[Federal Register Volume 61, Number 76 (Thursday, April 18, 1996)]
[Proposed Rules]
[Pages 16890-16892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9491]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Ch. I

[CS Docket No. 96-83; FCC 96-151]


Preemption of Restrictions on Over-the-Air Reception Devices

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: The Notice of Proposed Rulemaking (``NPRM'') requests comment 
on issues concerning the implementation of section 207 of the 
Telecommunications Act of 1996 as it relates to television broadcast 
signals and multichannel multipoint distribution services. The NPRM 
will assist the Commission in devising regulations in this area. The 
NPRM will provide interested parties an opportunity to submit comments 
that will provide the Commission with a sufficient record on which to 
base ultimate regulations.

DATES: Interested parties may file comments on or before May 6, 1996 
and reply comments on or before May 21, 1996. Written comments by the 
public on the proposed and/or modified information collections are due 
on or before May 6, 1996. Written comments must be submitted by the 
Office of Management and Budget (OMB) on the proposed and/or modified 
information collections on or before June 17, 1996.

ADDRESSES: An original and six copies of all comments and reply 
comments should be sent to Office of the Secretary, Federal 
Communications Commission, 1919 M Street, N.W., Room 222, Washington, 
D.C. 20554, with a copy to Randi Albert of the Cable Services Bureau, 
2033 M Street, N.W., Room 700Q, Washington, D.C. 20554. Parties should 
also file one copy of any documents filed in this docket with the 
Commission's copy contractor, International Transcription Services, 
Inc., 2100 M Street, N.W., Suite 140, Washington, D.C. 20037. Comments 
and reply comments will be available for public inspection during 
regular business hours in the FCC Reference Center, 1919 M Street, 
N.W., Room 239, Washington, D.C. 20554.
    In addition to filing comments with the Secretary, a copy of any 
comments on the information collections contained herein should be 
submitted to Dorothy Conway, Federal Communications Commission, Room 
234, 1919 M Street, N.W., Washington, D.C. 20054, or via the Internet 
to [email protected], and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 
725-17th Street, N.W., Washington, D.C. 20503 or via the Internet to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Randi Albert or Jacqueline Spindler, 
Cable Services Bureau, (202) 416-0800. For additional information 
concerning the information collections contained herein, contact 
Dorothy Conway at 202-418-0217, or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's NPRM 
in CS Docket No. 96-83, FCC No. 96-151, adopted April 2, 1996 and 
released April 4, 1996. The full text of this decision is available for 
inspection and copying during normal business hours in the FCC 
Reference Center (room 239), 1919 M Street, NW, Washington, D.C. 20554, 
and may be purchased from the Commission's copy contractor, 
International Transcription Service, (202) 857-3800, 1919 M Street, NW, 
Washington, D.C. 20554.
    This NPRM contains proposed or modified information collections 
subject to the Paperwork Reduction Act of 1995 (PRA). It has been 
submitted to the Office of Management and Budget (OMB) for review under 
the PRA. OMB, the general public, and other Federal agencies are 
invited to comment on the proposed or modified information collections 
contained in this proceeding.
    OMB Approval Number: None.
    Title: Preemption of Restrictions on Over-the-Air Reception 
Devices--Notice of Proposed Rulemaking.
    Type of Review: New collection.
    Respondents: State and local governments; small businesses.
    Number of Respondents: The Commission asks commenters to provide 
estimates of the volume of waivers and requests for declaratory rulings 
we might expect to receive on an annual basis. At this time, we 
estimate parties will annually prepare 200 requests for declaratory 
rulings and 100 petitions for waivers; for an annual total of 300 
respondents.
    Estimated Time Per Response: Preparation of a request for 
declaratory ruling prepared without outside counsel will require an 
average of 10 hours, and

[[Page 16891]]

if using outside counsel would require 1 hour. Preparation of a waiver 
request is estimated to require an average of 2 hours without outside 
counsel, and if using outside counsel would require 1 hour.
    Total Annual Burden: It is estimated that 50% of declaratory 
rulings will be prepared without outside counsel and 50% of parties 
will hire outside counsel. The estimated burden to coordinate 
information with outside counsel will be 1 hour. 100 (50% without 
outside counsel) x 10 hours=1,000 hours; and 100 (50% with outside 
counsel) x 1 hour=100 hours, for a burden of 1,100 hours. It is 
estimated that 90% of petitions for waivers will be prepared without 
outside counsel. The other 10% will hire outside counsel, and the 
estimated burden to coordinate information with outside counsel will be 
1 hour. 90 (90% without outside counsel) x 2 hours=180 hours; and 10 
(10% with outside counsel) x 1 hour=10 hours, for a burden of 190 
hours. The total burden to respondents is therefore 1,100+190=1,290 
hours.
    Estimated Costs Per Respondent: It is estimated that 100 requests 
for declaratory rulings and 10 petitions for waivers will be prepared 
each year through outside counsel. The estimated annual costs are 
$153,000, illustrated as follows: 100 declaratory rulings x 10 
hours x $150/hr.=$150,000. 10 petitions for waivers x 2 hours x $150/
hr.=$3,000
    Needs and Uses: Submitted information will be used to evaluate 
requests for declaratory ruling regarding the reasonableness of state 
and local restrictions, or requests for waiver of the rule.

I. Notice of Proposed Rulemaking

    1. On February 8, 1996, the Telecommunications Act of 1996 (the 
``1996 Act'') became law. Section 207 of the 1996 Act directs that the 
Commission shall, ``pursuant to Section 303 of the Communications Act, 
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.'' In this Notice of Proposed Rulemaking, we address 
the statutory mandate with regard to television broadcast service 
(``TVBS'') and multichannel multipoint distribution service (``MMDS'').
    2. In a recent Report and Order and Further Notice of Proposed 
Rulemaking, FCC 96-78 (released March 11, 1996) (61 FR 10710, March 15, 
1996) (``Order and Further Notice''), the Commission considered the 
issue of preemption of state or local restrictions, such as zoning 
ordinances, on devices used to receive direct broadcast satellite 
(``DBS'') services. Noting that section 207 expands the range of 
preemption to include non-governmental entities such as homeowners' 
associations, the Order and Further Notice proposes a per se preemption 
of restrictions imposed by non-governmental entities as they affect 
reception of DBS signals. In this Notice of Proposed Rulemaking, we 
seek to provide similar implementation of section 207 regarding TVBS 
and MMDS.
    3. In the Order and Further Notice we adopted a rule for satellite 
receivers less than one meter in diameter, including DBS receivers. 
Section 207 of the 1996 Act groups TVBS, MMDS, and DBS receiving 
devices together, which suggests that they should be treated similarly. 
However, antennas used to receive TVBS signals can be of various forms 
and sizes, and may not always be comparable to DBS antennas. Therefore, 
while we propose a rule for TVBS and MMDS devices that does not draw 
distinctions among receivers based on size, we invite comments on 
whether and when such distinctions might be justified, within the 
Commission's authority to implement the statutory language pursuant to 
section 303 of the Communications Act.
    4. The Order and Further Notice establishes a presumption that 
restrictive state or local regulations are unreasonable, and therefore 
preempts them, if they affect the installation, maintenance, or use of 
a satellite earth station antenna that is one meter or less in 
diameter. The presumption could be rebutted by obtaining a ``final 
declaration'' from the Commission or a court of competent jurisdiction 
that the state or local regulation is both necessary to accomplish a 
clearly defined and expressly stated health or safety objective, and as 
narrowly drawn as possible to accomplish that objective. We tentatively 
conclude that this same presumption is applicable to MMDS and TVBS 
antennas. In the Order and Further Notice we also determined that any 
state or local authority that wished to maintain and enforce 
regulations inconsistent with the preemption rule could apply to the 
Commission for a full or partial waiver. Such a request must show local 
concerns of a highly specialized or unusual nature, and must include 
the particular regulation for which waiver is sought. We tentatively 
conclude that this determination applies to MMDS and TVBS as well. We 
solicit comment on this tentative conclusion and proposed rule, and 
specifically ask commenters to provide estimates of the volume of 
waivers we might expect under this proposed rule. We ask, too, whether 
any workable alternative approach exists that would reduce the burden 
on this Commission.
    5. As we did in the Order and Further Notice, we note that antenna 
users and local governments are free to pursue litigation remedies in 
federal or state courts if they wish to forego Commission review. 
Further, our recently adopted rule states that 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 or a 
final declaration from the Commission or a court of competent 
jurisdiction that the presumption has been rebutted. We tentatively 
find that this approach is appropriate here as well.

II. Initial Regulatory Flexibility Analysis

    Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-
612, the Commission's Initial Regulatory Flexibility Analysis with 
respect to the NPRM is as follows:
    6. Reason for Action: The rulemaking is initiated to obtain comment 
on the implementation of Section 207 of the Telecommunications Act of 
1996, Public Law 104-104, 110 Stat. 56 (1996), as it applies to over-
the-air reception of television broadcast signals and multichannel 
multipoint distribution services.
    7. Objectives: The Commission seeks to evaluate whether our 
proposed rule preempting non-federal restrictions will enhance viewers' 
ability to receive video programming services through devices designed 
for over-the-air reception of television broadcast signals and 
multichannel multipoint distribution services.
    8. Legal Basis: The proposed action is authorized under Sections 1 
and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 
303, and Section 207 of the Telecommunications Act of 1996, Public Law 
104-104, 110 Stat. 56 (1996).
    9. Reporting, Recordkeeping, and Other Compliance Requirements: 
State and local governments propounding regulations which restrict the 
installation, maintenance or use of devices designed for receiving 
over-the-air signals of television broadcast and multichannel 
multipoint distribution services may request declaratory rulings from 
the Commission that their regulations are reasonable, or may petition 
the Commission for waiver of the rule.

[[Page 16892]]

    10. Federal Rules that Overlap, Duplicate or Conflict with These 
Requirements: None.
    11. Description, Potential Impact and Number of Small Entities 
Involved: Any policies or regulations adopted in this proceeding could 
affect state, local, and nongovernmental regulatory entities, as well 
as small businesses that install or use devices designed for over-the-
air reception of television broadcast signals and multichannel 
multipoint distribution services.
    12. Any Significant Alternatives Minimizing the Impact on Small 
Entities Consistent with the Stated Objectives: This Notice solicits 
comments on any suggested alternatives.

III. Initial Paperwork Reduction Act of 1995 Analysis

    13. This NPRM contains either a proposed or modified information 
collection. The Commission, as part of its continuing effort to reduce 
paperwork burdens, invites the general public and the Office of 
Management and Budget (``OMB'') to take this opportunity to comment on 
the information collections contained in this NPRM, as required by the 
Paperwork Reduction Act of 1995, Public Law No. 104-13. Public and 
agency comments are due at the same time as other comments on the NPRM; 
OMB comments are due June 17, 1996. Comments should address: (a) 
whether the proposed collection of information is necessary for the 
proper performance of the functions of the Commission, including 
whether the information shall have practical utility; (b) the accuracy 
of the Commission's burden estimates; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) ways to 
minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology.

IV. Procedural Provisions

    14. Ex parte Rules--Non-Restricted Proceeding. This is a non-
restricted notice and comment rulemaking proceeding. Ex parte 
presentations are permitted, provided that they are disclosed as 
provided in Commission's rules. See generally 47 CFR 1.1202, 1.1206.
    15. Pursuant to applicable procedures set forth in Sections 1.415 
and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested 
parties may file comments on or before May 6, 1996, and reply comments 
on or before May 21, 1996. To file formally in this proceeding, you 
must file an original and six 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 and eleven 
copies. Comments and reply comments should be sent to Office of the 
Secretary, Federal Communications Commission, 1919 M Street, N.W., Room 
222, Washington, D.C. 20554, with a copy to Randi Albert of the Cable 
Services Bureau, 2033 M Street, N.W., Room 700Q, Washington, D.C. 
20554. Parties should also file one copy of any documents filed in this 
docket with the Commission's copy contractor, International 
Transcription Services, Inc., 2100 M Street, N.W., Suite 140, 
Washington, D.C. 20037. Comments and reply comments will be available 
for public inspection during regular business hours in the FCC 
Reference Center, 1919 M Street, N.W., Room 239, Washington, D.C. 
20554.

V. Ordering Clauses

    16. It is ordered that, pursuant to Section 207 of the 
Telecommunications Act of 1996; and Sections 1, 303, of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 303(r), Notice 
is hereby given of proposed implementation of Section 207 of the 
Telecommunications Act of 1996, in accordance with the proposals, 
discussions, and statement of issues in this NPRM and Comment is Sought 
regarding such proposals, discussions, and statements of issues.
    17. It is further ordered that the Secretary shall send a copy of 
this NPRM, including the IRFA, to the Chief Counsel for Advocacy of the 
Small Business Administration in accordance with paragraph 603(a) of 
the Regulatory Flexibility Act, Public Law 96-354, 94 Stat. 1164, 5 
U.S.C. 601 et seq. (1981).
    18. For additional information regarding this proceeding, contact 
Randi Albert or Jacqueline Spindler, Consumer Protection and 
Competition Division, Cable Services Bureau (202) 416-0800.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-9491 Filed 4-17-96; 8:45 am]
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