[Federal Register Volume 60, Number 103 (Tuesday, May 30, 1995)]
[Proposed Rules]
[Pages 28077-28079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13116]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 25

[IB Docket No. 95-59; FCC 95-180]


Preemption of Local Zoning Regulations

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission has proposed revisions to its rule preempting 
local regulation of satellite earth stations. These revisions are being 
proposed in response to two Petitions for Declaratory Ruling filed by 
Satellite Broadcasting and Communications Association and Hughes 
Network Systems, Inc. and as a result of the decision of the U.S. Court 
of Appeals of the Second Circuit where the court invalidated the 
requirement that satellite-antenna users exhaust all other legal 
remedies before petitioning the Commission for a declaratory ruling. 
[[Page 28078]] The revised rule modifies the exhaustion of remedies 
requirement to permit Commission interpretation of the rule prior to 
judicial review; modifies the reasonableness test in the current rule 
including establishing presumption of unreasonableness; provides a 
waiver process by which communities may request a waiver of some or all 
of this rule in recognition of local interests; and provides for 
immediate relief in particular cases by entertaining petitions for 
declaratory relief under the current rule on an interim basis pending 
completion of this rulemaking.

DATES: Comments are due by July 14, 1995; reply comments are due by 
August 15, 1995.

ADDRESSES: Federal Communications Commission, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:
Rosalee Chiara, International Bureau, Satellite and Radiocommunication 
Division, Satellite Policy Branch, (202) 739-0730.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rule Making in IB Docket No. 95-59; FCC 95-180, adopted 
April 27, 1995 and released May 15, 1995. The complete text of this 
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, NW., Washington, D.C., and also may be purchased from 
the Commission's copy contractor, International Transcription Service, 
(202) 857-3800, 2100 M Street, NW., Suite 140, Washington, DC 20037.

Summary of Notice of Proposed Rule Making

    In 1986, the Commission adopted a rule preempting local regulation 
of satellite earth stations that differentiated between satellite 
receive-only antennas and other types of antenna facilities unless the 
regulations (a) have a reasonable and clearly defined health, safety, 
or aesthetic objective and (b) do not put unreasonable limitations on, 
or prevent, reception or impose unreasonable costs on users. The rule 
also preempted local regulation of satellite transmitting antennas in 
the same manner except that health and safety regulation was not 
preempted (47 CFR 25.104). Since that time, consumers, satellite system 
operators, local governments, and the Commission have gained 
significant experience working with this rule. Based in part on this 
experience, the Satellite Broadcasting and Communications Association 
(``SBCA'') and Hughes Network Systems, Inc. (``Hughes'') filed 
petitions for declaratory rulings on our satellite-antenna preemption 
rule. In addition, the U.S. Court of Appeals for the Second Circuit 
invalidated the requirement that satellite-antenna users exhaust all 
other legal remedies before petitioning the Commission for relief. Town 
of Deerfield, New York v. FCC, 1992 F.2d 420 (2d Cir. 1992) 
(``Deerfield''). In 1993, we sought comment on the SBCA and Hughes 
petitions, as well as on the appropriate action for the Commission to 
take in response to the Second Circuit's decision.
    Based on the petitions, the comments received in this proceeding, 
and our experience administering Commission preemption policies since 
1986, we tentatively concluded that, in light of the Second Circuit's 
Deerfield decision, we should modify our exhaustion of remedies 
requirement to permit us to interpret our preemption rule prior to any 
judicial review. We also tentatively conclude that in order to 
facilitate application of the Commission's interpretations in varied 
factual settings, to minimize intrusion upon local prerogatives in 
land-use regulation, and to promote full and fair competition between 
satellite services and other means of communication, we must revise the 
preemption rule itself. Accordingly, we are denying both petitions for 
declaratory relief and issuing this Notice of Proposed Rulemaking, 
which proposes changes in Sec. 25.104. In addition, we announce our 
willingness to entertain petitions for declaratory relief with respect 
to particular zoning disputes during the pendency of this proceeding.
    We also propose revisions of the current rule's ``reasonableness'' 
test. These include elimination of the requirement that preemptable 
local ordinance differentiate in the treatment of antennas. In 
addition, the NPRM proposes changes in how the rule applies to 
regulations that increase users' costs or diminish reception. The 
proposed rule also establishes presumptions of unreasonableness for 
regulations that affect antennas less than one meter in size and those 
that affect antennas less than 2 meters in size in an area where 
commercial or industrial use is permitted. The proposals include 
several other modifications of the rule and also provide that local 
government can request waivers of the rule under certain circumstances.
    We solicit comments from all interested parties, including service 
providers, equipment manufacturers, consumers, programmers, land-use 
managers, and other representatives of local governments. A full and 
complete record in this matter will ensure that our final rule takes 
into consideration the views of all these persons.

Ordering Clauses

    Accordingly, it is ordered That, pursuant to sections 1.4(i), 4(j) 
and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 154(i), 154(j), and 303(r) notice is hereby given of the proposed 
amendments to Sec. 25.104 of the Commission's rules, 47 CFR 25.104, in 
accordance with the proposals in this Notice of Proposed Rulemaking, 
and that comment is sought regarding such proposals.
    It is further ordered. That the petitions for declaratory relief 
filed by SBCA and Hughes are denied.
     It is further ordered That the Secretary shall send a copy of this 
Notice of Proposed Rulemaking, including the Initial Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration in accordance with paragraph 603(a) of the 
Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. 
601 et seq. (1981).

Administrative Matters

    Pursuant to applicable procedures set forth in Secs. 1.415 and 
1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested 
parties may file comments on or before July 14, 1995 and reply comments 
on or before August 15, 1995. To file formally in this proceeding, you 
must file an original plus four 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 plus nine 
copies. You should send comments and reply comments to Office of the 
Secretary, Federal Communications Commission, Washington, DC 20554. 
Comments and reply comments will be available for public inspection 
during regular business hours in the FCC Reference Center (Room 239), 
1919 M Street, NW., Washington, DC 20554.
    This is a non-restricted notice and comment rulemaking proceeding. 
Ex parte presentations are permitted, except during the Sunshine Agenda 
period, provided they are disclosed as provided in the Commission 
Rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).

Initial Regulatory Flexibility Act Statement
    As required by section 603 of the Regulatory Flexibility Act, the 
Commission has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) of the expected impact on small entities of the proposals 
suggested in this [[Page 28079]] document. Written public comments are 
requested on the IRFA. These comments must be filed in accordance with 
the same filing deadlines as comments on the rest of the Notice, but 
they must have a separate and distinct heading designating them as 
responses to the Initial Regulatory Flexibility Analysis.

List of Subjects in 47 CFR Part 25

    Satellites.

    Federal Communications Commission.
William F. Caton,
Acting Secretary.

Proposed Rules

    Part 25 of Title 47 of the Code of Federal Regulations is proposed 
to be amended, as follows:

PART 25--SATELLITE COMMUNICATIONS

    1. The authority citation for part 25 continues to read as follows:

    Authority: Sections 25.101 to 25.601 issued under Sec. 4, 48 
Stat. 1066, as amended; 47 U.S.C. 154. Interpret or apply secs. 101-
104, 76 Stat. 416-427, 47 U.S.C. 701-744; 47 U.S.C. 554.

    2. Section 25.104 is revised to read as follows:


Sec. 25.104  Preemption of local zoning of earth stations.

    (a) Any state or local land-use, building, or similar regulation 
that substantially limits reception by receive-only antennas, or 
imposes substantial costs on users of such antennas, is preempted 
unless the promulgating authority can demonstrate that such regulation 
is reasonable in relation to:
    (1) A clearly defined, and expressly stated health, safety, or 
aesthetic objective; and
    (2) The federal interest in fair and effective competition among 
competing communications service providers.
    (b) Any regulation covered by paragraph (a) of this section shall 
be presumed unreasonable if it affects the installation, maintenance, 
or use of:
    (1) A satellite receive-only 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 local land-use 
regulation: or
    (2) A satellite receive-only antenna that is one meter or less in 
diameter in any area.
    (c) Any presumption arising from paragraph (b) of this section may 
be rebutted upon a showing that the regulation in question:
    (1) Is necessary to accomplish a clearly defined and expressly 
stated health or safety objective;
    (2) Is no more burdensome to satellite users than is necessary to 
achieve the health or safety objective;
    (3) Is specifically applicable to antennas of the class mentioned 
in paragraph (b) of this section.
    (d) Regulation of satellite transmitting antennas is preempted to 
the same extent as provided in paragraph (a) of this section, except 
that state and local health and safety regulations relating to radio 
frequency radiation of transmitting antennas are not preempted by this 
rule.
    (e) 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 has been exhausted;
    (2) The petitioner's application for a permit or other 
authorization required by the state or local authority has been pending 
with that authority for ninety days;
    (3) The petitioner has been informed that a permit or other 
authorization required by the state or local authority will be 
conditioned upon the petitioner's expenditure of an amount greater than 
the aggregate purchase and installation costs of the antenna; or
    (4) A state or local authority has notified the petitioner of 
impending civil or criminal action in a court of law and there are no 
more nonfederal administrative steps to be taken.
    (f) 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 an overwhelming necessity for 
regulation inconsistent with this section. No application for waiver 
shall be considered unless it includes the particular regulation for 
which waiver is sought. Waivers granted according to this rule shall 
not apply to later-enacted or amended regulations by the local 
authority unless the Commission expressly orders otherwise.

[FR Doc. 95-13116 Filed 5-26-95; 8:45 am]
BILLING CODE 6712-01-M