[Federal Register Volume 61, Number 172 (Wednesday, September 4, 1996)]
[Rules and Regulations]
[Pages 46557-46562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22494]
[[Page 46557]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1 and 25
[CS Docket No. 96-83; IB Docket No. 95-59; FCC 96-328]
Telecommunications Act of 1996; Preemption of Restrictions on
Over-the-Air Reception Devices
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Report and Order (``R&O'') implements Section 207 of the
Telecommunications Act of 1996. Section 207 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.'' The R&O prohibits restrictions that impair a viewer's
ability to install, use and maintain devices used to receive TVBS, MMDS
and DBS signals on property within the exclusive use or control of the
antenna user and in which the user has a direct or indirect ownership
interest. The Memorandum Opinion and Order (MO&O) addresses petitions
for reconsideration in IB Docket No. 95-59 as they relate to
implementation of Section 207. The intended effect of this R&O and MO&O
is to complete the implementation of Section 207 of the
Telecommunications Act of 1996. The R&O and MO&O will foster
competition among video programming service providers and will increase
consumer options for receiving video programming.
EFFECTIVE DATE: Upon approval by the Office of Management and Budget
(OMB) of the new information collection requirements adopted herein,
but no sooner than October 4, 1996. The Commission will publish a
document at a later date advising of the effective date.
ADDRESSES: 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, NW, Washington, DC
20054, or via the Internet to dconway@fcc.gov, and to Timothy Fain, OMB
Desk Officer, 10236 NEOB, 725-17th Street, NW, Washington, DC 20503 or
via the Internet to fain__t@al.eop.gov.
FOR FURTHER INFORMATION, CONTACT: Jacqueline Spindler, Cable Services
Bureau, (202) 418-7200. 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 R&O
and MO&O in CS Docket No. 96-83, IB Docket No. 95-59, FCC No. 96-328,
adopted August 5, 1996 and released August 6, 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, DC 20554, and may be purchased from the Commission's
copy contractor, International Transcription Service, (202) 857-3800,
1919 M Street, NW., Washington, DC 20554. This R&O and MO&O contain
proposed or modified information collections subject to the Paperwork
Reduction Act of 1995 (PRA). As part of our continuing effort to reduce
paperwork burdens, we invite the general public and OMB to comment on
the modified information collections contained in this Report and
Order, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-
13. Public and agency comments are due on September 27, 1996; OMB
comments are due November 4, 1996. 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
will 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: Preemption of Restrictions on Over-the-Air Reception
Devices--Report and Order, Memorandum Opinion and Order, and Further
Notice of Proposed Rulemaking.
Type of Review: Revision of an existing collection. The following
are burden estimates for the Order portion of the document, as well as
the Further Notice of Proposed Rulemaking portion of the document. We
account for the burdens estimates separately. If, in a subsequent
rulemaking, the proposed rules in the Further Notice of Proposed
Rulemaking are not adopted in part or in whole, the Commission will
adjust its burden estimates accordingly.
Respondents: State and local governments; small organizations;
small businesses.
Number of Respondents for the Order: 248. (100 requests for
declaratory rulings, 24 comments on requests, 100 petitions for wavers,
24 comments on petitions.)
Estimated Time Per Response for the Order: 2-5 hours.
Total Annual Burden for the Order: 844 hours. It is estimated that
50% of declaratory rulings will be prepared without outside counsel
with a burden of 5 hours each and 50% of parties will hire outside
counsel. The estimated burden to coordinate information with outside
counsel is 2 hours. 50 (50% without outside counsel) x 5 hours = 250
hours. 50 (50% with outside counsel) x 2 hours = 100 hours. It is
estimated that 50% of comments on declaratory rulings will be prepared
without outside counsel with a burden of 4 hours each and 50% of
parties will hire outside counsel. The estimated burden to coordinate
information with outside counsel is 2 hours. 12 (50% without outside
counsel) x 4 hours = 48 hours. 12 (50% with outside counsel) x 2
hours = 24 hours. It is estimated that 50% of petitions for waivers
will be prepared without outside counsel with a burden of 5 hours each
and 50% of parties will hire outside counsel. The estimated burden to
coordinate information with outside counsel is 2 hours. 50 (50% without
outside counsel) x 5 hours = 250 hours. 50 (50% with outside counsel)
x 2 hours = 100 hours. It is estimated that 50% of comments on
waivers will be prepared without outside counsel with a burden of 4
hours each and 50% of parties will hire outside counsel. The estimated
burden to coordinate information with outside counsel is 2 hours. 12
(50% without outside counsel) x 4 hours = 48 hours. 12 (50% with
outside counsel) x 2 hours = 24 hours.
Estimated Costs Per Respondent for the Order: It is estimated that
50 requests for declaratory rulings, 12 comments on requests for
declaratory rulings, 50 petitions for waivers and 12 comments on
petitions for waivers will be prepared each year through outside
counsel. The estimated annual costs are $89,400, illustrated as
follows: 50 declaratory rulings x 5 hours x $150/hr. = $37,500. 12
comments on declaratory rulings x 4 hours x $150/hr. = $7,200. 50
petitions for waivers x 5 hours x $150/hr. = $37,500. 12 comments
on petitions for waivers x 4 hours x $150/hr. = $7,200.
Number of Respondents for the FNPRM: 248. (100 requests for
declaratory rulings, 24 comments on
[[Page 46558]]
requests, 100 petitions for waivers, 24 comments on petitions.)
Estimated Time Per Response for the FNPRM: 2-5 hours.
Total Annual Burden for the FNPRM: 844 hours. It is estimated that
50% of declaratory rulings will be prepared without outside counsel
with a burden of 5 hours each and 50% of parties will hire outside
counsel. The estimated burden to coordinate information with outside
counsel is 2 hours. 50 (50% without outside counsel) x 5 hours = 250
hours. 50 (50% with outside counsel) x 2 hours = 100 hours. It is
estimated that 50% of comments on declaratory rulings will be prepared
without outside counsel with a burden of 4 hours each and 50% of
parties will hire outside counsel. The estimated burden to coordinate
information with outside counsel is 2 hours. 12 (50% without outside
counsel) x 4 hours = 48 hours. 12 (50% with outside counsel) x 2
hours = 24 hours. It is estimated that 50% of petitions for waivers
will be prepared without outside counsel with a burden of 5 hours each
and 50% of parties will hire outside counsel. The estimated burden to
coordinate information with outside counsel is 2 hours. 50 (50% without
outside counsel) x 5 hours = 250 hours. 50 (50% with outside counsel)
x 2 hours = 100 hours. It is estimated that 50% of comments on
waivers will be prepared without outside counsel with a burden of 4
hours each and 50% of parties will hire outside counsel. The estimated
burden to coordinate information with outside counsel is 2 hours. 12
(50% without outside counsel) x 4 hours = 48 hours. 12 (50% with
outside counsel) x 2 hours = 24 hours.
Estimated Costs Per Respondent for the FNPRM: It is estimated that
50 requests for declaratory rulings, 12 comments on requests for
declaratory rulings, 50 petitions for waivers and 12 comments on
petitions for waivers will be prepared each year through outside
counsel. The estimated annual costs are $89,400, illustrated as
follows: 50 declaratory rulings x 5 hours x $150/hr. = $37,500. 12
comments on declaratory rulings x 4 hours x $150/hr. = $7,200. 50
petitions for waivers x 5 hours x $150/hr. = $37,500. 12 comments
on petitions for waivers x 4 hours x $150/hr. = $7,200.
Needs and Uses: Submitted information will be used to evaluate
requests for declaratory ruling regarding the reasonableness of state,
local and nongovernmental restrictions, or to requests for waiver of
the rule.
I. Synopsis of Report and Order, Memorandum Opinion and Order
1. On February 8, 1996, the Telecommunications Act of 1996 (``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 Report and Order (R&O) and Memorandum
Opinion and Order (MO&O) we consolidate two rulemaking proceedings, IB
Docket No. 95-59, 11 FCC Rcd 5809 (1996) (61 FR 10710) (DBS Order and
Further Notice of Proposed Rulemaking), and CS Docket No. 96-83, 11 FCC
Rcd 6357 (1996) (61 FR 16890) (TVBS-MMDS Notice of Proposed
Rulemaking), to implement Section 207 with respect to direct broadcast
satellite (``DBS'') service, television broadcast signals (``TVBS'')
and multichannel multipoint distribution service (``MMDS''). We adopt a
rule that prohibits restrictions that impair a viewer's ability to
install, maintain and use devices designed to receive these services on
property within the exclusive use or control of the viewer and in which
the viewer has a direct or indirect property interest.
2. In the DBS Order and Further Notice of Proposed Rulemaking and
the TVBS-MMDS Notice of Proposed Rulemaking we adopted and proposed a
rule, respectively, establishing a rebuttable presumption of
unreasonableness for restrictions on TVBS, MMDS and DBS. In the R&O, we
replace the presumptive approach with a per se preemption of such
restrictions. Although the rebuttable presumption was created in an
effort to be less intrusive in local government affairs, it was broadly
viewed as creating unsustainable burdens on all parties, including the
Commission. Consequently, we replaced the rebuttable presumption
approach with a narrower, clearer preemption. In addition, the rule we
adopt preempts restrictions and regulations that ``impair'' rather than
``affect'' reception, in order to narrow the preemption and adhere more
closely to the language of the statute. A law, regulation or
restriction impairs installation, maintenance or use of an antenna if
it: (1) Unreasonably delays or prevents installation, maintenance or
use, (2) unreasonably increases the cost of installation, maintenance
or use, or (3) precludes reception of an acceptable quality signal.
3. In the DBS Order and Further Notice of Proposed Rulemaking and
TVBS-MMDS Notice of Proposed Rulemaking, we proposed to preempt
nongovernmental restrictions on DBS, TVBS, and MMDS reception devices,
and did not provide any recourse for nongovernmental authorities
seeking to enforce their restrictions. In the rule we adopt today, we
preempt nongovernmental restrictions on the same basis as governmental,
and provide the same declaratory ruling and waiver opportunities to
nongovernmental associations as we offer to governmental authorities.
The legislative history of Section 207 consists of the House Commerce
Committee Report, which states clearly that the provision applies to
nongovernmental restrictions, including restrictive covenants and
homeowners' association rules. The final rule treats nongovernmental
restrictions the same as governmental and establishes waiver and
declaratory ruling processes.
4. The rule we adopt creates exemptions for regulations serving
safety and historic preservation goals. The rule that we adopted in the
DBS Order and Further Notice of Proposed Rulemaking and proposed in the
TVBS-MMDS Notice of Proposed Rulemaking required that any governmental
entity seeking to enforce a restriction or regulation that affects
reception secure a declaration or waiver. Parties generally agree that
some restrictions are prima facie justified, and we accordingly create
exemptions for safety and historic preservation regulations. While
these restrictions must be tailored to impose as little burden as
possible on the use of receiving devices, they are permissible even if
they impair the ability to receive video programming services.
5. To the extent that they receive video programming services, our
rule applies to services closely related to DBS, TVBS and MMDS,
including medium-power satellite services using antennas one meter or
less in diameter or diagonal measurement to receive over-the-air video
programming, and multipoint distribution services (MDS), instructional
television fixed service (ITFS) and local multipoint distribution
service (LMDS). Our rule defines DBS and MMDS by the size and shape of
the services' receiving devices, and preempts restrictions on antennas
one meter or less in diameter or diagonal measurement. We also include
masts in our definition of MMDS, and preempt restrictions on antennas
that extend 12 feet or less above the roofline; such
[[Page 46559]]
installations cannot require a permit or prior approval, absent a
safety or historic preservation reason. In addition, governmental and
nongovernmental authorities cannot require permits or prior approvals
for installation of an antenna placed a distance at least as far from
the lot line as the height of the antenna. Because there is no history
of controversy concerning their size or shape, we decline to establish
any size or shape limits on TVBS antennas. However, TVBS antennas are
subject to the same height limitations as MMDS and DBS.
II. Regulatory Flexibility Analysis
6. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.
601-612, the Commission's Regulatory Flexibility Analysis with respect
to the R&O, MO&O is as follows:
As required by Section 603 of the Regulatory Flexibility Act, 5
U.S.C. 603 (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the DBS Order and Further Notice of Proposed Rulemaking
and the TVBS-MMDS Notice of Proposed Rulemaking. The Commission sought
written public comments on the proposals in the two proceedings,
including comments on the IRFA. The Commission's Final Regulatory
Flexibility Analysis (FRFA) in this Report and Order conforms to the
RFA, as amended by the Contract With America Advancement Act of 1996
(CWAAA), Pub. L. 104-121, 110 Stat. 847.
7. Need for Action and Objectives of the Rule. The rulemaking
implements Section 207 of the Telecommunications Act of 1996, Pub. L.
No. 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 devices designed
for over-the-air reception of TVBS, MMDS and DBS. This action is
authorized under the Communications Act of 1934 section 1, as amended,
47 U.S.C. 151, pursuant to the Communications Act of 1934 section 303,
as amended, 47 U.S.C. 303, and by Section 207 of the Telecommunications
Act of 1996.
8. The Commission seeks to promote competition among video service
providers and to enhance consumer choice. To accomplish these
objectives, the Commission implements Congress' directive by adopting a
rule that prohibits restrictions that impair a viewer's ability to
install, maintain and use devices designed for over-the-air reception
of video programming through TVBS, MMDS, and DBS services. The rule
that we adopt preempts governmental and nongovernmental regulations and
restrictions on property within the exclusive use or control of the
viewer in which the viewer has a direct or indirect ownership interest.
Our rule exempts regulations and restrictions which are clearly and
specifically designed to preserve safety or historic districts,
allowing for the enforcement of such restrictions even if they impair a
viewer's ability to install, maintain or use a reception device.
9. Summary and Assessment of Issues Raised by Commenters in
Response to the Initial Regulatory Flexibility Analysis. The
Commission, in its DBS Order and Further Notice of Proposed Rulemaking
and TVBS-MMDS Notice of Proposed Rulemaking, invited comment on the
IRFA and the potential economic impact the proposed rules would have on
small entities. NLC comments that the proposed rule would have a
``substantial economic and administrative impact'' on over 37,000 small
local governments. NLC states that the proposed rule would require
``local governments to amend their laws and to file petitions at the
FCC * * * for permission to enforce those laws.''
10. The Commission has modified its proposed rule and has addressed
the concerns raised by NLC by providing greater certainty regarding the
application of the rule, and by clarifying that local regulations need
not be rewritten or amended. The Commission recognizes that some
regulations are integral to local governments' ability to protect the
safety of its citizens. The rule that we adopt exempts restrictions
clearly defined as necessary to ensure safety, and permits enforcement
of safety restrictions during the pendency of any challenges. In
addition, limiting the rule's scope to regulations that ``impair,''
rather than the proposed preemption of regulations that ``affect,''
will minimize the impact on small local governments, while effectively
implementing Congress' directive. Finally, the inclusion in the Report
and Order of examples of permissible and prohibited restrictions will
minimize the need for local governments to submit waiver or declaratory
ruling petitions to the Commission, decreasing the potential economic
burden.
11. Numerous apartment complexes filed comments seeking
clarification of Section 207's impact on their lease terms. These
filings express concern about the impact the rule will have on the
rental property industry. This Report and Order applies only to
property in the exclusive control or use of the viewer and in which the
viewer has a direct or indirect ownership interest. Thus, this Order
will have no major impact on the rental property industry. The question
of the applicability of Section 207 and our rule to rental properties
is raised in the Further Notice of Proposed Rulemaking.
12. Several neighborhood associations suggest that our rule will
have a negative economic impact on the value of their land and that
such a prohibition would constitute a taking, requiring compensation
under the Fifth Amendment of the Constitution. We do not believe that
implementation of our rule results in a taking of property. There is
nothing in the record here to indicate that nullifying a homeowner's
ability to prevent his neighbor from installing antennas has a
measurable economic impact on the homeowner's property, nor that it
interferes with investment-backed expectations. In support of the rule,
several commenters argue that the rule enhances the value of the
homeowner's property.
13. The Commission also notes the positive economic impact the new
rule will have on many small businesses. The new rule will allow small
businesses that use video programming services to select from a broader
range of providers, which could result in significant economic savings;
because providers will be competing for customers, more services will
be available at lower prices. In addition, small business video
programming providers will be faced with fewer entry hurdles, and will
thus be able to develop their markets and compete more effectively,
achieving one of the purposes of Section 207.
14. Description and Estimate of the Number of Small Entities
Impacted. The Regulatory Flexibility Act, 5 U.S.C. 601(3) (1980),
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.'' 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), 15 U.S.C. 632 (1996). The rule we adopt today applies to small
organizations and small governmental jurisdictions, rather than
businesses.
15. The term ``small governmental jurisdiction'' is defined as
``governments of * * * districts, with a population of less than fifty
thousand.'' 5 U.S.C. 601(5). There are 85,006 governmental entities in
the United States. United States Dept. of Commerce, Bureau of the
Census, 1992 Census of Governments.
[[Page 46560]]
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. The NLC estimates that
there are 37,000 ``small governmental jurisdictions'' that may be
affected by the proposed rule.
16. 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.'' 5
U.S.C. 601(4). This definition includes homeowner and condominium
associations that operate as not-for-profit organizations. The
Community Associations Institute 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.
17. Reporting, Recordkeeping, and Other Compliance Requirements.
The rule does not establish any filing requirements. However, state and
local governments and neighborhood associations promulgating
regulations that are prohibited by this rule may seek declaratory
rulings concerning the validity of a restriction, or may request
waivers of the rule. Petitions for declaratory ruling and requests for
waiver will be considered through a paper hearing process, and the
initiating petition will require only standard secretarial skills to
prepare.
18. If a governmental or nongovernmental authority wishes to
enforce a safety restriction, the rule requires that the safety reasons
for the restrictions be clearly defined in the legislative history,
preamble or text of the restriction. Alternatively, the local entity
may include a restriction on a list of safety restrictions related to
antennas, that is made available to interested parties (including those
who wish to install antennas). Thus, governmental entities will not be
required to amend their rules. Local officials may need time to review
regulations to determine if the safety reasons are clearly defined in
the legislative history, preamble or text, or to create a list of
applicable restrictions.
19. Steps Taken to Minimize the Economic Impact on Small Entities
and Significant Alternatives Rejected. The Commission considered
various alternatives that would have impacted small entities to varying
extents. These included a rebuttable presumption approach, the use of
the term ``affect'' in the rule, and a rule that allowed for
adjudicatory proceedings in courts of competent jurisdiction, all of
which were adopted in the DBS Order and Further Notice of Proposed
Rulemaking and proposed in the TVBS-MMDS Notice of Proposed Rulemaking.
The rule we adopt today replaces the rebuttable presumption with a
simpler preemption approach, adheres to the statutory language by using
the term ``impair'' rather than ``affect'' in the rule, and allows for
adjudication at the Commission or in a court of competent jurisdiction.
We believe that we have effectively minimized the rule's economic
impact on small entities.
20. In the DBS Order and Further Notice of Proposed Rulemaking and
the TVBS-MMDS Notice of Proposed Rulemaking, we adopted and proposed,
respectively, a rebuttable presumption approach to governmental
regulations, and proposed strict preemption of nongovernmental
restrictions. We acknowledged in the DBS Order and Further Notice of
Proposed Rulemaking that a rule relying on a presumptive approach would
be more difficult to administer than a rule based upon a per se
prohibition, and we sought comment in the TVBS-MMDS Notice of Proposed
Rulemaking on less burdensome approaches. Under the rebuttable
presumption approach, local governments would have been required to
request a declaratory ruling from the Commission every time they sought
to enforce or enact a restriction; and neighborhood associations would
not have been able to enforce or enact any restrictions that impaired a
viewer's ability to receive the signals in question. The rebuttable
presumption approach was adopted to ensure the protection of local
interests, including local governments. Based on the record, the
Commission recognizes that the burden of rebutting a presumption could
strain the resources of local authorities. The Commission has rejected
the rebuttable presumption approach for a less burdensome preemption
approach. In addition we have provided recourse for both neighborhood
associations and municipalities. The rule we adopt today provides for a
per se prohibition of restrictions that impair a viewer's ability to
install, maintain or use devices designed for over-the-air reception of
video programming services. Our Report and Order provides examples of
reasonable regulations that can be enforced without a waiver
application. The Commission believes that the Report and Order provides
such clarity as will make the enforcement of the rule the most
efficient and least burdensome for local governments, neighborhood
associations, and this Commission.
21. In adopting the new rule, the Commission rejected the
alternative of preempting all restrictions that ``affect'' the
reception of video programming services through devices designed for
over-the-air reception of TVBS, MMDS and DBS services. The new rule
prohibits only those local restrictions that ``impair'' a viewer's
ability to receive these signals and exempts restrictions necessary to
ensure safety or to preserve historic districts. In defining the term
``impair'' we reject the interpretation that impair means prevent
because that definition would not properly implement Congress'
objective of promoting competition. We find that a restriction impairs
a viewer's ability to receive over-the-air video programming signals,
if it (a) unreasonably delays or prevents installation, maintenance or
use of a device used for the reception of over-the-air video
programming signals by DBS, TVBS, or MMDS; (b) unreasonably increases
the cost of installation, maintenance or use of such devices; (c)
precludes reception of an acceptable quality signal. The use of the
term impair will decrease the burden on small entities while
implementing Congress' objective.
22. In the DBS Order and Further Notice of Proposed Rulemaking and
the TVBS-MMDS Notice of Proposed Rulemaking, we discussed the
possibility of parties seeking judgment from either the Commission or a
court of competent jurisdiction. The Commission is concerned about
uniformity in the application of our rule, and about the financial
burden that litigation might place on small entities. While we cannot
prohibit parties' applications to courts of competent jurisdiction, we
address this concern by exercising our Congressional grant of
jurisdiction and implementing a waiver process, and encouraging parties
to use this approach rather than relying on costly litigation.
23. Waiver proceedings will be paper hearings, allowing the
Commission to alleviate the negative potential economic impact from
costly litigation. Further, any regulations necessary to the
safeguarding of safety will remain enforceable pending the Commission's
resolution of waiver requests. The Commission believes that the rule we
adopt today effectively implements Congress' intent while minimizing
any significant economic impact on small entities.
[[Page 46561]]
24. Report to Congress. The Commission shall send a copy of this
Final Regulatory Flexibility Analysis, along with this Report and
Order, in a report to Congress pursuant to the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
Sec. 801(a)(1)(A). A copy of this FRFA will also be published in the
Federal Register.
III. Paperwork Reduction Act of 1995 Analysis
25. Final Paperwork Reduction Act of 1995 Analysis. This Report and
Order has been analyzed with respect to the Paperwork Reduction Act of
1995 and found to contain an information collection requirement on the
public. Implementation of an information collection requirement is
subject to approval by the Office of Management and Budget as
prescribed by the Act.
26. In the DBS Order and Further Notice of Proposed Rulemaking and
the TVBS-MMDS Notice of Proposed Rulemaking we proposed an information
collection process, utilizing waivers and declaratory rulings, that has
now been approved by the Office of Management and Budget (OMB). This
Report and Order contains a modified information collection that we
believe is less burdensome. As part of our continuing effort to reduce
paperwork burdens, we invite the general public and OMB to comment on
the modified information collections contained in this Report and
Order, as required by the Paperwork Reduction Act of 1995, Pub. L. No.
104-13. Public and agency comments are due on September 27, 1996; OMB
comments are due November 4, 1996. 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
will 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.
27. Written comments by the public on the modified information
collections are due on September 27, 1996. Written comments must be
submitted by the Office of Management and Budget (OMB) on the proposed
and/or modified collections on or before November 4, 1996. 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, NW, Washington DC 20554, or via the Internet to
dconway@fcc.gov, and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725
17th Street, NW, Washington DC 20503 or via the Internet to
fain__t@al.eop.gov.
IV. Ordering Clauses
28. Accordingly, it is ordered, pursuant to 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 No. 104-104, 110 Stat. 56, that the rule discussed
in this Report and Order is adopted as Sec. 1.4000 of the Commission's
rules, 47 CFR 1.4000.
29. It is further ordered that Sec. 25.104 of the Commission's
rules, 47 CFR 25.104, is amended as set forth below.
30. It is further ordered that the Petitions for Reconsideration
filed in IB Docket No. 95-59 by Alphastar Television Network, Inc.;
County of Boulder, State of Colorado; DIRECTV, Inc.; Florida League of
Cities; Hughes Network Systems, Inc.; City of Dallas et al.; National
League of Cities et al.; Primestar, Inc.; Satellite Broadcasting and
Communications Association of America; and United States Satellite
Broadcasting Co., to the extent that they address issues related to
section 207, are granted in part as discussed herein, and are otherwise
denied.
31. It is further ordered that the requirements and regulations
established in this decision shall become effective upon approval by
the Office of Management and Budget (OMB) of the new information
collection requirements adopted herein, but no sooner than October 4,
1996.
32. This Report and Order and Memorandum Opinion and Order contains
a modified information collection. As part of our continuing effort to
reduce paperwork burdens, we invite the general public and the OMB to
comment on the information collections contained in this Report and
Order, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-
13. Public and agency comments are due September 27, 1996; OMB comments
are due November 4, 1996. Comments should address: (a) Whether the
modified and proposed collections of information are necessary for the
proper performance of the functions of the Commission, including
whether the information will 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 collection of information on the respondents,
including the use of automated collection techniques or other forms of
information technology. 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, NW, Washington DC
20554, or via the Internet to dconway@fcc.gov, and to Timothy Fain, OMB
Desk Officer, 10236 NEOB, 725 17th Street, NW, Washington, DC 20503 or
via the Internet to fain__t@al.eop.gov.
33. It is further ordered that the Secretary shall send a copy of
this Report and Order and Memorandum Opinion and Order including the
Final 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. 96-354, 94
Stat. 1164, 5 U.S.C. 601 et seq. (1981).
List of Subjects
47 CFR Part 1
Telecommunications, Television.
47 CFR Part 25
Satellites.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Parts 1 and 25 of Title 47 of the Code of Federal Regulations are
amended to read as follows:
1. The authority citation for Part 1 is revised to read as follows:
Authority: 47 U.S.C. 151, 154, 207, 303 and 309(j) unless
otherwise noted.
2. A new subpart S is added to part 1 to read as follows:
Subpart S--Preemption of Restrictions That ``Impair'' a Viewer's
Ability To Receive Television Broadcast Signals, Direct Broadcast
Satellite Services or Multichannel Multipoint Distribution Services
Sec. 1.4000. Restrictions impairing reception of television
broadcast signals, direct broadcast satellite services or
multichannel multipoint distribution services.
[[Page 46562]]
Subpart S--Preemption of Restrictions That ``Impair'' a Viewer's
Ability To Receive Television Broadcast Signals, Direct Broadcast
Satellite Services or Multichannel Multipoint Distribution Services
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: 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; or 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; or an antenna that is designed to receive
television broadcast signals; 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) 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. No fine or other penalties shall accrue against an
antenna user while a proceeding is pending to determine the validity of
any restriction.
(b) Any restriction otherwise prohibited by paragraph (a) of this
section is permitted if:
(1) It is necessary to accomplish a clearly defined 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,
weight and appearance to these antennas and to which local regulation
would normally apply; or
(2) It is necessary to preserve an historic district listed or
eligible for listing in the National Register of Historic Places, as
set forth in the National Historic Preservation Act of 1966, as
amended, 16 U.S.C. 470a, 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 above.
(c) Local governments or associations may apply to the Commission
for a waiver of this rule under Sec. 1.3. Waiver requests 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, or a court of competent jurisdiction, to determine
whether a particular restriction is permissible or prohibited under
this section. Petitions to the Commission will be put on public notice.
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.
(e) In any Commission 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.
(f) 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, 1919 M St.
NW.,Washington, DC 20554. Copies of the petitions and related pleadings
will be available for public inspection in the Cable Reference Room in
Washington, DC. Copies will be available for purchase from the
Commission's contract copy center, and Commission decisions will be
available on the Internet.
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 amended by revising paragraph (b)(1) and
adding new paragraph (f) to read as follows:
Sec. 25.104 Preemption of local zoning of earth stations.
* * * * *
(b)(1) Any state or local zoning, land-use, building, or similar
regulation that affects the installation, maintenance, or use of 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 non-federal land-use
regulation shall be presumed unreasonable and is therefore preempted
subject to paragraph (b)(2) of this section. 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) of this section, or a final declaration from
the Commission or a court of competent jurisdiction that the
presumption has been rebutted pursuant to paragraph (b)(2) of this
section.
* * * * *
(f) a satellite earth station 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
is covered by the regulations in Sec. 1.4000 of this chapter.
[FR Doc. 96-22494 Filed 9-3-96; 8:45 am]
BILLING CODE 6712-01-P
