Preemption of Local Zoning Regulations; Satellite Earth Stations

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 25

[IB Docket No. 95-59; FCC 96-78]

Preemption of Local Zoning Regulations; Satellite Earth Stations

AGENCY: Federal Communications Commission.

ACTION: Final Rule.

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SUMMARY: The Commission has adopted revisions to its rule preempting

certain local regulation of satellite earth stations. The revised rule

was proposed in Notice of Proposed Rulemaking. The new rule clarifies

the preemption standard and establishes procedures for Commission

enforcement of its rules. In crafting the new rule, we have carefully

considered the very weighty and important interests of state and local

governments in managing land use in their communities. Against those

interests, we have balanced the federal interest in ensuring easy

access to satellite-delivered services, which have become increasingly

important and widespread in the last few years and are dependent upon

rapid and inexpensive antenna installation by businesses and consumers.

We believe that the revised preemption rule accommodates both federal

and non-federal interests and provides the Commission with a method of

reviewing disputes that will avoid excessive federal involvement in

local land-use issues.

EFFECTIVE DATE: April 17, 1996.

FOR FURTHER INFORMATION CONTACT: Rosalee Chiara, International Bureau,

Satellite and Radiocommunication Division, Satellite Policy Branch,

(202) 418-0754.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report

and Order in IB Docket No. 95-59; FCC 96-78, adopted February 29, 1996

and released March 11, 1996. The complete text of this Report and Order

and Further 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, N.W., Washington, D.C., and also may be

purchased from the Commission's copy contractor, International

Transcription Service, (202) 857-3800, 2100 M Street, N.W., Suite 140,

Washington, DC 20037.

Summary of Report and Order

1. In this Report and Order, the Commission adopts revisions to its

rule preempting certain local regulation of satellite earth station

antennas. Our new rule clarifies the preemption standard and

establishes procedures for Commission enforcement of its rules. In

crafting the new rule, we have carefully considered the very weighty

and important interests of state and local governments in managing land

use in their communities. Against those interests, we have balanced the

federal interest in ensuring easy access to satellite-delivered

services, which have become increasingly important and widespread in

the last few years and are dependent upon rapid and inexpensive antenna

installation by businesses and consumers. We believe that the revised

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preemption rule accommodates both federal and non-federal interests and

provides the Commission with a method of reviewing disputes that will

avoid excessive federal involvement in local land-use issues.

2. The original preemption rule was adopted in 1986 in response to

evidence that state and local governments were, in some instances,

imposing unreasonably restrictive burdens on the installation of

satellite antennas. The 1986 rule preempted ordinances that

discriminate against satellite antennas and impose unreasonable

limitations on reception or unreasonable costs on users. In addition,

in the order adopting the rule, we stated that anyone coming to the

Commission for relief in a particular zoning dispute must first exhaust

all non federal remedies, including all litigation remedies.

3. Several events since 1986 have led us to conclude that our rule

should be revised at this time. For example, in 1992, the U.S. Court of

Appeals for the Second Circuit invalidated our exhaustion of remedies

policy. Town of Deerfield v. FCC, 992 F.2d 420 (2d Cir. 1993)

(Deerfield). In addition, antenna users, local governments, and

Commission staff have gained experience in this area and have found

that several aspects of the 1986 rule are problematic. Finally,

representatives of two satellite industry groups filed requests for

declaratory rulings in connection with our preemption rule. The

Satellite Broadcasting and Communications Association (SBCA),

representing the interests of direct-to-home video service providers

and users, urged the Commission to clarify its rule and to adopt

enforcement procedures. Similarly, Hughes Network Systems (HNS), a

provider of satellite communications for business uses, requested a

ruling that local restrictions are per se unreasonable if imposed on

very small aperture terminals (VSATs) that measure less than two meters

in diameter and are installed in commercial areas.

4. In the spring of 1995, we adopted a Notice of Proposed

Rulemaking, 60 FR 28077 (May 30, 1995), responding to these events. The

Notice tentatively concluded that our preemption policies, including

procedural rules, must be revised. Accordingly, in the Notice, we

proposed to review local disputes after exhaustion of only nonfederal

administrative remedies, not all non-federal legal remedies. We

proposed new standards to determine the reasonableness of non-federal

regulations, and created two categories of rebuttable presumptions for

small antennas. Finally, we proposed procedures by which state and

local governments authorities can request a waiver of the rule in cases

where unusual circumstances are demonstrated.

5. In the Notice, we described how our proposed rule would apply in

different ways to satellite antennas of different types and sizes.

These antennas fall into two basic categories, depending on the service

provided. The first category consists of antennas designed for direct-

to-home (DTH) reception of video programming for home entertainment

purposes. At this time, DTH uses two different frequency bands for

transmission. In the Ku-band (12/14 GHz), service can be provided with

antennas less than one meter in diameter. In the C-band (4/6 GHz),

antenna diameters are as small as six feet (approximately 2 meters) and

typically around seven and one-half feet (approximately 2.5 meters).

These C-band antennas provide different programming that is sometimes

not available to smaller antenna users. DTH antennas are receive-only

and do not have transmitting capabilities. The second broad category of

antennas is designed for two-way, commercial communications. These

antennas both transmit and receive. The smallest of these are often

referred to as VSATs and provide satellite communications network

services to retail establishments such as gas stations, store chains,

banks, and brokerage services. These antennas are located in the same

areas as the commercial facilities they serve. Most VSAT antennas are

less than two meters in diameter. Other satellite services are provided

by larger transmit/receive antennas that are generally associated with

commercial facilities. Our proposals reflect differences in these

various types of antennas.

6. In response to the Notice, we received extensive comments from

satellite industry representatives and from local governments. In

general, industry representatives stress that our preemption rule must

be clear and easy to apply, and they recommend some modifications to

our proposal to accomplish this goal. Local government representatives

strongly oppose any greater federal preemption, but generally concede

that Commission enforcement procedures are necessary in light of

Deerfield.

7. After our receipt of comments in this matter, Congress enacted

legislation which directly impacts some of the issues in the rule

making proceeding. Specifically, section 207 of the 1996 Act 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 television broadcast signals multichannel, multipoint

distribution service, or direct broadcast satellite services.

Telecommunications Act of 1996, Public Law No. 104-104, 110 Stat. 56

(1996). Although we seek comment on the impact of the legislation in

the Further Notice, we have decided to proceed with the issuance of

this Report and Order. We feel that it is crucial to put a revised rule

in place as quickly as possible. Moreover, the revised rule proposed in

the Notice and adopted here applies to a variety of services provided

by all sizes of satellite dishes, not just direct broadcasting services

provided by 18'' dishes. Finally, as explained in the Further Notice,

we tentatively conclude that insofar as governmental restrictions are

concerned, our newly adopted preemption rule is a reasonable way to

implement section 207 with regard to DBS antennas. After reviewing the

comments submitted in response to the Further Notice, we will determine

whether further adjustments to our rule are warranted.

8. In crafting our preemption policies, we have attempted to

reflect the differences in the antennas involved and have tried to

accommodate the varying local interests. The main state and local

concerns regarding installation of satellite earth stations relate to

aesthetics, health, and safety. These concerns would appear to be

greater for larger antennas, thus the rule permits greater local

regulation for larger antennas. For smaller antennas, local interests

are less compelling and, accordingly, we more narrowly define

permissible local regulation. After reviewing the record, we conclude

that the basic thrust of our proposals is appropriate and will

adequately address concerns of antenna users while accommodating

interests of state and local governments. However, commenters have

raised concerns about the clarity of certain portions of our rule and,

accordingly, we made adjustments to the adopted version to address

these problems.

Ordering Clauses

9. Accordingly, it is ordered That the revisions to Sec. 25.104 of

the Commission's rules as set out below are hereby adopted.

10. The analysis required pursuant to Section 606 of the Regulatory

Flexibility Act, 5 U.S.C. Sec. 608, is set forth below.

11. It is further ordered That the amendments to 47 CFR 25.104

adopted in the Report and Order that comprises

[[Page 10898]]

paragraphs 1 through 52 of the Report and Order and Further Notice of

Proposed Rulemaking will become effective April 17, 1996. This action

is taken pursuant to Sections 1, 4(i), 4(j), 7, and 309(j) of the

Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j),

157, and 309(j). The Federal Communications Commission as part of its

continuing effort to reduce paperwork burden invites the general public

and other Federal agencies to take this opportunity to comment on the

information collection in the adopted rule, as required by the

Paperwork Reduction Act of 1995. Comments concerning the Commision's

need for this information, the accuracy of the provided burden

estimates, and any suggested methods for minimizing respondent burden,

including the use of automated information techniques, are requested.

The Commission has requested an emergency Office of Management & Budget

review of this collection with an approval by April 10, 1996.

12. It is further ordered That the Secretary shall send a copy of

this Report and Order and Further Notice of Proposed Rulemaking to the

Chief Counsel for Advocacy of the Small Business Administration in

accordance with paragraph 603(a) of the Regulatory Flexibility Act,

Public Law 95-354, 94 Stat. 1164, 5 U.S.C. 601 et seq. (1981).

Final Regulatory Flexibility Act Statement

13. Pursuant to Section 603 of the Regulatory Flexibility Act, 5

U.S.C. 603, an initial Regulatory Flexibility Analysis was incorporated

in the Notice of Proposed Rulemaking in IB Docket No. 95-59. Written

comments on the proposals in the Notice, including the Regulatory

Flexibility Analysis, were requested.

A. Need and Purpose of Rules

14. This rulemaking proceeding modifies the Commission's rule

preempting certain local zoning regulation of Satellite earth station

antennas, 47 CFR 25.104. Our objective has been to facilitate the

installation of antennas and to assist in the development of satellite

based technologies.

B. Issues Raised by the Public in Response to the Initial Analysis

15. No comments were received specifically in response to the

Initial Regulatory Flexibility Analysis. We have, however, taken into

account all issues raised by the Public in response to the proposed

rules. In certain instances, we have eliminated or modified rules in

response to those comments.

C. Significant Alternatives Considered

16. We have attempted to balance all the commenters' concerns with

our public interest mandate under the Communications Act in order to

assure that satellite services are accessible. We will continue to

examine this rule in an effort to eliminate unnecessary regulations and

to minimize significant economic impact on small businesses.

List of Subjects in 47 CFR Part 25

Satellites.

Federal Communications Commission

William F. Caton,

Acting Secretary.

Final Rules

Part 25 of Title 47 of the Code of Federal Regulations is amended

as follows:

PART 25--SATELLITE COMMUNICATIONS

17. 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.

18. Section 25.104 is revised to read as follows:

Sec. 25.104 Preemption of local zoning of earth stations.

(a) Any state or local zoning, land-use, building, or similar

regulation that materially limits transmission or reception by

satellite earth station antennas, or imposes more than minimal costs on

users of such antennas, is preempted unless the promulgating authority

can demonstrate that such regulation is reasonable, except that

nonfederal regulation of radio frequency emissions is not preempted by

this section. For purposes of this paragraph (a), reasonable means that

the local regulation:

(1) Has a clearly defined health, safety, or aesthetic objective

that is stated in the text of the regulation itself; and

(2) Furthers the stated health, safety or aesthetic objective

without unnecessarily burdening the federal interests in ensuring

access to satellite services and in promoting fair and effective

competition among competing communications service providers.

(b)(1) Any state or local zoning, land-use, building, or similar

regulation that affects the installation, maintenance, or use of the

following two categories of a satellite earth station antenna 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:

(i) 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 nonfederal

land-use regulation; or

(ii) A satellite earth station antenna that is one meter or less in

diameter in any area, regardless of land use or zoning category.

(2) Any presumption arising from paragraph (b)(1) of this section

may be rebutted upon a showing that the regulation in question:

(i) Is necessary to accomplish a clearly defined health or

safety objective that is stated in the text of the regulation

itself;

(ii) Is no more burdensome to satellite users than is necessary

to achieve the health or safety objective; and

(iii) Is specifically applicable on its face to antennas of the

class described in paragraph (b)(1) of this section.

(c) 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 and variance procedure has been

exhausted;

(2) The petitioner's application for a permit or other

authorization required by the state or local authority has been on

file for ninety days without final action;

(3) The petitioner has received a permit or other authorization

required by the state or local authority that is conditioned upon

the petitioner's expenditure of a sum of money, including costs

required to screen, pole-mount, or otherwise specially install the

antenna, greater than the aggregate purchase or total lease cost of

the equipment as normally installed; or

(4) A state or local authority has notified the petitioner of

impending civil or criminal

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action in a court of law and there are no more nonfederal

administrative steps to be taken.

(d) Procedures regarding filing of petitions requesting declaratory

rulings and other related pleadings will be set forth in subsequent

Public Notices. All allegations of fact contained in petitions and

related pleadings must be supported by affidavit of a person or persons

with personal knowledge thereof.

(e) 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 a necessity for regulation

inconsistent with this section. No application for waiver shall be

considered unless it specifically sets forth the particular regulation

for which waiver is sought. Waivers granted in accordance with this

section shall not apply to later-enacted or amended regulations by the

local authority unless the Commission expressly orders otherwise.

[FR Doc. 96-6381 Filed 3-15-96; 8:45 am]

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