[Federal Register Volume 63, Number 234 (Monday, December 7, 1998)]
[Rules and Regulations]
[Pages 67422-67430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32362]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[CS Docket No. 96-83; FCC 98-214]
Preemption of Local Zoning Regulation of Satellite Earth Stations
and Restrictions on Over-the-Air Reception Devices: Television
Broadcast Service and Multichannel Multipoint Distribution Service
AGENCY: Federal Communications Commission.
ACTION: Final rule; petition on reconsideration.
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SUMMARY: This Order on Reconsideration affirms and clarifies the Over-
the-Air Reception Devices Rule, which prohibits governmental and non-
governmental restrictions that impair a viewer's ability to receive
video programming through devices designed for over-the-air reception
of DBS, MDS, or television broadcast signals. This Order resolves
petitions for reconsideration of the Preemption of Restrictions on
Over-the-Air Reception Devices Report and Order (CS Docket No. 96-83,
FCC 96-328, 61 FR 46557) by reaffirming and clarifying certain parts of
the rule.
EFFECTIVE DATES: January 6, 1999, except Sec. 1.4000(d) and (e) contain
information collection requirements that will become effective February
16, 1999 following approval by the Office of Management and Budget,
unless timely notice is published in the Federal Register. The
Commission will publish a document in the Federal Register announcing
the effective dates for those sections. Written comments by the public
on the modified information collection requirements are due on or
before February 5, 1999. If you anticipate that you will be submitting
comments on the modified information collection requirements, but find
it difficult to do so within the period of time allowed by this notice,
you should advise Judy Boley, listed in the address section, as soon as
possible.
ADDRESSES: A copy of any comments on the modified information
collection requirements contained herein should be submitted to Judy
Boley, Federal Communications, Room C1804, 445 12th St., S.W.,
Washington, DC 20554 or via Internet to jboley@fcc.gov.
FOR FURTHER INFORMATION CONTACT: Eloise Gore at (202) 418-1066 or via
internet at egore@fcc.gov or Darryl Cooper at (202) 418-1039 or via
internet at dacooper@fcc.gov. For additional information concerning the
modified information collection requirements contained in the Order on
Reconsideration contact Judy Boley at (202) 418-0214 or via internet at
jboley@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Order
on Reconsideration, CS Docket No. 96-83, adopted August 27, 1998 and
released September 25, 1998. The full text of this decision is
available for inspection and copying during normal business hours in
the FCC Reference Center (Room 239), 1919 M Street, NW, Washington,
D.C. 20554, or may be purchased from the Commission's copy contractor,
International Transcription Service (``ITS''), (202) 857-3800, 1231
20th Street, NW, Washington, D.C. 20036, or may be reviewed via
internet at http://www.fcc.gov/Bureaus/Cable/WWW/csb.html. For copies
in alternative formats, such as braille, audio cassette or large print,
please contact Sheila Ray at ITS.
[[Page 67423]]
Paperwork Reduction Act
The requirements contained in this Order on Reconsideration have
been analyzed with respect to the Paperwork Reduction Act of 1995 (the
``1995 Act'') and would impose modified information collection
requirements on the public. As part of its continuing effort to reduce
paperwork burdens, we invite the general public to take this
opportunity to comment on the information collection requirements
contained in this Order on Reconsideration, as required by the
Paperwork Reduction Act of 1995, Public Law 104-13. Public comments are
due 60 days from date of publication of this Order on Reconsideration
in the Federal Register and then implementation of any modified
information collection requirements will be subject to approval by the
Office of Management and Budget (``OMB'') as prescribed by the 1995
Act. Comments should address: (a) whether the collection of information
is necessary for the proper performance of the functions of the
Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
OMB Approval Number: 3060-0707.
Title: Over-the-Air Reception Devices.
Type of Review: Revision of a currently approved collection.
Respondents: Individuals, state and local governments.
Number of Respondents: 320.
Estimated Time Per Response: 2-6 hours.
Frequency of Response: On occasion.
Total Annual Burden to Respondents: 1,240 hours.
Total Annual Cost to Respondents: $138,000.
Needs and Uses: Petitions for waivers of the Section 207 rules are
used by the Commission to determine whether the state, local or non-
governmental regulation or restriction is unique in a way that
justifies waiver of our rules prohibiting restrictions on the use of
over-the-air reception devices. Petitions for declaratory rulings
pursuant to the Section 207 rules are used by the Commission to
determine whether the state, local or non-governmental regulation or
restriction is preempted.
Synopsis of Order on Reconsideration
Introductory Background
1. In the Order on Reconsideration, the Commission grants in part
and denies in part petitions for reconsideration of the Commission's
implementation of section 207 of the Telecommunications Act of 1996
(``1996 Act'') (Pub. L. 104-104, 110 Stat. 114 (Feb. 8, 1996)) in its
Report and Order, Memorandum Opinion and Order, and Further Notice of
Proposed Rulemaking (``Report and Order'' and ``Further Notice'')
released on August 6, 1996 (In re Preemption of Local Zoning Regulation
of Satellite Earth Stations, and In re Implementation of Section 207 of
the Telecommunications Act of 1996, Restrictions on Over-the-Air
Reception Devices: Television Broadcast Service and Multichannel
Multipoint Distribution Service, IB Docket No. 95-59, CS Docket No. 96-
83 (consolidated), 61 FR 46557 September 4, 1996). The Report and Order
adopted 47 CFR 1.4000 (the ``Section 207 rules''), that generally
prohibits both governmental and nongovernmental restrictions that
impair the installation, maintenance or use of over-the-air reception
devices covered by Section 207 (``Section 207 devices''), unless the
restriction is necessary for safety or historic preservation reasons
and is no more burdensome than necessary to achieve those objectives.
Section 207 expressly covers over-the-air reception devices used to
receive television broadcast signals (``TVBS''), multichannel
multipoint distribution service (``MMDS''), and direct broadcast
satellite services (``DBS''). The rules implementing Section 207 also
cover: (1) any type of multipoint distribution service, including not
only MMDS but also instructional television fixed service (``ITFS'')
and local multipoint distribution service (``LMDS''); (2) medium-power
satellite services using antennas of one meter or less, even though
such services may not be technically defined as DBS elsewhere in the
Commission's rules; and (3) DBS antennas of over one meter in Alaska
(smaller DBS antennas do not work in Alaska). Under the rules the
Commission promulgated pursuant to Section 207, a restriction impairs a
viewer's Section 207 rights if it (1) unreasonably delays or prevents
installation, maintenance, or use of a covered Section 207 reception
device, (2) unreasonably increases the costs of installation,
maintenance or use of a covered Section 207 reception device, or (3)
precludes reception of an acceptable quality signal by the device. In
addition, the rules create exceptions for restrictions that promote
safety objectives and historic preservation.
2. Seven petitions for reconsideration of the Report and Order were
filed raising approximately 15 issues for reconsideration. In this
Order on Reconsideration, the Commission
(1) reaffirms the decision not to prohibit all restrictions on a
viewer's ability to install, maintain and use Section 207 reception
equipment;
(2) denies a petition to revise the safety exception to apply only
to ``compelling'' safety objectives; adopts a proposal to remove the
appearance of a device from the factors examined to determine the
validity of a safety objective; and revises the Section 207 rules to
examine how a safety objective treats other objects that pose a similar
or greater safety risk;
(3) denies a request to exclude nongovernmental entities from using
the safety exception;
(4) reaffirms the decision not to exercise exclusive jurisdiction
over the enforcement of our Section 207 rules at this time;
(5) reaffirms the decision that, based on the current record, the
permit requirements of the Building Officials & Code Administrators
International, Inc. (``BOCA'') code are reasonable safety restrictions;
(6) reaffirms that permit requirements designed to enforce
placement restrictions are preempted by our rules;
(7) declines to adopt a per se restriction on DBS antenna painting
requirements;
(8) adopts a proposal that a viewer be given at least 21 days
during which to comply with a court or Commission order upholding a
restriction before any fine or penalty may be imposed if the viewer's
claim is not frivolous;
(9) reaffirms the standard for signal degradation that qualifies as
an impairment under the Section 207 rules;
(10) denies a request that the Section 207 rules protect certain
antennas not specifically listed in the Section 207 rules and concludes
that a proponent of a new antenna must make a particular showing that
the antenna should be covered by the Section 207 rules;
(11) adopts a proposal that the Section 207 rules protect antennas
that have only transmission capability if these transmission antennas
are used in conjunction with antennas that receive video programming;
(12) denies a request to revise the historic preservation exception
to eliminate from its protection districts eligible to be listed on the
National Register of Historic Places, and amends the rules to clarify
the exception to include historic properties as they are
[[Page 67424]]
defined in the National Historic Preservation Act;
(13) denies a petition seeking a statement that any fee for
installing a Section 207 device is unreasonable and declines to set a
maximum cost that regulations may impose on installation that will
impair, but clarifies that certain fees are unreasonable;
(14) clarifies that petitions for declaratory ruling and petitions
for waiver must be served on all interested parties;
(15) revises the Section 207 rules to include certain statements
made in the Report and Order;
(16) clarifies the rights of a tenant under the Section 207 rules
where the tenant has the permission of the property owner to install an
antenna;
(17) clarifies that a viewer with a direct or indirect ownership
interest in property over which the viewer exercises exclusive use is
protected by the Section 207 rules even though the viewer may not
exercise exclusive control over the property; and
(18) clarifies that an association or a landlord may prohibit
viewers from installing individual Section 207 devices under the
Section 207 rules if the association or a landlord provides the tenant
access to a central antenna facility that does not impair the viewers'
rights under the Section 207 rules.
Conclusions
Not all antenna restrictions are preempted
3. Two petitions for reconsideration argued that the Commission
improperly failed to preempt all restrictions on viewers' ability to
install, maintain or use a reception device covered by Section 207. In
this Order, the Commission reaffirms the conclusion in the Report and
Order that Congress intended that the Commission exercise its
discretion when determining which restrictions should be preempted
under Section 207. It cannot have been Congress' intent, nor can it be
in the public interest, for the Section 207 rules to override
legitimate safety concerns or laws establishing the National Register
of Historic Places or restrictions that in no way impair the viewer's
ability to receive video programming. For example, if the viewer can
receive the same strength signal in the back yard as in the front yard,
then it would be an unnecessary interference with the legitimate
prerogatives of local governments to preempt a restriction limiting the
placement of the reception device to the back yard.
Safety exception reaffirmed, clarified and revised
4. Under the Section 207 rules, a restriction is permitted if ``it
is necessary to accomplish a clearly defined safety objective.''
Several petitions requested that the Commission alter the rule to
require a ``compelling'' safety objective. The Commission declines to
permit only compelling safety exceptions, but reaffirms and clarifies
that to fall within the safety exception, the safety objective must be
``clearly defined'' and ``serve legitimate safety goals,'' and the
proponent of the safety restriction must prove that it is neither
discriminatory nor more burdensome than necessary to achieve the safety
objective. The rules are modified to include the term ``legitimate'' in
the definition of a safety objective.
5. In the Order on Reconsideration, the Commission deletes the term
``appearance'' from the list of potential attributes that should be
examined to determine whether a safety restriction is being applied in
a discriminatory manner. The rules are revised to examine whether a
restriction is applied to fixtures or devices posing a similar or
greater safety risk as the Section 207 device and whether the
restriction is applied to the extent practicable in a non-
discriminatory manner to other appurtenances, devices, or fixtures,
considering factors such as size, weight, and safety risk. In addition,
if ``safety boilerplate'' is added to restrictive covenants for
anticompetitive reasons, the Commission will weigh this factor heavily
in determining whether the restriction is necessary, nondiscriminatory,
and no more burdensome than necessary to accomplish the objective.
Nongovernmental safety restrictions
6. Two petitions requested that nongovernmental entities, such as
homeowners' associations, be prohibited from establishing safety
restrictions under our Section 207 rules. The Commission denies these
requests and concludes that Section 303 of the Communications Act of
1934 (47 U.S.C. 303) (``Section 303'') permits the Commission to
consider and minimize the impact of our rules on local associations and
governments. If the rules did not permit private safety-based
restrictions, the rules would effectively preempt portions of state
tort liability law, and, because homeowners' associations focus on the
problems that face a particular area or development, they are well-
positioned to assess the safety needs of their individual communities.
Jurisdiction for declaratory ruling petitions
7. The Report and Order and Section 207 rules provide concurrent
jurisdiction to the Commission and to courts of competent jurisdiction
to hear petitions for a declaratory ruling to determine whether a
particular restriction is permissible or prohibited under the Section
207 rules. This Order on Reconsideration denies several petitions that
requested the Commission to reconsider the decision not to assert
exclusive jurisdiction over petitions for declaratory rulings. The
Communications Act does not require the Commission to exercise
exclusive jurisdiction over these disputes; therefore, the Commission
reaffirms its discretion to decide that it is in the public interest at
the current time to share jurisdiction to adjudicate disputes with the
courts and retain discretion to provide, on the Commission's motion or
in response to a petition, interpretive guidance for the future based
on our expertise in developing and applying the statute and the rules.
The Commission also reiterates that a court may refer an issue to the
Commission under the doctrine of primary jurisdiction, particularly
when cases involve the determination of novel issues.
The BOCA Code restrictions
8. The Report and Order adopted rules that reflected the Building
Officials & Code Administrators International, Inc. (``BOCA'') code
permit provisions on antenna height and set back requirements (i.e.,
require an antenna user to obtain a permit to install an antenna that
extends more than twelve feet above the roofline or that is taller than
the distance between the antenna and the lot line, but no permit is
required for antennas that are no taller than the distance between the
antenna and the lot line.) Two petitions asked the Commission to
reconsider and delete reliance on the BOCA code. The Order on
Reconsideration reaffirms that, in the absence of superior information
from those engaged in the installation or use of antennas, the BOCA
code provisions regarding permits for height and setback requirements
qualify as legitimate safety objectives under Section 207 rules.
Acceptance of the BOCA code, however, is limited to the permit
requirement and does not constitute a blanket per se prohibition of
masts of a particular height. To the extent that a local authority
applies BOCA in a discriminatory manner by
[[Page 67425]]
not requiring permits for items that pose similar or greater safety
risks, such discrimination may be challenged in a particular case, and
would, if not justified, be deemed impermissible under the rules. If a
local authority created a per se bar to antennas over a certain height,
the restriction would be prohibited. To bring the Section 207 rules
into accord with the Report and Order, the rules are modified to
include masts in the definition of antennas.
Prohibition of permit requirements
9. The Order on Reconsideration reaffirms that permit requirements
are permissible to ensure compliance with restrictions that serve
safety or historic preservation objectives. Outside of these contexts,
blanket permit requirements (i.e., requiring any viewer who wants to
install an antenna to obtain a permit) are generally impermissible
because they cast too wide a net. A blanket permit requirement imposes
unreasonable delay and expense on viewers' ability to install, maintain
or use a Section 207 reception device. The Commission affirms the
decisions previously made on this issue: In re Michael J. MacDonald, 13
FCC Rcd 4844 (CSB, 1997); In re CS Wireless Systems, Inc., 13 FCC Rcd
4826 (CSB, 1997); and In re Star Lambert and SBCA, 12 FCC Rcd 10424
(CSB, 1997). By contrast, in the case of legitimate safety or historic
preservation restrictions, a shift in the permit framework is justified
because restrictions based on safety or historic preservation
objectives are enforceable even if they impair a viewer's ability to
install, maintain or use a Section 207 reception device.
Painting of reception devices
10. Two petitions requested reconsideration of the Report and
Order's policy accepting a requirement to paint an antenna to blend
into the background provided painting does not interfere with
reception. The Order on Reconsideration denies these requests and
reiterates that the statement applies only to painting requirements
that will not interfere with reception. This Order also clarifies that
if complying with a painting requirement causes an impairment of a
viewer's ability to install, maintain or use a Section 207 reception
device, the requirement is prohibited under our rules; e.g., if a
restriction required painting a Section 207 reception device in a
manner that unreasonably increases costs or impairs the ability of the
device to receive a signal, then the regulation would be impermissible.
Grace periods to comply with rulings and collection of attorneys fees
11. The Order on Reconsideration concludes that it is consistent
with the purpose underlying this rule that the potential threat of a
fine or penalty could operate as a substantial deterrent to viewers
exercising their right to install an antenna while such a restriction
is under review. Therefore, the rule is amended to give viewers at
least 21 days to comply with an adverse ruling issued in a proceeding
before a fine may be collected, unless the proponent of the restriction
can show in the same proceeding that the viewer's claim was frivolous.
During this grace period, no additional fines or penalties shall accrue
against the viewer, but if at the end of the grace period the viewer
has not complied with the adverse ruling, then the initial fine may be
imposed. The rule does not grant a grace period to every viewer who
unknowingly violates a restriction that has already been upheld in a
proceeding pursuant to our rules. Nevertheless, if a viewer believes
that the restriction is invalid as applied to the particular viewer and
challenges a previously upheld restriction in a proceeding as provided
for in our rules, and the viewer does not have a frivolous claim that
the upheld restriction is invalid as applied to the particular viewer,
then the viewer may be granted at least a 21 day grace period.
12. In addition, as with fines and penalties, some associations
attempt to collect from viewers the attorney's fees expended by an
association in its efforts to enforce a restriction even while a
proceeding is pending to determine whether the association's
restriction constitutes an impairment under the rules (See, e.g., In re
James Sadler, (DA 98-1284, rel. July 1, 1998)). As with fines or other
penalties, the attempt to assess attorney's fees while a proceeding is
pending and the validity of an arguably invalid restriction has not yet
been determined would undermine the purpose underlying both the Section
207 rules and the petition process. Therefore, the rules are amended to
prohibit the assessment or collection of attorney's fees while a
proceeding is pending.
Definition of signal impairment
13. A restriction impairs a viewer's ability to receive video
programming signals if it precludes reception of an acceptable quality
signal. Under the balance struck in the rules, viewers are entitled to
an antenna location, if one is available, that will provide an
``acceptable'' quality signal. Subject to that limitation, local
governments and community associations are entitled, in order to
protect the interests of local residents, to restrict antenna
placement. The proper balance is struck if an acceptable, but not
necessarily always optimal, quality signal is available. For example,
with respect to signals that are subject to a variety of different but
gradual impairments, the rules do not mandate that an antenna can be
placed at whatever height reception would be optimized.
14. The situation is altogether different, however, for devices
designed to receive digital signals, such as DBS antennas, digital MMDS
antennas and digital television (``DTV'') antennas. Digital antennas
will at times provide no picture or sound unless they are placed and
oriented for optimal reception. Where a DBS antenna has an
unobstructed, direct view of a satellite, the antenna will produce a
complete picture and sound and is less likely to be subjected to
frequent weather blackouts. For this reason, to receive an acceptable
quality signal, a DBS antenna or other digital reception device covered
by Section 207 must be installed where it has an unobstructed, direct
view of the satellite or other device from which video programming
service is received, if such a location exists on the viewer's property
and the property is covered by our rules.
Other technologies that provide over-the-air reception of video
programming services
15. Section 207 and the rules apply to restrictions on devices used
to receive video programming services. The Order on Reconsideration
denies petitions that requested application of the rules to interactive
and data transmitting antennas because petitioners did not show that
these antennas receive ``video programming'' as that term is used in
the Communications Act of 1934: ``programming provided by, or generally
considered comparable to programming provided by, a television
broadcast station'' (see Section 602(20) of the Act; 47 U.S.C.
522(20)). Section 207 is flexible and will encompass newly developed
technologies if they are shown to have similar technology and functions
and to provide similar services as devices encompassed by Section 207.
(For example, because of their similarity in terms of function and
technology to services enumerated in Section 207, MDS, ITFS and LMDS
are covered by Section 207 and the Section 207 rules even though these
services were not mentioned in Section 207.) Proponents must make a
particular
[[Page 67426]]
showing that the new technology should be covered by the rules.
Transmission-only antennas that assist reception antennas
16. The Report and Order stated that the rule does not apply to
devices that have transmission capability only, but antennas that have
transmission capability designed for the viewer to select or use video
programming are considered reception devices under this rule. The Order
on Reconsideration clarifies that the rules do not distinguish between
a single antenna that both receives and transmits and paired
transmission and reception antennas that perform the same functions.
Restrictions that impair transmission devices that work in tandem with
and are necessary to enable a viewer to select video programming on a
reception device are prohibited by the rules if they impair a
``viewer's ability to receive video programming'' as set forth in the
Section 207 rules. This protection extends only to transmission
antennas that are within the size parameters of the Section 207 rules,
installed at the viewer's location, and necessary for the viewer to
select video programming.
Districts eligible to be listed on the National Register of Historic
Places
17. The historic preservation exception to the Section 207 rules
(Section 1.4000(b)(2)) is consistent with the National Historic
Preservation Act of 1966, as amended (16 U.S.C. 470f; see also 16
U.S.C. 470a(b)(3)(F) and (I)) (``NHPA''). To maintain that consistency,
the Order on Reconsideration denies a petition to eliminate properties
designated ``eligible to be listed'' but not yet listed. The rule is
also revised to clarify exemption of ``any prehistoric or historic
district, site, building, structure or object included in, or eligible
for inclusion on, the National Register of Historic Places'' to follow
more faithfully the definition of historic properties in the NHPA (see
16 U.S.C. 470w(5)).
Limits on fees and costs
18. The Section 207 rules regarding fees and costs are designed to
protect viewers from unreasonable expenses that discourage choosing
alternative video reception devices. Both fees imposed directly by a
restricting entity and costs imposed indirectly as a result of an
entity's requirements or restrictions can impose an unreasonable
expense that is prohibited by the Section 207 rules. For example, a fee
imposes unreasonable expense when the fee is for a permit that a local
government has no discretion to require. On this issue the decision of
In re Star Lambert (12 FCC Rcd. 10455 (CSB, 1997)) is affirmed. The
rules, however, do not prohibit all fees because a reasonable fee, in
connection with a permissible requirement, may be within the standards
of the Section 207 rules. The Order on Reconsideration reiterates that
the standard for determining reasonable fees and costs is whether the
expense imposed is reasonable in light of the cost of the equipment or
services and the restriction's treatment of comparable devices. The
rules are modified to include this language.
Service of petitions and pleadings
19. The Section 207 rules are revised to include language from the
Report and Order clarifying that petitions for declaratory rulings and
waivers must be served on interested parties. The term ``interested''
is narrowly interpreted. For example, if a homeowners' association
files a petition or a lawsuit seeking to have a restriction declared
valid and seeking to enforce the restriction against a particular
viewer, service must be made on the particular viewer. The homeowners'
association is not required to serve all other members of the
association, but must provide reasonable, constructive notice of the
proceeding to other residents whose interests may foreseeably be
affected by the proceeding (e.g., by placing notices in residents'
mailboxes, by placing a notice on a community bulletin board, or by
placing the notice in an association newsletter). Similarly, if a local
government seeks a declaratory ruling or a waiver from the Commission,
the local government must take steps to afford reasonable, constructive
notice to residents in its jurisdiction (e.g., by placing a notice in a
local newspaper of general circulation). If a viewer files a petition
or lawsuit challenging a local government's ordinance or an
association's restriction, the viewer must serve the local government
or association. Certificates of service and proof of constructive
notice must be provided with a petition. The petitioner should provide
a copy of the notice and an explanation of where the notice was placed
and how many people the notice might reasonably have reached. Parties
to a lawsuit that raises issues involving the applicability or the
interpretation of Section 207 or the Section 207 rules are encouraged
to provide notice of the lawsuit to the Commission and to provide the
Commission with a copy of the relevant pleading.
Placing statements from the Report and Order in the Section 207 rules
20. The rules are revised to include certain statements from the
Report and Order. First, the revised rules provide that if a petition
is filed challenging a restriction, enforcement of that restriction
(except restrictions pertaining to safety and historic preservation) is
prohibited pending completion of review by a court or the Commission.
(Commission review is completed when an order is released and is no
longer subject to review or appeal, or when the petition is dismissed
or returned without further action.) In addition, the rules are revised
to clarify that the party seeking to enforce a restriction has the
burden of demonstrating that a particular restriction complies with the
rules. The Order on Reconsideration reiterates that placing the burden
on consumers would hinder competition and fail to implement Congress'
directive, as such a burden could serve as a disincentive to consumers
to choose TVBS, MMDS, or DBS services.
21. The standard for review of aesthetic requirements is further
clarified by adding the following explanatory language from the Report
and Order to paragraph (a) of Section 1.4000: ``Any fee or cost imposed
on a viewer by a rule, law, regulation or restriction must be
reasonable in light of the cost of the equipment or services and the
rule, law, regulation or restriction's treatment of comparable
devices.''
Application of the Section 207 rules to tenants who have the owner's
permission to install an antenna
22. For purposes of the Section 207 rules, a renter, tenant, or any
other person residing on a property owner's property with the property
owner's permission (``tenant viewer''), who has the property owner's
permission to install, maintain and use a Section 207 reception device
on the property, shall be treated as a covered viewer with regard to
third party restrictions under our Section 207 rules. In this
connection, the tenant viewer shall have the same rights under the
Section 207 rules as would the owner vis-a-vis restrictions enacted by
a homeowners' association, condominium or cooperative association,
townhome association, manufactured housing park owner, government and/
or any other third party. Thus, if an owner residing on the property
were entitled to install a Section 207 device on the property under the
rules, then a tenant occupying the property is also entitled to install
a
[[Page 67427]]
Section 207 device on the property provided the property owner
consents.
Property under the exclusive use of the viewer
23. The Section 207 rules protect ``property within the exclusive
use or control of the antenna user where the user has a direct or
indirect ownership interest.'' The Order on Reconsideration clarifies
that the rules protect a viewer who has either exclusive use or
exclusive control of property in which the viewer has a direct or
indirect ownership interest. It is not necessary for a viewer to have
exclusive control over the property to be protected by the Section 207
rules. For instance, condominium owners, townhome owners, cooperative
owners or owners of a manufactured home may not have exclusive control
over their dwellings because the association or the park owner may
retain rights to enter their dwellings to perform inspections or
repairs. These owners have exclusive use over their dwellings because
they are the only parties entitled to the beneficial use of the
dwellings. A condominium owner, townhome owner, owner of a manufactured
home, or cooperative unit dweller who has exclusive use of a balcony,
balcony railing, deck, patio, or any other type of property where they
have a direct or indirect property interest, has the right, subject to
certain restrictions of our Section 207 rules, to place Section 207
devices thereon. That third parties have rights to enter and/or
exercise control (e.g., banning grills on balconies) over the owner's
exclusive-use area does not defeat the owner's Section 207 rights.
24. With respect to condominiums and cooperatives, the rule applies
to antenna restrictions on balconies, decks, patios or similar areas
even if the unit owner does not have exclusive ownership, so long as
the unit owner has direct or indirect ownership and exclusive use over
the area. (In a housing cooperative, the residents' ownership interest
in the controlling entity entitles them to exclusive use of a unit and
nonexclusive use and enjoyment of other common areas.) Restrictions on
a cooperative owner's use of his or her unit and exclusive use areas
are prohibited because (1) the owner has an indirect ownership interest
in his or her unit and (2) the owner exercises exclusive use or
control. Restrictions on the cooperative owner's use of common
cooperative property are not prohibited if the cooperative owner does
not exercise exclusive use over the common property. With respect to
manufactured (mobile) homes, the owner of a manufactured home is
protected by the Section 207 rules even if the home rests on property
leased from someone else because the owner has a direct property
interest in the home and has exclusive use of the home. Thus, a
manufactured home owner, or the owner of any other type of home that
rests on leased property, has rights under Section 207, subject to the
rules' language and exceptions, to place a Section 207 device anywhere
on the home.
Restrictions related to the existence of a Central Antenna
25. The Further Notice requested comments on a proposal to create
an exception to the rules to allow antenna restrictions if a community
association, landlord or similar private entity voluntarily makes video
programming available through a central reception facility. The Order
on Reconsideration concludes that this proposal is properly analyzed
under the current Section 207 framework, and it is not necessary to
amend the Section 207 rules to allow for a central antenna. The
installation of a central antenna, and a concomitant restriction on the
installation of individual antennas, does not constitute an impairment
under the Section 207 rules if, like any other restriction, it does not
impair installation, maintenance and use. This Order clarifies that
restrictions related to the existence and availability of a central
antenna are generally permissible provided that: (1) the viewer
receives the particular video programming service the viewer desires
and could receive with an individual antenna (e.g., the viewer would be
entitled to receive service from a specific DBS provider, not simply a
DBS service selected by the association); (2) the video reception in
the viewer's home using the central antenna is of an acceptable quality
as good as, or better than, the quality the viewer could receive with
an individual antenna; (3) the costs associated with the use of the
central antenna (including installation and subscriber fees) are not
greater than the expense of installation, maintenance and use of an
individual antenna; and (4) the requirement to use the central antenna
in lieu of an individual antenna does not unreasonably delay the
viewer's ability to receive video programming. The Order on
Reconsideration further clarifies that no community or association is
required by these rules to install a central antenna.
Regulatory Flexibility Analysis
26. As required by the Regulatory Flexibility Act (``RFA''), an
Initial Regulatory Flexibility Analysis (``IRFA'') was incorporated in
International Bureau (IB) Docket No. 95-59 (``DBS Order and Further
Notice'') and in Cable Services Bureau (CS) Docket No. 96-83 (``TVBS-
MMDS Notice''). The Commission sought written public comment on the
proposals in those proceedings, including comment on the IRFA's. The
Commission's Final Regulatory Flexibility Analysis (``FRFA'') was
issued in the Report and Order and conformed to the RFA. Pursuant to
the RFA, the Commission's final analysis with respect to this Order on
Reconsideration is as follows.
Need for, and Objectives of, this Order on Reconsideration
27. This Order on Reconsideration implements Section 207 of the
Telecommunications Act of 1996, Public Law 104-104, 110 Stat. 56.
Section 207 directs the Commission to promulgate regulations to
prohibit restrictions that impair a viewer's ability to receive video
programming services through certain devices designed for over-the-air
reception, including MMDS, LMDS, DBS, TVBS and ITFS (``Section 207
devices''). This action is authorized under the Communications Act of
1934 1, as amended, 47 U.S.C. 151, pursuant to the Communications Act
of 1934 Sec. 303, as amended, 47 U.S.C. 303, and by Section 207 of the
Telecommunications Act of 1996. This Order on Reconsideration provides
guidance on how the Commission will interpret its Section 207 rules and
amends the Section 207 rules to provide more clarity in the existing
rules.
Summary of Significant Issues Raised by Public Comments in Response to
the IRFA
28. None of the parties in this proceeding filed comments on how
issues raised in the petitions for reconsideration would impact small
entities. Nevertheless, the impact of the amendment of our Section 207
rules on small entities was considered, as discussed below.
Description and Estimate of the Number of Small Entities to Which Rules
Will Apply
29. The Regulatory Flexibility Act defines the term ``small
entity'' as having the same meaning as the terms ``small business,''
``small organization,'' and ``small governmental jurisdiction,'' and
``the same meaning as the term ``small business concern'' under Section
3 of the Small Business Act.'' The rule applies to small organizations,
small governmental jurisdictions, and small businesses.
[[Page 67428]]
30. The term ``small governmental jurisdiction'' is defined as
``governments of . . . districts, with a population of less than fifty
thousand.'' There are 85,006 governmental entities in the United
States. This number includes such entities as states, counties, cities,
utility districts and school districts. We note that restrictions
concerning antenna installation are usually promulgated by cities,
towns and counties, not school or utility districts. Of the 85,006
governmental entities, 38,978 are counties, cities and towns; and of
those, 37,566, or 96%, have populations of fewer than 50,000. One
commenter estimates that there are 37,000 ``small governmental
jurisdictions'' that may be affected by the proposed rule.
31. Section 601(4) of the Regulatory Flexibility Act defines
``small organization'' as ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
This definition includes homeowner and condominium associations that
operate as not-for-profit organizations. An industry association
estimates that there were 150,000 associations in 1993. Given the
nature of a neighborhood association, we assume for the purposes of
this FRFA that all 150,000 associations are small organizations.
32. A small business concern is one which: (1) is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the Small Business
Administration (SBA). Industry sources estimate that the following SIC
codes apply to this industry: SIC Codes 6512 (operators of
nonresidential buildings), 6513 (operators of apartment buildings), and
6514 (operators of dwellings other than apartment buildings). The SBA
defines a small entity in each of these codes as one with less than
$5,000,000 in gross annual revenues. Based on census data that lists
businesses according to these SIC codes and their total revenue,
industry sources state that there are 28,089 operators of
nonresidential buildings and 39,903 operators of apartment buildings.
Industry sources state the Bureau of Census includes operators of
dwellings other than apartment buildings in the same category as other
types of businesses, but states that the figures for this category as a
whole show that the number of operators of dwellings other than
apartment buildings are similar to the numbers of operators covered by
SIC codes 6512 and 6513.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
33. The revised rules clarify that petitions for declaratory
judgment and waivers must be served on interested parties and that a
certificate of service must be filed with the petition or the
complaint. In addition, the revised rules require associations and
local governments in Commission proceedings to provide constructive
notice to their members or citizens and file a copy of the notice with
the Commission with a statement explaining where the notice was placed
and why such placement was reasonable. In a court proceeding brought by
an association, the association must give constructive notice to its
members.
Steps Taken To Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Rejected
34. The Commission finds that there are no significant alternatives
to the rules and policies set forth in this Order that would minimize
the economic impact on small entities, and notes that no commenter
proffered alternatives to these rules and policies. Because most of the
conclusions reached in this Order on Reconsideration merely clarify and
provide guidance under the current Section 207 rules, those conclusions
need not be analyzed here because the impact of the current Section 207
rules was already analyzed in the Report and Order. Nevertheless, there
are some changes to the rules that are addressed here.
35. First, the Commission adopts a proposal that viewers be given
at least 21 days during which to comply with a court or Commission
order upholding a restriction before any fine or penalty may be imposed
on the viewer if the viewer's claim is not frivolous that the
restriction was facially invalid or was invalid as applied to the
specific viewer. The Order concludes that the potential threat of a
fine or penalty could operate as a substantial deterrent to viewers
exercising their right to install an antenna while such a restriction
is under review and there is no significant alternative way to remove
this deterrent.
36. Second, the revised rules clarify that the burden of
demonstrating that a particular restriction complies with the Section
207 rules rests with the proponent in both a court and Commission
proceeding. No one proposed a significant alternative to this rule.
37. Third, the Section 207 rules protect antennas that have
transmission capability only if these transmission antennas are used in
conjunction with antennas that receive video programming. Because this
ruling was merely a clarification of the initial rule, this ruling has
no more impact than the initial ruling analyzed in the Report and
Order.
38. Fourth, the revised rules protect ``properties,'' not just
``districts,'' listed or eligible to be listed on the National Register
of Historic Places. No significant alternative was proposed that would
not run afoul of federal laws and regulations protecting such
properties.
39. Fifth, the Order rejects a proposal that the Section 207 rules
protect per se any other new antenna not specifically listed in the
Section 207 rules. This decision was required by the statutory language
of Section 207. Moreover, the impact of this rule is diminished because
the Commission will consider on a case by case basis whether a
particular device is covered by the rules.
40. Sixth, as set forth, the rules clarify how service should be
made and how certification of service provided. No significant
alternative was proposed.
Report to Congress: The Commission will send a copy of this Order
on Reconsideration, including this FRFA, in a report to Congress
pursuant to the Small Business Regulatory Enforcement Fairness Act of
1996, 5 U.S.C. 801(a)(1)(A).
Ordering Clauses
41. Accordingly, it is ordered that, pursuant to authority found in
Sections 4(i), 4(j), and 303 of the Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 154(j), and 303, and Section 207 of the
Telecommunications Act of 1996, Public Law 104-104, 110 Stat. 56, the
Commission's rules are hereby amended. The amendments shall become
effective January 6, 1999, except that Sec. 1.4000 (d) and (e), which
contain new information collection requirements that shall become
effective upon approval by OMB, but no sooner than February 16, 1999.
The Commission will publish a document in the Federal Register
announcing the effective date for those sections.
42. It is further ordered that the Petitions for Reconsideration in
CS Docket No. 96-83 are granted in part and denied in part.
43. It is further ordered that the Commission's Office of Public
Affairs, Reference Operations Division, shall send a copy of this Order
on Reconsideration, including the Final Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration in accordance
[[Page 67429]]
with paragraph 603(a) of the Regulatory Flexibility Act, Public Law No.
96-354, 94 Stat. 1164, 5 U.S.C. 601 et seq. (1981).
List of Subjects in 47 CFR Part 1
Antenna, Satellite, Telecommunications, Television.
Federal Communications Commission.
Shirley S. Suggs,
Chief, Publications Branch.
Rule Changes
Part 1 of Title 47 of the Code of Federal Regulations is amended to
read as follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for Part 1 is revised to read as follows:
Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309.
2. Section 1.4000 is revised to read as follows:
Sec. 1.4000 Restrictions impairing reception of television broadcast
signals, direct broadcast satellite services or multichannel multipoint
distribution services.
(a) (1) Any restriction, including but not limited to any state or
local law or regulation, including zoning, land-use, or building
regulation, or any private covenant, homeowners' association rule or
similar restriction on property within the exclusive use or control of
the antenna user where the user has a direct or indirect ownership
interest in the property, that impairs the installation, maintenance,
or use of
(i) an antenna that is designed to receive direct broadcast
satellite service, including direct-to-home satellite services, that is
one meter or less in diameter or is located in Alaska;
(ii) an antenna that is designed to receive video programming
services via multipoint distribution services, including multichannel
multipoint distribution services, instructional television fixed
services, and local multipoint distribution services, and that is one
meter or less in diameter or diagonal measurement;
(iii) an antenna that is designed to receive television broadcast
signals; or
(iv) a mast supporting an antenna described in paragraphs
(a)(1)(i), (ii) or (iii) of this section; is prohibited to the extent
it so impairs, subject to paragraph (b) of this section; is prohibited
to the extent it so impairs, subject to paragraph (b) of this section.
(2) For purposes of this section, a law, regulation or restriction
impairs installation, maintenance or use of an antenna if it
(i) Unreasonably delays or prevents installation, maintenance or
use,
(ii) Unreasonably increases the cost of installation, maintenance
or use, or
(iii) Precludes reception of an acceptable quality signal.
(3) Any fee or cost imposed on a viewer by a rule, law, regulation
or restriction must be reasonable in light of the cost of the equipment
or services and the rule, law, regulation or restriction's treatment of
comparable devices. No civil, criminal, administrative, or other legal
action of any kind shall be taken to enforce any restriction or
regulation prohibited by this section except pursuant to paragraph (c)
or (d) of this section. In addition, except with respect to
restrictions pertaining to safety and historic preservation as
described in paragraph (b) of this section, if a proceeding is
initiated pursuant to paragraph (c) or (d) of this section, the entity
seeking to enforce the antenna restrictions in question must suspend
all enforcement efforts pending completion of review. No attorney's
fees shall be collected or assessed and no fine or other penalties
shall accrue against an antenna user while a proceeding is pending to
determine the validity of any restriction. If a ruling is issued
adverse to a viewer, the viewer shall be granted at least a 21 day
grace period in which to comply with the adverse ruling; and neither a
fine nor a penalty may be collected from the viewer if the viewer
complies with the adverse ruling during this grace period, unless the
proponent of the restriction demonstrates, in the same proceeding which
resulted in the adverse ruling, that the viewer's claim in the
proceeding was frivolous.
(b) Any restriction otherwise prohibited by paragraph (a) of this
section is permitted if
(1) It is necessary to accomplish a clearly defined, legitimate
safety objective that is either stated in the text, preamble or
legislative history of the restriction or described as applying to that
restriction in a document that is readily available to antenna users,
and would be applied to the extent practicable in a non-discriminatory
manner to other appurtenances, devices, or fixtures that are comparable
in size and weight and pose a similar or greater safety risk as these
antennas and to which local regulation would normally apply; or
(2) It is necessary to preserve a prehistoric or historic district,
site, building, structure or object included in, or eligible for
inclusion on, the National Register of Historic Places, as set forth in
the National Historic Preservation Act of 1966, as amended, 16 U.S.C.
470, and imposes no greater restrictions on antennas covered by this
rule than are imposed on the installation, maintenance or use of other
modern appurtenances, devices or fixtures that are comparable in size,
weight, and appearance to these antennas; and
(3) It is no more burdensome to affected antenna users than is
necessary to achieve the objectives described in paragraph (b)(1) or
(2) of this section.
(c) Local governments or associations may apply to the Commission
for a waiver of this section under Sec. 1.3 of this part. Waiver
requests must comply with the procedures in paragraphs (e) and (g) of
this section and will be put on public notice. The Commission may grant
a waiver upon a showing by the applicant of local concerns of a highly
specialized or unusual nature. No petition for waiver shall be
considered unless it specifies the restriction at issue. Waivers
granted in accordance with this section shall not apply to restrictions
amended or enacted after the waiver is granted. Any responsive
pleadings must be served on all parties and filed within 30 days after
release of a public notice that such petition has been filed. Any
replies must be filed within 15 days thereafter.
(d) Parties may petition the Commission for a declaratory ruling
under Sec. 1.2 of this part, or a court of competent jurisdiction, to
determine whether a particular restriction is permissible or prohibited
under this section. Petitions to the Commission must comply with the
procedures in paragraphs (e) and (g) of this section and will be put on
public notice. Any responsive pleadings in a Commission proceeding must
be served on all parties and filed within 30 days after release of a
public notice that such petition has been filed. Any replies in a
Commission proceeding must be served on all parties and filed within 15
days thereafter.
(e) Copies of petitions for declaratory rulings and waivers must be
served on interested parties, including parties against whom the
petitioner seeks to enforce the restriction or parties whose
restrictions the petitioner seeks to prohibit. A certificate of service
stating on whom the petition was served must be filed with the
petition. In addition, in a Commission proceeding brought by an
association or a local government, constructive notice of the
proceeding must be given to members of the association or to the
citizens under the local government's jurisdiction. In a court
proceeding brought by an association, an association must give
constructive notice of the proceeding to its members. Where
constructive notice
[[Page 67430]]
is required, the petitioner or plaintiff must file with the Commission
or the court overseeing the proceeding a copy of the constructive
notice with a statement explaining where the notice was placed and why
such placement was reasonable.
(f) In any proceeding regarding the scope or interpretation of any
provision of this section, the burden of demonstrating that a
particular governmental or nongovernmental restriction complies with
this section and does not impair the installation, maintenance or use
of devices designed for over-the-air reception of video programming
services shall be on the party that seeks to impose or maintain the
restriction.
(g) All allegations of fact contained in petitions and related
pleadings before the Commission must be supported by affidavit of a
person or persons with actual knowledge thereof. An original and two
copies of all petitions and pleadings should be addressed to the
Secretary, Federal Communications Commission, 445 12th St. S.W.,
Washington, D.C. 20554, Attention: Cable Services Bureau. Copies of the
petitions and related pleadings will be available for public inspection
in the Cable Reference Room in Washington, D.C. Copies will be
available for purchase from the Commission's contract copy center, and
Commission decisions will be available on the Internet.
(h) So long as the property owner consents, a person residing on
the property owner's property with the property owner's permission
shall be treated as an antenna user covered by this section and shall
have the same rights as the property owner with regard to third
parties, including but not limited to local governments and
associations, other than the property owner.
[FR Doc. 98-32362 Filed 12-4-98; 8:45 am]
BILLING CODE 6712-01-P
