Preemption of Local Zoning Regulation of Satellite Earth Stations and Restrictions on Over-the-Air Reception Devices: Television Broadcast Service and Multichannel Multipoint Distribution Service

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[CS Docket No. 96-83; FCC 98-214]

Preemption of Local Zoning Regulation of Satellite Earth Stations

and Restrictions on Over-the-Air Reception Devices: Television

Broadcast Service and Multichannel Multipoint Distribution Service

AGENCY: Federal Communications Commission.

ACTION: Final rule; petition on reconsideration.

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SUMMARY: This Order on Reconsideration affirms and clarifies the Over-

the-Air Reception Devices Rule, which prohibits governmental and non-

governmental restrictions that impair a viewer's ability to receive

video programming through devices designed for over-the-air reception

of DBS, MDS, or television broadcast signals. This Order resolves

petitions for reconsideration of the Preemption of Restrictions on

Over-the-Air Reception Devices Report and Order (CS Docket No. 96-83,

FCC 96-328, 61 FR 46557) by reaffirming and clarifying certain parts of

the rule.

EFFECTIVE DATES: January 6, 1999, except Sec. 1.4000(d) and (e) contain

information collection requirements that will become effective February

16, 1999 following approval by the Office of Management and Budget,

unless timely notice is published in the Federal Register. The

Commission will publish a document in the Federal Register announcing

the effective dates for those sections. Written comments by the public

on the modified information collection requirements are due on or

before February 5, 1999. If you anticipate that you will be submitting

comments on the modified information collection requirements, but find

it difficult to do so within the period of time allowed by this notice,

you should advise Judy Boley, listed in the address section, as soon as

possible.

ADDRESSES: A copy of any comments on the modified information

collection requirements contained herein should be submitted to Judy

Boley, Federal Communications, Room C1804, 445 12th St., S.W.,

Washington, DC 20554 or via Internet to [email protected].

FOR FURTHER INFORMATION CONTACT: Eloise Gore at (202) 418-1066 or via

internet at [email protected] or Darryl Cooper at (202) 418-1039 or via

internet at [email protected]. For additional information concerning the

modified information collection requirements contained in the Order on

Reconsideration contact Judy Boley at (202) 418-0214 or via internet at

[email protected].

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

on Reconsideration, CS Docket No. 96-83, adopted August 27, 1998 and

released September 25, 1998. 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, or may be purchased from the Commission's copy contractor,

International Transcription Service (``ITS''), (202) 857-3800, 1231

20th Street, NW, Washington, D.C. 20036, or may be reviewed via

internet at http://www.fcc.gov/Bureaus/Cable/WWW/csb.html. For copies

in alternative formats, such as braille, audio cassette or large print,

please contact Sheila Ray at ITS.

[[Page 67423]]

Paperwork Reduction Act

The requirements contained in this Order on Reconsideration have

been analyzed with respect to the Paperwork Reduction Act of 1995 (the

``1995 Act'') and would impose modified information collection

requirements on the public. As part of its continuing effort to reduce

paperwork burdens, we invite the general public to take this

opportunity to comment on the information collection requirements

contained in this Order on Reconsideration, as required by the

Paperwork Reduction Act of 1995, Public Law 104-13. Public comments are

due 60 days from date of publication of this Order on Reconsideration

in the Federal Register and then implementation of any modified

information collection requirements will be subject to approval by the

Office of Management and Budget (``OMB'') as prescribed by the 1995

Act. 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 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.

OMB Approval Number: 3060-0707.

Title: Over-the-Air Reception Devices.

Type of Review: Revision of a currently approved collection.

Respondents: Individuals, state and local governments.

Number of Respondents: 320.

Estimated Time Per Response: 2-6 hours.

Frequency of Response: On occasion.

Total Annual Burden to Respondents: 1,240 hours.

Total Annual Cost to Respondents: $138,000.

Needs and Uses: Petitions for waivers of the Section 207 rules are

used by the Commission to determine whether the state, local or non-

governmental regulation or restriction is unique in a way that

justifies waiver of our rules prohibiting restrictions on the use of

over-the-air reception devices. Petitions for declaratory rulings

pursuant to the Section 207 rules are used by the Commission to

determine whether the state, local or non-governmental regulation or

restriction is preempted.

Synopsis of Order on Reconsideration

Introductory Background

1. In the Order on Reconsideration, the Commission grants in part

and denies in part petitions for reconsideration of the Commission's

implementation of section 207 of the Telecommunications Act of 1996

(``1996 Act'') (Pub. L. 104-104, 110 Stat. 114 (Feb. 8, 1996)) in its

Report and Order, Memorandum Opinion and Order, and Further Notice of

Proposed Rulemaking (``Report and Order'' and ``Further Notice'')

released on August 6, 1996 (In re Preemption of Local Zoning Regulation

of Satellite Earth Stations, and In re Implementation of Section 207 of

the Telecommunications Act of 1996, Restrictions on Over-the-Air

Reception Devices: Television Broadcast Service and Multichannel

Multipoint Distribution Service, IB Docket No. 95-59, CS Docket No. 96-

83 (consolidated), 61 FR 46557 September 4, 1996). The Report and Order

adopted 47 CFR 1.4000 (the ``Section 207 rules''), that generally

prohibits both governmental and nongovernmental restrictions that

impair the installation, maintenance or use of over-the-air reception

devices covered by Section 207 (``Section 207 devices''), unless the

restriction is necessary for safety or historic preservation reasons

and is no more burdensome than necessary to achieve those objectives.

Section 207 expressly covers over-the-air reception devices used to

receive television broadcast signals (``TVBS''), multichannel

multipoint distribution service (``MMDS''), and direct broadcast

satellite services (``DBS''). The rules implementing Section 207 also

cover: (1) any type of multipoint distribution service, including not

only MMDS but also instructional television fixed service (``ITFS'')

and local multipoint distribution service (``LMDS''); (2) medium-power

satellite services using antennas of one meter or less, even though

such services may not be technically defined as DBS elsewhere in the

Commission's rules; and (3) DBS antennas of over one meter in Alaska

(smaller DBS antennas do not work in Alaska). Under the rules the

Commission promulgated pursuant to Section 207, a restriction impairs a

viewer's Section 207 rights if it (1) unreasonably delays or prevents

installation, maintenance, or use of a covered Section 207 reception

device, (2) unreasonably increases the costs of installation,

maintenance or use of a covered Section 207 reception device, or (3)

precludes reception of an acceptable quality signal by the device. In

addition, the rules create exceptions for restrictions that promote

safety objectives and historic preservation.

2. Seven petitions for reconsideration of the Report and Order were

filed raising approximately 15 issues for reconsideration. In this

Order on Reconsideration, the Commission

(1) reaffirms the decision not to prohibit all restrictions on a

viewer's ability to install, maintain and use Section 207 reception

equipment;

(2) denies a petition to revise the safety exception to apply only

to ``compelling'' safety objectives; adopts a proposal to remove the

appearance of a device from the factors examined to determine the

validity of a safety objective; and revises the Section 207 rules to

examine how a safety objective treats other objects that pose a similar

or greater safety risk;

(3) denies a request to exclude nongovernmental entities from using

the safety exception;

(4) reaffirms the decision not to exercise exclusive jurisdiction

over the enforcement of our Section 207 rules at this time;

(5) reaffirms the decision that, based on the current record, the

permit requirements of the Building Officials & Code Administrators

International, Inc. (``BOCA'') code are reasonable safety restrictions;

(6) reaffirms that permit requirements designed to enforce

placement restrictions are preempted by our rules;

(7) declines to adopt a per se restriction on DBS antenna painting

requirements;

(8) adopts a proposal that a viewer be given at least 21 days

during which to comply with a court or Commission order upholding a

restriction before any fine or penalty may be imposed if the viewer's

claim is not frivolous;

(9) reaffirms the standard for signal degradation that qualifies as

an impairment under the Section 207 rules;

(10) denies a request that the Section 207 rules protect certain

antennas not specifically listed in the Section 207 rules and concludes

that a proponent of a new antenna must make a particular showing that

the antenna should be covered by the Section 207 rules;

(11) adopts a proposal that the Section 207 rules protect antennas

that have only transmission capability if these transmission antennas

are used in conjunction with antennas that receive video programming;

(12) denies a request to revise the historic preservation exception

to eliminate from its protection districts eligible to be listed on the

National Register of Historic Places, and amends the rules to clarify

the exception to include historic properties as they are

[[Page 67424]]

defined in the National Historic Preservation Act;

(13) denies a petition seeking a statement that any fee for

installing a Section 207 device is unreasonable and declines to set a

maximum cost that regulations may impose on installation that will

impair, but clarifies that certain fees are unreasonable;

(14) clarifies that petitions for declaratory ruling and petitions

for waiver must be served on all interested parties;

(15) revises the Section 207 rules to include certain statements

made in the Report and Order;

(16) clarifies the rights of a tenant under the Section 207 rules

where the tenant has the permission of the property owner to install an

antenna;

(17) clarifies that a viewer with a direct or indirect ownership

interest in property over which the viewer exercises exclusive use is

protected by the Section 207 rules even though the viewer may not

exercise exclusive control over the property; and

(18) clarifies that an association or a landlord may prohibit

viewers from installing individual Section 207 devices under the

Section 207 rules if the association or a landlord provides the tenant

access to a central antenna facility that does not impair the viewers'

rights under the Section 207 rules.

Conclusions

Not all antenna restrictions are preempted

3. Two petitions for reconsideration argued that the Commission

improperly failed to preempt all restrictions on viewers' ability to

install, maintain or use a reception device covered by Section 207. In

this Order, the Commission reaffirms the conclusion in the Report and

Order that Congress intended that the Commission exercise its

discretion when determining which restrictions should be preempted

under Section 207. It cannot have been Congress' intent, nor can it be

in the public interest, for the Section 207 rules to override

legitimate safety concerns or laws establishing the National Register

of Historic Places or restrictions that in no way impair the viewer's

ability to receive video programming. For example, if the viewer can

receive the same strength signal in the back yard as in the front yard,

then it would be an unnecessary interference with the legitimate

prerogatives of local governments to preempt a restriction limiting the

placement of the reception device to the back yard.

Safety exception reaffirmed, clarified and revised

4. Under the Section 207 rules, a restriction is permitted if ``it

is necessary to accomplish a clearly defined safety objective.''

Several petitions requested that the Commission alter the rule to

require a ``compelling'' safety objective. The Commission declines to

permit only compelling safety exceptions, but reaffirms and clarifies

that to fall within the safety exception, the safety objective must be

``clearly defined'' and ``serve legitimate safety goals,'' and the

proponent of the safety restriction must prove that it is neither

discriminatory nor more burdensome than necessary to achieve the safety

objective. The rules are modified to include the term ``legitimate'' in

the definition of a safety objective.

5. In the Order on Reconsideration, the Commission deletes the term

``appearance'' from the list of potential attributes that should be

examined to determine whether a safety restriction is being applied in

a discriminatory manner. The rules are revised to examine whether a

restriction is applied to fixtures or devices posing a similar or

greater safety risk as the Section 207 device and whether the

restriction is applied to the extent practicable in a non-

discriminatory manner to other appurtenances, devices, or fixtures,

considering factors such as size, weight, and safety risk. In addition,

if ``safety boilerplate'' is added to restrictive covenants for

anticompetitive reasons, the Commission will weigh this factor heavily

in determining whether the restriction is necessary, nondiscriminatory,

and no more burdensome than necessary to accomplish the objective.

Nongovernmental safety restrictions

6. Two petitions requested that nongovernmental entities, such as

homeowners' associations, be prohibited from establishing safety

restrictions under our Section 207 rules. The Commission denies these

requests and concludes that Section 303 of the Communications Act of

1934 (47 U.S.C. 303) (``Section 303'') permits the Commission to

consider and minimize the impact of our rules on local associations and

governments. If the rules did not permit private safety-based

restrictions, the rules would effectively preempt portions of state

tort liability law, and, because homeowners' associations focus on the

problems that face a particular area or development, they are well-

positioned to assess the safety needs of their individual communities.

Jurisdiction for declaratory ruling petitions

7. The Report and Order and Section 207 rules provide concurrent

jurisdiction to the Commission and to courts of competent jurisdiction

to hear petitions for a declaratory ruling to determine whether a

particular restriction is permissible or prohibited under the Section

207 rules. This Order on Reconsideration denies several petitions that

requested the Commission to reconsider the decision not to assert

exclusive jurisdiction over petitions for declaratory rulings. The

Communications Act does not require the Commission to exercise

exclusive jurisdiction over these disputes; therefore, the Commission

reaffirms its discretion to decide that it is in the public interest at

the current time to share jurisdiction to adjudicate disputes with the

courts and retain discretion to provide, on the Commission's motion or

in response to a petition, interpretive guidance for the future based

on our expertise in developing and applying the statute and the rules.

The Commission also reiterates that a court may refer an issue to the

Commission under the doctrine of primary jurisdiction, particularly

when cases involve the determination of novel issues.

The BOCA Code restrictions

8. The Report and Order adopted rules that reflected the Building

Officials & Code Administrators International, Inc. (``BOCA'') code

permit provisions on antenna height and set back requirements (i.e.,

require an antenna user to obtain a permit to install an antenna that

extends more than twelve feet above the roofline or that is taller than

the distance between the antenna and the lot line, but no permit is

required for antennas that are no taller than the distance between the

antenna and the lot line.) Two petitions asked the Commission to

reconsider and delete reliance on the BOCA code. The Order on

Reconsideration reaffirms that, in the absence of superior information

from those engaged in the installation or use of antennas, the BOCA

code provisions regarding permits for height and setback requirements

qualify as legitimate safety objectives under Section 207 rules.

Acceptance of the BOCA code, however, is limited to the permit

requirement and does not constitute a blanket per se prohibition of

masts of a particular height. To the extent that a local authority

applies BOCA in a discriminatory manner by

[[Page 67425]]

not requiring permits for items that pose similar or greater safety

risks, such discrimination may be challenged in a particular case, and

would, if not justified, be deemed impermissible under the rules. If a

local authority created a per se bar to antennas over a certain height,

the restriction would be prohibited. To bring the Section 207 rules

into accord with the Report and Order, the rules are modified to

include masts in the definition of antennas.

Prohibition of permit requirements

9. The Order on Reconsideration reaffirms that permit requirements

are permissible to ensure compliance with restrictions that serve

safety or historic preservation objectives. Outside of these contexts,

blanket permit requirements (i.e., requiring any viewer who wants to

install an antenna to obtain a permit) are generally impermissible

because they cast too wide a net. A blanket permit requirement imposes

unreasonable delay and expense on viewers' ability to install, maintain

or use a Section 207 reception device. The Commission affirms the

decisions previously made on this issue: In re Michael J. MacDonald, 13

FCC Rcd 4844 (CSB, 1997); In re CS Wireless Systems, Inc., 13 FCC Rcd

4826 (CSB, 1997); and In re Star Lambert and SBCA, 12 FCC Rcd 10424

(CSB, 1997). By contrast, in the case of legitimate safety or historic

preservation restrictions, a shift in the permit framework is justified

because restrictions based on safety or historic preservation

objectives are enforceable even if they impair a viewer's ability to

install, maintain or use a Section 207 reception device.

Painting of reception devices

10. Two petitions requested reconsideration of the Report and

Order's policy accepting a requirement to paint an antenna to blend

into the background provided painting does not interfere with

reception. The Order on Reconsideration denies these requests and

reiterates that the statement applies only to painting requirements

that will not interfere with reception. This Order also clarifies that

if complying with a painting requirement causes an impairment of a

viewer's ability to install, maintain or use a Section 207 reception

device, the requirement is prohibited under our rules; e.g., if a

restriction required painting a Section 207 reception device in a

manner that unreasonably increases costs or impairs the ability of the

device to receive a signal, then the regulation would be impermissible.

Grace periods to comply with rulings and collection of attorneys fees

11. The Order on Reconsideration concludes that it is consistent

with the purpose underlying this rule that the potential threat of a

fine or penalty could operate as a substantial deterrent to viewers

exercising their right to install an antenna while such a restriction

is under review. Therefore, the rule is amended to give viewers at

least 21 days to comply with an adverse ruling issued in a proceeding

before a fine may be collected, unless the proponent of the restriction

can show in the same proceeding that the viewer's claim was frivolous.

During this grace period, no additional fines or penalties shall accrue

against the viewer, but if at the end of the grace period the viewer

has not complied with the adverse ruling, then the initial fine may be

imposed. The rule does not grant a grace period to every viewer who

unknowingly violates a restriction that has already been upheld in a

proceeding pursuant to our rules. Nevertheless, if a viewer believes

that the restriction is invalid as applied to the particular viewer and

challenges a previously upheld restriction in a proceeding as provided

for in our rules, and the viewer does not have a frivolous claim that

the upheld restriction is invalid as applied to the particular viewer,

then the viewer may be granted at least a 21 day grace period.

12. In addition, as with fines and penalties, some associations

attempt to collect from viewers the attorney's fees expended by an

association in its efforts to enforce a restriction even while a

proceeding is pending to determine whether the association's

restriction constitutes an impairment under the rules (See, e.g., In re

James Sadler, (DA 98-1284, rel. July 1, 1998)). As with fines or other

penalties, the attempt to assess attorney's fees while a proceeding is

pending and the validity of an arguably invalid restriction has not yet

been determined would undermine the purpose underlying both the Section

207 rules and the petition process. Therefore, the rules are amended to

prohibit the assessment or collection of attorney's fees while a

proceeding is pending.

Definition of signal impairment

13. A restriction impairs a viewer's ability to receive video

programming signals if it precludes reception of an acceptable quality

signal. Under the balance struck in the rules, viewers are entitled to

an antenna location, if one is available, that will provide an

``acceptable'' quality signal. Subject to that limitation, local

governments and community associations are entitled, in order to

protect the interests of local residents, to restrict antenna

placement. The proper balance is struck if an acceptable, but not

necessarily always optimal, quality signal is available. For example,

with respect to signals that are subject to a variety of different but

gradual impairments, the rules do not mandate that an antenna can be

placed at whatever height reception would be optimized.

14. The situation is altogether different, however, for devices

designed to receive digital signals, such as DBS antennas, digital MMDS

antennas and digital television (``DTV'') antennas. Digital antennas

will at times provide no picture or sound unless they are placed and

oriented for optimal reception. Where a DBS antenna has an

unobstructed, direct view of a satellite, the antenna will produce a

complete picture and sound and is less likely to be subjected to

frequent weather blackouts. For this reason, to receive an acceptable

quality signal, a DBS antenna or other digital reception device covered

by Section 207 must be installed where it has an unobstructed, direct

view of the satellite or other device from which video programming

service is received, if such a location exists on the viewer's property

and the property is covered by our rules.

Other technologies that provide over-the-air reception of video

programming services

15. Section 207 and the rules apply to restrictions on devices used

to receive video programming services. The Order on Reconsideration

denies petitions that requested application of the rules to interactive

and data transmitting antennas because petitioners did not show that

these antennas receive ``video programming'' as that term is used in

the Communications Act of 1934: ``programming provided by, or generally

considered comparable to programming provided by, a television

broadcast station'' (see Section 602(20) of the Act; 47 U.S.C.

522(20)). Section 207 is flexible and will encompass newly developed

technologies if they are shown to have similar technology and functions

and to provide similar services as devices encompassed by Section 207.

(For example, because of their similarity in terms of function and

technology to services enumerated in Section 207, MDS, ITFS and LMDS

are covered by Section 207 and the Section 207 rules even though these

services were not mentioned in Section 207.) Proponents must make a

particular

[[Page 67426]]

showing that the new technology should be covered by the rules.

Transmission-only antennas that assist reception antennas

16. The Report and Order stated that the rule does not apply to

devices that have transmission capability only, but antennas that have

transmission capability designed for the viewer to select or use video

programming are considered reception devices under this rule. The Order

on Reconsideration clarifies that the rules do not distinguish between

a single antenna that both receives and transmits and paired

transmission and reception antennas that perform the same functions.

Restrictions that impair transmission devices that work in tandem with

and are necessary to enable a viewer to select video programming on a

reception device are prohibited by the rules if they impair a

``viewer's ability to receive video programming'' as set forth in the

Section 207 rules. This protection extends only to transmission

antennas that are within the size parameters of the Section 207 rules,

installed at the viewer's location, and necessary for the viewer to

select video programming.

Districts eligible to be listed on the National Register of Historic

Places

17. The historic preservation exception to the Section 207 rules

(Section 1.4000(b)(2)) is consistent with the National Historic

Preservation Act of 1966, as amended (16 U.S.C. 470f; see also 16

U.S.C. 470a(b)(3)(F) and (I)) (``NHPA''). To maintain that consistency,

the Order on Reconsideration denies a petition to eliminate properties

designated ``eligible to be listed'' but not yet listed. The rule is

also revised to clarify exemption of ``any prehistoric or historic

district, site, building, structure or object included in, or eligible

for inclusion on, the National Register of Historic Places'' to follow

more faithfully the definition of historic properties in the NHPA (see

16 U.S.C. 470w(5)).

Limits on fees and costs

18. The Section 207 rules regarding fees and costs are designed to

protect viewers from unreasonable expenses that discourage choosing

alternative video reception devices. Both fees imposed directly by a

restricting entity and costs imposed indirectly as a result of an

entity's requirements or restrictions can impose an unreasonable

expense that is prohibited by the Section 207 rules. For example, a fee

imposes unreasonable expense when the fee is for a permit that a local

government has no discretion to require. On this issue the decision of

In re Star Lambert (12 FCC Rcd. 10455 (CSB, 1997)) is affirmed. The

rules, however, do not prohibit all fees because a reasonable fee, in

connection with a permissible requirement, may be within the standards

of the Section 207 rules. The Order on Reconsideration reiterates that

the standard for determining reasonable fees and costs is whether the

expense imposed is reasonable in light of the cost of the equipment or

services and the restriction's treatment of comparable devices. The

rules are modified to include this language.

Service of petitions and pleadings

19. The Section 207 rules are revised to include language from the

Report and Order clarifying that petitions for declaratory rulings and

waivers must be served on interested parties. The term ``interested''

is narrowly interpreted. For example, if a homeowners' association

files a petition or a lawsuit seeking to have a restriction declared

valid and seeking to enforce the restriction against a particular

viewer, service must be made on the particular viewer. The homeowners'

association is not required to serve all other members of the

association, but must provide reasonable, constructive notice of the

proceeding to other residents whose interests may foreseeably be

affected by the proceeding (e.g., by placing notices in residents'

mailboxes, by placing a notice on a community bulletin board, or by

placing the notice in an association newsletter). Similarly, if a local

government seeks a declaratory ruling or a waiver from the Commission,

the local government must take steps to afford reasonable, constructive

notice to residents in its jurisdiction (e.g., by placing a notice in a

local newspaper of general circulation). If a viewer files a petition

or lawsuit challenging a local government's ordinance or an

association's restriction, the viewer must serve the local government

or association. Certificates of service and proof of constructive

notice must be provided with a petition. The petitioner should provide

a copy of the notice and an explanation of where the notice was placed

and how many people the notice might reasonably have reached. Parties

to a lawsuit that raises issues involving the applicability or the

interpretation of Section 207 or the Section 207 rules are encouraged

to provide notice of the lawsuit to the Commission and to provide the

Commission with a copy of the relevant pleading.

Placing statements from the Report and Order in the Section 207 rules

20. The rules are revised to include certain statements from the

Report and Order. First, the revised rules provide that if a petition

is filed challenging a restriction, enforcement of that restriction

(except restrictions pertaining to safety and historic preservation) is

prohibited pending completion of review by a court or the Commission.

(Commission review is completed when an order is released and is no

longer subject to review or appeal, or when the petition is dismissed

or returned without further action.) In addition, the rules are revised

to clarify that the party seeking to enforce a restriction has the

burden of demonstrating that a particular restriction complies with the

rules. The Order on Reconsideration reiterates that placing the burden

on consumers would hinder competition and fail to implement Congress'

directive, as such a burden could serve as a disincentive to consumers

to choose TVBS, MMDS, or DBS services.

21. The standard for review of aesthetic requirements is further

clarified by adding the following explanatory language from the Report

and Order to paragraph (a) of Section 1.4000: ``Any fee or cost imposed

on a viewer by a rule, law, regulation or restriction must be

reasonable in light of the cost of the equipment or services and the

rule, law, regulation or restriction's treatment of comparable

devices.''

Application of the Section 207 rules to tenants who have the owner's

permission to install an antenna

22. For purposes of the Section 207 rules, a renter, tenant, or any

other person residing on a property owner's property with the property

owner's permission (``tenant viewer''), who has the property owner's

permission to install, maintain and use a Section 207 reception device

on the property, shall be treated as a covered viewer with regard to

third party restrictions under our Section 207 rules. In this

connection, the tenant viewer shall have the same rights under the

Section 207 rules as would the owner vis-a-vis restrictions enacted by

a homeowners' association, condominium or cooperative association,

townhome association, manufactured housing park owner, government and/

or any other third party. Thus, if an owner residing on the property

were entitled to install a Section 207 device on the property under the

rules, then a tenant occupying the property is also entitled to install

a

[[Page 67427]]

Section 207 device on the property provided the property owner

consents.

Property under the exclusive use of the viewer

23. The Section 207 rules protect ``property within the exclusive

use or control of the antenna user where the user has a direct or

indirect ownership interest.'' The Order on Reconsideration clarifies

that the rules protect a viewer who has either exclusive use or

exclusive control of property in which the viewer has a direct or

indirect ownership interest. It is not necessary for a viewer to have

exclusive control over the property to be protected by the Section 207

rules. For instance, condominium owners, townhome owners, cooperative

owners or owners of a manufactured home may not have exclusive control

over their dwellings because the association or the park owner may

retain rights to enter their dwellings to perform inspections or

repairs. These owners have exclusive use over their dwellings because

they are the only parties entitled to the beneficial use of the

dwellings. A condominium owner, townhome owner, owner of a manufactured

home, or cooperative unit dweller who has exclusive use of a balcony,

balcony railing, deck, patio, or any other type of property where they

have a direct or indirect property interest, has the right, subject to

certain restrictions of our Section 207 rules, to place Section 207

devices thereon. That third parties have rights to enter and/or

exercise control (e.g., banning grills on balconies) over the owner's

exclusive-use area does not defeat the owner's Section 207 rights.

24. With respect to condominiums and cooperatives, the rule applies

to antenna restrictions on balconies, decks, patios or similar areas

even if the unit owner does not have exclusive ownership, so long as

the unit owner has direct or indirect ownership and exclusive use over

the area. (In a housing cooperative, the residents' ownership interest

in the controlling entity entitles them to exclusive use of a unit and

nonexclusive use and enjoyment of other common areas.) Restrictions on

a cooperative owner's use of his or her unit and exclusive use areas

are prohibited because (1) the owner has an indirect ownership interest

in his or her unit and (2) the owner exercises exclusive use or

control. Restrictions on the cooperative owner's use of common

cooperative property are not prohibited if the cooperative owner does

not exercise exclusive use over the common property. With respect to

manufactured (mobile) homes, the owner of a manufactured home is

protected by the Section 207 rules even if the home rests on property

leased from someone else because the owner has a direct property

interest in the home and has exclusive use of the home. Thus, a

manufactured home owner, or the owner of any other type of home that

rests on leased property, has rights under Section 207, subject to the

rules' language and exceptions, to place a Section 207 device anywhere

on the home.

Restrictions related to the existence of a Central Antenna

25. The Further Notice requested comments on a proposal to create

an exception to the rules to allow antenna restrictions if a community

association, landlord or similar private entity voluntarily makes video

programming available through a central reception facility. The Order

on Reconsideration concludes that this proposal is properly analyzed

under the current Section 207 framework, and it is not necessary to

amend the Section 207 rules to allow for a central antenna. The

installation of a central antenna, and a concomitant restriction on the

installation of individual antennas, does not constitute an impairment

under the Section 207 rules if, like any other restriction, it does not

impair installation, maintenance and use. This Order clarifies that

restrictions related to the existence and availability of a central

antenna are generally permissible provided that: (1) the viewer

receives the particular video programming service the viewer desires

and could receive with an individual antenna (e.g., the viewer would be

entitled to receive service from a specific DBS provider, not simply a

DBS service selected by the association); (2) the video reception in

the viewer's home using the central antenna is of an acceptable quality

as good as, or better than, the quality the viewer could receive with

an individual antenna; (3) the costs associated with the use of the

central antenna (including installation and subscriber fees) are not

greater than the expense of installation, maintenance and use of an

individual antenna; and (4) the requirement to use the central antenna

in lieu of an individual antenna does not unreasonably delay the

viewer's ability to receive video programming. The Order on

Reconsideration further clarifies that no community or association is

required by these rules to install a central antenna.

Regulatory Flexibility Analysis

26. As required by the Regulatory Flexibility Act (``RFA''), an

Initial Regulatory Flexibility Analysis (``IRFA'') was incorporated in

International Bureau (IB) Docket No. 95-59 (``DBS Order and Further

Notice'') and in Cable Services Bureau (CS) Docket No. 96-83 (``TVBS-

MMDS Notice''). The Commission sought written public comment on the

proposals in those proceedings, including comment on the IRFA's. The

Commission's Final Regulatory Flexibility Analysis (``FRFA'') was

issued in the Report and Order and conformed to the RFA. Pursuant to

the RFA, the Commission's final analysis with respect to this Order on

Reconsideration is as follows.

Need for, and Objectives of, this Order on Reconsideration

27. This Order on Reconsideration implements Section 207 of the

Telecommunications Act of 1996, Public Law 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 certain devices designed for over-the-air

reception, including MMDS, LMDS, DBS, TVBS and ITFS (``Section 207

devices''). This action is authorized under the Communications Act of

1934 1, as amended, 47 U.S.C. 151, pursuant to the Communications Act

of 1934 Sec. 303, as amended, 47 U.S.C. 303, and by Section 207 of the

Telecommunications Act of 1996. This Order on Reconsideration provides

guidance on how the Commission will interpret its Section 207 rules and

amends the Section 207 rules to provide more clarity in the existing

rules.

Summary of Significant Issues Raised by Public Comments in Response to

the IRFA

28. None of the parties in this proceeding filed comments on how

issues raised in the petitions for reconsideration would impact small

entities. Nevertheless, the impact of the amendment of our Section 207

rules on small entities was considered, as discussed below.

Description and Estimate of the Number of Small Entities to Which Rules

Will Apply

29. 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.'' The rule applies to small organizations,

small governmental jurisdictions, and small businesses.

[[Page 67428]]

30. The term ``small governmental jurisdiction'' is defined as

``governments of . . . districts, with a population of less than fifty

thousand.'' There are 85,006 governmental entities in the United

States. 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. One

commenter estimates that there are 37,000 ``small governmental

jurisdictions'' that may be affected by the proposed rule.

31. 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.''

This definition includes homeowner and condominium associations that

operate as not-for-profit organizations. An industry association

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.

32. 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). Industry sources estimate that the following SIC

codes apply to this industry: SIC Codes 6512 (operators of

nonresidential buildings), 6513 (operators of apartment buildings), and

6514 (operators of dwellings other than apartment buildings). The SBA

defines a small entity in each of these codes as one with less than

$5,000,000 in gross annual revenues. Based on census data that lists

businesses according to these SIC codes and their total revenue,

industry sources state that there are 28,089 operators of

nonresidential buildings and 39,903 operators of apartment buildings.

Industry sources state the Bureau of Census includes operators of

dwellings other than apartment buildings in the same category as other

types of businesses, but states that the figures for this category as a

whole show that the number of operators of dwellings other than

apartment buildings are similar to the numbers of operators covered by

SIC codes 6512 and 6513.

Description of Projected Reporting, Recordkeeping, and Other Compliance

Requirements

33. The revised rules clarify that petitions for declaratory

judgment and waivers must be served on interested parties and that a

certificate of service must be filed with the petition or the

complaint. In addition, the revised rules require associations and

local governments in Commission proceedings to provide constructive

notice to their members or citizens and file a copy of the notice with

the Commission with a statement explaining where the notice was placed

and why such placement was reasonable. In a court proceeding brought by

an association, the association must give constructive notice to its

members.

Steps Taken To Minimize Significant Economic Impact on Small Entities,

and Significant Alternatives Rejected

34. The Commission finds that there are no significant alternatives

to the rules and policies set forth in this Order that would minimize

the economic impact on small entities, and notes that no commenter

proffered alternatives to these rules and policies. Because most of the

conclusions reached in this Order on Reconsideration merely clarify and

provide guidance under the current Section 207 rules, those conclusions

need not be analyzed here because the impact of the current Section 207

rules was already analyzed in the Report and Order. Nevertheless, there

are some changes to the rules that are addressed here.

35. First, the Commission adopts a proposal that viewers be given

at least 21 days during which to comply with a court or Commission

order upholding a restriction before any fine or penalty may be imposed

on the viewer if the viewer's claim is not frivolous that the

restriction was facially invalid or was invalid as applied to the

specific viewer. The Order concludes that the potential threat of a

fine or penalty could operate as a substantial deterrent to viewers

exercising their right to install an antenna while such a restriction

is under review and there is no significant alternative way to remove

this deterrent.

36. Second, the revised rules clarify that the burden of

demonstrating that a particular restriction complies with the Section

207 rules rests with the proponent in both a court and Commission

proceeding. No one proposed a significant alternative to this rule.

37. Third, the Section 207 rules protect antennas that have

transmission capability only if these transmission antennas are used in

conjunction with antennas that receive video programming. Because this

ruling was merely a clarification of the initial rule, this ruling has

no more impact than the initial ruling analyzed in the Report and

Order.

38. Fourth, the revised rules protect ``properties,'' not just

``districts,'' listed or eligible to be listed on the National Register

of Historic Places. No significant alternative was proposed that would

not run afoul of federal laws and regulations protecting such

properties.

39. Fifth, the Order rejects a proposal that the Section 207 rules

protect per se any other new antenna not specifically listed in the

Section 207 rules. This decision was required by the statutory language

of Section 207. Moreover, the impact of this rule is diminished because

the Commission will consider on a case by case basis whether a

particular device is covered by the rules.

40. Sixth, as set forth, the rules clarify how service should be

made and how certification of service provided. No significant

alternative was proposed.

Report to Congress: The Commission will send a copy of this Order

on Reconsideration, including this FRFA, in a report to Congress

pursuant to the Small Business Regulatory Enforcement Fairness Act of

1996, 5 U.S.C. 801(a)(1)(A).

Ordering Clauses

41. Accordingly, it is ordered that, pursuant to authority found in

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 104-104, 110 Stat. 56, the

Commission's rules are hereby amended. The amendments shall become

effective January 6, 1999, except that Sec. 1.4000 (d) and (e), which

contain new information collection requirements that shall become

effective upon approval by OMB, but no sooner than February 16, 1999.

The Commission will publish a document in the Federal Register

announcing the effective date for those sections.

42. It is further ordered that the Petitions for Reconsideration in

CS Docket No. 96-83 are granted in part and denied in part.

43. It is further ordered that the Commission's Office of Public

Affairs, Reference Operations Division, shall send a copy of this Order

on Reconsideration, including the Final Regulatory Flexibility

Analysis, to the Chief Counsel for Advocacy of the Small Business

Administration in accordance

[[Page 67429]]

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

Antenna, Satellite, Telecommunications, Television.

Federal Communications Commission.

Shirley S. Suggs,

Chief, Publications Branch.

Rule Changes

Part 1 of Title 47 of the Code of Federal Regulations is amended to

read as follows:

PART 1--PRACTICE AND PROCEDURE

1. The authority citation for Part 1 is revised to read as follows:

Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309.

2. Section 1.4000 is revised to read as follows:

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

(i) 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;

(ii) 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;

(iii) an antenna that is designed to receive television broadcast

signals; or

(iv) a mast supporting an antenna described in paragraphs

(a)(1)(i), (ii) or (iii) of this section; is prohibited to the extent

it so impairs, subject to paragraph (b) of this section; 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) Any fee or cost imposed on a viewer by a rule, law, regulation

or restriction must be reasonable in light of the cost of the equipment

or services and the rule, law, regulation or restriction's treatment of

comparable devices. 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. In addition, except with respect to

restrictions pertaining to safety and historic preservation as

described in paragraph (b) of this section, if a proceeding is

initiated pursuant to paragraph (c) or (d) of this section, the entity

seeking to enforce the antenna restrictions in question must suspend

all enforcement efforts pending completion of review. No attorney's

fees shall be collected or assessed and no fine or other penalties

shall accrue against an antenna user while a proceeding is pending to

determine the validity of any restriction. If a ruling is issued

adverse to a viewer, the viewer shall be granted at least a 21 day

grace period in which to comply with the adverse ruling; and neither a

fine nor a penalty may be collected from the viewer if the viewer

complies with the adverse ruling during this grace period, unless the

proponent of the restriction demonstrates, in the same proceeding which

resulted in the adverse ruling, that the viewer's claim in the

proceeding was frivolous.

(b) Any restriction otherwise prohibited by paragraph (a) of this

section is permitted if

(1) It is necessary to accomplish a clearly defined, legitimate

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 and weight and pose a similar or greater safety risk as these

antennas and to which local regulation would normally apply; or

(2) It is necessary to preserve a prehistoric or historic district,

site, building, structure or object included in, or eligible for

inclusion on, the National Register of Historic Places, as set forth in

the National Historic Preservation Act of 1966, as amended, 16 U.S.C.

470, 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 in paragraph (b)(1) or

(2) of this section.

(c) Local governments or associations may apply to the Commission

for a waiver of this section under Sec. 1.3 of this part. Waiver

requests must comply with the procedures in paragraphs (e) and (g) of

this section and 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 of this part, or a court of competent jurisdiction, to

determine whether a particular restriction is permissible or prohibited

under this section. Petitions to the Commission must comply with the

procedures in paragraphs (e) and (g) of this section and will be put on

public notice. Any responsive pleadings in a Commission proceeding 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 in a

Commission proceeding must be served on all parties and filed within 15

days thereafter.

(e) Copies of petitions for declaratory rulings and waivers must be

served on interested parties, including parties against whom the

petitioner seeks to enforce the restriction or parties whose

restrictions the petitioner seeks to prohibit. A certificate of service

stating on whom the petition was served must be filed with the

petition. In addition, in a Commission proceeding brought by an

association or a local government, constructive notice of the

proceeding must be given to members of the association or to the

citizens under the local government's jurisdiction. In a court

proceeding brought by an association, an association must give

constructive notice of the proceeding to its members. Where

constructive notice

[[Page 67430]]

is required, the petitioner or plaintiff must file with the Commission

or the court overseeing the proceeding a copy of the constructive

notice with a statement explaining where the notice was placed and why

such placement was reasonable.

(f) In any 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.

(g) 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, 445 12th St. S.W.,

Washington, D.C. 20554, Attention: Cable Services Bureau. Copies of the

petitions and related pleadings will be available for public inspection

in the Cable Reference Room in Washington, D.C. Copies will be

available for purchase from the Commission's contract copy center, and

Commission decisions will be available on the Internet.

(h) So long as the property owner consents, a person residing on

the property owner's property with the property owner's permission

shall be treated as an antenna user covered by this section and shall

have the same rights as the property owner with regard to third

parties, including but not limited to local governments and

associations, other than the property owner.

[FR Doc. 98-32362 Filed 12-4-98; 8:45 am]

BILLING CODE 6712-01-P