[Federal Register Volume 60, Number 103 (Tuesday, May 30, 1995)]
[Proposed Rules]
[Pages 28077-28079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13116]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 25
[IB Docket No. 95-59; FCC 95-180]
Preemption of Local Zoning Regulations
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Commission has proposed revisions to its rule preempting
local regulation of satellite earth stations. These revisions are being
proposed in response to two Petitions for Declaratory Ruling filed by
Satellite Broadcasting and Communications Association and Hughes
Network Systems, Inc. and as a result of the decision of the U.S. Court
of Appeals of the Second Circuit where the court invalidated the
requirement that satellite-antenna users exhaust all other legal
remedies before petitioning the Commission for a declaratory ruling.
[[Page 28078]] The revised rule modifies the exhaustion of remedies
requirement to permit Commission interpretation of the rule prior to
judicial review; modifies the reasonableness test in the current rule
including establishing presumption of unreasonableness; provides a
waiver process by which communities may request a waiver of some or all
of this rule in recognition of local interests; and provides for
immediate relief in particular cases by entertaining petitions for
declaratory relief under the current rule on an interim basis pending
completion of this rulemaking.
DATES: Comments are due by July 14, 1995; reply comments are due by
August 15, 1995.
ADDRESSES: Federal Communications Commission, Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT:
Rosalee Chiara, International Bureau, Satellite and Radiocommunication
Division, Satellite Policy Branch, (202) 739-0730.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rule Making in IB Docket No. 95-59; FCC 95-180, adopted
April 27, 1995 and released May 15, 1995. The complete text of this
Notice of Proposed Rule Making is available for inspection and copying
during normal business hours in the FCC Reference Center (Room 239),
1919 M Street, NW., Washington, D.C., and also may be purchased from
the Commission's copy contractor, International Transcription Service,
(202) 857-3800, 2100 M Street, NW., Suite 140, Washington, DC 20037.
Summary of Notice of Proposed Rule Making
In 1986, the Commission adopted a rule preempting local regulation
of satellite earth stations that differentiated between satellite
receive-only antennas and other types of antenna facilities unless the
regulations (a) have a reasonable and clearly defined health, safety,
or aesthetic objective and (b) do not put unreasonable limitations on,
or prevent, reception or impose unreasonable costs on users. The rule
also preempted local regulation of satellite transmitting antennas in
the same manner except that health and safety regulation was not
preempted (47 CFR 25.104). Since that time, consumers, satellite system
operators, local governments, and the Commission have gained
significant experience working with this rule. Based in part on this
experience, the Satellite Broadcasting and Communications Association
(``SBCA'') and Hughes Network Systems, Inc. (``Hughes'') filed
petitions for declaratory rulings on our satellite-antenna preemption
rule. In addition, the U.S. Court of Appeals for the Second Circuit
invalidated the requirement that satellite-antenna users exhaust all
other legal remedies before petitioning the Commission for relief. Town
of Deerfield, New York v. FCC, 1992 F.2d 420 (2d Cir. 1992)
(``Deerfield''). In 1993, we sought comment on the SBCA and Hughes
petitions, as well as on the appropriate action for the Commission to
take in response to the Second Circuit's decision.
Based on the petitions, the comments received in this proceeding,
and our experience administering Commission preemption policies since
1986, we tentatively concluded that, in light of the Second Circuit's
Deerfield decision, we should modify our exhaustion of remedies
requirement to permit us to interpret our preemption rule prior to any
judicial review. We also tentatively conclude that in order to
facilitate application of the Commission's interpretations in varied
factual settings, to minimize intrusion upon local prerogatives in
land-use regulation, and to promote full and fair competition between
satellite services and other means of communication, we must revise the
preemption rule itself. Accordingly, we are denying both petitions for
declaratory relief and issuing this Notice of Proposed Rulemaking,
which proposes changes in Sec. 25.104. In addition, we announce our
willingness to entertain petitions for declaratory relief with respect
to particular zoning disputes during the pendency of this proceeding.
We also propose revisions of the current rule's ``reasonableness''
test. These include elimination of the requirement that preemptable
local ordinance differentiate in the treatment of antennas. In
addition, the NPRM proposes changes in how the rule applies to
regulations that increase users' costs or diminish reception. The
proposed rule also establishes presumptions of unreasonableness for
regulations that affect antennas less than one meter in size and those
that affect antennas less than 2 meters in size in an area where
commercial or industrial use is permitted. The proposals include
several other modifications of the rule and also provide that local
government can request waivers of the rule under certain circumstances.
We solicit comments from all interested parties, including service
providers, equipment manufacturers, consumers, programmers, land-use
managers, and other representatives of local governments. A full and
complete record in this matter will ensure that our final rule takes
into consideration the views of all these persons.
Ordering Clauses
Accordingly, it is ordered That, pursuant to sections 1.4(i), 4(j)
and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.
151, 154(i), 154(j), and 303(r) notice is hereby given of the proposed
amendments to Sec. 25.104 of the Commission's rules, 47 CFR 25.104, in
accordance with the proposals in this Notice of Proposed Rulemaking,
and that comment is sought regarding such proposals.
It is further ordered. That the petitions for declaratory relief
filed by SBCA and Hughes are denied.
It is further ordered That the Secretary shall send a copy of this
Notice of Proposed Rulemaking, including the Initial Regulatory
Flexibility Analysis, 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. 96-354, 94 Stat. 1164, 5 U.S.C.
601 et seq. (1981).
Administrative Matters
Pursuant to applicable procedures set forth in Secs. 1.415 and
1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested
parties may file comments on or before July 14, 1995 and reply comments
on or before August 15, 1995. To file formally in this proceeding, you
must file an original plus four 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, DC 20554.
Comments and reply comments will be available for public inspection
during regular business hours in the FCC Reference Center (Room 239),
1919 M Street, NW., Washington, DC 20554.
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 the Commission
Rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).
Initial Regulatory Flexibility Act Statement
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 [[Page 28079]] document. 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.
List of Subjects in 47 CFR Part 25
Satellites.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Proposed Rules
Part 25 of Title 47 of the Code of Federal Regulations is proposed
to be amended, as follows:
PART 25--SATELLITE COMMUNICATIONS
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:
Sec. 25.104 Preemption of local zoning of earth stations.
(a) Any state or local land-use, building, or similar regulation
that substantially limits reception by receive-only antennas, or
imposes substantial costs on users of such antennas, is preempted
unless the promulgating authority can demonstrate that such regulation
is reasonable in relation to:
(1) A clearly defined, and expressly stated health, safety, or
aesthetic objective; and
(2) The federal interest in fair and effective competition among
competing communications service providers.
(b) Any regulation covered by paragraph (a) of this section shall
be presumed unreasonable if it affects the installation, maintenance,
or use of:
(1) A satellite receive-only 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 local land-use
regulation: or
(2) A satellite receive-only antenna that is one meter or less in
diameter in any area.
(c) Any presumption arising from paragraph (b) of this section may
be rebutted upon a showing that the regulation in question:
(1) Is necessary to accomplish a clearly defined and expressly
stated health or safety objective;
(2) Is no more burdensome to satellite users than is necessary to
achieve the health or safety objective;
(3) Is specifically applicable to antennas of the class mentioned
in paragraph (b) of this section.
(d) Regulation of satellite transmitting antennas is preempted to
the same extent as provided in paragraph (a) of this section, except
that state and local health and safety regulations relating to radio
frequency radiation of transmitting antennas are not preempted by this
rule.
(e) 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 has been exhausted;
(2) The petitioner's application for a permit or other
authorization required by the state or local authority has been pending
with that authority for ninety days;
(3) The petitioner has been informed that a permit or other
authorization required by the state or local authority will be
conditioned upon the petitioner's expenditure of an amount greater than
the aggregate purchase and installation costs of the antenna; 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.
(f) 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 create an overwhelming necessity for
regulation inconsistent with this section. No application for waiver
shall be considered unless it includes the particular regulation for
which waiver is sought. Waivers granted according to this rule shall
not apply to later-enacted or amended regulations by the local
authority unless the Commission expressly orders otherwise.
[FR Doc. 95-13116 Filed 5-26-95; 8:45 am]
BILLING CODE 6712-01-M
