Preemption of Restrictions on Over-the-Air Reception Devices

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Ch. I

[CS Docket No. 96-83; FCC 96-151]

Preemption of Restrictions on Over-the-Air Reception Devices

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: The Notice of Proposed Rulemaking (``NPRM'') requests comment

on issues concerning the implementation of section 207 of the

Telecommunications Act of 1996 as it relates to television broadcast

signals and multichannel multipoint distribution services. The NPRM

will assist the Commission in devising regulations in this area. The

NPRM 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 on or before May 6, 1996

and reply comments on or before May 21, 1996. Written comments by the

public on the proposed and/or modified information collections are due

on or before May 6, 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 June 17, 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 Randi Albert of the Cable Services Bureau,

2033 M Street, N.W., Room 700Q, 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: Randi Albert or Jacqueline Spindler,

Cable Services Bureau, (202) 416-0800. 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 NPRM

in CS Docket No. 96-83, FCC No. 96-151, adopted April 2, 1996 and

released April 4, 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 NPRM contains proposed or modified information collections

subject to the Paperwork Reduction Act of 1995 (PRA). It has been

submitted to the Office of Management and Budget (OMB) for review under

the PRA. OMB, the general public, and other Federal agencies are

invited to comment on the proposed or modified information collections

contained in this proceeding.

OMB Approval Number: None.

Title: Preemption of Restrictions on Over-the-Air Reception

Devices--Notice of Proposed Rulemaking.

Type of Review: New collection.

Respondents: State and local governments; small businesses.

Number of Respondents: The Commission asks commenters to provide

estimates of the volume of waivers and requests for declaratory rulings

we might expect to receive on an annual basis. At this time, we

estimate parties will annually prepare 200 requests for declaratory

rulings and 100 petitions for waivers; for an annual total of 300

respondents.

Estimated Time Per Response: Preparation of a request for

declaratory ruling prepared without outside counsel will require an

average of 10 hours, and

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if using outside counsel would require 1 hour. Preparation of a waiver

request is estimated to require an average of 2 hours without outside

counsel, and if using outside counsel would require 1 hour.

Total Annual Burden: It is estimated that 50% of declaratory

rulings will be prepared without outside counsel and 50% of parties

will hire outside counsel. The estimated burden to coordinate

information with outside counsel will be 1 hour. 100 (50% without

outside counsel) x 10 hours=1,000 hours; and 100 (50% with outside

counsel) x 1 hour=100 hours, for a burden of 1,100 hours. It is

estimated that 90% of petitions for waivers will be prepared without

outside counsel. The other 10% will hire outside counsel, and the

estimated burden to coordinate information with outside counsel will be

1 hour. 90 (90% without outside counsel) x 2 hours=180 hours; and 10

(10% with outside counsel) x 1 hour=10 hours, for a burden of 190

hours. The total burden to respondents is therefore 1,100+190=1,290

hours.

Estimated Costs Per Respondent: It is estimated that 100 requests

for declaratory rulings and 10 petitions for waivers will be prepared

each year through outside counsel. The estimated annual costs are

$153,000, illustrated as follows: 100 declaratory rulings x 10

hours x $150/hr.=$150,000. 10 petitions for waivers x 2 hours x $150/

hr.=$3,000

Needs and Uses: Submitted information will be used to evaluate

requests for declaratory ruling regarding the reasonableness of state

and local restrictions, or requests for waiver of the rule.

I. Notice of Proposed Rulemaking

1. On February 8, 1996, the Telecommunications Act of 1996 (the

``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 Notice of Proposed Rulemaking, we address

the statutory mandate with regard to television broadcast service

(``TVBS'') and multichannel multipoint distribution service (``MMDS'').

2. In a recent Report and Order and Further Notice of Proposed

Rulemaking, FCC 96-78 (released March 11, 1996) (61 FR 10710, March 15,

1996) (``Order and Further Notice''), the Commission considered the

issue of preemption of state or local restrictions, such as zoning

ordinances, on devices used to receive direct broadcast satellite

(``DBS'') services. Noting that section 207 expands the range of

preemption to include non-governmental entities such as homeowners'

associations, the Order and Further Notice proposes a per se preemption

of restrictions imposed by non-governmental entities as they affect

reception of DBS signals. In this Notice of Proposed Rulemaking, we

seek to provide similar implementation of section 207 regarding TVBS

and MMDS.

3. In the Order and Further Notice we adopted a rule for satellite

receivers less than one meter in diameter, including DBS receivers.

Section 207 of the 1996 Act groups TVBS, MMDS, and DBS receiving

devices together, which suggests that they should be treated similarly.

However, antennas used to receive TVBS signals can be of various forms

and sizes, and may not always be comparable to DBS antennas. Therefore,

while we propose a rule for TVBS and MMDS devices that does not draw

distinctions among receivers based on size, we invite comments on

whether and when such distinctions might be justified, within the

Commission's authority to implement the statutory language pursuant to

section 303 of the Communications Act.

4. The Order and Further Notice establishes a presumption that

restrictive state or local regulations are unreasonable, and therefore

preempts them, if they affect the installation, maintenance, or use of

a satellite earth station antenna that is one meter or less in

diameter. The presumption could be rebutted by obtaining a ``final

declaration'' from the Commission or a court of competent jurisdiction

that the state or local regulation is both necessary to accomplish a

clearly defined and expressly stated health or safety objective, and as

narrowly drawn as possible to accomplish that objective. We tentatively

conclude that this same presumption is applicable to MMDS and TVBS

antennas. In the Order and Further Notice we also determined that any

state or local authority that wished to maintain and enforce

regulations inconsistent with the preemption rule could apply to the

Commission for a full or partial waiver. Such a request must show local

concerns of a highly specialized or unusual nature, and must include

the particular regulation for which waiver is sought. We tentatively

conclude that this determination applies to MMDS and TVBS as well. We

solicit comment on this tentative conclusion and proposed rule, and

specifically ask commenters to provide estimates of the volume of

waivers we might expect under this proposed rule. We ask, too, whether

any workable alternative approach exists that would reduce the burden

on this Commission.

5. As we did in the Order and Further Notice, we note that antenna

users and local governments are free to pursue litigation remedies in

federal or state courts if they wish to forego Commission review.

Further, our recently adopted rule states that 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 or a

final declaration from the Commission or a court of competent

jurisdiction that the presumption has been rebutted. We tentatively

find that this approach is appropriate here as well.

II. Initial Regulatory Flexibility Analysis

Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-

612, the Commission's Initial Regulatory Flexibility Analysis with

respect to the NPRM is as follows:

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 104-104, 110 Stat. 56 (1996), as it applies to over-

the-air reception of television broadcast signals and multichannel

multipoint distribution services.

7. Objectives: The Commission seeks to evaluate whether our

proposed rule preempting non-federal restrictions will 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.

8. Legal Basis: The proposed action is authorized under Sections 1

and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 151,

303, and Section 207 of the Telecommunications Act of 1996, Public Law

104-104, 110 Stat. 56 (1996).

9. Reporting, Recordkeeping, and Other Compliance Requirements:

State and local governments propounding regulations which restrict the

installation, maintenance or use of devices designed for receiving

over-the-air signals of television broadcast and multichannel

multipoint distribution services may request declaratory rulings from

the Commission that their regulations are reasonable, or may petition

the Commission for waiver of the rule.

[[Page 16892]]

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

Requirements: None.

11. Description, Potential Impact and Number of Small Entities

Involved: Any policies or regulations adopted in this proceeding could

affect state, local, and nongovernmental regulatory entities, as well

as small businesses that install or use devices designed for over-the-

air reception of television broadcast signals and multichannel

multipoint distribution services.

12. Any Significant Alternatives Minimizing the Impact on Small

Entities Consistent with the Stated Objectives: This Notice solicits

comments on any suggested alternatives.

III. Initial Paperwork Reduction Act of 1995 Analysis

13. This NPRM contains either a proposed or modified information

collection. The Commission, as part of its continuing effort to reduce

paperwork burdens, invites the general public and the Office of

Management and Budget (``OMB'') to take this opportunity to comment on

the information collections contained in this NPRM, as required by the

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

agency comments are due at the same time as other comments on the NPRM;

OMB comments are due June 17, 1996. Comments should address: (a)

whether the proposed collection of information is necessary for the

proper performance of the functions of the Commission, including

whether the information shall 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.

IV. Procedural Provisions

14. 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 1.1202, 1.1206.

15. Pursuant to applicable procedures set forth in Sections 1.415

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

parties may file comments on or before May 6, 1996, and reply comments

on or before May 21, 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 Randi Albert of the Cable

Services Bureau, 2033 M Street, N.W., Room 700Q, 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

16. It is ordered that, pursuant to Section 207 of the

Telecommunications Act of 1996; and Sections 1, 303, of the

Communications Act of 1934, as amended, 47 U.S.C. 151, 303(r), Notice

is hereby given of proposed implementation of Section 207 of the

Telecommunications Act of 1996, in accordance with the proposals,

discussions, and statement of issues in this NPRM and Comment is Sought

regarding such proposals, discussions, and statements of issues.

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

this NPRM, including the IRFA, to the Chief Counsel for Advocacy of the

Small Business Administration in accordance with paragraph 603(a) of

the Regulatory Flexibility Act, Public Law 96-354, 94 Stat. 1164, 5

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

18. For additional information regarding this proceeding, contact

Randi Albert or Jacqueline Spindler, Consumer Protection and

Competition Division, Cable Services Bureau (202) 416-0800.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 96-9491 Filed 4-17-96; 8:45 am]

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