[Federal Register Volume 61, Number 172 (Wednesday, September 4, 1996)]
[Rules and Regulations]
[Pages 46557-46562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22494]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 25

[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: Final rule.

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SUMMARY: The Report and Order (``R&O'') implements Section 207 of the 
Telecommunications Act of 1996. 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 distribution service or direct broadcast satellite 
services.'' The R&O prohibits restrictions that impair a viewer's 
ability to install, use and maintain devices used to receive TVBS, MMDS 
and DBS signals on property within the exclusive use or control of the 
antenna user and in which the user has a direct or indirect ownership 
interest. The Memorandum Opinion and Order (MO&O) addresses petitions 
for reconsideration in IB Docket No. 95-59 as they relate to 
implementation of Section 207. The intended effect of this R&O and MO&O 
is to complete the implementation of Section 207 of the 
Telecommunications Act of 1996. The R&O and MO&O will foster 
competition among video programming service providers and will increase 
consumer options for receiving video programming.

EFFECTIVE DATE: 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. The Commission will publish a 
document at a later date advising of the effective date.

ADDRESSES: 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 
20054, 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].

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 R&O 
and MO&O 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, DC 20554, and may be purchased from the Commission's 
copy contractor, International Transcription Service, (202) 857-3800, 
1919 M Street, NW., Washington, DC 20554. This R&O and MO&O contain 
proposed or modified information collections 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 modified information collections contained in this Report and 
Order, as required by the Paperwork Reduction Act of 1995, Pub. L. 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.
    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 wavers, 
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

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requests, 100 petitions for waivers, 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 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 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 Report and Order, Memorandum Opinion and Order

    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.'' In this Report and Order (R&O) and Memorandum 
Opinion and Order (MO&O) we consolidate two rulemaking proceedings, IB 
Docket No. 95-59, 11 FCC Rcd 5809 (1996) (61 FR 10710) (DBS Order and 
Further Notice of Proposed Rulemaking), and CS Docket No. 96-83, 11 FCC 
Rcd 6357 (1996) (61 FR 16890) (TVBS-MMDS Notice of Proposed 
Rulemaking), to implement Section 207 with respect to direct broadcast 
satellite (``DBS'') service, television broadcast signals (``TVBS'') 
and multichannel multipoint distribution service (``MMDS''). We adopt a 
rule that prohibits restrictions that impair a viewer's ability to 
install, maintain and use devices designed to receive these services on 
property within the exclusive use or control of the viewer and in which 
the viewer has a direct or indirect property interest.
    2. In the DBS Order and Further Notice of Proposed Rulemaking and 
the TVBS-MMDS Notice of Proposed Rulemaking we adopted and proposed a 
rule, respectively, establishing a rebuttable presumption of 
unreasonableness for restrictions on TVBS, MMDS and DBS. In the R&O, we 
replace the presumptive approach with a per se preemption of such 
restrictions. Although the rebuttable presumption was created in an 
effort to be less intrusive in local government affairs, it was broadly 
viewed as creating unsustainable burdens on all parties, including the 
Commission. Consequently, we replaced the rebuttable presumption 
approach with a narrower, clearer preemption. In addition, the rule we 
adopt preempts restrictions and regulations that ``impair'' rather than 
``affect'' reception, in order to narrow the preemption and adhere more 
closely to the language of the statute. A law, regulation or 
restriction impairs installation, maintenance or use of an antenna if 
it: (1) Unreasonably delays or prevents installation, maintenance or 
use, (2) unreasonably increases the cost of installation, maintenance 
or use, or (3) precludes reception of an acceptable quality signal.
    3. In the DBS Order and Further Notice of Proposed Rulemaking and 
TVBS-MMDS Notice of Proposed Rulemaking, we proposed to preempt 
nongovernmental restrictions on DBS, TVBS, and MMDS reception devices, 
and did not provide any recourse for nongovernmental authorities 
seeking to enforce their restrictions. In the rule we adopt today, we 
preempt nongovernmental restrictions on the same basis as governmental, 
and provide the same declaratory ruling and waiver opportunities to 
nongovernmental associations as we offer to governmental authorities. 
The legislative history of Section 207 consists of the House Commerce 
Committee Report, which states clearly that the provision applies to 
nongovernmental restrictions, including restrictive covenants and 
homeowners' association rules. The final rule treats nongovernmental 
restrictions the same as governmental and establishes waiver and 
declaratory ruling processes.
    4. The rule we adopt creates exemptions for regulations serving 
safety and historic preservation goals. The rule that we adopted in the 
DBS Order and Further Notice of Proposed Rulemaking and proposed in the 
TVBS-MMDS Notice of Proposed Rulemaking required that any governmental 
entity seeking to enforce a restriction or regulation that affects 
reception secure a declaration or waiver. Parties generally agree that 
some restrictions are prima facie justified, and we accordingly create 
exemptions for safety and historic preservation regulations. While 
these restrictions must be tailored to impose as little burden as 
possible on the use of receiving devices, they are permissible even if 
they impair the ability to receive video programming services.
    5. To the extent that they receive video programming services, our 
rule applies to services closely related to DBS, TVBS and MMDS, 
including medium-power satellite services using antennas one meter or 
less in diameter or diagonal measurement to receive over-the-air video 
programming, and multipoint distribution services (MDS), instructional 
television fixed service (ITFS) and local multipoint distribution 
service (LMDS). Our rule defines DBS and MMDS by the size and shape of 
the services' receiving devices, and preempts restrictions on antennas 
one meter or less in diameter or diagonal measurement. We also include 
masts in our definition of MMDS, and preempt restrictions on antennas 
that extend 12 feet or less above the roofline; such

[[Page 46559]]

installations cannot require a permit or prior approval, absent a 
safety or historic preservation reason. In addition, governmental and 
nongovernmental authorities cannot require permits or prior approvals 
for installation of an antenna placed a distance at least as far from 
the lot line as the height of the antenna. Because there is no history 
of controversy concerning their size or shape, we decline to establish 
any size or shape limits on TVBS antennas. However, TVBS antennas are 
subject to the same height limitations as MMDS and DBS.

II. Regulatory Flexibility Analysis

    6. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 
601-612, the Commission's Regulatory Flexibility Analysis with respect 
to the R&O, MO&O is as follows:
    As required by Section 603 of the Regulatory Flexibility Act, 5 
U.S.C. 603 (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the DBS Order and Further Notice of Proposed Rulemaking 
and the TVBS-MMDS Notice of Proposed Rulemaking. The Commission sought 
written public comments on the proposals in the two proceedings, 
including comments on the IRFA. The Commission's Final Regulatory 
Flexibility Analysis (FRFA) in this Report and Order conforms to the 
RFA, as amended by the Contract With America Advancement Act of 1996 
(CWAAA), Pub. L. 104-121, 110 Stat. 847.
    7. Need for Action and Objectives of the Rule. The rulemaking 
implements Section 207 of the Telecommunications Act of 1996, Pub. L. 
No. 104-104, 110 Stat. 56. Section 207 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 TVBS, MMDS and DBS. This action is 
authorized under the Communications Act of 1934 section 1, as amended, 
47 U.S.C. 151, pursuant to the Communications Act of 1934 section 303, 
as amended, 47 U.S.C. 303, and by Section 207 of the Telecommunications 
Act of 1996.
    8. The Commission seeks to promote competition among video service 
providers and to enhance consumer choice. To accomplish these 
objectives, the Commission implements Congress' directive by adopting a 
rule that prohibits restrictions that impair a viewer's ability to 
install, maintain and use devices designed for over-the-air reception 
of video programming through TVBS, MMDS, and DBS services. The rule 
that we adopt preempts governmental and nongovernmental regulations and 
restrictions on property within the exclusive use or control of the 
viewer in which the viewer has a direct or indirect ownership interest. 
Our rule exempts regulations and restrictions which are clearly and 
specifically designed to preserve safety or historic districts, 
allowing for the enforcement of such restrictions even if they impair a 
viewer's ability to install, maintain or use a reception device.
    9. Summary and Assessment of Issues Raised by Commenters in 
Response to the Initial Regulatory Flexibility Analysis. The 
Commission, in its DBS Order and Further Notice of Proposed Rulemaking 
and TVBS-MMDS Notice of Proposed Rulemaking, invited comment on the 
IRFA and the potential economic impact the proposed rules would have on 
small entities. NLC comments that the proposed rule would have a 
``substantial economic and administrative impact'' on over 37,000 small 
local governments. NLC states that the proposed rule would require 
``local governments to amend their laws and to file petitions at the 
FCC * * * for permission to enforce those laws.''
    10. The Commission has modified its proposed rule and has addressed 
the concerns raised by NLC by providing greater certainty regarding the 
application of the rule, and by clarifying that local regulations need 
not be rewritten or amended. The Commission recognizes that some 
regulations are integral to local governments' ability to protect the 
safety of its citizens. The rule that we adopt exempts restrictions 
clearly defined as necessary to ensure safety, and permits enforcement 
of safety restrictions during the pendency of any challenges. In 
addition, limiting the rule's scope to regulations that ``impair,'' 
rather than the proposed preemption of regulations that ``affect,'' 
will minimize the impact on small local governments, while effectively 
implementing Congress' directive. Finally, the inclusion in the Report 
and Order of examples of permissible and prohibited restrictions will 
minimize the need for local governments to submit waiver or declaratory 
ruling petitions to the Commission, decreasing the potential economic 
burden.
    11. Numerous apartment complexes filed comments seeking 
clarification of Section 207's impact on their lease terms. These 
filings express concern about the impact the rule will have on the 
rental property industry. This Report and Order applies only to 
property in the exclusive control or use of the viewer and in which the 
viewer has a direct or indirect ownership interest. Thus, this Order 
will have no major impact on the rental property industry. The question 
of the applicability of Section 207 and our rule to rental properties 
is raised in the Further Notice of Proposed Rulemaking.
    12. Several neighborhood associations suggest that our rule will 
have a negative economic impact on the value of their land and that 
such a prohibition would constitute a taking, requiring compensation 
under the Fifth Amendment of the Constitution. We do not believe that 
implementation of our rule results in a taking of property. There is 
nothing in the record here to indicate that nullifying a homeowner's 
ability to prevent his neighbor from installing antennas has a 
measurable economic impact on the homeowner's property, nor that it 
interferes with investment-backed expectations. In support of the rule, 
several commenters argue that the rule enhances the value of the 
homeowner's property.
    13. The Commission also notes the positive economic impact the new 
rule will have on many small businesses. The new rule will allow small 
businesses that use video programming services to select from a broader 
range of providers, which could result in significant economic savings; 
because providers will be competing for customers, more services will 
be available at lower prices. In addition, small business video 
programming providers will be faced with fewer entry hurdles, and will 
thus be able to develop their markets and compete more effectively, 
achieving one of the purposes of Section 207.
    14. Description and Estimate of the Number of Small Entities 
Impacted. The Regulatory Flexibility Act, 5 U.S.C. 601(3) (1980), 
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. 632 (1996). The rule we adopt today applies to small 
organizations and small governmental jurisdictions, rather than 
businesses.
    15. The term ``small governmental jurisdiction'' is defined as 
``governments of * * * districts, with a population of less than fifty 
thousand.'' 5 U.S.C. 601(5). There are 85,006 governmental entities in 
the United States. United States Dept. of Commerce, Bureau of the 
Census, 1992 Census of Governments.

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This number includes such entities as states, counties, cities, utility 
districts and school districts. We note that restrictions concerning 
antenna installation are usually promulgated by cities, towns and 
counties, not school or utility districts. Of the 85,006 governmental 
entities, 38,978 are counties, cities and towns; and of those, 37,566, 
or 96%, have populations of fewer than 50,000. The NLC estimates that 
there are 37,000 ``small governmental jurisdictions'' that may be 
affected by the proposed rule.
    16. 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. 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. Given the nature of a neighborhood association, 
we assume for the purposes of this FRFA that all 150,000 associations 
are small organizations.
    17. Reporting, Recordkeeping, and Other Compliance Requirements. 
The rule does not establish any filing requirements. However, state and 
local governments and neighborhood associations promulgating 
regulations that are prohibited by this rule may seek declaratory 
rulings concerning the validity of a restriction, or may request 
waivers of the rule. Petitions for declaratory ruling and requests for 
waiver will be considered through a paper hearing process, and the 
initiating petition will require only standard secretarial skills to 
prepare.
    18. If a governmental or nongovernmental authority wishes to 
enforce a safety restriction, the rule requires that the safety reasons 
for the restrictions be clearly defined in the legislative history, 
preamble or text of the restriction. Alternatively, the local entity 
may include a restriction on a list of safety restrictions related to 
antennas, that is made available to interested parties (including those 
who wish to install antennas). Thus, governmental entities will not be 
required to amend their rules. Local officials may need time to review 
regulations to determine if the safety reasons are clearly defined in 
the legislative history, preamble or text, or to create a list of 
applicable restrictions.
    19. Steps Taken to Minimize the Economic Impact on Small Entities 
and Significant Alternatives Rejected. The Commission considered 
various alternatives that would have impacted small entities to varying 
extents. These included a rebuttable presumption approach, the use of 
the term ``affect'' in the rule, and a rule that allowed for 
adjudicatory proceedings in courts of competent jurisdiction, all of 
which were adopted in the DBS Order and Further Notice of Proposed 
Rulemaking and proposed in the TVBS-MMDS Notice of Proposed Rulemaking. 
The rule we adopt today replaces the rebuttable presumption with a 
simpler preemption approach, adheres to the statutory language by using 
the term ``impair'' rather than ``affect'' in the rule, and allows for 
adjudication at the Commission or in a court of competent jurisdiction. 
We believe that we have effectively minimized the rule's economic 
impact on small entities.
    20. In the DBS Order and Further Notice of Proposed Rulemaking and 
the TVBS-MMDS Notice of Proposed Rulemaking, we adopted and proposed, 
respectively, a rebuttable presumption approach to governmental 
regulations, and proposed strict preemption of nongovernmental 
restrictions. We acknowledged in the DBS Order and Further Notice of 
Proposed Rulemaking that a rule relying on a presumptive approach would 
be more difficult to administer than a rule based upon a per se 
prohibition, and we sought comment in the TVBS-MMDS Notice of Proposed 
Rulemaking on less burdensome approaches. Under the rebuttable 
presumption approach, local governments would have been required to 
request a declaratory ruling from the Commission every time they sought 
to enforce or enact a restriction; and neighborhood associations would 
not have been able to enforce or enact any restrictions that impaired a 
viewer's ability to receive the signals in question. The rebuttable 
presumption approach was adopted to ensure the protection of local 
interests, including local governments. Based on the record, the 
Commission recognizes that the burden of rebutting a presumption could 
strain the resources of local authorities. The Commission has rejected 
the rebuttable presumption approach for a less burdensome preemption 
approach. In addition we have provided recourse for both neighborhood 
associations and municipalities. The rule we adopt today provides for a 
per se prohibition of restrictions that impair a viewer's ability to 
install, maintain or use devices designed for over-the-air reception of 
video programming services. Our Report and Order provides examples of 
reasonable regulations that can be enforced without a waiver 
application. The Commission believes that the Report and Order provides 
such clarity as will make the enforcement of the rule the most 
efficient and least burdensome for local governments, neighborhood 
associations, and this Commission.
    21. In adopting the new rule, the Commission rejected the 
alternative of preempting all restrictions that ``affect'' the 
reception of video programming services through devices designed for 
over-the-air reception of TVBS, MMDS and DBS services. The new rule 
prohibits only those local restrictions that ``impair'' a viewer's 
ability to receive these signals and exempts restrictions necessary to 
ensure safety or to preserve historic districts. In defining the term 
``impair'' we reject the interpretation that impair means prevent 
because that definition would not properly implement Congress' 
objective of promoting competition. We find that a restriction impairs 
a viewer's ability to receive over-the-air video programming signals, 
if it (a) unreasonably delays or prevents installation, maintenance or 
use of a device used for the reception of over-the-air video 
programming signals by DBS, TVBS, or MMDS; (b) unreasonably increases 
the cost of installation, maintenance or use of such devices; (c) 
precludes reception of an acceptable quality signal. The use of the 
term impair will decrease the burden on small entities while 
implementing Congress' objective.
    22. In the DBS Order and Further Notice of Proposed Rulemaking and 
the TVBS-MMDS Notice of Proposed Rulemaking, we discussed the 
possibility of parties seeking judgment from either the Commission or a 
court of competent jurisdiction. The Commission is concerned about 
uniformity in the application of our rule, and about the financial 
burden that litigation might place on small entities. While we cannot 
prohibit parties' applications to courts of competent jurisdiction, we 
address this concern by exercising our Congressional grant of 
jurisdiction and implementing a waiver process, and encouraging parties 
to use this approach rather than relying on costly litigation.
    23. Waiver proceedings will be paper hearings, allowing the 
Commission to alleviate the negative potential economic impact from 
costly litigation. Further, any regulations necessary to the 
safeguarding of safety will remain enforceable pending the Commission's 
resolution of waiver requests. The Commission believes that the rule we 
adopt today effectively implements Congress' intent while minimizing 
any significant economic impact on small entities.

[[Page 46561]]

    24. Report to Congress. The Commission shall send a copy of this 
Final Regulatory Flexibility Analysis, along with this Report and 
Order, in a report to Congress pursuant to the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
Sec. 801(a)(1)(A). A copy of this FRFA will also be published in the 
Federal Register.

III. Paperwork Reduction Act of 1995 Analysis

    25. Final Paperwork Reduction Act of 1995 Analysis. This Report and 
Order 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.
    26. In the DBS Order and Further Notice of Proposed Rulemaking and 
the TVBS-MMDS Notice of Proposed Rulemaking we proposed an information 
collection process, utilizing waivers and declaratory rulings, that has 
now been approved by the Office of Management and Budget (OMB). This 
Report and Order contains a modified information collection that we 
believe is less burdensome. As part of our continuing effort to reduce 
paperwork burdens, we invite the general public and OMB to comment on 
the modified information collections contained in this Report and 
Order, as required by the Paperwork Reduction Act of 1995, Pub. L. 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.
    27. 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 
and/or modified collections on or before November 4, 1996. 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].

IV. Ordering Clauses

    28. Accordingly, it is ordered, pursuant to sections 4(i), 4(j), 
and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 
154(i), 154(j), and 303, and section 207 of the Telecommunications Act 
of 1996, Public Law No. 104-104, 110 Stat. 56, that the rule discussed 
in this Report and Order is adopted as Sec. 1.4000 of the Commission's 
rules, 47 CFR 1.4000.
    29. It is further ordered that Sec. 25.104 of the Commission's 
rules, 47 CFR 25.104, is amended as set forth below.
    30. It is further ordered that the Petitions for Reconsideration 
filed in IB Docket No. 95-59 by Alphastar Television Network, Inc.; 
County of Boulder, State of Colorado; DIRECTV, Inc.; Florida League of 
Cities; Hughes Network Systems, Inc.; City of Dallas et al.; National 
League of Cities et al.; Primestar, Inc.; Satellite Broadcasting and 
Communications Association of America; and United States Satellite 
Broadcasting Co., to the extent that they address issues related to 
section 207, are granted in part as discussed herein, and are otherwise 
denied.
    31. It is further ordered that the requirements and regulations 
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.
    32. This Report and Order and Memorandum Opinion and Order contains 
a modified information collection. 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 Report and 
Order, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-
13. Public and agency comments are due 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].
    33. It is further ordered that the Secretary shall send a copy of 
this Report and Order and Memorandum Opinion and Order including the 
Final 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, Pub. L. 96-354, 94 
Stat. 1164, 5 U.S.C. 601 et seq. (1981).

List of Subjects

47 CFR Part 1

    Telecommunications, Television.

47 CFR Part 25

    Satellites.

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

Rule Changes

    Parts 1 and 25 of Title 47 of the Code of Federal Regulations are 
amended to read as follows:
    1. The authority citation for Part 1 is revised to read as follows:

    Authority: 47 U.S.C. 151, 154, 207, 303 and 309(j) unless 
otherwise noted.

    2. A new subpart S is added to part 1 to read as follows:

Subpart S--Preemption of Restrictions That ``Impair'' a Viewer's 
Ability To Receive Television Broadcast Signals, Direct Broadcast 
Satellite Services or Multichannel Multipoint Distribution Services

    Sec. 1.4000. Restrictions impairing reception of television 
broadcast signals, direct broadcast satellite services or 
multichannel multipoint distribution services.

[[Page 46562]]

Subpart S--Preemption of Restrictions That ``Impair'' a Viewer's 
Ability To Receive Television Broadcast Signals, Direct Broadcast 
Satellite Services or Multichannel Multipoint Distribution Services


Sec. 1.4000.  Restrictions impairing reception of television broadcast 
signals, direct broadcast satellite services or multichannel multipoint 
distribution services.

    (a)(1) Any restriction, including but not limited to any state or 
local law or regulation, including zoning, land-use, or building 
regulation, or any private covenant, homeowners' association rule or 
similar restriction on property within the exclusive use or control of 
the antenna user where the user has a direct or indirect ownership 
interest in the property, that impairs the installation, maintenance, 
or use of: An antenna that is designed to receive direct broadcast 
satellite service, including direct-to-home satellite services, that is 
one meter or less in diameter or is located in Alaska; or an antenna 
that is designed to receive video programming services via multipoint 
distribution services, including multichannel multipoint distribution 
services, instructional television fixed services, and local multipoint 
distribution services, and that is one meter or less in diameter or 
diagonal measurement; or an antenna that is designed to receive 
television broadcast signals; is prohibited, to the extent it so 
impairs, subject to paragraph (b) of this section.
    (2) For purposes of this section, a law, regulation or restriction 
impairs installation, maintenance or use of an antenna if it:
    (i) Unreasonably delays or prevents installation, maintenance or 
use,
    (ii) Unreasonably increases the cost of installation, maintenance 
or use, or
    (iii) Precludes reception of an acceptable quality signal.
    (3) No civil, criminal, administrative, or other legal action of 
any kind shall be taken to enforce any restriction or regulation 
prohibited by this section except pursuant to paragraph (c) or (d) of 
this section. No fine or other penalties shall accrue against an 
antenna user while a proceeding is pending to determine the validity of 
any restriction.
    (b) Any restriction otherwise prohibited by paragraph (a) of this 
section is permitted if:
    (1) It is necessary to accomplish a clearly defined safety 
objective that is either stated in the text, preamble or legislative 
history of the restriction or described as applying to that restriction 
in a document that is readily available to antenna users, and would be 
applied to the extent practicable in a non-discriminatory manner to 
other appurtenances, devices, or fixtures that are comparable in size, 
weight and appearance to these antennas and to which local regulation 
would normally apply; or
    (2) It is necessary to preserve an historic district listed or 
eligible for listing in the National Register of Historic Places, as 
set forth in the National Historic Preservation Act of 1966, as 
amended, 16 U.S.C. 470a, and imposes no greater restrictions on 
antennas covered by this rule than are imposed on the installation, 
maintenance or use of other modern appurtenances, devices or fixtures 
that are comparable in size, weight, and appearance to these antennas; 
and
    (3) It is no more burdensome to affected antenna users than is 
necessary to achieve the objectives described above.
    (c) Local governments or associations may apply to the Commission 
for a waiver of this rule under Sec. 1.3. Waiver requests will be put 
on public notice. The Commission may grant a waiver upon a showing by 
the applicant of local concerns of a highly specialized or unusual 
nature. No petition for waiver shall be considered unless it specifies 
the restriction at issue. Waivers granted in accordance with this 
section shall not apply to restrictions amended or enacted after the 
waiver is granted.
    Any responsive pleadings must be served on all parties and filed 
within 30 days after release of a public notice that such petition has 
been filed. Any replies must be filed within 15 days thereafter.
    (d) Parties may petition the Commission for a declaratory ruling 
under Sec. 1.2, or a court of competent jurisdiction, to determine 
whether a particular restriction is permissible or prohibited under 
this section. Petitions to the Commission will be put on public notice. 
Any responsive pleadings must be served on all parties and filed within 
30 days after release of a public notice that such petition has been 
filed. Any replies must be filed within 15 days thereafter.
    (e) In any Commission proceeding regarding the scope or 
interpretation of any provision of this section, the burden of 
demonstrating that a particular governmental or nongovernmental 
restriction complies with this section and does not impair the 
installation, maintenance or use of devices designed for over-the-air 
reception of video programming services shall be on the party that 
seeks to impose or maintain the restriction.
    (f) All allegations of fact contained in petitions and related 
pleadings before the Commission must be supported by affidavit of a 
person or persons with actual knowledge thereof. An original and two 
copies of all petitions and pleadings should be addressed to the 
Secretary, Federal Communications Commission, 1919 M St. 
NW.,Washington, DC 20554. Copies of the petitions and related pleadings 
will be available for public inspection in the Cable Reference Room in 
Washington, DC. Copies will be available for purchase from the 
Commission's contract copy center, and Commission decisions will be 
available on the Internet.

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.

    2. Section 25.104 is amended by revising paragraph (b)(1) and 
adding new paragraph (f) to read as follows:


Sec. 25.104  Preemption of local zoning of earth stations.

* * * * *
    (b)(1) Any state or local zoning, land-use, building, or similar 
regulation that affects the installation, maintenance, or use of 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 non-federal land-use 
regulation 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.
* * * * *
    (f) a satellite earth station antenna that is designed to receive 
direct broadcast satellite service, including direct-to-home satellite 
services, that is one meter or less in diameter or is located in Alaska 
is covered by the regulations in Sec. 1.4000 of this chapter.
[FR Doc. 96-22494 Filed 9-3-96; 8:45 am]
BILLING CODE 6712-01-P