[Federal Register Volume 61, Number 52 (Friday, March 15, 1996)]
[Proposed Rules]
[Pages 10710-10712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6380]



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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 25

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


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 
certain local regulation of satellite earth stations. These revisions 
are being proposed in response section 207 of the Telecommunications 
Act of 1996. That section directs the Commission to preempt nonfederal 
restrictions on certain direct-to-home video services, including Direct 
Broadcast Satellite (DBS) service. In our Report and Order and Further 
Notice of Proposed Rulemaking in IB Docket No. 95-59, we tentatively 
conclude that the final rule adopted in the Report and Order fulfills 
the Commission's obligation under the new statutory provision as to 
nonfederal, governmental restrictions on DBS-type satellite earth 
station antennas, but ask

[[Page 10711]]
for comment on this issue. Further, we tentatively conclude that 
section 207 of the Telecommunications Act of 1996 requires us to 
promulgate a new rule prohibiting enforcement of nongovernmental 
restrictions on small-antenna video reception. We therefore propose to 
add a new paragraph to our preemption rule in order to implement 
section 207 with regard to private, nongovernmental restrictions on 
DBS-type satellite earth station antennas. The proposed rule closely 
tracks the language of section 207, as amplified by the House Committee 
Report.

DATES: Comments are due by April 15, 1996; reply comments are due by 
May 6, 1996.

ADDRESSES: Federal Communications Commission, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Rosalee Chiara, International Bureau, 
Satellite and Radiocommunication Division, Satellite Policy Branch, 
(202) 418-0754.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order and Further Notice of Proposed Rulemaking in IB Docket No. 
95-59; FCC 96-78, adopted February 29, 1996 and released March 11, 
1996. The complete text of this Report and Order and Further Notice of 
Proposed Rule Making is available for inspection and copying during 
normal business hours in the FCC Reference Center (Room 239), 1919 M 
Street, NW., Washington, DC, 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 Further Notice of Proposed Rulemaking

    1. The Further Notice of Proposed Rulemaking is being issued to 
implement section 207 of the Telecommunications Act of 1996. 
Telecommunications Act of 1996, Public Law 104-104, 110 Stat. 56 
(1996). That section directs the Commission to preempt nonfederal 
restrictions that impair reception by antennas in direct-to-home video 
services, including Direct Broadcast Satellite (DBS) service. In our 
Further Notice, we tentatively conclude that the final rule adopted in 
this Report and Order fulfills the Commission's obligation under the 
new statutory provision as to nonfederal, governmental restrictions on 
DBS-type satellite earth station antennas. We ask for comment on our 
conclusion. We tentatively conclude that section 207 of the 
Telecommunications Act of 1996 requires us to promulgate a new rule 
prohibiting enforcement of nongovernmental restrictions on small-
antenna video reception.
    2. We therefore propose to add a new paragraph (f), as set forth 
below, for our preemption rule in order to implement section 207 with 
regard to private, nongovernmental restrictions on DBS-type satellite 
earth station antennas. This proposed rule closely tracks the language 
of section 207, as amplified by the House Committee Report. The per se 
nature of the rule does treat private restrictions differently from 
restrictions imposed by state or local governments. However, as we have 
recognized throughout this proceeding, state and local land-use 
regulations have traditionally been near the core of those governments' 
general police powers. The presumption in favor of small antennas can 
be rebutted only by health or safety concerns. Non-governmental 
restrictions would appear to be directed to aesthetic considerations. 
Thus, we tentatively conclude that it is appropriate to accord private 
restrictions less deference on this basis. We seek comment on this 
conclusion and on all aspects of our proposed rule.

Ordering Clauses

    3. Accordingly, it is ordered That pursuant to the Communications 
Act of 1934, 47 U.S.C. 151, 154, 303(r), 403, and 405, notice is hereby 
given and comment is sought regarding the proposals, discussion, and 
statement of issues in the Further Notice of Proposed Rulemaking that 
comprises paragraphs 55 through 62 of the Report and Order and Further 
Notice of Proposed Rulemaking.
    4. 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 
Commission rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).
    5. 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 document. The IRFA is set forth below. 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.
    6. Pursuant to applicable procedures set forth in sections 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 April 15, 1996 and reply 
comments on or before May 6, 1996. To file formally in this proceeding, 
you must file an original and five 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 of 
the Federal Communications Commission, 1919 M Street, NW., Washington, 
DC 20054.
    7. It is further ordered That the Secretary shall send a copy of 
this Report and Order and Further Notice of Proposed Rulemaking to the 
Chief Counsel for Advocacy of the Small Business Administration in 
accordance with paragraph 603(a) of the Regulatory Flexibility Act, 
Pub. L. No. 95-354, 94 Stat. 1164, 5 U.S.C. Secs. 601 et seq. (1981).

Initial Regulatory Flexibility Analysis

Reason for Action

    The rulemaking is initiated to obtain comment on the proposed 
changes to the Commission's satellite antenna preemption rule, 47 CFR 
Sec. 25.104.

Objectives

    The Commission seeks to evaluate whether the proposed changes to 
the satellite antenna preemption rule will facilitate the installation 
of antennas and assist in the development of satellite based 
technologies.

Legal Basis

    The proposed action is authorized under Sections 4(i) and 303(r) of 
the Communications Act of 1934, as amended, 47 U.S.C. Secs. 154 (i) and 
303 (r), Section 207 of the 1996 Telecom Act.

Reporting, Recordkeeping, and Other Compliance Requirements

    Private restrictions on satellite antennas would be preempted.

Federal Rules that Overlap, Duplicate or Conflict With These 
Requirements

    None.

Description, Potential Impact and Number of Small Entities Involved

    Any policies or regulations adopted in this proceeding could affect 
small businesses that install or use satellite antennas.

[[Page 10712]]


Any Significant Alternatives Minimizing the Impact on Small Entities 
Consistent With the Stated Objectives

    This Notice solicits comments on any suggested alternatives.

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.

    Section 25.104 is amended by adding new paragraph (f) to read as 
follows:.


Sec. 25.104  Preemption of local zoning of earth stations.

* * * * *
    (f) No restrictive covenant, encumbrance, homeowners' association 
rule, or other nongovernmental restriction shall be enforceable to the 
extent that it impairs a viewer's ability to receive video programming 
services over a satellite antenna less than one meter in diameter.

[FR Doc. 96-6380 Filed 3-14-96; 8:45 am]
BILLING CODE 6712-01-M