FCC 96-78 Before the FEDERAL COMMUNICATIONS COMMISSION Washington,
D.C. In the Matter of ) ) IB Docket No. 95-59 Preemption of Local Zoning
Regulation ) DA 91-577 of Satellite Earth Stations ) 45-DSS-MISC-93 ) REPORT
AND ORDER FURTHER NOTICE OF PROPOSED RULEMAKING
Adopted: February 29, 1996 Released: March 11, 1996 Comment Date: April
15, 1996 Reply Comment Date: May 6, 1996 By the Commission: Commissioners
Barrett and Chong issuing separate statements. Introduction 1. In this Report
and Order, the Commission adopts revisions to its rule preempting certain
local regulation of satellite earth station antennas. Our new rule clarifies
the preemption standard and establishes procedures for Commission enforcement
of its rules. In crafting the new rule, we have carefully considered the
very weighty and important interests of state and local governments in managing
land use in their communities. Against those interests, we have balanced
the federal interest in ensuring easy access to satellite- delivered services,
which have become increasingly important and widespread in the last few
years and are dependent upon rapid and inexpensive antenna installation
by businesses and consumers. We believe that the revised preemption rule
accommodates both federal and non- federal interests and provides the Commission
with a method of reviewing disputes that will avoid excessive federal involvement
in local land-use issues. 2. In addition, we issue a Further Notice of Proposed
Rulemaking (Further Notice) to implement section 207 of the Telecommunications
Act of 1996. That section directs the Commission to preempt nonfederal restrictions
on certain direct-to-home video services, including Direct Broadcast Satellite
(DBS) service. In our Further Notice, we tentatively conclude that the final
rule adopted in this Report and Order fulfills the Commission's obligation
under the new statutory provision as to nonfederal, governmental restrictions
on DBS-type satellite earth station antennas. We also propose a new paragraph
(f) for our preemption rule in order to implement section 207 with regard
to private, nongovernmental restrictions on DBS-type satellite earth station
antennas. Background 3. The original preemption rule was adopted in 1986
in response to evidence that state and local governments were, in some instances,
imposing unreasonably restrictive burdens on the installation of satellite
antennas. The 1986 rule preempted ordinances that discriminate against satellite
antennas and impose unreasonable limitations on reception or unreasonable
costs on users. In addition, in the order adopting the rule, we stated that
anyone coming to the Commission for relief in a particular zoning dispute
must first exhaust all non federal remedies, including all litigation remedies.
4. Several events since 1986 have led us to conclude that our rule should
be revised at this time. For example, in 1992, the U.S. Court of Appeals
for the Second Circuit invalidated our exhaustion of remedies policy. In
addition, antenna users, local governments, and Commission staff have gained
experience in this area and have found that several aspects of the 1986
rule are problematic. Finally, representatives of two satellite industry
groups filed requests for declaratory rulings in connection with our preemption
rule. The Satellite Broadcasting and Communications Association (SBCA),
representing the interests of direct-to- home video service providers and
users, urged the Commission to clarify its rule and to adopt enforcement
procedures. Similarly, Hughes Network Systems (HNS), a provider of satellite
communications for business uses, requested a ruling that local restrictions
are per se unreasonable if imposed on very small aperture terminals (VSATs)
that measure less than two meters in diameter and are installed in commercial
areas. 5. In the spring of 1995, we adopted a Notice of Proposed Rulemaking
responding to these events. The Notice tentatively concluded that our preemption
policies, including procedural rules, must be revised. Accordingly, in the
Notice, we proposed to review local disputes after exhaustion of only nonfederal
administrative remedies, not all non- federal legal remedies. We proposed
new standards to determine the reasonableness of non- federal regulations,
and created two categories of rebuttable presumptions for small antennas.
Finally, we proposed procedures by which state and local governments authorities
can request a waiver of the rule in cases where unusual circumstances are
demonstrated. 6. In the Notice, we described how our proposed rule would
apply in different ways to satellite antennas of different types and sizes.
These antennas fall into two basic categories, depending on the service
provided. The first category consists of antennas designed for direct-to-home
(DTH) reception of video programming for home entertainment purposes. At
this time, DTH uses two different frequency bands for transmission. In the
Ku- band (12/14 GHz), service can be provided with antennas less than one
meter in diameter. In the C-band (4/6 GHz), antenna diameters are as small
as six feet (approximately 2 meters) and typically around seven and one-half
feet (approximately 2.5 meters). These C-band antennas provide different
programming that is sometimes not available to smaller antenna users. DTH
antennas are receive-only and do not have transmitting capabilities. The
second broad category of antennas is designed for two-way, commercial communications.
These antennas both transmit and receive. The smallest of these are often
referred to as VSATs and provide satellite communications network services
to retail establishments such as gas stations, store chains, banks, and
brokerage services. These antennas are located in the same areas as the
commercial facilities they serve. Most VSAT antennas are less than two meters
in diameter. Other satellite services are provided by larger transmit/receive
antennas that are generally associated with commercial facilities. Our proposals
reflect differences in these various types of antennas. 7. In response to
the Notice, we received extensive comments from satellite industry representatives
and from local governments. In general, industry representatives stress
that our preemption rule must be clear and easy to apply, and they recommend
some modifications to our proposal to accomplish this goal. Local government
representatives strongly oppose any greater federal preemption, but generally
concede that Commission enforcement procedures are necessary in light of
Deerfield. 8. After our receipt of comments in this matter, Congress enacted
legislation which directly impacts some of the issues in the rule making
proceeding. Specifically, section 207 of the 1996 Act directs the Commission
to promulgate regulations: to prohibit restrictions that impair a viewer's
ability to receive video programming services through devices designed for
over-the-air reception of television broadcast signals multichannel, multipoint
distribution service, or direct broadcast satellite services. Although we
seek comment on the impact of the legislation in the Further Notice, we
have decided to proceed with the issuance of this Report and Order. For
the reasons stated in paragraph 4 above, we feel that it is crucial to put
a revised rule in place as quickly as possible. Moreover, the revised rule
proposed in the Notice and adopted here applies to a variety of services
provided by all sizes of satellite dishes, not just direct broadcasting
services provided by 18" dishes. Finally, as explained in the Further
Notice, we tentatively conclude that insofar as governmental restrictions
are concerned, our newly adopted preemption rule is a reasonable way to
implement section 207 with regard to DBS antennas. After reviewing the comments
submitted in response to the Further Notice, we will determine whether further
adjustments to our rule are warranted. Discussion 9. Comments filed in this
proceeding raise issues that fall into two main categories: those relating
to the Commission's general approach to preemption of local zoning regulations
and those relating to particular sections of the rule. Within the first
category, some commenters challenge the Commission's legal authority to
preempt local zoning regulations, others address the adequacy of the existing
preemption rule, and others discuss the merits of a rule based on presumptions
of unreasonableness. We address these comments below. A. General Rule Approach
1. Legal Authority to Preempt 10. Several local government representatives
challenge the Commission's legal authority to adopt the proposed rule. These
commenters assert the Commission has not been given express authority in
this area and that the federal interest has been overstated. On many occasions,
the Supreme Court has articulated standards for federal preemption of non-
federal regulation. In City of New York v. FCC, 486 U.S. 57 (1988), the
Court explained: When the Federal government acts within the authority it
possesses under the Constitution, it is empowered to pre-empt state laws
to the extent it is believed that such action is necessary to achieve its
purposes. The Supremacy Clause of the Constitution gives force to federal
action of this kind by stating that `the Laws of the United States which
shall be made in Pursuance' of the Constitution `shall be the supreme Law
of the Land.' U.S. Const. Art. VI, cl.2. The phrase `Laws of the United
States' encompasses both federal statutes themselves and federal regulations
that are properly adopted in accordance with statutory authorization . .
. . we have also recognized that 'a federal agency acting within the scope
of its congressionally delegated authority may pre-empt state regulation.'
Indeed, in Fidelity Federal Sav. & Loan Ass'n v. De La Cuesta, the Court
made clear that "[f]ederal regulations have no less pre-emptive effect
than federal statutes." Thus, the Commission may preempt nonfederal
zoning regulations when the nonfederal body "has created an obstacle
to the accomplishment and execution of the full purposes and objectives"
of the Commission acting within its congressionally delegated authority.
11. When the Commission adopted the original satellite preemption rule in
1986, we concluded that we possessed the requisite authority to preempt
unreasonable local regulations that stood as obstacles to accessing satellite
communications. In the 1985 Notice, which led to our preemption rule in
1986, we explained our regulatory authority over satellite communications
services and thus our authority over access to such services across the
United States. We stated that the Commission had licensed carriers to provide
domestic satellite services. Moreover, we found that Section 1 of the Communications
Act, mandating access to communications services by all people in the United
States, together with numerous powers granted by Title III of the Act, and
Section 705 of the Act, giving certain rights to receive unscrambled and
unmarketed satellite signals, all establish the existence of a federal interest
in promoting the construction and use of satellite antennas. The Commission
found that some local regulations were interfering with this federal objective.
The Commission also stated that it has, in prior actions, preempted state
regulation that interfered with or impeded distribution of interstate communications
via satellite and that its preemption has been upheld. When we adopted the
rule, we affirmed the bases we announced in the 1985 Notice. 12. We reaffirm
our legal authority to adopt our proposed rule and to preempt state and
local government regulation of satellite earth stations. The federal interests
at stake here are very significant. They stem from the Communications Act,
which directs us to assure "to all the people of the United States
a rapid, efficient, Nation-wide and world-wide wire and radio communication
service with adequate facilities at reasonable charges." A Commission
rule that facilitates access to communications services, including satellite
services, is a means by which to promote that directive. 13. Although the
local interest in this area is unquestionable, the focus must be the effect
on the federal interest and the appropriate accommodation of the local interests
involved. As the Commission stated in the 1986 Order, "it must be emphasized
that the relative importance to states or local jurisdictions of their own
laws is not the proper focus in a decision to preempt. . . . [I]t cannot
be argued that preemption is automatically precluded merely because zoning
has been called a traditionally local matter." Not one of the various
courts that have considered our preemption rule since 1986 has questioned
our authority to act in this area. 14. Commenters representing local governments
assert that industry representatives have overstated the federal interest
in this area and, therefore, preemption is not warranted. These commenters
contendthat the local interest in health and safety and the obligation to
maintain local property values outweigh the interest in ensuring broader
access to satellite signals. They state that the four million satellite
earth stations in use and the broad access to cable services demonstrates
that the general public has adequate access to sufficient forms of technological
media. One municipality asserts that Congress did not intend that the Commission
preempt health and safety regulation to afford less costly and more convenient
television service to a few residents. 15. We disagree with Texas and Michigan
that the wide availability of cable technology militates against a rule
supporting access to satellite signals. We rejected this argument about
cable service availability in both the 1986 Order and the Notice. In fact,
the Commission is committed to ensuring access to all technologies including
those that compete with cable. In addition, the availability of cable services
in no way affects the federal interest in ensuring access to transmit-receive
VSAT services used for business purposes. The revised rule merely reflects
a continuation of our policy to ensure that access to satellite services
is available through wide use of earth station antennas. The federal interest
we are protecting is not that of ensuring that the American people can get
less costly television service, but rather that they have wide access to
all available technologies and information services. If nonfederal regulations
are acting as obstacles to this federal interest, they are subject to preemption.
16. In the Telecommunications Act of 1996, Congress specifically directed
the Commission, within 180 days, to promulgate regulations to prohibit restrictions
that impair a viewer s ability to receive video programming services through
devices designed for over-the- air reception of television broadcast signals,
multichannel multipoint distribution service, or direct broadcast satellite
services. Thus, Congress has made clear that, at a minimum, we must preempt
restrictions imposed on a subset of all satellite earth station antennas,
all DBS antennas, and we address this issue in the Further Notice, infra.
We believe that nothing in the new legislation affects our broad authority
to preempt state and local zoning regulations that burden a user's right
to receive all satellite-delivered video programming (not just the subset
specifically singled out by Congress in section 207) or that inhibit the
use of transmitting antennas. Indeed, we believe section 207 evidences Congress
s recognition that the federal interests at stake here warrant preemption
of inconsistent state and local regulations, even when those regulations
address a traditionally local subject such as land use. Accordingly, we
preempt state and local zoning regulations that affect satellite antennas
as described in this order. 2. Necessity for rule changes 17. Initially,
most commenters, including many representing local governments, acknowledge
the need for changes in the present rule in light of Deerfield. For example,
Duncan, Weinberg, Miller & Pembroke (Duncan), a law firm that represents
many government entities, states that the "Commission is compelled
to amend its rule, in light of the decision . . . to address the issues
of Article III Federal Courts and of the exhaustion of remedies that concerned
the Court of Appeals." Satellite industry representatives agree. In
fact, none of the commenters in this proceeding argue that our proposal
to adopt procedures for Commission review is inappropriate in light of Deerfield.
The record thus supports our initial conclusion that procedural changes
are necessary. 18. The record also supports our tentative conclusion that
the 1986 rule needs to be clarified. Local government representatives do,
however, question the extent to which the 1986 rule permitted state and
local regulations to frustrate the important federal interests involved.
They state that the industry "has magnified the problem in an effort
to relieve themselves of legitimate local regulation." According to
these comments, the burden to obtain approval is usually minimal. For example,
the City of Dallas states that in Dallas applicants must file an application
for a building permit and the application is granted if the antenna meets
minimal requirements on lot coverage, set-back, and height. Commenters also
argue that the burdens involved in obtaining a zoning variance have been
overstated by industry representatives. According to them, a variance requires:
(a) a fee to reflect the cost of processing the application; (b) plans that
in some cases can be hand drawn; and (c) a hearing that imposes no burden
on the property owner because the locality sends out the notice and conducts
the hearing. In addition, they argue that the evidence given by industry
is "anecdotal" and thus not demonstrative of a real problem. Many
jurisdictions assert that our current preemption rule is sufficient protection
for antenna users. For example, Plantation, Florida states that the Commission
should allow local governments to engage in their own balancing analysis.
19. Industry representatives counter that, in reality, the examples cited
in the record are only the "tip of the iceberg" and represent
only those cases where the antenna user has sufficient funds and perseverance
to fight local regulations and capture the attention of the companies and
associations filing comments. HNS states that VSAT service providers are
faced with continued and consistent discrimination from city officials who
do not understand the technology. They also reiterate their concern that
businesses will often abandon satellite technology when the cost and delay
associated with zoning become apparent. HNS asserts that even before comments
were received, the Commission had a substantial body of evidence that the
current rule was deficient. It also cites its three petitions for declaratory
relief with respect to specific local zoning ordinances and states that
it is only the legal cost that has kept it from filing more petitions. GE
states that "certain overzealous zoning authorities frequently single
out satellite antennas for excessive regulation that, if not banning small
antennas altogether, significantly reduces their value to end-users."
20. A number of VSAT users emphasize the need for a centralized communications
system that can be installed quickly. For example, AutoZone states, "Saying
that a timely installation of each of those antennas directly affects our
ability to meet our growth projections doesn't begin to describe the importance
we place on our network." Similarly, Edward D. Jones & Co. states,
"[W]hen a Jones Investment Representative selects a community in which
to start his or her business, a critical factor in ensuring success of their
business is the ability to install a satellite dish and its accompanying
technology in a timely manner." VSAT installers complain that they
are "encumbered by a laborious permitting process in a number of jurisdictions."
Installers cite such requirements as engineering studies, soil tests, archeological
studies, and architectural studies that significantly increase installation
cost and delay completion. 21. SBCA states that it has received at least
a thousand calls in the last year from people facing either zoning or covenant
restrictions on residential antenna installation. SBCA also expresses concern
over how these local restrictions might hamper the emergence of new services.
Primestar, a direct-to-home service provider that installs and leases its
antennas, asserts that the record illustrates the need for revising the
rule. USSB, a DBS permittee, states that municipalities have enacted new
regulations to deal with DBS which, at first glance, appear to be more liberal
but still "improperly and unnecessarily burden" technology. It
also cites examples of overly restrictive local regulations included in
comments filed by local governments. DIRECTV, another DBS permittee, states
that the new rule is necessary to protect the emergence of DBS as a competitor
to cable. Midwest Star Satellite offers several specific examples of problems
encountered with C-band antenna installations in the Chicago area. It also
points out that residential users, like commercial users, will often give
up their systems rather than risk the cost of litigation and the fear of
harassment from the municipality. 22. In the Notice, we acknowledged that
evidence indicated that local zoning regulations were inhibiting access
to satellite services in various parts of the country. We tentatively concluded
that local regulation had hampered implementation of existing services and
would likely have a similar effect on developing services. The record included
examples of placement, size, or height restrictions that operate as complete
bans or substantially limit reception. Commenters also complained about
excessive procedural or regulatory costs imposed by the local permitting
authority. Commercial service providers were especially concerned about
the delay often associated with local regulation, stating that when they
are forced to comply with unreasonable local requirements, they often lose
the job to a provider of another type of technology that is not subject
to zoning regulation. 23. We find that the record compiled in response to
the Notice supports our preliminary conclusion. We acknowledge that there
are numerous local jurisdictions in this country and that our evidence relates
to only a small percentage of them. However, we find that this evidence
establishes the existence of a national problem. Local government representatives
fail to show that non federal regulations complained about by satellite
service providers either do not exist or have been changed and are thus
no longer interfering with federal interests. Indeed, even those localities
asserting that the burden placed on antenna installation is usually minimal
acknowledge that their regulations require permits, set-back agreements
and possibly variances. Although the industry does not cite instances of
complete antenna bans, it does cite numerous regulations that are so burdensome
that antennas are rendered useless. Localities also fail to demonstrate
that such regulations are justified by legitimate local objectives. Consequently,
we conclude that our rule must be revised to assure access to satellite
signals and to promote competition between communications services. 3. The
Presumption Approach 24. In the Notice, we chose to take an approach based
on presumptions, rather than either the per se approach urged by industry
representatives or a reasonableness approach that employs no presumptions.
At that time, the primary reason for rejecting the per se approach was our
recognition of the important local interests that would be affected by our
rule. As we stated in the Notice, "The importance and centrality of
the local interests that would be subordinated by a per se approach lead
us to embrace this more moderate alternative at this time . . ." 25.
The record in this proceeding supports our tentative conclusion that a rule
based on presumptions of unreasonableness is less intrusive than a per se
rule, albeit more difficult to administer in some instances. The comments
filed by local government representatives demonstrate great concern about
their continued ability to influence land uses in their communities. It
is precisely because of these concerns that a workable set of rebuttable
presumptions is preferable to a per se rule. 26. Some local government representatives
argue that even our presumptive approach fails to accommodate local interests,
such as protecting health and safety and maintaining property values. With
respect to health and safety concerns, some localities, for example, claim
that the rule will permit installation of antennas that would block a driver's
view of traffic and cause accidents and deaths. Such comments do not fairly
reflect what we have proposed to do. Our rule only presumes unreasonable,
and therefore preempts, regulation of small antennas. Large antennas --
larger than two meters -- are entitled to no presumption of unreasonableness
and any reasonable regulation of such antennas as defined by our new rule,
will avoid federal preemption. Antennas entitled to our presumption are
no larger than many other items often found in yards, such as basketball
hoops, air conditioning units, cable posts, electrical boxes, or mailboxes,
none of which are typically regulated by local zoning. The same is true
for antennas in commercial areas where heating and cooling equipment, dumpsters,
or signs are permitted. Further, even for these smaller antennas, localities
may still impose reasonable safety regulations by rebutting the presumption
of preemption. For antennas larger than one meter (or two meters in commercial
areas), localities can impose reasonable health, safety, or aesthetic regulations
that do not substantially limit reception or impose more than minimally
necessary costs on users. Some set-back from a public road, for example,
would appear to be a reasonable health and safety regulation under our rule
as long as comparable setbacks are required for other visual obstructions.
Finally, for truly unique situations, such as an architecturally historic
area, a waiver procedure is available. Thus, we believe we are not stripping
local governments of their power to protect the health and safety of their
citizens by adopting a presumption of unreasonableness. 27. Some local government
commenters also argue that our proposals will diminish their authority to
protect private property values. One commenter even suggests that the rule
could be construed as a government "taking" in violation of the
Constitution. It goes on to assert, "The proposed rule will create
a diminution of value. Property owners will be economically impacted if
neighbors are free to install unsafe, highly visible media monstrosities
on their lot lines in the front yards. The average home buyer will not purchase,
or at least not pay full market value for property that is negatively impacted
by dangerous and unsightly conditions on neighboring land." This assertion
is not supported by any facts showing that satellite earth station antennas
affect property values. As previously stated, our rule only presumes a regulation
to be unreasonable if it affects very small antennas. Large antennas remain
subject to reasonable aesthetic requirements. Further, commenters have failed
to demonstrate that any diminution of property values is caused by the presence
of small satellite earth station antennas. B. Specific Rule Sections 28.
In crafting our preemption policies, we have attempted to reflect the differences
in the antennas involved and have tried to accommodate the varying local
interests. The main state and local concerns regarding installation of satellite
earth stations relate to aesthetics, health, and safety. These concerns
would appear to be greater for larger antennas, thus the rule permits greater
local regulation for larger antennas. For smaller antennas, local interests
are less compelling and, accordingly, we more narrowly define permissible
local regulation. After reviewing the record, we conclude that the basic
thrust of our proposals is appropriate and will adequately address concerns
of antenna users while accommodating interests of state and local governments.
However, commenters have raised concerns about the clarity of certain portions
of our rule and, accordingly, we made adjustments to the adopted version
to address these problems. 1. Revised Rule Section 25.104: Preemption of
Local Zoning of Earth Stations (a) Any state or local zoning, land-use,
building, or similar regulation that materially limits transmission or reception
by satellite earth station antennas, or imposes more than minimal costs
on users of such antennas, is preempted unless the promulgating authority
can demonstrate that such regulation is reasonable, except that nonfederal
regulation of radio frequency emissions is not preempted by this rule. For
purposes of this paragraph (a), reasonable means that the local regulation:
(1) has a clearly defined health, safety, or aesthetic objective that is
stated in the text of the regulation itself; and (2) furthers the stated
health, safety, or aesthetic objective without unnecessarily burdening the
federal interests in ensuring access to satellite services and in promoting
fair and effective competition among competing communications service providers.
(b)(1) Any state or local zoning, land-use, building, or similar regulation
that affects the installation, maintenance, or use of: (A) a satellite earth
station antenna that is two meters or less in diameter and is located or
proposed to be located in any area where commercial or industrial uses are
generally permitted by nonfederal land-use regulation; or (B) a satellite
earth station antenna that is one meter or less in diameter in any area,
regardless of land use or zoning category shall be presumed unreasonable
and is therefore preempted subject to paragraph (b)(2). No civil, criminal,
administrative, or other legal action of any kind shall be taken to enforce
any regulation covered by this presumption unless the promulgating authority
has obtained a waiver from the Commission pursuant to paragraph (e), or
a final declaration from the Commission or a court of competent jurisdiction
that the presumption has been rebutted pursuant to subparagraph (b)(2).
(2) Any presumption arising from subparagraph (b)(1) of this section may
be rebutted upon a showing that the regulation in question: (A) is necessary
to accomplish a clearly defined and health or safety objective that is stated
in the text of the regulation itself; (B) is no more burdensome to satellite
users than is necessary to achieve the health or safety objective; and (C)
is specifically applicable on its face to antennas of the class described
in subparagraph (b)(1). (c) Any person aggrieved by the application or potential
application of a state or local zoning or other regulation in violation
of paragraph (a) of this section may, after exhausting all nonfederal administrative
remedies, file a petition with the Commission requesting a declaration that
the state or local regulation in question is preempted by this section.
Nonfederal administrative remedies, which do not include judicial appeals
of administrative determinations, shall be deemed exhausted when: (1) the
petitioner's application for a permit or other authorization required by
the state or local authority has been denied and any administrative appeal
and variance procedure has been exhausted; (2) the petitioner's application
for a permit or other authorization required by the state or local authority
has been on file for ninety (90) days without final action; (3) the petitioner
has received a permit or other authorization required by the state or local
authority that is conditioned upon the petitioner's expenditure of a sum
of money, including costs required to screen, pole-mount, or otherwise specially
install the antenna, greater than the aggregate purchase or total lease
cost of the equipment as normally installed; or (4) a state or local authority
has notified the petitioner of impending civil or criminal action in a court
of law and there are no more nonfederal administrative steps to be taken.
(d) Procedures regarding filing of petitions requesting declaratory rulings
and other related pleadings will be set forth in subsequent Public Notices.
All allegations of fact contained in petitions and related pleadings must
be supported by affidavit of a person or persons with personal knowledge
thereof. (e) Any state or local authority that wishes to maintain and enforce
zoning or other regulations inconsistent with this section may apply to
the Commission for a full or partial waiver of this section. Such waivers
may be granted by the Commission in its sole discretion, upon a showing
by the applicant that local concerns are of a highly specialized or unusual
nature. No application for waiver shall be considered unless it specifically
sets forth the particular regulation for which waiver is sought. Waivers
granted in accordance with this section shall not apply to later-enacted
or amended regulations by the local authority unless the Commission expressly
orders otherwise. 2. Clarification regarding transmitting antennas 29. Several
commenters urge that we rearrange the rule to clarify its application to
transmitting antennas. For example, HNS understands that the Commission
intends to give transmitting antennas the same protection as receiving antennas
with the exception of issues related to RF emission. However, HNS asserts
that the structure of the proposed rule, with transmitting facilities not
mentioned at the outset, does not accomplish this objective as clearly as
it should. HNS urges us to restructure the rule and to refer in paragraph
(a) specifically to local regulations that limit transmission as well as
reception. GE also stresses the need to clarify that the rule extends to
transmitting antennas. 30. We agree that a reworded rule would be clearer.
Therefore, the rule we adopt specifically includes transmitting facilities,
with the exception of RF emission hazard regulation, in the scope of the
first paragraph. 3. Operation of Presumptions 31. HNS requests clarification
that if an antenna is within the category covered by the presumption of
unreasonableness, a user can install it without seeking a declaration from
the Commission that the local ordinance is preempted. Then, if the locality
has an objection that is arguably within the purview of a rebuttal, the
local authority can enforce its ordinance by rebutting the presumption as
in subparagraph (b)(2). We agree that in order for the presumptions to be
effective, the burden should fall on the localities to justify regulation
of small antennas. Because such regulation is presumed unreasonable, users
should be free to install antennas covered by the presumption without first
proving the unreasonableness of the local requirement. Accordingly, we have
adopted DIRECTV's suggestion that the words "therefore preempted"
be added to section (b)(1) of the rule.. In addition, we have added language
to assure that local authorities can not take enforcement action until their
regulation is deemed in compliance with our rule. We caution users that
a particular local ordinance may have previously been declared not to be
preempted, either because the local authority has obtained a waiver from
the Commission pursuant to subparagraph (e), or because the local authority
has rebutted the presumption of preemption based on subparagraph (b)(2).
32. Local government representatives claim that the presumptions shift the
burden of persuasion to the locality and that this violates established
state law precedent holding that local laws are presumed valid. These commenters
state that placing the burden on the local government will encourage antenna
users, who do not have to sustain a burden of proof, to file petitions with
the Commission. Commenters' argument that our system of presumptions illegally
shifts justification burdens is not determinative. Our preemption, by its
nature, replaces the state or local law with our federal rule. Moreover,
in adopting our rule, we are establishing a test by which both municipalities
and consumers can determine the applicability of local regulations. Ordinances
that meet this test will be presumed valid unless shown otherwise under
the general test for reasonableness. The presumptions are designed to clarify
for all parties the extent of permissible local regulation and thus should
decrease, not increase, the number of petitions. 33. With respect to the
size of antenna covered by a presumption, the record demonstrates that the
one- and two-meter proposals accurately reflect the current state of the
industry. According to commenters, most DTH services provided by higher-power
satellites use antennas less than one meter in diameter. Likewise for commercial
areas, the two-meter size appears to encompass most antennas used by VSAT
providers. 34. GE urges us to change the geographic designation in the presumption
for two- meter antennas. The rule we proposed limits the presumption to
areas where commercial uses are "generally permitted" and GE asks
that this be changed to "in fact permitted". According to GE,
one of its largest VSAT customers is a national drugstore chain and this
type of facility could be located in an area where commercial uses are not
"generally permitted". GE asserts that if a commercial establishment
is in fact operating in a particular area, it should be permitted to install
a VSAT antenna. We decline to make this change. As GE points out, land-use
authorities sometimes make case-by-case exceptions to allow one or two particular
businesses to operate in a neighborhood where commercial uses are generally
forbidden. They may do so based on very specific proposals (e.g., a drugstore
in a Victorian house) or strict conditions (e.g., on signage or dumpsters)
designed to preserve the neighborhood's non-commercial character. We do
not believe these situations, which are by definition exceptional, should
be subject to a general presumption. Nor do we believe that local balances
already carefully struck for discrete parcels of land should be upset after
the fact by a federal rule that commercial use carries with it the right
to a VSAT antenna. Again, however, these cases are fully subject to our
general preemption rule, stated in section 25.104(a), and a locality that
has not otherwise restricted the trappings of commercial activity in a non-commercial
neighborhood will find it more difficult to justify antenna regulation in
such areas on aesthetic grounds. 35. The presumption against local regulation
can be rebutted by a demonstration of the necessity for health and safety
regulation. MCI suggests that the word "reasonable" be added to
the presumption to assure that local regulations are carefully tailored
to meet their objective. We believe that this addition would add complexity
to the rule and is unnecessary. Under the rule as originally proposed, local
governments are required to be reasonable. A local ordinance, for example,
could not use RF emission hazard concerns as a basis to regulate receive-only
antennas that do not emit radiation. Similarly, safety regulations must
be realistic and not discriminate against satellite earth station antennas.
For example, the city of Plantation, Florida argues that localities in hurricane-prone
areas should have blanket waivers to impose more stringent safety regulations.
However, HNS points out that during Hurricane Andrew, none of its antennas
were lost where the underlying building was not destroyed. According to
HNS, the antennas remained secure while the air conditioning units next
to them were ripped off the roof. If a local government can demonstrate
that a health or safety requirement meets the criteria for rebuttal, its
regulation is not preempted. For example, local regulations that address
require secure antenna mounting, require clearance of electric wires, or
restrict access by children would appear to be reasonable under our rule.
We note that these precautions would probably be taken in any event by consumers
or professional installers. We also emphasize that a locality cannot rebut
the presumption covering small antennas with aesthetic concerns. 36. SBCA
states that larger C-band antennas that range in size from 6 to 7.5 feet
can be disguised as rocks or umbrellas. SBCA suggests that such disguised
antennas be included under the presumption of unreasonable regulation. We
decline to adopt this suggestion as we believe it would complicate the application
of the rule. A size designation is a more objective standard, whereas the
concept of disguise could introduce uncertainty to the rule. We emphasize,
however, that in challenging the reasonableness of particular regulations,
it may well be easier to attack restrictions on antennas that have been
made to look like natural objects or like other non-obtrusive structures
commonly found in residential neighborhoods, at least when those restrictions
are based on aesthetic grounds. 37. We also are changing former sections
(b) and (c) to clarify the relationship between presumption and rebuttal,
and between the rebuttable presumption on one hand and the general reasonableness
standard on the other. First, we have combined paragraphs (b) and (c) of
our proposed rule into one new paragraph (b) governing the entire system
of rebuttable presumptions. Second, we have modified paragraph (b)(1) to
make clear that the presumption of unreasonableness applies only to small
(2 meters or less) satellite antennas. We believe the changes we adopt will
clarify how the system of rebuttable presumption fits together with the
general preemption rule. Therefore, we will change paragraph section (b)(1)
to say "Any state or local zoning, land-use, building, or similar regulation
that affects the installation, maintenance, or use of: (A) a satellite earth
station antenna that is two meters or less in diameter and is located or
proposed to be located in any area where commercial or industrial uses are
generally permitted by nonfederal land-use regulation; or (B) a satellite
earth station antenna that is one meter or less in diameter in any area,
regardless of land use or zoning category shall be presumed unreasonable
and is therefore preempted subject to paragraph (b)(2). No civil, criminal,
administrative, or other legal action of any kind shall be taken to enforce
any regulation covered by this presumption unless the promulgating authority
has obtained a waiver from the Commission pursuant to paragraph (e), or
a final declaration from the Commission or a court of competent jurisdiction
that the presumption has been rebutted pursuant to subparagraph (b)(2)."
4. Revision of reasonableness standard 38. Paragraph (a) of the rule contains
the basic reasonableness test to determine whether a local regulation is
preempted. Our proposal contained several revisions of the old rule: eliminating
the threshold discrimination test, requiring that the locality's legislative
objective be expressly stated, and requiring that the burdens imposed by
the regulation be balanced against the federal interest in promoting competition
in and access to satellite services. 39. Comments filed in response to the
Notice suggested some additions and changes to our proposal. Commenters
were especially concerned about the term "substantial costs" in
paragraph (a). This section would preempt nonfederal regulations that impose
substantial costs on antenna users unless such costs are demonstrably reasonable.
As the Notice explained, "substantial" is not the same as "enough
to be reasonable" and is a low threshold showing that a federal interest
has been impacted in a manner that is "not insignificant." Several
commenters expressed concern that the use of the word "substantial"
does not clearly convey our intent that the financial burden be minimal.
GE, for example, suggests that "material" would be a clearer measure.
SBCA suggests that only "de minimis" costs be permitted. Primestar
and DIRECTV urge that the Commission should preempt all costs or fees for
consumer use antennas. Primestar also argues that when calculating a permissible
fee, a local government must consider services where customers lease antennas
and whose entry costs are necessarily lower than those which require an
up front purchase. Primestar also urges that time burden and service delay
should be factored into a consideration of costs. NTCA argues that if providers
are going to be required to pay for spectrum, additional local costs should
not be permitted. HNS urges adoption of a bright-line test to define substantial
costs. For business use antennas, HNS argues that the following nonfederal
requirements should be deemed substantial: i. Imposition of more that $50
in costs, including governmental fees, engineering or legal fees, and the
cost of any construction or alteration necessitated by the regulation: ii.
being required to wait more than seven days for a permit or other authorization
before installation is allowed; and iii. being required to attend a hearing
or meeting of any kind. 40. Local governments, on the other hand, argue
that the Commission's rule allows them to collect reasonable costs based
on permit and inspection fees so that costs attributable to the satellite
industry be paid by those who benefit from the technology and not be passed
on to the taxpayer in general. One group suggests that the Commission abolish
its own fee system if it preempts local fees. 41. In response to the requests
for greater clarity, we are changing the threshold for costs to "more
than minimal" instead of "substantial". We believe that this
better conveys the nature of the costs we believe should be imposed on antenna
users absent specific justification. Thus, any nonfederal costs including
those related to permitting or installation requirements must be very low
or must be justified by the governmental entity imposing them pursuant to
paragraphs (a)(1) and (2). In addition, any costs imposed on users of small
antennas as defined in paragraph (b)(1) are presumed to be unreasonable
and therefore preempted unless the imposing authority affirmatively rebuts
the presumption using the higher standard of paragraph (b)(2). We believe
that this change will address the concerns of local governments as well.
Under our rule, if a city can demonstrate that circumstances make it necessary
to require a permit, a fee for such a permit may be charged if it reasonably
reflects the city's costs in processing an application. The key words in
this analysis are "reasonable" and "necessary". For
example, it would not appear to be either reasonable or necessary to require
a permit for a consumer-installed, 18-inch DBS antenna and thus a corresponding
fee would also be unwarranted. For a larger antenna, a permitting process
with a required fee might be appropriate as long as the requirements for
the permit and the fee are the minimum necessary to accomplish a permissible
local objective. 42. GE asserts that local governments should be required
to include their legislative objective in the text of the specific regulation
on satellite earth station antennas. It states that this would then ensure
that a regulation's objective is directly related to antennas and is not
merely part of a general building code that may or may not specifically
apply. Texas and Michigan Communities object to this suggestion on the ground
that this will force amendment of many local codes. We agree with GE and
have accordingly changed our proposal to reflect the requirement that the
objective be expressly stated in the text of the antenna regulation. We
believe this will assure that antenna users will be more likely to be aware
of a specific regulation and that localities will more narrowly tailor their
requirements. We also note that, in light of the significant changes in
our rule, many local codes will have to be amended in any event. 43. GE
argues that we should change the standard from "substantially"
limits reception to "materially" limits. We agree that this term
more accurately reflects the limited burden that should be placed on the
use of satellite earth station facilities by local governments. 44. Finally,
the rule we adopt clarifies the federal interests that must not be unnecessarily
burdened by local regulation. As stated in the Notice, there is a strong
federal interest in ensuring access to a variety of communications services
including satellite services, and in adopting pro-competitive regulatory
policies that facilitate such access. In addition, we have clarified how
federal interests should be accommodated. 4. Procedures for Commission review
45. In the Notice, the Commission concluded that it is time to abandon its
policy requiring exhaustion of all remedies in light of the Deerfield case
and because of concerns raised by satellite earth station antenna users.
After meeting with industry representatives prior to the adoption of the
Notice, representatives of local governments acknowledged the need for Commission
review of certain disputes. Accordingly, we proposed procedures for review
of zoning cases after nonfederal administrative remedies have been exhausted.
We also announced our intention to receive, during this rulemaking, petitions
for declaratory rulings on the validity of local ordinances under the 1986
rule. 46. Based on the comments filed and on the five petitions we have
received, the major issue with respect to Commission review is the question
of when administrative remedies have been exhausted. First, parties representing
industry complain that the 90-day waiting period in our proposal is too
long and that local authorities should be able to rule on applications within
30 days. Local governments, on the other hand, assert that 90 days is too
short and that they should not be forced to comply with a specific deadline.
On balance, we adopt our 90-day proposal as a reasonable amount of time
for a local ruling. Local officials need to have time to act within their
own processes. An unreasonably short period could result in a greater volume
of cases filed with the Commission. However, the record supports our conclusion
that there should be a time after which delay becomes unreasonable and local
remedies are not working. We believe that 90 days strikes the appropriate
balance. 47. Local governments have expressed concern that complying with
review procedures will require appearances before the Commission and will
be unduly expensive. We emphasize that our intention is to adopt simple
procedures that require only paper filings -- not personal appearances.
Antenna users and local governments are also free to pursue litigation remedies
in federal or state courts if they wish to forfeit Commission review. In
addition, we disagree with comments that suggest we include procedures to
allow participation of adjacent property owners in disputes before the Commission
as such participation would not be relevant in the context of a determination
of the reasonableness of a particular ordinance as applied. 48. Another
issue that has been raised is whether exhaustion of nonfederal remedies
includes exhaustion of available variance procedures. The rule we are adopting
requires antenna users to exhaust all nonfederal administrative remedies
before seeking Commission review of a local zoning decision. We strongly
believe that local governments need to have the opportunity to review their
own land-use decisions. Exhaustion, however, has been defined in a variety
of ways. Subparagraph (c)(1) outlines the most straightforward type of exhaustion
-- a final denial of a necessary permit with no possibility of appeal. For
purposes of this path to exhaustion, we think it is appropriate to require
users to apply for variances if necessary. However, there are other paths
outlined in subparagraphs (c)(2) through (4), and the mere availability
of a variance procedure has no effect upon these other paths. 49. Industry
representatives suggest that the cost threshold for exhaustion be lowered.
MCI suggests that costs not exceed those for a typical over-the-air antenna
or the antenna user can come to the Commission. SBCA suggests that we eliminate
the necessity that a potential petitioner actually be informed about costs
and that a good faith belief that he will incur excessive costs is sufficient.
We decline to adopt both of these suggestions because we believe that they
would unduly circumvent the power of local governments to act before we
become involved. 50. Finally, R.J. Abbot suggests that the Commission institute
a non-compliance penalty for local governments. We do not believe a penalty
is necessary in light of our review procedures. Mr. Abbot also suggests
that the Commission adopt a complaint form, and we agree that such a form
would be very helpful. However, we intend to gain some additional experience
with review procedures before proposing a form and would consider this issue
at a later time. We are adopting a requirement that factual allegations
be supported by affidavit. 6. Waivers 51. Local governments have also requested
that we clarify our waiver standard and enumerate some examples of what
circumstances would justify a waiver of our rule. We do not agree with some
local representatives that all zoning ordinances would generally qualify
for waivers because they address peculiar or unique situations. In fact,
the opposite is true. Local legislation is generally directed at the common
uses of property in particular zones. Some examples of circumstances that
might warrant consideration of a waiver, depending on the circumstances
and on how other types of antennas or modern accoutrements are treated,
are genuine historic districts, waterfront property, or environmentally
sensitive areas. We emphasize that this list is not exhaustive nor is it
determinative. Localities must demonstrate something peculiar or unique
about the situation to justify a waiver. 7. RF Emissions 52. A number of
commenters urge the Commission to preempt all local regulations related
to RF emissions. Because we proposed not to preempt this type of nonfederal
regulation, the record in this proceeding is insufficient to take action
on this issue. Parties wishing to raise these concerns should do so by formally
requesting additional rulemaking action. We note, however, that in reviewing
local regulations under revised Section 25.104, we will examine the reasonableness
of any health or safety regulation, and that we are not aware of any reasonable
health concerns associated with installation of receive-only antennas that
do not emit radiation. 8. Miscellaneous issues 53. Several commenters urge
us to expand the scope of this proceeding to include antennas used for other
than satellite services. As we have stated previously, we decline to broaden
the issues here to include other services. This proceeding is directed specifically
to Section 25.104 and our proposals to revise it. Several other petitions
to preempt local regulation of other types of antennas are pending with
the Commission and concerns about other services should be discussed in
the context of these petitions. In addition, as required by section 207
of the 1996 Act, the Commission does plan to initiate a separate rulemaking
proceeding to adopt rules relating to MMDS and over-the-air broadcast antennas.
54. Similarly, we have consistently declined to consider the preemption
of private covenants and deed restrictions that ban or inhibit installation
of satellite antennas. However, the 1996 Act directs the Commission to now
undertake to prohibit the enforcement of such restrictions. We therefore
revisit this question in the Further Notice of Proposed Rulemaking below.
Further Notice of Proposed Rulemaking 55. On February 1, 1996, both houses
of Congress passed the Telecommunications Act of 1996. The President signed
it into law on February 8, 1996. Section 207 of the 1996 Act states: Within
180 days after the date of enactment of this Act, the Commission shall,
pursuant to section 303 of the Communications Act of 1934, promulgate regulations
to prohibit restrictions that impair a viewer s ability to receive video
programming services through devices designed for over-the-air reception
of television broadcast signals, multichannel multipoint distribution service,
or direct broadcast satellite services. We note that the scope of this Notice
is limited to the implementation of section 207 as it relates to restrictions
that impair a viewer's ability to receive video programming services through
devices designed for direct broadcast satellite services. We will address
the other services specified in section 207 in a separate proceeding. 56.
Section 207 is not limited by its terms to governmental restrictions like
zoning ordinances; rather it speaks simply to restrictions that impair a
viewer s ability to receive video programming. The House Committee Report
explains that this House-originated section was intended to preempt enforcement
of State or local statutes and regulations, or State or local legal requirements;
or restrictive covenants or encumbrances . . . . Existing regulations, including
but not limited to, zoning laws, ordinances, restrictive covenants or homeowners
association rules, shall be unenforceable to the extent contrary to this
section. 57. The legislative history also sheds light on Congress s use
of the phrase direct broadcast satellite services in section 207. The House
Report explains that the `Direct Broadcast Satellite Service is a specific
service that is limited to higher power DBS satellites. This service does
not include lower power C-band satellites, which require larger dishes in
order for subscribers to receive their signals. Thus, this section does
not prevent the enforcement of State or local statutes and regulations,
or State or local legal requirements, or restrictive covenants or encumbrances
that limit the use and placement of C-band satellite dishes. 58. Reading
section 207 in light of its legislative history, we see four issues about
how to implement this section within the framework of our newly adopted
preemption rule: (1) Does our newly adopted presumption for antennas smaller
than one meter preempt nonfederal governmental restrictions as fully as
Congress intended? (2) Does our presumption for all antennas smaller than
one meter faithfully reflect Congress s focus on direct broadcast satellite
services (i.e. does the legislation mandate that our regulations apply to
certain types of services rather than to certain size earth station antennas)?
(3) Does Congress's focus on DBS antennas suggest that we should not preempt
local regulation of other services, such as VSAT and C-band services? And
(4) how should we implement Congress s intent to prevent enforcement of
private restrictions such as deed covenants and homeowners associations?
We address these questions in turn. 59. First, section 207 clearly recognizes
that state and local regulation can and does interfere with the federal
interest in widespread access to all forms of video delivery, and that preemption
by this Commission is the appropriate response to such interference with
the federal interest. We tentatively conclude that insofar as governmental
restrictions are concerned, our newly adopted preemption rule is a reasonable
way to implement Congress's intent with respect to DBS antennas. It might
be argued that by seeking to prohibit all restrictions that impair reception
of video programming, Congress set a higher standard than we have adopted.
We note, however, that Congress did not simply preempt all restrictions
that impair a viewer s ability to receive video programming services from
DBS providers. Instead, Congress required that the Commission shall, pursuant
to section 303 of the Communications Act of 1934, promulgate regulations
to prohibit restrictions that impair a viewer's ability to receive video
programming services" from DBS providers (emphasis added). Section
303, authorizes the Commission to issue rules and regulations "as public
convenience, interest, or necessity requires." Because Congress invoked
the Commission's normal rulemaking authority, and because Congress did not
prohibit all regulations but rather only those that impaired reception,
we think accommodation of local concerns remains permissible under the statute.
We think it reasonable to infer that Congress did not mean, for example,
to prevent the Commission from preserving reasonable local health and safety
regulations; or from granting waivers where unusual circumstances require
specialized local regulation. We seek comment, however, on whether there
is any procedural mechanism that might further Congress's special concern
with DBS even more effectively than the presumption approach we have adopted.
For example, we seek comment whether, for DBS in particular, a prospective
approach relying solely on waivers would be preferable to our retrospective
system of rebuttable presumptions. We also seek comment on any respect in
which our newly adopted section 25.104 fails to implement the 1996 Act.
60. Second, we tentatively conclude that our presumed preemption for antennas
smaller than one meter is consistent with Congress s definition of direct
broadcast satellite services. Our one-meter presumption would include not
only services that are technically DBS, but also medium power direct-to-home
services (such as that offered by Primestar) that are technically part of
the Fixed Satellite Service even though they use antennas only a few inches
larger than true DBS antennas. We do not believe Congress intended for these
medium power systems to face local regulatory burdens not shared by their
true DBS counterparts. The legislative history indicates that Congress intended
for section 207 to apply to almost all providers of wireless video programming;
among such services, only direct-to- home systems using large, C-band antennas
were excluded. We interpret this language as evidence that Congress agreed
with our initial determination that antenna size is a major variable to
be considered in crafting preemption rules, and that the much larger C-band
antennas should be subject to greater local regulation than the smaller
DBS antennas. It does not follow that the much smaller size difference between
an 18-inch DBS antenna and a slightly larger FSS antenna should also trigger
differential treatment, and we tentatively conclude that the protection
of section 207 should extend to the receipt of video programming over any
antenna smaller than one meter. Again, we seek comment on this conclusion.
Finally, although DBS service is currently provided using antennas smaller
than one meter, in the future, service to areas outside the continental
U.S. may be provided using larger antennas. We seek comment on how to accommodate
this possibility. 61. Third, we tentatively conclude that the 1996 Act does
not require us to repeal or otherwise modify our preemption rule insofar
as it affects services other than those that deliver video programming or
antennas larger than one meter. All satellite antennas, of whatever size
and for whatever service, have been protected by our preemption rule since
1986. If Congress wished to preclude the Commission from enforcing this
preemption rule with respect to services other than direct-to-home video,
it could have done so expressly. It did not. Even the House Committee Report
language discussed above, which expressly distinguishes between the "Direct
Broadcast Satellite Service" and "lower power C-band satellites,"
only states that "this section [i.e., section 207 itself] does not
prevent the enforcement of State or local statutes and regulations, or State
or local legal requirements, or restrictive covenants or encumbrances that
limit the use and placement of C-band satellite dishes. This language simply
does not address our limited, preexisting preemption of unreasonable restrictions
on C-band video reception -- or on VSAT or other services. We also seek
comment on this tentative conclusion. 62. Finally, we tentatively conclude
that section 207 of the 1996 Act requires us to promulgate a new rule prohibiting
enforcement of nongovernmental restrictions on small- antenna video reception.
We therefore propose to add the following paragraph (f) to section 25.104
of our rules: (f) No restrictive covenant, encumbrance, homeowners' association
rule, or other nongovernmental restriction shall be enforceable to the extent
that it impairs a viewer's ability to receive video programming services
over a satellite antenna less than one meter in diameter. This proposed
rule closely tracks the language of section 207, as amplified by the House
Committee Report. The per se nature of the rule does treat private restrictions
differently from restrictions imposed by state or local governments. However,
as we have recognized throughout this proceeding, state and local land-use
regulations have traditionally been near the core of those governments'
general police powers. The presumption in favor of small antennas can be
rebutted only by health or safety concerns. Non-governmental restrictions
would appear to be directed to aesthetic considerations. Thus, we tentatively
conclude that it is appropriate to accord private restrictions less deference
on this basis. We seek comment on this conclusion and on all aspects of
our proposed rule. Conclusion 63. We believe that the rule adopted today
furthers the public interests in promoting competition between service providers
and in assuring wide access to communications facilities. It does so without
unduly interfering with local governments interests in regulating land-use.
In addition, the Further Notice of Proposed Rulemaking reflects Congress's
newly mandated objective. Ordering Clauses 64. Accordingly, IT IS ORDERED
that the revisions to 25.104 of the Commission's rules as set out in Appendix
B are hereby adopted. 65. The analysis required pursuant to Section 606
of the Regulatory Flexibility Act, 5 U.S.C. 608, is contained in Appendix
C attached. 66. IT IS FURTHER ORDERED that the amendments to 47 CFR 25.104
adopted in the Report and Order that comprises paragraphs 1 through 52 of
this Report and Order and Further Notice of Proposed Rulemaking WILL BECOME
EFFECTIVE thirty (30) days after publication in the Federal Register. This
action is taken pursuant to Sections 1, 4(i), 4(j), 7, and 309(j) of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j),
157, and 309(j). The Federal Communications Commission as part of its continuing
effort to reduce paperwork burden invites the general public and other Federal
agencies to take this opportunity to comment on the information collection
in the adopted rule, as required by the Paperwork Reduction Act of 1995.
Comments concerning the Commision's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for minimizing
respondent burden, including the use of automated information techniques,
are requested. The Commission has requested an emergency Office of Management
& Budget review of this collection with an approval by April 10, 1996. 67.
IT IS FURTHER ORDERED that pursuant to the Communications Act of 1934, 47
U.S.C. 151, 154, 303(r), 403, and 405, NOTICE IS HEREBY GIVEN and COMMENT
IS SOUGHT regarding the proposals, discussion, and statement of issues in
the Further Notice of Proposed Rulemaking that comprises paragraphs 55 through
62 of this Report and Order and Further Notice of Proposed Rulemaking. 68.
This is a non-restricted notice and comment rulemaking proceeding. Ex parte
presentations are permitted, except during the Sunshine Agenda period, provided
they are disclosed as provided in Commission rules. See generally 47 C.F.R.
1.1202, 1.1203, and 1.1206(a). 69. As required by Section 603 of the Regulatory
Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility
Analysis (IRFA) of the expected impact on small entities of the proposals
suggested in this document. The IRFA is set forth in Appendix III. Written
public comments are requested on the IRFA. These comments must be filed
in accordance with the same filing deadlines as comments on the rest of
the Notice, but they must have a separate and distinct heading designating
them as responses to the Initial Regulatory Flexibility Analysis. 70. Pursuant
to applicable procedures set forth in sections 1.415 and 1.419 of the Commission's
Rules, 47 C.F.R. 1.415 and 1.419, interested parties may file comments
on or before April 15, 1996 and reply comments on or before May 6, 1996.
To file formally in this proceeding, you must file an original and five
copies of all comments, reply comments, and supporting comments. If you
want each Commissioner to receive a personal copy of your comments, you
must file an original plus nine copies. You should send comments and reply
comments to Office of the Secretary, Federal Communications Commission,
Washington, D.C. 20554. Comments and reply comments will be available for
public inspection during regular business hours in the FCC Reference Center
of the Federal Communications Commission, 1919 M Street, N.W., Washington,
D.C. 20054. For further information contact Rosalee Chiara at (202) 418-0754.
71. IT IS FURTHER ORDERED that the Secretary shall send a copy of this Report
and Order and Further Notice of Proposed Rulemaking to the Chief Counsel
for Advocacy of the Small Business Administration in accordance with paragraph
603(a) of the Regulatory Flexibility Act, Pub. L. No. 95-354, 94 Stat. 1164,
5 U.S.C. 601 et seq. (1981). FEDERAL COMMUNICATION COMMISSION William F.
Caton Acting Secretary Appendix I Commenter List Comments: due by July 14,
1995 Abbott, Robert J. (6/28/95) ACS Enterprises, Inc. ALLTEL Mortgage Information
Services (formerly Computer Power, Inc. -CPI) (7/11/95) Association for
Maximum Service Television, Inc. B&H Antenna Systems Bell Atlantic Burke
Enterprises (7/13/95) Cannon Township Board, Kent County, Michigan Comsat
Video Enterprises, Inc. Dallas, City of (on behalf of Local Communities)
DIRECTV Duncan, Weinberg, Miller & Pembroke, P.C. (representing about 100
local and state govt) ESPN, Inc. GE American Communications, Inc. Home Box
Office Hughes Network Systems, Inc. Hughes Communications Galaxy, Inc. Maine
Municipal Association Michigan and Texas Communities Midwest Star Satellite
Muskegon, MI, City of National Association of Broadcasters National Rural
Telecommunications Cooperative National Telephone Cooperative Association
Plantation, City of PRIMESTAR Partners L.P. Satellite Broadcasting and Communications
Association of America Sony Electronics Inc. United States Satellite Broadcasting
Company, Inc. Wharf Cluster Association, The Wireless Cable Association
International, Inc. Reply Comments (due August 15, 1995): American Planning
Association Coconut Creek, FL (City of) Consumer Electronics Group of the
Electronics Industries Association Coral Gables, FL (City of) -- David J.
Russ, AICP, Planning Director Hughes Network Systems, Inc. Local Communities
(cities of Dallas, TX; Denton, TX, et. al) Madison Heights, MI MCI Telecommunications
Corporation Michigan & Texas Communities National Rural Telecommunications
Cooperative National Association of Broadcasters Phillips Electronics N.A.
Corporation and Thomas Consumer Electronics, Inc. PRIMESTAR Partners L.P.
Sanibel, FL (City of) Satellite Broadcasting and Communications Association
of America United States Satellite Broadcasting Company, Inc. Ex parte/late
filed: Satellite Broadcasting and Communications Association - response
to Michigan & Texas (8/29/95) Michael Jeffers (9/5/95) Assorted Letters
(various dates): Alfe, John ALLTEL Alpena, MI, City of Amoco Corporation
Ann Arbor, MI, City of Arlington, TX AutoZone B & H Antenna Systems Baldwin
Township, MI Belding, MI, City of Benton Charter Township, MI Berryman,
Jim, Senator, State of Michigan Birmingham, MI, City of Bloomfield Township,
MI Brownstown, MI, Charter Township of Builders Square Burke Enterprises
Burleson, TX, City of Calumet, MI, Village of Cedar Creek Township, MI Charlevoix,
MI, City of Chelsea, MI, Village of Clinton, MI, Charter Township of Clinton
Village Office, MI Coldwater, MI, City of Collier County Government, FL
Concord, MI, Village of Cracker Barrel Old Country Store CVS Headquarters
Dearborn, MI, City of Denver, CO, City and County of Dept. of Environmental
Protection, ME Durham, NC East Tawas, MI, City of Edward D. Jones & Co.
Ely Township, MI Ford Motor Company Forsyth Township, MI Frenchtown Charter
Township, MI Gap Inc. Gaylord, MI Georgetown Charter Township, MI Glen Rose,
TX, City of Grand Haven Charter Township, MI Harrison, MI, Charter Township
of Highland, MI, Township of Howard County, MD, Department of Planning & Zoning
Hoyt Lakes, MN Hudsonville, MI, City of Huron Charter Township, MI Independence,
MI, Charter Township of Indianapolis, IN, Cable Communications Agency InterLink
Satellite Services Irish Beach (CA) residents Iron Mountain, MI, City of
Ishpeming, MI, City of Keene, TX Keller, TX Kentwood, MI, City of Lansing,
MI, Planning Board Little Canada, MN, City of Livonia, MI, City of Marquette
City Planning Commission, MI Metropoliton Dade County, FL, Consumer Services
Department Microwave, Dish & Cable, Inc. Milpitas, CA, City of Minnesota
Association of Community Telecommunications Administrators (Macta) Muskegon,
MI, City of Oscoda, MI (Charter Township) Otsego, MI, City of Paw Paw, MI,
Village of Pembroke Pines, FL, City of Plano, TX, City of Portage, MI, City
of Prince Georges County, MD Resort Township, MI Richmond, MI River Oaks,
TX, City of Robinson Township, MI Rockford, MI, City of Royal Oak, MI, City
of Saline, MI, City of Sarasota, FL, City of Satellite Enclosures, Inc.
Service Merchandise Shawnee, KS, City of Shelby, MI, Charter Township of
Southwest Surburban Cable Commission Southwestern Oakland Cable Commission
Spring Lake, MI, Village of Springfield, MO, City of St. Peters, MO, City
of St. Louis, MO, City of Studio 8 - McCausland, Teri Target Stores, Inc.
Tilden Township, MI Traverse City, MI, City of Troy, MI, City of Van Buren,
MI, Charter Township of Vidcom Corporation Watauga, TX, City of Watertown
Charter Township, MI Waxahachie, TX, City of Wayland Township, MI WINCOM
Systems, Inc. Wohlgemuth, Arlene, State Representative, State of Texas,
House of Representatives Wyoming, MI, City of Yankee Springs, MI, Township
of Zeeland Charter Township, MI Congressional letters in IB Doc. 95-59:
Barcia, James (U.S. House-MI) Bonior, David (U.S. House-MI) Camp, Dave (U.S.
House-MI) Dingell, John (U.S. House-MI) Frost, Martin (U.S. House-TX) -
(forwarded letter - Waxahachie, TX) Graham, Bob (U.S. Senate-FL) - (forwarded
letter - Sarasota, FL) Gramm, Phil (U.S. Senate-TX) - Gramm, Phil (U.S.
Senate-TX) - (forwarded letter - Keene, TX) Gramm, Phil (U.S. Senate-TX)
- (forwarded letter - Waxahachie, TX) Helms, Jesse (U.S. Senate-NC) Hancock,
Mel (U.S. House-MO) Hutchinson, Kay (U.S. Senate-TX) Levin, Carl (U.S. Senate-MI)
Lugar, Richard (U.S. Senate-IN) Mack, Connie (U.S. Senate-FL) - (forwarded
letters-Sarasota and Collier County, FL) Minge, David (U.S. House-MN) Rivers,
Lynn (U.S. House-MI) Upton, Fred (U.S. House-MI) - (forwarded Otsego, MI)
Wellstone, Paul (U.S. Senate-MN) Appendix II For the reasons set forth in
the Report and Order, the Federal Communications Commission amends Title
47, Part 25 of the Code of Federal Regulations, as follows: 1. The authority
citation for Part 25 continues to read as follows: AUTHORITY: Sections 25.101
to 25.601 issued under Sec. 4, 48 Stat. 1066, as amended; 47 U.S.C. 154.
Interpret or apply secs. 101-104, 76 Stat. 416-427; 47 U.S.C. 701-744; 47
U.S.C. 554. 2. Section 25.104 is revised to read as follows: Section 25.104:
Preemption of Local Zoning of Earth Stations (a) Any state or local zoning,
land-use, building, or similar regulation that materially limits transmission
or reception by satellite earth station antennas, or imposes more than minimal
costs on users of such antennas, is preempted unless the promulgating authority
can demonstrate that such regulation is reasonable, except that nonfederal
regulation of radio frequency emissions is not preempted by this rule. For
purposes of this paragraph (a), reasonable means that the local regulation:
(1) has a clearly defined health, safety, or aesthetic objective that is
stated in the text of the regulation itself; and (2) furthers the stated
health, safety or aesthetic objective without unnecessarily burdening the
federal interests in ensuring access to satellite services and in promoting
fair and effective competition among competing communications service providers.
(b)(1) Any state or local zoning, land-use, building, or similar regulation
that affects the installation, maintenance, or use of: (A) a satellite earth
station antenna that is two meters or less in diameter and is located or
proposed to be located in any area where commercial or industrial uses are
generally permitted by nonfederal land-use regulation; or (B) a satellite
earth station antenna that is one meter or less in diameter in any area,
regardless of land use or zoning category shall be presumed unreasonable
and is therefore preempted subject to paragraph (b)(2). No civil, criminal,
administrative, or other legal action of any kind shall be taken to enforce
any regulation covered by this presumption unless the promulgating authority
has obtained a waiver from the Commission pursuant to paragraph (e), or
a final declaration from the Commission or a court of competent jurisdiction
that the presumption has bee rebutted pursuant to subparagraph (b)(2). (2)
Any presumption arising from subparagraph (b)(1) of this section may be
rebutted upon a showing that the regulation in question: (A) is necessary
to accomplish a clearly defined health or safety objective that is stated
in the text of the regulation itself; (B) is no more burdensome to satellite
users than is necessary to achieve the health or safety objective; and (C)
is specifically applicable on its face to antennas of the class described
in paragraph (b)(1). (c) Any person aggrieved by the application or potential
application of a state or local zoning or other regulation in violation
of paragraph (a) of this section may, after exhausting all nonfederal administrative
remedies, file a petition with the Commission requesting a declaration that
the state or local regulation in question is preempted by this section.
Nonfederal administrative remedies, which do not include judicial appeals
of administrative determinations, shall be deemed exhausted when (1) the
petitioner's application for a permit or other authorization required by
the state or local authority has been denied and any administrative appeal
and variance procedure has been exhausted; (2) the petitioner's application
for a permit or other authorization required by the state or local authority
has been on file for ninety days without final action; (3) the petitioner
has received a permit or other authorization required by the state or local
authority that is conditioned upon the petitioner's expenditure of a sum
of money, including costs required to screen, pole-mount, or otherwise specially
install the antenna, greater than the aggregate purchase or total lease
cost of the equipment as normally installed; or (4) a state or local authority
has notified the petitioner of impending civil or criminal action in a court
of law and there are no more nonfederal administrative steps to be taken.
(d) Procedures regarding filing of petitions requesting declaratory rulings
and other related pleadings will be set forth in subsequent Public Notices.
All allegations of fact contained in petitions and related pleadings must
be supported by affidavit of a person or persons with personal knowledge
thereof. (e) Any state or local authority that wishes to maintain and enforce
zoning or other regulations inconsistent with this section may apply to
the Commission for a full or partial waiver of this section. Such waivers
may be granted by the Commission in its sole discretion, upon a showing
by the applicant that local concerns of a highly specialized or unusual
nature. No application for waiver shall be considered unless it specifically
sets forth the particular regulation for which waiver is sought. Waivers
granted in accordance with this section shall not apply to later-enacted
or amended regulations by the local authority unless the Commission expressly
orders otherwise. Appendix III Initial Regulatory Flexibility Analysis Reason
for Action The rulemaking is initiated to obtain comment on the proposed
changes to the Commission's satellite antenna preemption rule, 47 CFR 25.104.
Objectives The Commission seeks to evaluate whether the proposed changes
to the satellite antenna preemption rule will facilitate the installation
of antennas and assist in the development of satellite based technologies.
Legal Basis The proposed action is authorized under Sections 4 (i) and 303
(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154 (i) and
303 (r), Section 207 of the 1996 Telecom Act Reporting, Recordkeeping, and
Other Compliance Requirements Private restrictions on satellite antennas
would be preempted. Federal Rules that Overlap, Duplicate or Conflict With
These Requirements None Description, Potential Impact and Number of Small
Entities Involved Any policies or regulations adopted in this proceeding
could affect small businesses that install or use satellite antennas. Any
Significant Alternatives Minimizing the Impact on Small Entities Consistent
With the Stated Objectives This Notice solicits comments on any suggested
alternatives.