[Federal Register Volume 61, Number 53 (Monday, March 18, 1996)]
[Rules and Regulations]
[Pages 10896-10899]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6381]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 25

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


Preemption of Local Zoning Regulations; Satellite Earth Stations

AGENCY: Federal Communications Commission.

ACTION: Final Rule.

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SUMMARY: The Commission has adopted revisions to its rule preempting 
certain local regulation of satellite earth stations. The revised rule 
was proposed in Notice of Proposed Rulemaking. The new rule clarifies 
the preemption standard and establishes procedures for Commission 
enforcement of its rules. In crafting the new rule, we have carefully 
considered the very weighty and important interests of state and local 
governments in managing land use in their communities. Against those 
interests, we have balanced the federal interest in ensuring easy 
access to satellite-delivered services, which have become increasingly 
important and widespread in the last few years and are dependent upon 
rapid and inexpensive antenna installation by businesses and consumers. 
We believe that the revised preemption rule accommodates both federal 
and non-federal interests and provides the Commission with a method of 
reviewing disputes that will avoid excessive federal involvement in 
local land-use issues.

EFFECTIVE DATE: April 17, 1996.

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 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, N.W., Washington, D.C., and also may be 
purchased from the Commission's copy contractor, International 
Transcription Service, (202) 857-3800, 2100 M Street, N.W., Suite 140, 
Washington, DC 20037.

Summary of Report and Order

    1. In this Report and Order, the Commission adopts revisions to its 
rule preempting certain local regulation of satellite earth station 
antennas. Our new rule clarifies the preemption standard and 
establishes procedures for Commission enforcement of its rules. In 
crafting the new rule, we have carefully considered the very weighty 
and important interests of state and local governments in managing land 
use in their communities. Against those interests, we have balanced the 
federal interest in ensuring easy access to satellite-delivered 
services, which have become increasingly important and widespread in 
the last few years and are dependent upon rapid and inexpensive antenna 
installation by businesses and consumers. We believe that the revised

[[Page 10897]]

preemption rule accommodates both federal and non-federal interests and 
provides the Commission with a method of reviewing disputes that will 
avoid excessive federal involvement in local land-use issues.
    2. The original preemption rule was adopted in 1986 in response to 
evidence that state and local governments were, in some instances, 
imposing unreasonably restrictive burdens on the installation of 
satellite antennas. The 1986 rule preempted ordinances that 
discriminate against satellite antennas and impose unreasonable 
limitations on reception or unreasonable costs on users. In addition, 
in the order adopting the rule, we stated that anyone coming to the 
Commission for relief in a particular zoning dispute must first exhaust 
all non federal remedies, including all litigation remedies.
    3. Several events since 1986 have led us to conclude that our rule 
should be revised at this time. For example, in 1992, the U.S. Court of 
Appeals for the Second Circuit invalidated our exhaustion of remedies 
policy. Town of Deerfield v. FCC, 992 F.2d 420 (2d Cir. 1993) 
(Deerfield). In addition, antenna users, local governments, and 
Commission staff have gained experience in this area and have found 
that several aspects of the 1986 rule are problematic. Finally, 
representatives of two satellite industry groups filed requests for 
declaratory rulings in connection with our preemption rule. The 
Satellite Broadcasting and Communications Association (SBCA), 
representing the interests of direct-to-home video service providers 
and users, urged the Commission to clarify its rule and to adopt 
enforcement procedures. Similarly, Hughes Network Systems (HNS), a 
provider of satellite communications for business uses, requested a 
ruling that local restrictions are per se unreasonable if imposed on 
very small aperture terminals (VSATs) that measure less than two meters 
in diameter and are installed in commercial areas.
    4. In the spring of 1995, we adopted a Notice of Proposed 
Rulemaking, 60 FR 28077 (May 30, 1995), responding to these events. The 
Notice tentatively concluded that our preemption policies, including 
procedural rules, must be revised. Accordingly, in the Notice, we 
proposed to review local disputes after exhaustion of only nonfederal 
administrative remedies, not all non-federal legal remedies. We 
proposed new standards to determine the reasonableness of non-federal 
regulations, and created two categories of rebuttable presumptions for 
small antennas. Finally, we proposed procedures by which state and 
local governments authorities can request a waiver of the rule in cases 
where unusual circumstances are demonstrated.
    5. In the Notice, we described how our proposed rule would apply in 
different ways to satellite antennas of different types and sizes. 
These antennas fall into two basic categories, depending on the service 
provided. The first category consists of antennas designed for direct-
to-home (DTH) reception of video programming for home entertainment 
purposes. At this time, DTH uses two different frequency bands for 
transmission. In the Ku-band (12/14 GHz), service can be provided with 
antennas less than one meter in diameter. In the C-band (4/6 GHz), 
antenna diameters are as small as six feet (approximately 2 meters) and 
typically around seven and one-half feet (approximately 2.5 meters). 
These C-band antennas provide different programming that is sometimes 
not available to smaller antenna users. DTH antennas are receive-only 
and do not have transmitting capabilities. The second broad category of 
antennas is designed for two-way, commercial communications. These 
antennas both transmit and receive. The smallest of these are often 
referred to as VSATs and provide satellite communications network 
services to retail establishments such as gas stations, store chains, 
banks, and brokerage services. These antennas are located in the same 
areas as the commercial facilities they serve. Most VSAT antennas are 
less than two meters in diameter. Other satellite services are provided 
by larger transmit/receive antennas that are generally associated with 
commercial facilities. Our proposals reflect differences in these 
various types of antennas.
    6. In response to the Notice, we received extensive comments from 
satellite industry representatives and from local governments. In 
general, industry representatives stress that our preemption rule must 
be clear and easy to apply, and they recommend some modifications to 
our proposal to accomplish this goal. Local government representatives 
strongly oppose any greater federal preemption, but generally concede 
that Commission enforcement procedures are necessary in light of 
Deerfield.
    7. After our receipt of comments in this matter, Congress enacted 
legislation which directly impacts some of the issues in the rule 
making proceeding. Specifically, section 207 of the 1996 Act directs 
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 television broadcast signals multichannel, multipoint 
distribution service, or direct broadcast satellite services.

Telecommunications Act of 1996, Public Law No. 104-104, 110 Stat. 56 
(1996). Although we seek comment on the impact of the legislation in 
the Further Notice, we have decided to proceed with the issuance of 
this Report and Order. We feel that it is crucial to put a revised rule 
in place as quickly as possible. Moreover, the revised rule proposed in 
the Notice and adopted here applies to a variety of services provided 
by all sizes of satellite dishes, not just direct broadcasting services 
provided by 18'' dishes. Finally, as explained in the Further Notice, 
we tentatively conclude that insofar as governmental restrictions are 
concerned, our newly adopted preemption rule is a reasonable way to 
implement section 207 with regard to DBS antennas. After reviewing the 
comments submitted in response to the Further Notice, we will determine 
whether further adjustments to our rule are warranted.
    8. In crafting our preemption policies, we have attempted to 
reflect the differences in the antennas involved and have tried to 
accommodate the varying local interests. The main state and local 
concerns regarding installation of satellite earth stations relate to 
aesthetics, health, and safety. These concerns would appear to be 
greater for larger antennas, thus the rule permits greater local 
regulation for larger antennas. For smaller antennas, local interests 
are less compelling and, accordingly, we more narrowly define 
permissible local regulation. After reviewing the record, we conclude 
that the basic thrust of our proposals is appropriate and will 
adequately address concerns of antenna users while accommodating 
interests of state and local governments. However, commenters have 
raised concerns about the clarity of certain portions of our rule and, 
accordingly, we made adjustments to the adopted version to address 
these problems.

Ordering Clauses

    9. Accordingly, it is ordered That the revisions to Sec. 25.104 of 
the Commission's rules as set out below are hereby adopted.
    10. The analysis required pursuant to Section 606 of the Regulatory 
Flexibility Act, 5 U.S.C. Sec. 608, is set forth below.
    11. It is further ordered That the amendments to 47 CFR 25.104 
adopted in the Report and Order that comprises

[[Page 10898]]
paragraphs 1 through 52 of the Report and Order and Further Notice of 
Proposed Rulemaking will become effective April 17, 1996. This action 
is taken pursuant to Sections 1, 4(i), 4(j), 7, and 309(j) of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 
157, and 309(j). The Federal Communications Commission as part of its 
continuing effort to reduce paperwork burden invites the general public 
and other Federal agencies to take this opportunity to comment on the 
information collection in the adopted rule, as required by the 
Paperwork Reduction Act of 1995. Comments concerning the Commision's 
need for this information, the accuracy of the provided burden 
estimates, and any suggested methods for minimizing respondent burden, 
including the use of automated information techniques, are requested. 
The Commission has requested an emergency Office of Management & Budget 
review of this collection with an approval by April 10, 1996.
    12. 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, 
Public Law 95-354, 94 Stat. 1164, 5 U.S.C. 601 et seq. (1981).

Final Regulatory Flexibility Act Statement

    13. Pursuant to Section 603 of the Regulatory Flexibility Act, 5 
U.S.C. 603, an initial Regulatory Flexibility Analysis was incorporated 
in the Notice of Proposed Rulemaking in IB Docket No. 95-59. Written 
comments on the proposals in the Notice, including the Regulatory 
Flexibility Analysis, were requested.

A. Need and Purpose of Rules

    14. This rulemaking proceeding modifies the Commission's rule 
preempting certain local zoning regulation of Satellite earth station 
antennas, 47 CFR 25.104. Our objective has been to facilitate the 
installation of antennas and to assist in the development of satellite 
based technologies.

B. Issues Raised by the Public in Response to the Initial Analysis

    15. No comments were received specifically in response to the 
Initial Regulatory Flexibility Analysis. We have, however, taken into 
account all issues raised by the Public in response to the proposed 
rules. In certain instances, we have eliminated or modified rules in 
response to those comments.

C. Significant Alternatives Considered

    16. We have attempted to balance all the commenters' concerns with 
our public interest mandate under the Communications Act in order to 
assure that satellite services are accessible. We will continue to 
examine this rule in an effort to eliminate unnecessary regulations and 
to minimize significant economic impact on small businesses.

List of Subjects in 47 CFR Part 25

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

Final Rules

    Part 25 of Title 47 of the Code of Federal Regulations is amended 
as follows:

PART 25--SATELLITE COMMUNICATIONS

    17. 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.

    18. Section 25.104 is revised to read as follows:


Sec. 25.104  Preemption of local zoning of earth stations.

    (a) Any state or local zoning, land-use, building, or similar 
regulation that materially limits transmission or reception by 
satellite earth station antennas, or imposes more than minimal costs on 
users of such antennas, is preempted unless the promulgating authority 
can demonstrate that such regulation is reasonable, except that 
nonfederal regulation of radio frequency emissions is not preempted by 
this section. For purposes of this paragraph (a), reasonable means that 
the local regulation:
    (1) Has a clearly defined health, safety, or aesthetic objective 
that is stated in the text of the regulation itself; and
    (2) Furthers the stated health, safety or aesthetic objective 
without unnecessarily burdening the federal interests in ensuring 
access to satellite services and in promoting fair and effective 
competition among competing communications service providers.
    (b)(1) Any state or local zoning, land-use, building, or similar 
regulation that affects the installation, maintenance, or use of the 
following two categories of a satellite earth station antenna shall be 
presumed unreasonable and is therefore preempted subject to paragraph 
(b)(2) of this section. No civil, criminal, administrative, or other 
legal action of any kind shall be taken to enforce any regulation 
covered by this presumption unless the promulgating authority has 
obtained a waiver from the Commission pursuant to paragraph (e) of this 
section, or a final declaration from the Commission or a court of 
competent jurisdiction that the presumption has been rebutted pursuant 
to paragraph (b)(2) of this section:
    (i) A satellite earth station 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 nonfederal 
land-use regulation; or
    (ii) A satellite earth station antenna that is one meter or less in 
diameter in any area, regardless of land use or zoning category.
    (2) Any presumption arising from paragraph (b)(1) of this section 
may be rebutted upon a showing that the regulation in question:

    (i) Is necessary to accomplish a clearly defined health or 
safety objective that is stated in the text of the regulation 
itself;
    (ii) Is no more burdensome to satellite users than is necessary 
to achieve the health or safety objective; and
    (iii) Is specifically applicable on its face to antennas of the 
class described in paragraph (b)(1) of this section.

    (c) 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 and variance procedure has been 
exhausted;
    (2) The petitioner's application for a permit or other 
authorization required by the state or local authority has been on 
file for ninety days without final action;
    (3) The petitioner has received a permit or other authorization 
required by the state or local authority that is conditioned upon 
the petitioner's expenditure of a sum of money, including costs 
required to screen, pole-mount, or otherwise specially install the 
antenna, greater than the aggregate purchase or total lease cost of 
the equipment as normally installed; or
    (4) A state or local authority has notified the petitioner of 
impending civil or criminal

[[Page 10899]]
action in a court of law and there are no more nonfederal 
administrative steps to be taken.

    (d) Procedures regarding filing of petitions requesting declaratory 
rulings and other related pleadings will be set forth in subsequent 
Public Notices. All allegations of fact contained in petitions and 
related pleadings must be supported by affidavit of a person or persons 
with personal knowledge thereof.
    (e) 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 a necessity for regulation 
inconsistent with this section. No application for waiver shall be 
considered unless it specifically sets forth the particular regulation 
for which waiver is sought. Waivers granted in accordance with this 
section shall not apply to later-enacted or amended regulations by the 
local authority unless the Commission expressly orders otherwise.

[FR Doc. 96-6381 Filed 3-15-96; 8:45 am]
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