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

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 [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].

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 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

[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. 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 [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].

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