China would destroy our GPS satellites and we would destroy their GNSS (Global Navigation Satellite System). China could use Tom’s communications signals with them as a beacon to send a nuclear-armed missile our way.
K. What this is really about.
Tom wrote an article titled The Next 3dB. The article is dated July/August 2008.
It is available at www.ncjweb.com/julaug08feat.pdf
The Web site www.ncjweb.com belongs to the National Contest Journal.
The National Contest Journal is published six times per year (Jan/Feb, Mar/Apr, May/Jun, Jul/Aug, Sep/Oct and Nov/Dec) and is dedicated to covering the competitive contesting aspects of amateur radio. Each issue is loaded with information of interest to contesters (and DXers, too!); from casual observer to hardcore competitor, from little pistol to big gun.
The following are excerpts from the article. The complete article is reproduced in Exhibit 5.
The Next 3 dB Tom Taormina, K5RC
I am a pragmatist by nature. Long ago I developed and validated a theorem stipulating that regardless of where you are in contesting, your next 3 dB of signal improvement will be expensive. Electronics 101 tells us that doubling the transmitter’s power effectively improves the signal by 3 dB. Properly stacking two five-element 20 meter beams theoretically yields a 3 dB improvement over a single antenna. Before buying an amplifier or stacking Yagis, we apply cost/effort and return-on-investment calculations, either consciously or due to limited resources, time or importance to you (and to your family).
Let’s analyze these two scenarios. If you’re S8 with 750 W and a five-element Yagi, you’ll be S8.5 by plugging either of the above variables into the equation. At first blush, that 3 dB increase is hardly audible, and going forward with the improvement may not make practical sense. If you’re 449 in a pileup, however, that extra 3 dB may make the difference between working the station or not. One-half S unit in the ARRL November Sweepstakes won’t help much when signals typically are very strong, but it may be of particular consequence in a DX contest.
The “Operator Enhancement Corollary”
This is where the “Operator Enhancement Corollary” (OEC) enters the next 3 dB equation. The OEC assumes I have the talent and drive to be a really competitive operator but need a station to match my abilities. I’m willing to make the commitment of time and resources to achieve the goals I’ve set. My business and family life can be prioritized to accommodate this indulgence. The OEC allows us to make more emotional judgments about spending $5000 for a transceiver or $900 for an SO2R box. These types of enhancements do not fit into the 3 dB improvement analysis so easily, because you can’t measure their effect with a field strength meter. You probably won’t double your contest scores by spending $300 for headphones when your $30 set has worked satisfactorily for years. So, the OEC places a subjective burden on each of us, assuming we have to justify our station enhancements to ourselves or a “higher power” (eg, spouse?).
The “I-Want-It Factor”
Serendipitously, about the time the K5RC/K5GA station was peaking in its potential, NA5R came on the scene and wanted to build a “no-compromises” multiop contest station. The design called for 200-foot towers and stacked Yagis on every band from 80 through 10 meters. The 3 dB and OEC factors were no longer statistically viable measures as we embarked on that project. A third and more powerful corollary had to kick in. This is called the “I Want It Factor.” While the motivation for the NA5R/K5RC station was to provide an extremely competitive environment for a cadre of up-and-coming operators, the rationale to expend what some might consider an obscene amount of money can only be explained by the I-Want-It Factor.
Tom Taormina, K5RC, has been building contest stations for more than 35 years. In 2007 he was among those inducted into the CQ Contest Hall of Fame. He lives in Virginia City Highlands, Nevada. A complete set of inside and outside N5JJ/K5LZO Memorial Station photos is available on his Web site, http://k5rc.cc .
The reason Tom wants the 198 foot towers has nothing to do with public convenience or welfare. He wants them simply because of the “I-Want-It Factor”.
Tom has agreed (with the help of the Court, See Supp. Info. page 4, paragraphs 1 and 2) that his application stands or falls solely on:
The standard, or test, for whether an applicant may receive a special use permit pursuant to section 17.62.010 is whether the use is “deemed essential or desirable for the public convenience or welfare."
There is no sane way that Tom’s “I-Want-It Factor” can be twisted into “deemed essential or desirable for the public convenience or welfare."
No doubt the County wants to avoid another costly lawsuit with Tom.
However, the County has a history of refusing to give in to bullies.
The County should do that now and deny Tom’s application for a Special Use Permit.
If the County fails to do so, what will Tom’s “I-Want-It Factor” make him do next?