Preemption of Local Zoning Regulations

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.

-----------------------------------------------------------------------

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