[Federal Register Volume 61, Number 172 (Wednesday, September 4, 1996)]
[Proposed Rules]
[Pages 46603-46607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22427]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[CS Docket No. 96-83; IB Docket No. 95-59; FCC 96-328]


Telecommunications Act of 1996; Preemption of Restrictions on 
Over-the-Air Reception Devices

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This Further Notice of Proposed Rulemaking seeks comment on 
the implementation of Section 207 as it relates to nongovernmental 
restrictions on property not within the exclusive use or control of the 
viewer and/or in which the viewer may not have a direct or indirect 
ownership interest. Section 207 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

[[Page 46604]]

distribution service or direct broadcast satellite services.'' This 
FNPRM 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 to the FNPRM on or before 
September 27, 1996 and reply comments on or before October 28, 1996. 
Written comments by the public on the proposed and/or modified 
information collections are due on or before September 27, 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 November 4, 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 Jacqueline Spindler of the Cable Services 
Bureau, 2033 M Street, N.W., Room 700, 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: Jacqueline Spindler, Cable Services 
Bureau, (202) 418-7200. 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 FNPRM 
in CS Docket No. 96-83, IB Docket No. 95-59, FCC No. 96-328, adopted 
August 5, 1996 and released August 6, 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 FNPRM contains a proposed 
information collection subject to the Paperwork Reduction Act of 1995 
(PRA). As part of our continuing effort to reduce paperwork burdens, we 
invite the general public and OMB to comment on the information 
collection contained in this FNPRM, as required by the Paperwork 
Reduction Act of 1995, Public Law No. 104-13. Public and agency 
comments are due on September 27, 1996; OMB comments are due 60 days 
from the date of publication in the Federal Register. Comments should 
address: (a) Whether the collection of information is necessary for the 
proper performance of the functions of the Commission, including 
whether the information will 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.
    OMB Approval Number: 3060-0707.
    Title: Preemption of Restrictions on Over-the-Air Reception 
Devices--Report and Order, Memorandum Opinion and Order, and Further 
Notice of Proposed Rulemaking.
    Type of Review: Revision of an existing collection. The following 
are burden estimates for the Order portion of the document, as well as 
the Further Notice of Proposed Rulemaking portion of the document. We 
account for the burdens estimates separately. If, in a subsequent 
rulemaking, the proposed rules in the Further Notice of Proposed 
Rulemaking are not adopted in part or in whole, the Commission will 
adjust its burden estimates accordingly.
    Respondents: State and local governments; small organizations; 
small businesses.
    Number of Respondents for the Order: 248. (100 requests for 
declaratory rulings, 24 comments on requests, 100 petitions for 
waivers, 24 comments on petitions.)
    Estimated Time Per Response for the Order: 2-5 hours.
    Total Annual Burden for the Order: 844 hours. It is estimated that 
50% of declaratory rulings will be prepared without outside counsel 
with a burden of 5 hours each and 50% of parties will hire outside 
counsel. The estimated burden to coordinate information with outside 
counsel is 2 hours. 50 (50% without outside counsel)  x  5 hours = 250 
hours. 50 (50% with outside counsel)  x  2 hours = 100 hours. It is 
estimated that 50% of comments on declaratory rulings will be prepared 
without outside counsel with a burden of 4 hours each and 50% of 
parties will hire outside counsel. The estimated burden to coordinate 
information with outside counsel is 2 hours. 12 (50% without outside 
counsel)  x  4 hours = 48 hours. 12 (50% with outside counsel)  x  2 
hours = 24 hours. It is estimated that 50% of petitions for waivers 
will be prepared without outside counsel with a burden of 5 hours each 
and 50% of parties will hire outside counsel. The estimated burden to 
coordinate information with outside counsel is 2 hours. 50 (50% without 
outside counsel)  x  5 hours = 250 hours. 50 (50% with outside counsel) 
 x  2 hours = 100 hours. It is estimated that 50% of comments on 
waivers will be prepared without outside counsel with a burden of 4 
hours each and 50% of parties will hire outside counsel. The estimated 
burden to coordinate information with outside counsel is 2 hours. 12 
(50% without outside counsel)  x  4 hours = 48 hours. 12 (50% with 
outside counsel)  x  2 hours = 24 hours.
    Estimated Costs Per Respondent for the Order: It is estimated that 
50 requests for declaratory rulings, 12 comments on requests for 
declaratory rulings, 50 petitions for waivers and 12 comments on 
petitions for waivers will be prepared each year through outside 
counsel. The estimated annual costs are $89,400, illustrated as 
follows: 50 declaratory rulings  x  5 hours  x  $150/hr. = $37,500. 12 
comments on declaratory rulings  x  4 hours  x  $150/hr. = $7,200. 50 
petitions for waivers  x  5 hours  x  $150/hr. = $37,500. 12 comments 
on petitions for waivers  x  4 hours  x  $150/hr. = $7,200.
    Number of Respondents for the FNPRM: 248. (100 requests for 
declaratory rulings, 24 comments on requests, 100 petitions for wavers, 
24 comments on petitions.)
    Estimated Time Per Response for the FNPRM: 2-5 hours.
    Total Annual Burden for the FNPRM: 844 hours. It is estimated that 
50% of declaratory rulings will be prepared without outside counsel 
with a burden of 5 hours each and 50% of parties will hire outside 
counsel. The estimated burden to coordinate information with outside 
counsel is 2 hours. 50 (50% without outside counsel)  x  5 hours = 250 
hours. 50 (50% with outside counsel)  x  2 hour = 100 hours. It is 
estimated that 50% of comments on declaratory rulings will be prepared

[[Page 46605]]

without outside counsel with a burden of 4 hours each and 50% of 
parties will hire outside counsel. The estimated burden to coordinate 
information with outside counsel is 2 hours. 12 (50% without outside 
counsel)  x  4 hours = 48 hours. 12 (50% with outside counsel)  x  2 
hour = 24 hours. It is estimated that 50% of petitions for waivers will 
be prepared without outside counsel with a burden of 5 hours each and 
50% of parties will hire outside counsel. The estimated burden to 
coordinate information with outside counsel is 2 hours. 50 (50% without 
outside counsel)  x  5 hours = 250 hours. 50 (50% with outside counsel) 
 x  2 hour = 100 hours. It is estimated that 50% of comments on waivers 
will be prepared without outside counsel with a burden of 4 hours each 
and 50% of parties will hire outside counsel. The estimated burden to 
coordinate information with outside counsel is 2 hours. 12 (50% without 
outside counsel)  x  4 hours = 48 hours. 12 (50% with outside counsel) 
x  2 hour = 24 hours.
    Estimated Costs Per Respondent for the FNPRM: It is estimated that 
50 requests for declaratory rulings, 12 comments on requests for 
declaratory rulings, 50 petitions for waivers and 12 comments on 
petitions for waivers will be prepared each year through outside 
counsel. The estimated annual costs are $89,400, illustrated as 
follows: 50 declaratory rulings  x  5 hours  x  $150/hr. = $37,500. 12 
comments on declaratory rulings  x  4 hours  x  $150/hr. = $7,200. 50 
petitions for waivers  x  5 hours  x  $150/hr. = $37,500. 12 comments 
on petitions for waivers  x  4 hours  x  $150/hr. = $7,200.
    Needs and Uses: Submitted information will be used to evaluate 
requests for declaratory ruling regarding the reasonableness of state, 
local and nongovernmental restrictions, or to requests for waiver of 
the rule.

I. Synopsis of Further Notice of Proposed Rulemaking

    1. On February 8, 1996, the Telecommunications Act of 1996 (``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.'' On August 6, 1996, the Commission released a 
Report and Order implementing Section 207. In this Further Notice of 
Proposed Rulemaking (FNPRM) we seek comment on the implementation of 
Section 207 as it relates to restrictions on property not within the 
exclusive use or control of the viewer and/or in which the viewer may 
not have a direct or indirect ownership interest.
    2. Neither the DBS Order and FNPRM nor the TVBS-MMDS NPRM 
specifically proposed rules to govern or sought comment on the question 
of whether the antenna restriction preemption rules should apply to the 
placement of antennas on rental and other property not within the 
exclusive control of a person with an ownership interest. As a 
consequence many of the specific practical problems of how possible 
regulations might apply were not commented on, nor were the policy and 
legal issues fully briefed. We conclude that the record before us at 
this time is incomplete and insufficient on the legal, technical and 
practical issues relating to whether, and if so how, to extend our rule 
to situations in which antennas may be installed on common property for 
the benefit of one with an ownership interest or on a landlord's 
property for the benefit of a renter. Accordingly, we request further 
comment on these issues. We invite comment on the potential for central 
reception facilities in situations where restrictions on individual 
antenna placement are preempted by the rules, and thus no involuntary 
use of common or landlord-owned property is involved. We seek comment 
on the technical and practical feasibility of an approach that would 
allow the placement of over-the-air reception devices on rental or 
commonly-owned property. In particular, we invite commenters to address 
technical and/or practical problems or any other considerations they 
believe the Commission should take into account in deciding whether to 
adopt such a rule and, if so, the form such a rule should take.
    3. Specifically, we seek comment on the Commission's legal 
authority to prohibit nongovernmental restrictions that impair 
reception by viewers who do not have exclusive use or control and a 
direct or indirect ownership interest in the property. On the question 
of our legal authority, we note that in Loretto v. Teleprompter 
Manhattan CATV Corp., 458 U.S. 419 (1982), the Supreme Court held that 
a state statute that allowed a cable operator to install its cable 
facilities on the landlord's property constituted a taking under the 
Fifth Amendment. In the same case, the Court stated, in dicta, that ``a 
different question'' might be presented if the statute required the 
landlord to provide cable installation desired by the tenant. Id. at 
440 n.19. We therefore request comment on the question of whether 
adoption of a prohibition applicable to restrictions imposed on rental 
property or property not within the exclusive control of the viewer who 
has an ownership interest would constitute a taking under Loretto, for 
which just compensation would be required, and if so, what would 
constitute just compensation in these circumstances.
    4. In this regard, we also request comment on how the case of Bell 
Atlantic Telephone Companies v. FCC, 24 F.3d 1441 (D.C. Cir. 1994), 
should affect the constitutional and legal analysis. In that case, the 
U.S. Court of Appeals for the District of Columbia invalidated 
Commission orders that permitted competitive access providers to locate 
their connecting transmission equipment in local exchange carrier 
central offices because these orders directly implicated the Just 
Compensation Clause of the Fifth Amendment.

II. Initial Regulatory Flexibility Analysis

    5. As required by Section 603 of the Regulatory Flexibility Act, 5 
U.S.C. Sec. 603 (1996), the Commission has prepared an Initial 
Regulatory Flexibility Analysis (IRFA) of the potential economic impact 
on small entities of the approach proposed in this Further Notice of 
Proposed Rulemaking. Written public comments are requested on the IRFA. 
Comments must be identified as responses to the IRFA and must be filed 
by the deadlines for comments on the Further Notice of Proposed 
Rulemaking provided above.
    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 No. 104-104, 110 Stat. 56, as it applies to the 
installation, maintenance or use of antennas on common areas or rental 
properties, property not within the exclusive control of a person with 
an ownership interest, where a community association or landlord is 
legally responsible for maintenance and repair.
    7. Objectives. The Commission seeks to evaluate whether preempting 
non-federal Restrictions on commonly owned property and property 
subject to lease agreements, would: (1) 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; (2) provide an unreasonable 
management burden for parties owning and legally responsible for the 
property

[[Page 46606]]

at issue; and (3) result in the Commission exceeding its statutory 
authority and Congress' constitutional authority.
    8. Legal Basis. The proposed action is authorized under Section 1 
of the Communications Act of 1934, as amended, 47 U.S.C. Sec. 151, and 
Section 207 of the Telecommunications Act of 1996, Public Law No. 104-
104, 110 Stat. 56.
    9. Reporting, Recordkeeping, and Other Compliance Requirements. 
Depending on the outcome of the Further Notice of Proposed Rulemaking, 
neighborhood associations, property management companies and individual 
landlords promulgating regulations that restrict the installation, 
maintenance or use of devices designed for receiving over-the-air 
signals of DBS, MMDS and TVBS may, in certain circumstances, request 
declaratory rulings from the Commission that their regulations are 
reasonable, or petition the Commission for waiver of the rule.
    10. Federal Rules that Overlap, Duplicate or Conflict with These 
Requirements. None.
    11. Description and Estimate of the Number of Small Entities 
Impacted. The Regulatory Flexibility Act defines the term ``small 
entity'' as having the same meaning as the terms ``small business,'' 
``small organization,'' and ``small governmental jurisdiction,'' and 
``the same meaning as the term `small business concern' under section 3 
of the Small Business Act.'' A small business concern is one which: (1) 
Is independently owned and operated; (2) is not dominant in its field 
of operation; and (3) satisfies any additional criteria established by 
the Small Business Administration (SBA), 15 U.S.C. Sec. 632. 
Neighborhood associations and property rental businesses may be 
affected by the ultimate outcome in the Further Notice of Proposed 
Rulemaking. These entities might need to revise their covenants and 
lease restrictions so that they conform with the rule.
    12. Section 601(4) of the Regulatory Flexibility Act defines 
``small organization'' as ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 5 
U.S.C. Sec. 601(4). This definition includes homeowner and condominium 
associations that operate as not-for-profit organizations. The 
Community Associations Institute estimates that there were 150,000 
associations in 1993.
    13. The U.S. Small Business Administration classifies a small 
entity as a firm with fewer than 500 employees. United States Small 
Business Administration, A Guide to the Regulatory Flexibility Act, 
App. A (1996). Utilizing the Standard Industrial Classification Codes 
for Real Estate Agents and Managers, 100,135 firms (of a total of 
100,554) have fewer than 500 employees. United States Dept. of 
Commerce, Bureau of the Census, 1993 Census of Cable and Other Pay 
Television Services (quoted by Dr. William Whiston, Chief, Research 
Contracts Branch, Office of Advocacy for the Small Business 
Administration, July 31, 1996). This number does include real estate 
agents, who would not be burdened by the proposed rule, but does not 
include sole proprietors engaged in leasing rental property, who might 
be burdened.
    14. Any Significant Alternatives Minimizing the Impact on Small 
Entities Consistent with the Stated Objectives. This Notice solicits 
comments on a general approach only.

III. Paperwork Reduction Act of 1995 Analysis

    15. Final Paperwork Reduction Act of 1995 Analysis. This FNPRM has 
been analyzed with respect to the Paperwork Reduction Act of 1995 and 
found to contain an information collection requirement on the public. 
Implementation of an information collection requirement is subject to 
approval by the Office of Management and Budget as prescribed by the 
Act.
    16. This FNPRM contains a proposed/modified information collection. 
As part of our continuing effort to reduce paperwork burdens, we invite 
the general public and OMB to comment on the information collection 
contained in this FNPRM, as required by the Paperwork Reduction Act of 
1995, Public Law No.104-13. Public and agency comments are due on 
September 27, 1996; OMB comments are due November 4, 1996. Comments 
should address: (a) Whether the collection of information is necessary 
for the proper performance of the functions of the Commission, 
including whether the information will 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.
    17. Written comments by the public on the modified information 
collections are due on September 27, 1996. Written comments must be 
submitted by the Office of Management and Budget (OMB) on the proposed 
collections on or before November 4, 1996. A copy of any comments on 
the information collection contained herein should be submitted to 
Dorothy Conway, Federal Communications Commission, Room 234, 1919 M 
Street, NW, Washington DC 20554, or via the Internet to 
[email protected], and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 
17th Street, NW, Washington DC 20503 or via the Internet to 
[email protected].

IV. Procedural Provisions

    18. 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 Secs. 1.1202, 
1.1206.
    19. Pursuant to applicable procedures set forth in Sections 1.415 
and 1.419 of the Commission's rules, 47 CFR Secs. 1.415, 1.419, 
interested parties may file comments on or before September 27, 1996, 
and reply comments on or before October 28, 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 
Jacqueline Spindler of the Cable Services Bureau, 2033 M Street, N.W., 
Room 700, 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

    20. It is ordered that pursuant to Sections 4(i), 4(j), and 303 of 
the Communications Act of 1934, as amended, 47 U.S.C. Secs. 154(i), 
154(j), and 303, and Section 207 of the Telecommunications Act of 1996, 
Public Law No. 104-104, 110 Stat. 56, notice is hereby given and 
comment is sought regarding the proposals, discussion, and statement of 
issues in the Further Notice of Proposed Rulemaking.
    21. It is further ordered that the requirements and regulations

[[Page 46607]]

established in this decision shall become effective upon approval by 
the Office of Management and Budget (OMB) of the new information 
collection requirements adopted herein, but no sooner than October 4, 
1996.
    22. This is a non-restricted notice and comment rulemaking 
proceeding. Ex parte presentations are permitted, except during the 
Sunshine Agenda period, provided that they are disclosed as provided in 
the Commission rules. See generally, 47 CFR Secs. 1.1202, 1.1203, and 
1.1206(a).
    23. Pursuant to applicable procedures set forth in Sections 1.415 
and 1.419 of the Commission's rules, 47 CFR Secs. 1.415 and 1.419, 
interested parties may file comments on or before September 27, 1996, 
and reply comments on or before October 28, 1996. All pleadings must 
conform to Section 1.49(a) of the Commission's rules, 47 CFR 
Sec. 1.49(a). To file formally in this proceeding, parties must file an 
original and six copies of all comments, reply comments and supporting 
comments. If parties want each Commissioner to receive a personal copy 
of their comments, they must file an original plus eleven copies. 
Parties 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 Room of the Federal 
Communications Commission, 1919 M Street, NW., Washington, DC 20554. 
For further information, contact Jacqueline Spindler at (202) 418-7200.
    24. This Further Notice of Proposed Rulemaking contains a proposed 
information collection. 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 the Further Notice of Proposed Rulemaking. 
As part of our continuing effort to reduce paperwork burdens, we invite 
the general public and the OMB to comment on the information 
collections contained in this Further Notice of Proposed Rulemaking, as 
required by the Paperwork Reduction Act of 1995, Public Law No. 104-13. 
Public and agency comments are due on September 27, 1996; OMB comments 
are due November 4, 1996. Comments should address: (a) Whether the 
modified and proposed collections of information are necessary for the 
proper performance of the functions of the Commission, including 
whether the information will 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 collection of information on the respondents, 
including the use of automated collection techniques or other forms of 
information technology. 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, NW., Washington DC 
20554, or via the Internet to [email protected], and to Timothy Fain, OMB 
Desk Officer, 10236 NEOB, 725 17th Street, NW., Washington, DC 20503 or 
via the Internet to [email protected].
    25. It is further ordered that the Secretary shall send a copy of 
this Report and Order and Memorandum Opinion and Order and Further 
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, Public Law No. 96-354, 94 Stat. 1164, 5 
U.S.C. 601 et seq. (1981).

List of Subjects in 47 CFR Part 1

    Telecommunications, Television.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-22427 Filed 9-3-96; 8:45 am]
BILLING CODE 6712-01-U