[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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