WILLIAM CULVER

Federal Communications Commission DA 09-1674

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of:

William Culver

Petition for Declaratory Ruling Under 47 C.F.R. �

1.4000

))))))

CSR 7925-O

DECLARATORY RULING

Adopted: July 28, 2009 Released: July 29, 2009

By the Acting Chief, Media Bureau:

I. INTRODUCTION

1. Petitioner William Culver (�Petitioner�) filed a Petition for Declaratory Ruling

(�Petition�) seeking a determination that the antenna restrictions in the Amended Declaration for North

Ridge Farms Homeowners� Association, Inc. (�Association�) are prohibited by the Commission�s Overthe-

Air Reception Devices Rule, 47 C.F.R. � 1.4000 (�Rule�).1 The Association filed a response to the

Petition and Petitioner filed a reply. For the reasons discussed below, we grant Petitioner�s request and

find that the Association�s restrictions prohibiting installation of a digital television antenna on his single

family home in Crestwood, Kentucky are impermissible under the Rule.

II. BACKGROUND

2. The Rule, which prohibits governmental and private restrictions that impair the ability of

antenna users to install, maintain, or use over-the-air-reception devices2 was adopted by the Commission

to implement Section 207 of the Telecommunications Act of 1996 (the �Act�).3 This provision was

intended to advance one of the primary objectives of the Communications Act of 1934: �to make

available, so far as possible, to all the people of the United States . . . a rapid, efficient, nation-wide, and

world-wide wire and radio communication service with adequate facilities at reasonable charges. . . .�4

1Section 1.4000(e) provides that parties may petition the Commission for a declaratory ruling under Section 1.2 of

the Commission�s rules to determine whether a particular restriction is permissible or prohibited under the Rule. 47

C.F.R. � 1.4000(e)

a rapid, efficient, nation-wide, and

world-wide wire and radio communication service with adequate facilities at reasonable charges. . . .�4

1Section 1.4000(e) provides that parties may petition the Commission for a declaratory ruling under Section 1.2 of

the Commission�s rules to determine whether a particular restriction is permissible or prohibited under the Rule. 47

C.F.R. � 1.4000(e).

2See Preemption of Local Zoning Regulation of Satellite Earth Stations and 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, 11 FCC Rcd 19276 (1996) (�Report and Order�), recon. granted

in part and denied in part, 13 FCC Rcd 18962 (1998) (�Order on Reconsideration�), Second Report and Order, 13

FCC Rcd 23874 (1998) (�Second Report and Order�). The Rule became effective on October 14, 1996. Public

Notice DA 96-1755 (Oct. 23, 1996).

3Section 207 requires 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� certain

enumerated services. Telecommunications Act of 1996, Pub. L. No. 104-104, � 207, 110 Stat. 56, 114 (1996).

4Communications Act of 1934, � 1 as amended, 47 U.S.C. � 151.

Federal Communications Commission DA 09-1674

2

3

egulations to prohibit restrictions that impair a viewer�s

ability to receive video programming services through devices designed for over-the-air reception of� certain

enumerated services. Telecommunications Act of 1996, Pub. L. No. 104-104, � 207, 110 Stat. 56, 114 (1996).

4Communications Act of 1934, � 1 as amended, 47 U.S.C. � 151.

Federal Communications Commission DA 09-1674

2

3. The Rule applies to antennas that are one meter or less in diameter, or any size in Alaska,

and are designed to receive or transmit direct broadcast satellite services; antennas that are one meter or

less in diagonal measurement and are designed to receive or transmit video programming services through

multipoint distribution services, including multichannel multipoint distribution services, instructional

television fixed services, and local multipoint distribution services; and antennas designed to receive

television broadcast signals.5 For the Rule to apply, the antenna must be installed �on property within the

exclusive use or control of the antenna user where the user has a direct or indirect ownership or leasehold

interest in the property� upon which the antenna is located.6 The Rule does not apply to restrictions on

installations in common areas.7 The Rule provides that a restriction impairs installation, maintenance, or

use of a protected 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.8 There are exceptions to the Rule for restrictions necessary to address valid and

clearly articulated safety or historic preservation issues, provided such restrictions are as narrowly tailored

as possible, impose as little burden as possible, and apply in a nondiscriminatory manner throughout the

regulated area.9

4

nce, or use; or (3) precludes reception of an

acceptable quality signal.8 There are exceptions to the Rule for restrictions necessary to address valid and

clearly articulated safety or historic preservation issues, provided such restrictions are as narrowly tailored

as possible, impose as little burden as possible, and apply in a nondiscriminatory manner throughout the

regulated area.9

4. The Rule provides that parties who are affected by antenna restrictions may petition the

Commission to determine if the restrictions are permissible or prohibited by the Rule.10 The Rule places

the burden of demonstrating that a challenged restriction complies with the Rule on the party seeking to

impose the restriction.11

III. DISCUSSION

5. Petitioner resides in a single family home located in Crestwood, Kentucky in the North

Ridge Farms Homeowners Association.12 Petitioner requested permission from the Association to install

a digital television antenna on the side of his home near the roof peak, but his request was denied. The

Association maintains that the Petitioner can receive an acceptable quality signal from a location at the

back of the house below the roof line. Alternatively, the Association suggests that Petitioner purchase a

new antenna from a list it provided. The Petitioner asks the Commission to find that the Association�s

restrictions do not comply with the Rule.

6. The community is governed by the Association, which has adopted Amended

Declarations of Restrictions (�Declarations�) that address, among other aspects of the community, the

placement of antennas. The Declaration at issue here, adopted in 2002, reads as follows:13

547 C.F.R. � 1.4000(a). In October, 2000, the Commission amended the Rule to apply also to antennas that are used

to receive and transmit fixed wireless signals. Promotion of Competitive Networks in Local Telecommunications

Markets, Wireless Communications Association International, Inc

ommunity, the

placement of antennas. The Declaration at issue here, adopted in 2002, reads as follows:13

547 C.F.R. � 1.4000(a). In October, 2000, the Commission amended the Rule to apply also to antennas that are used

to receive and transmit fixed wireless signals. Promotion of Competitive Networks in Local Telecommunications

Markets, Wireless Communications Association International, Inc. Petition for Rulemaking to Amend Section

1.4000 of the Commission�s Rules to Preempt Restrictions on Subscriber Premises Reception or Transmission

Antennas Designed to Provide Fixed Wireless Services, 15 FCC Rcd 22983 (2000).

647 C.F.R. � 1.4000(a)(1).

7Second Report and Order at para 62.

847 C.F.R. � 1.4000(a)(3).

947 C.F.R. � 1.4000(b).

1047 C.F.R. � 1.4000(e).

1147 C.F.R. � 1.4000(g).

12Petition at 1.

13Declaration at para 39.

Federal Communications Commission DA 09-1674

3

Concerning the placement of satellite dishes, television antennas and wireless cable

antennas, under no circumstances will satellite dishes greater than one (1) meter (39.37�)

in diameter, AM/FM radio antennas, amateur (�ham�) radio antennas, Citizen�s Band

(�CB�) antennas or Digital Audio Radio Services (�DARS�) antennas be erected on any

lot structure without the written approval of the Association. The Association advises all

homeowners to place approved television and satellite dishes on their property in a

manner that retains the overall attractiveness of the property and is in a location that is the

least visible from the street.14

7. Petitioner has requested the Commission to find that he is entitled to install the digital

television antenna that he has already purchased on the side of his house slightly above the roof peak so

that he can receive television broadcast signals from all directions.15 The Association opposes the

Petitioner�s proposed antenna placement because, it asserts, this placement would put the antenna in an

area with high visibility

ssion to find that he is entitled to install the digital

television antenna that he has already purchased on the side of his house slightly above the roof peak so

that he can receive television broadcast signals from all directions.15 The Association opposes the

Petitioner�s proposed antenna placement because, it asserts, this placement would put the antenna in an

area with high visibility. The Association has suggested alternative placements which would be less

visible. The Association claims that these alternatives would still allow the antenna to �achieve optimum

signal strength.�16

8. Petitioner argues that complying with the Association�s request to place his antenna

behind the center of his home, below his roof ridge, as instructed by the Association, would prevent him

from receiving signals from all directions using the antenna he has already purchased.17 The Petitioner

asserts that his antenna must be above the roof peak to have the proper �line of sight� needed to receive

all over-the-air signals.18 Petitioner also argues that it would be cheaper and easier to install the antenna

on the side of his house while also insuring the reception of a good signal.19 Finally, Petitioner argues

that the Association�s restrictions do not specifically prohibit him from placing the antenna on the side of

his house.

9. In opposition, the Association argues that it conducted its own research and discovered

that the majority of high definition television broadcast transmitting antennas were within 25 miles of

Petitioner�s home, and Petitioner only needs a small antenna for good reception.20 Moreover, the

Association claims that a smaller antenna could be placed lower than the ridgeline of his roof.21

However, the only evidence that the Association presents to support its position is a hand drawn sketch

showing its preferred location and the Petitioner�s proposed location with the notation that the �same

reception� can be achieved

ly needs a small antenna for good reception.20 Moreover, the

Association claims that a smaller antenna could be placed lower than the ridgeline of his roof.21

However, the only evidence that the Association presents to support its position is a hand drawn sketch

showing its preferred location and the Petitioner�s proposed location with the notation that the �same

reception� can be achieved. It does not offer any technical or other information to support its claim.22

The Association points out that it provided the Petitioner with a list of antennas that could receive all of

14Amended Declaration of Restrictions for North Ridge Farms Homeowners� Association, pages 5-6 � 39.

15Petition at 1. The Petitioner requested permission from the Association for this placement despite the fact that the

Association�s restrictions do not appear to require prior approval to install television broadcast antennas. Petition at

1.

16Id. at 2.

17Id.

18Id.

19Id.

20Association Response (Letter dated September 15, 2007 from North Ridge Farms Homeowners Association Inc. to

William Culver) at 2.

21Id.

22Association Response to the Petition, attachment.

Federal Communications Commission DA 09-1674

4

the signals while being below the roof�s ridgeline.23 Finally, the Association argues that its Declaration

requires that antennas �be placed in a location least visible from the street.�24

10. We find that Petitioner�s television antenna to receive digital broadcast signals is covered

by the Rule. We also find that the proposed antenna location is an area within his exclusive use or control

where he has a direct ownership interest and is thus covered by our Rule. There is no dispute regarding

Petitioner�s right to place an antenna on his roof, however, the Association seeks to have the antenna

placed in a location that is �least visible from the street.�25 The second sentence of the Association�s

Declaration, quoted above, expresses the Association�s placement preference

trol

where he has a direct ownership interest and is thus covered by our Rule. There is no dispute regarding

Petitioner�s right to place an antenna on his roof, however, the Association seeks to have the antenna

placed in a location that is �least visible from the street.�25 The second sentence of the Association�s

Declaration, quoted above, expresses the Association�s placement preference. A placement preference

restriction is permitted provided it does not impair the antenna user�s right to install, maintain, or use an

antenna covered by the Rule.26 A placement restriction impairs if it (1) unreasonably delays or prevents

installation, maintenance, or use of the antenna, (2) unreasonably increases the cost of installation,

maintenance or use of the antenna, or (3) prevents the antenna from receiving an acceptable quality

signal.27

11. In considering placement preference issues, we must rely on the particular facts presented

by the parties. The Rule places the burden of demonstrating that a challenged restriction complies with

the Rule on the party seeking to impose the restriction.28 In this case, the Association has failed to meet

this burden. For instance, the Association does not offer any evidence to rebut the Petitioner�s claim that

placing the antenna in the Association�s preferred location, below the roof peak, will preclude reception

of an acceptable quality signal. The Association does offer a hand drawn sketch showing its preferred

location and the Petitioner�s proposed location with the notation that the �same reception� can be

achieved, but it does not offer any technical or other facts to support its claim. The Association asserts

that, based on its research and given Petitioner�s geographical location and the location of the majority of

the digital television transmitting antennas within twenty-five miles of Petitioner�s home, he only needs a

small antenna for good reception

on that the �same reception� can be

achieved, but it does not offer any technical or other facts to support its claim. The Association asserts

that, based on its research and given Petitioner�s geographical location and the location of the majority of

the digital television transmitting antennas within twenty-five miles of Petitioner�s home, he only needs a

small antenna for good reception. However, the Association does not offer any other technical

information, e.g., signal measurement test, to support its contention that if the Petitioner placed the

antenna where it suggests, he would be able to receive all of the local signals.29 Furthermore, the

Association failed to rebut Petitioner�s claim that installation of the antenna on the rear of the house

would be more costly, particularly given that the Association wants Petitioner to purchase a new

antenna.30 The Petitioner states that he would not be able to receive all the over-the-air signals if he

complies with the Association�s restrictions.31 The burden is on the Association and it has failed to carry

its burden and establish that its placement restriction complies with our Rule. We find the Association�s

placement preference is unenforceable with respect to Petitioner�s antenna installation.

23Association Response (Letter dated September 15, 2007 from North Ridge Farms Homeowners Association Inc. to

William Culver) at 2. .

24Association Response at 1.

25Id.

2647 C.F.R. � 1.4000(a).

27In the Matter of James Sadler, 13 FCC Rcd 12559, 12568 (MB 1998); 47 C.F.R. � 1.4000(a).

2847 C.F.R. � 1.4000(g).

29Association Response at 1.

30Petition at 1.

31A computer mapping of Petitioner�s address on the Commission�s DTV.gov website indicates that his location

should receive strong signals for WAVE (NBC), WMYO (MYTV), WDRB (FOX), WLKY (CBS), WHAS (ABC),

and WKMJ (PBS), while receiving moderate signals for WKPC (PBS), WBNA (ION), and WBKI (CW)

47 C.F.R. � 1.4000(a).

2847 C.F.R. � 1.4000(g).

29Association Response at 1.

30Petition at 1.

31A computer mapping of Petitioner�s address on the Commission�s DTV.gov website indicates that his location

should receive strong signals for WAVE (NBC), WMYO (MYTV), WDRB (FOX), WLKY (CBS), WHAS (ABC),

and WKMJ (PBS), while receiving moderate signals for WKPC (PBS), WBNA (ION), and WBKI (CW). However,

we do not have enough information to ascertain the signal strength at the locations proposed by either the Petitioner

or the Association. www.fcc.gov/mb/engineering/maps/.

Federal Communications Commission DA 09-1674

5

IV. ORDERING CLAUSES

12. Accordingly, IT IS ORDERED, pursuant to Section 1.4000(d) of the Over-the-Air

Reception Devices Rule, 47 C.F.R. � 1.4000(d), and Section 1.2 of the Commission�s rules, 47 C.F.R. �

1.2, that the Petition for Declaratory Ruling filed by William Culver IS GRANTED with respect to

preemption of Article 39 of the Amended Declaration for the North Ridge Farms Homeowners�

Association, Inc.

13. This action is taken by the Acting Chief, Media Bureau, pursuant to authority delegated

by Section 0.283 of the Commission�s rules.32

FEDERAL COMMUNICATIONS COMMISSION

Robert H. Ratcliffe

Acting Chief

Media Bureau

3247 C.F.R. � 0.283.