Telecommunications Act of 1996; Preemption of Restrictions on Over-the-Air Reception Devices

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[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: Proposed rule.

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SUMMARY: This Further Notice of Proposed Rulemaking seeks comment on

the implementation of Section 207 as it relates to nongovernmental

restrictions on property not within the exclusive use or control of the

viewer and/or in which the viewer may not have a direct or indirect

ownership interest. 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

[[Page 46604]]

distribution service or direct broadcast satellite services.'' This

FNPRM 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 to the FNPRM on or before

September 27, 1996 and reply comments on or before October 28, 1996.

Written comments by the public on the proposed and/or modified

information collections are due on or before September 27, 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 November 4, 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 Jacqueline Spindler of the Cable Services

Bureau, 2033 M Street, N.W., Room 700, 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 [email protected], and to

Timothy Fain, OMB Desk Officer, 10236 NEOB, 725-17th Street, N.W.,

Washington, D.C. 20503 or via the Internet to [email protected].

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 [email protected].

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's FNPRM

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, 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 FNPRM contains a proposed

information collection 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 information

collection contained in this FNPRM, as required by the Paperwork

Reduction Act of 1995, Public Law No. 104-13. Public and agency

comments are due on September 27, 1996; OMB comments are due 60 days

from the date of publication in the Federal Register. 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

waivers, 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 requests, 100 petitions for wavers,

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 hour = 100 hours. It is

estimated that 50% of comments on declaratory rulings will be prepared

[[Page 46605]]

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

hour = 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 hour = 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 hour = 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 Further Notice of Proposed Rulemaking

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.'' On August 6, 1996, the Commission released a

Report and Order implementing Section 207. In this Further Notice of

Proposed Rulemaking (FNPRM) we seek comment on the implementation of

Section 207 as it relates to restrictions on property not within the

exclusive use or control of the viewer and/or in which the viewer may

not have a direct or indirect ownership interest.

2. Neither the DBS Order and FNPRM nor the TVBS-MMDS NPRM

specifically proposed rules to govern or sought comment on the question

of whether the antenna restriction preemption rules should apply to the

placement of antennas on rental and other property not within the

exclusive control of a person with an ownership interest. As a

consequence many of the specific practical problems of how possible

regulations might apply were not commented on, nor were the policy and

legal issues fully briefed. We conclude that the record before us at

this time is incomplete and insufficient on the legal, technical and

practical issues relating to whether, and if so how, to extend our rule

to situations in which antennas may be installed on common property for

the benefit of one with an ownership interest or on a landlord's

property for the benefit of a renter. Accordingly, we request further

comment on these issues. We invite comment on the potential for central

reception facilities in situations where restrictions on individual

antenna placement are preempted by the rules, and thus no involuntary

use of common or landlord-owned property is involved. We seek comment

on the technical and practical feasibility of an approach that would

allow the placement of over-the-air reception devices on rental or

commonly-owned property. In particular, we invite commenters to address

technical and/or practical problems or any other considerations they

believe the Commission should take into account in deciding whether to

adopt such a rule and, if so, the form such a rule should take.

3. Specifically, we seek comment on the Commission's legal

authority to prohibit nongovernmental restrictions that impair

reception by viewers who do not have exclusive use or control and a

direct or indirect ownership interest in the property. On the question

of our legal authority, we note that in Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419 (1982), the Supreme Court held that

a state statute that allowed a cable operator to install its cable

facilities on the landlord's property constituted a taking under the

Fifth Amendment. In the same case, the Court stated, in dicta, that ``a

different question'' might be presented if the statute required the

landlord to provide cable installation desired by the tenant. Id. at

440 n.19. We therefore request comment on the question of whether

adoption of a prohibition applicable to restrictions imposed on rental

property or property not within the exclusive control of the viewer who

has an ownership interest would constitute a taking under Loretto, for

which just compensation would be required, and if so, what would

constitute just compensation in these circumstances.

4. In this regard, we also request comment on how the case of Bell

Atlantic Telephone Companies v. FCC, 24 F.3d 1441 (D.C. Cir. 1994),

should affect the constitutional and legal analysis. In that case, the

U.S. Court of Appeals for the District of Columbia invalidated

Commission orders that permitted competitive access providers to locate

their connecting transmission equipment in local exchange carrier

central offices because these orders directly implicated the Just

Compensation Clause of the Fifth Amendment.

II. Initial Regulatory Flexibility Analysis

5. As required by Section 603 of the Regulatory Flexibility Act, 5

U.S.C. Sec. 603 (1996), the Commission has prepared an Initial

Regulatory Flexibility Analysis (IRFA) of the potential economic impact

on small entities of the approach proposed in this Further Notice of

Proposed Rulemaking. Written public comments are requested on the IRFA.

Comments must be identified as responses to the IRFA and must be filed

by the deadlines for comments on the Further Notice of Proposed

Rulemaking provided above.

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 No. 104-104, 110 Stat. 56, as it applies to the

installation, maintenance or use of antennas on common areas or rental

properties, property not within the exclusive control of a person with

an ownership interest, where a community association or landlord is

legally responsible for maintenance and repair.

7. Objectives. The Commission seeks to evaluate whether preempting

non-federal Restrictions on commonly owned property and property

subject to lease agreements, would: (1) 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; (2) provide an unreasonable

management burden for parties owning and legally responsible for the

property

[[Page 46606]]

at issue; and (3) result in the Commission exceeding its statutory

authority and Congress' constitutional authority.

8. Legal Basis. The proposed action is authorized under Section 1

of the Communications Act of 1934, as amended, 47 U.S.C. Sec. 151, and

Section 207 of the Telecommunications Act of 1996, Public Law No. 104-

104, 110 Stat. 56.

9. Reporting, Recordkeeping, and Other Compliance Requirements.

Depending on the outcome of the Further Notice of Proposed Rulemaking,

neighborhood associations, property management companies and individual

landlords promulgating regulations that restrict the installation,

maintenance or use of devices designed for receiving over-the-air

signals of DBS, MMDS and TVBS may, in certain circumstances, request

declaratory rulings from the Commission that their regulations are

reasonable, or petition the Commission for waiver of the rule.

10. Federal Rules that Overlap, Duplicate or Conflict with These

Requirements. None.

11. Description and Estimate of the Number of Small Entities

Impacted. 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.'' 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. Sec. 632.

Neighborhood associations and property rental businesses may be

affected by the ultimate outcome in the Further Notice of Proposed

Rulemaking. These entities might need to revise their covenants and

lease restrictions so that they conform with the rule.

12. 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. Sec. 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.

13. The U.S. Small Business Administration classifies a small

entity as a firm with fewer than 500 employees. United States Small

Business Administration, A Guide to the Regulatory Flexibility Act,

App. A (1996). Utilizing the Standard Industrial Classification Codes

for Real Estate Agents and Managers, 100,135 firms (of a total of

100,554) have fewer than 500 employees. United States Dept. of

Commerce, Bureau of the Census, 1993 Census of Cable and Other Pay

Television Services (quoted by Dr. William Whiston, Chief, Research

Contracts Branch, Office of Advocacy for the Small Business

Administration, July 31, 1996). This number does include real estate

agents, who would not be burdened by the proposed rule, but does not

include sole proprietors engaged in leasing rental property, who might

be burdened.

14. Any Significant Alternatives Minimizing the Impact on Small

Entities Consistent with the Stated Objectives. This Notice solicits

comments on a general approach only.

III. Paperwork Reduction Act of 1995 Analysis

15. Final Paperwork Reduction Act of 1995 Analysis. This FNPRM 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.

16. This FNPRM contains a proposed/modified information collection.

As part of our continuing effort to reduce paperwork burdens, we invite

the general public and OMB to comment on the information collection

contained in this FNPRM, as required by the Paperwork Reduction Act of

1995, Public Law 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.

17. 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

collections on or before November 4, 1996. A copy of any comments on

the information collection 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

[email protected], and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725

17th Street, NW, Washington DC 20503 or via the Internet to

[email protected].

IV. Procedural Provisions

18. 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 Secs. 1.1202,

1.1206.

19. Pursuant to applicable procedures set forth in Sections 1.415

and 1.419 of the Commission's rules, 47 CFR Secs. 1.415, 1.419,

interested parties may file comments on or before September 27, 1996,

and reply comments on or before October 28, 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

Jacqueline Spindler of the Cable Services Bureau, 2033 M Street, N.W.,

Room 700, 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

20. It is ordered that pursuant to Sections 4(i), 4(j), and 303 of

the Communications Act of 1934, as amended, 47 U.S.C. Secs. 154(i),

154(j), and 303, and Section 207 of the Telecommunications Act of 1996,

Public Law No. 104-104, 110 Stat. 56, notice is hereby given and

comment is sought regarding the proposals, discussion, and statement of

issues in the Further Notice of Proposed Rulemaking.

21. It is further ordered that the requirements and regulations

[[Page 46607]]

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.

22. This is a non-restricted notice and comment rulemaking

proceeding. Ex parte presentations are permitted, except during the

Sunshine Agenda period, provided that they are disclosed as provided in

the Commission rules. See generally, 47 CFR Secs. 1.1202, 1.1203, and

1.1206(a).

23. Pursuant to applicable procedures set forth in Sections 1.415

and 1.419 of the Commission's rules, 47 CFR Secs. 1.415 and 1.419,

interested parties may file comments on or before September 27, 1996,

and reply comments on or before October 28, 1996. All pleadings must

conform to Section 1.49(a) of the Commission's rules, 47 CFR

Sec. 1.49(a). To file formally in this proceeding, parties must file an

original and six copies of all comments, reply comments and supporting

comments. If parties want each Commissioner to receive a personal copy

of their comments, they must file an original plus eleven copies.

Parties 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 Room of the Federal

Communications Commission, 1919 M Street, NW., Washington, DC 20554.

For further information, contact Jacqueline Spindler at (202) 418-7200.

24. This Further Notice of Proposed Rulemaking contains a proposed

information collection. 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 the Further Notice of Proposed Rulemaking.

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 Further Notice of Proposed Rulemaking, as

required by the Paperwork Reduction Act of 1995, Public Law 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

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 [email protected], and to Timothy Fain, OMB

Desk Officer, 10236 NEOB, 725 17th Street, NW., Washington, DC 20503 or

via the Internet to [email protected].

25. It is further ordered that the Secretary shall send a copy of

this Report and Order and Memorandum Opinion and Order and Further

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, Public Law No. 96-354, 94 Stat. 1164, 5

U.S.C. 601 et seq. (1981).

List of Subjects in 47 CFR Part 1

Telecommunications, Television.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 96-22427 Filed 9-3-96; 8:45 am]

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