Hotz

Defendant James E. Rich, a homeowner in Foster City, received a use permit allowing him to construct an aerial for amateur radio transmission and reception. Plaintiffs, who are other Foster City residents and an unincorporated association of residents, brought this action to enjoin construction of the aerial, claiming it violated a covenant in Rich’s deed. After a court trial the court found for defendant on the ground that enforcement of the deed restriction was preempted by a declaratory ruling from the Federal Communications Commission (FCC). We hold that the FCC ruling does not preempt judicial enforcement of private restrictive covenants. We reverse and remand for further proceedings.

Defendant is licensed by the FCC as an amateur radio operator. He has received local government approval for an antenna 46 feet high, approximately 36 feet higher than the eaves of his house. The tract containing defendant’s and plaintiffs’ lots is subject to a covenant first recorded in 1964, which provides: “Aerials: No radio or television or other aerial, antenna, tower or transmitting or receiving aerial, antenna, tower or support thereof shall be erected, installed, placed or…