[Federal Register Volume 61, Number 76 (Thursday, April 18, 1996)]
[Proposed Rules]
[Pages 16890-16892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9491]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Ch. I
[CS Docket No. 96-83; FCC 96-151]
Preemption of Restrictions on Over-the-Air Reception Devices
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Notice of Proposed Rulemaking (``NPRM'') requests comment
on issues concerning the implementation of section 207 of the
Telecommunications Act of 1996 as it relates to television broadcast
signals and multichannel multipoint distribution services. The NPRM
will assist the Commission in devising regulations in this area. The
NPRM will provide interested parties an opportunity to submit comments
that will provide the Commission with a sufficient record on which to
base ultimate regulations.
DATES: Interested parties may file comments on or before May 6, 1996
and reply comments on or before May 21, 1996. Written comments by the
public on the proposed and/or modified information collections are due
on or before May 6, 1996. Written comments must be submitted by the
Office of Management and Budget (OMB) on the proposed and/or modified
information collections on or before June 17, 1996.
ADDRESSES: An original and six copies of all comments and reply
comments should be sent to Office of the Secretary, Federal
Communications Commission, 1919 M Street, N.W., Room 222, Washington,
D.C. 20554, with a copy to Randi Albert of the Cable Services Bureau,
2033 M Street, N.W., Room 700Q, Washington, D.C. 20554. Parties should
also file one copy of any documents filed in this docket with the
Commission's copy contractor, International Transcription Services,
Inc., 2100 M Street, N.W., Suite 140, Washington, D.C. 20037. Comments
and reply comments will be available for public inspection during
regular business hours in the FCC Reference Center, 1919 M Street,
N.W., Room 239, Washington, D.C. 20554.
In addition to filing comments with the Secretary, a copy of any
comments on the information collections contained herein should be
submitted to Dorothy Conway, Federal Communications Commission, Room
234, 1919 M Street, N.W., Washington, D.C. 20054, or via the Internet
to dconway@fcc.gov, and to Timothy Fain, OMB Desk Officer, 10236 NEOB,
725-17th Street, N.W., Washington, D.C. 20503 or via the Internet to
fain_t@al.eop.gov.
FOR FURTHER INFORMATION CONTACT: Randi Albert or Jacqueline Spindler,
Cable Services Bureau, (202) 416-0800. For additional information
concerning the information collections contained herein, contact
Dorothy Conway at 202-418-0217, or via the Internet at dconway@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's NPRM
in CS Docket No. 96-83, FCC No. 96-151, adopted April 2, 1996 and
released April 4, 1996. 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,
and may be purchased from the Commission's copy contractor,
International Transcription Service, (202) 857-3800, 1919 M Street, NW,
Washington, D.C. 20554.
This NPRM contains proposed or modified information collections
subject to the Paperwork Reduction Act of 1995 (PRA). It has been
submitted to the Office of Management and Budget (OMB) for review under
the PRA. OMB, the general public, and other Federal agencies are
invited to comment on the proposed or modified information collections
contained in this proceeding.
OMB Approval Number: None.
Title: Preemption of Restrictions on Over-the-Air Reception
Devices--Notice of Proposed Rulemaking.
Type of Review: New collection.
Respondents: State and local governments; small businesses.
Number of Respondents: The Commission asks commenters to provide
estimates of the volume of waivers and requests for declaratory rulings
we might expect to receive on an annual basis. At this time, we
estimate parties will annually prepare 200 requests for declaratory
rulings and 100 petitions for waivers; for an annual total of 300
respondents.
Estimated Time Per Response: Preparation of a request for
declaratory ruling prepared without outside counsel will require an
average of 10 hours, and
[[Page 16891]]
if using outside counsel would require 1 hour. Preparation of a waiver
request is estimated to require an average of 2 hours without outside
counsel, and if using outside counsel would require 1 hour.
Total Annual Burden: It is estimated that 50% of declaratory
rulings will be prepared without outside counsel and 50% of parties
will hire outside counsel. The estimated burden to coordinate
information with outside counsel will be 1 hour. 100 (50% without
outside counsel) x 10 hours=1,000 hours; and 100 (50% with outside
counsel) x 1 hour=100 hours, for a burden of 1,100 hours. It is
estimated that 90% of petitions for waivers will be prepared without
outside counsel. The other 10% will hire outside counsel, and the
estimated burden to coordinate information with outside counsel will be
1 hour. 90 (90% without outside counsel) x 2 hours=180 hours; and 10
(10% with outside counsel) x 1 hour=10 hours, for a burden of 190
hours. The total burden to respondents is therefore 1,100+190=1,290
hours.
Estimated Costs Per Respondent: It is estimated that 100 requests
for declaratory rulings and 10 petitions for waivers will be prepared
each year through outside counsel. The estimated annual costs are
$153,000, illustrated as follows: 100 declaratory rulings x 10
hours x $150/hr.=$150,000. 10 petitions for waivers x 2 hours x $150/
hr.=$3,000
Needs and Uses: Submitted information will be used to evaluate
requests for declaratory ruling regarding the reasonableness of state
and local restrictions, or requests for waiver of the rule.
I. Notice of Proposed Rulemaking
1. On February 8, 1996, the Telecommunications Act of 1996 (the
``1996 Act'') became law. Section 207 of the 1996 Act directs that the
Commission shall, ``pursuant to Section 303 of the Communications Act,
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.'' In this Notice of Proposed Rulemaking, we address
the statutory mandate with regard to television broadcast service
(``TVBS'') and multichannel multipoint distribution service (``MMDS'').
2. In a recent Report and Order and Further Notice of Proposed
Rulemaking, FCC 96-78 (released March 11, 1996) (61 FR 10710, March 15,
1996) (``Order and Further Notice''), the Commission considered the
issue of preemption of state or local restrictions, such as zoning
ordinances, on devices used to receive direct broadcast satellite
(``DBS'') services. Noting that section 207 expands the range of
preemption to include non-governmental entities such as homeowners'
associations, the Order and Further Notice proposes a per se preemption
of restrictions imposed by non-governmental entities as they affect
reception of DBS signals. In this Notice of Proposed Rulemaking, we
seek to provide similar implementation of section 207 regarding TVBS
and MMDS.
3. In the Order and Further Notice we adopted a rule for satellite
receivers less than one meter in diameter, including DBS receivers.
Section 207 of the 1996 Act groups TVBS, MMDS, and DBS receiving
devices together, which suggests that they should be treated similarly.
However, antennas used to receive TVBS signals can be of various forms
and sizes, and may not always be comparable to DBS antennas. Therefore,
while we propose a rule for TVBS and MMDS devices that does not draw
distinctions among receivers based on size, we invite comments on
whether and when such distinctions might be justified, within the
Commission's authority to implement the statutory language pursuant to
section 303 of the Communications Act.
4. The Order and Further Notice establishes a presumption that
restrictive state or local regulations are unreasonable, and therefore
preempts them, if they affect the installation, maintenance, or use of
a satellite earth station antenna that is one meter or less in
diameter. The presumption could be rebutted by obtaining a ``final
declaration'' from the Commission or a court of competent jurisdiction
that the state or local regulation is both necessary to accomplish a
clearly defined and expressly stated health or safety objective, and as
narrowly drawn as possible to accomplish that objective. We tentatively
conclude that this same presumption is applicable to MMDS and TVBS
antennas. In the Order and Further Notice we also determined that any
state or local authority that wished to maintain and enforce
regulations inconsistent with the preemption rule could apply to the
Commission for a full or partial waiver. Such a request must show local
concerns of a highly specialized or unusual nature, and must include
the particular regulation for which waiver is sought. We tentatively
conclude that this determination applies to MMDS and TVBS as well. We
solicit comment on this tentative conclusion and proposed rule, and
specifically ask commenters to provide estimates of the volume of
waivers we might expect under this proposed rule. We ask, too, whether
any workable alternative approach exists that would reduce the burden
on this Commission.
5. As we did in the Order and Further Notice, we note that antenna
users and local governments are free to pursue litigation remedies in
federal or state courts if they wish to forego Commission review.
Further, our recently adopted rule states that 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 or a
final declaration from the Commission or a court of competent
jurisdiction that the presumption has been rebutted. We tentatively
find that this approach is appropriate here as well.
II. Initial Regulatory Flexibility Analysis
Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-
612, the Commission's Initial Regulatory Flexibility Analysis with
respect to the NPRM is as follows:
6. Reason for Action: The rulemaking is initiated to obtain comment
on the implementation of Section 207 of the Telecommunications Act of
1996, Public Law 104-104, 110 Stat. 56 (1996), as it applies to over-
the-air reception of television broadcast signals and multichannel
multipoint distribution services.
7. Objectives: The Commission seeks to evaluate whether our
proposed rule preempting non-federal restrictions will enhance viewers'
ability to receive video programming services through devices designed
for over-the-air reception of television broadcast signals and
multichannel multipoint distribution services.
8. Legal Basis: The proposed action is authorized under Sections 1
and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 151,
303, and Section 207 of the Telecommunications Act of 1996, Public Law
104-104, 110 Stat. 56 (1996).
9. Reporting, Recordkeeping, and Other Compliance Requirements:
State and local governments propounding regulations which restrict the
installation, maintenance or use of devices designed for receiving
over-the-air signals of television broadcast and multichannel
multipoint distribution services may request declaratory rulings from
the Commission that their regulations are reasonable, or may petition
the Commission for waiver of the rule.
[[Page 16892]]
10. Federal Rules that Overlap, Duplicate or Conflict with These
Requirements: None.
11. Description, Potential Impact and Number of Small Entities
Involved: Any policies or regulations adopted in this proceeding could
affect state, local, and nongovernmental regulatory entities, as well
as small businesses that install or use devices designed for over-the-
air reception of television broadcast signals and multichannel
multipoint distribution services.
12. Any Significant Alternatives Minimizing the Impact on Small
Entities Consistent with the Stated Objectives: This Notice solicits
comments on any suggested alternatives.
III. Initial Paperwork Reduction Act of 1995 Analysis
13. This NPRM contains either a proposed or modified information
collection. The Commission, as part of its continuing effort to reduce
paperwork burdens, invites the general public and the Office of
Management and Budget (``OMB'') to take this opportunity to comment on
the information collections contained in this NPRM, as required by the
Paperwork Reduction Act of 1995, Public Law No. 104-13. Public and
agency comments are due at the same time as other comments on the NPRM;
OMB comments are due June 17, 1996. Comments should address: (a)
whether the proposed 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.
IV. Procedural Provisions
14. Ex parte Rules--Non-Restricted Proceeding. This is a non-
restricted notice and comment rulemaking proceeding. Ex parte
presentations are permitted, provided that they are disclosed as
provided in Commission's rules. See generally 47 CFR 1.1202, 1.1206.
15. Pursuant to applicable procedures set forth in Sections 1.415
and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested
parties may file comments on or before May 6, 1996, and reply comments
on or before May 21, 1996. To file formally in this proceeding, you
must file an original and six 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 and eleven
copies. Comments and reply comments should be sent to Office of the
Secretary, Federal Communications Commission, 1919 M Street, N.W., Room
222, Washington, D.C. 20554, with a copy to Randi Albert of the Cable
Services Bureau, 2033 M Street, N.W., Room 700Q, Washington, D.C.
20554. Parties should also file one copy of any documents filed in this
docket with the Commission's copy contractor, International
Transcription Services, Inc., 2100 M Street, N.W., Suite 140,
Washington, D.C. 20037. Comments and reply comments will be available
for public inspection during regular business hours in the FCC
Reference Center, 1919 M Street, N.W., Room 239, Washington, D.C.
20554.
V. Ordering Clauses
16. It is ordered that, pursuant to Section 207 of the
Telecommunications Act of 1996; and Sections 1, 303, of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 303(r), Notice
is hereby given of proposed implementation of Section 207 of the
Telecommunications Act of 1996, in accordance with the proposals,
discussions, and statement of issues in this NPRM and Comment is Sought
regarding such proposals, discussions, and statements of issues.
17. It is further ordered that the Secretary shall send a copy of
this NPRM, including the IRFA, to the Chief Counsel for Advocacy of the
Small Business Administration in accordance with paragraph 603(a) of
the Regulatory Flexibility Act, Public Law 96-354, 94 Stat. 1164, 5
U.S.C. 601 et seq. (1981).
18. For additional information regarding this proceeding, contact
Randi Albert or Jacqueline Spindler, Consumer Protection and
Competition Division, Cable Services Bureau (202) 416-0800.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-9491 Filed 4-17-96; 8:45 am]
BILLING CODE 6712-01-P
