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As directed
by Congress in the Telecommunications Act of 1996, the Federal Communications
Commission has adopted rules concerning restrictions on viewers' ability
to Receiver video programming signals from direct broadcast satellites
(DBS), multichannel multipoint distribution (wireless cable) providers
(MMDS), and television broadcast stations (TVBS).
Receiving
video programming from any of these services requires use of an antenna,
and the installation, maintenance or use of these antennas may be restricted
by local governments or community associations.
These
restrictions have included such provisions as requirements for permits
or prior approval, and requirements that a viewer plant trees around the
antenna to screen it from view, as well as absolute bans on all antennas.
In passing this new law, Congress believed that local restrictions were
preventing viewers from choosing DBS, MMDS, or TVBS because of the additional
burdens that the restrictions imposed. To implement this legislation,
on August 5, 1996, the Commission adopted a new rule that is intended
to eliminate unnecessary restrictions on antenna placement and use while
minimizing any interference caused to local governments and associations.
This rule will become effective after it is approved by the Office of
Management and Budget in accordance with the requirements of the Paperwork
Reduction Act.
The new
rule prohibits restrictions that impair the installation, maintenance
or use of antennas used to Receiver video programming. These antennas include
DBS satellite dishes that are less than one meter (39") in diameter (larger
in Alaska), TV antennas, and antennas used to Receiver MMDS. The rule prohibits
most restrictions that: (1) unreasonably delay or prevent installation,
maintenance or use, (2) unreasonably increase the cost of installation,
maintenance or use, or (3) preclude reception of an acceptable quality
signal. This rule means that, in most circumstances, viewers will be able
to install, use and maintain an antenna on their property if they directly
own the property on which the antenna will be located.
The
Telecommunications Act and this new rule are designed to promote competition
among video programming service providers, enhance consumer choice, and
assure wide access to communications. The rule allows local governments
and homeowners' associations to enforce restrictions that do not impair
reception of these signals as well as restrictions needed for safety or
historic preservation. The rule balances these public concerns with an
individual's desire to Receiver video programming. The Commission has asked
for further comment on whether additional rules should apply to situations
where a viewer wants to install an antenna on property owned by a landlord
or on common property controlled by a condominium or homeowners' association.
This
fact sheet provides general answers to questions that may arise about
the implementation of the rule. For further information, call the Federal
Communications Commission at (202) 418-0163.
Q: What types of restrictions are prohibited?
A: The rule prohibits restrictions
that impair a viewer's ability to Receiver signals from a provider of DBS,
MMDS or TVBS. The rule applies to state or local laws or regulations,
including zoning, land-use or building regulations, private covenants,
homeowners' association rules or similar restrictions 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. A restriction impairs
if it: 1) unreasonably delays or prevents use of, 2) unreasonably increases
the cost of, or 3) precludes a subscriber from receiving an acceptable
quality signal from, one of these antennas. The rule does not prohibit
safety restrictions or restrictions designed to preserve historic districts.
Q: What types of restrictions unreasonably
delay or prevent subscribers from receiving a signal?
A: local restriction that prohibits all antennas
would prevent subscribers from receiving signals, and is prohibited by
the Commission's rule. Procedural requirements can also impair the ability
to Receiver service. Thus, local regulations that require a person to obtain
a permit or approval prior to receiving service will delay reception;
this is generally allowed only if it is necessary to serve a safety or
historic preservation purpose.
Q: What is an unreasonable additional
cost to install, maintain or use an antenna?
A: Any requirement to pay a fee to
the local authority in order to be allowed to install an antenna would
be unreasonable, unless it is a permit fee that is needed to serve safety
or historic preservation or a permit is required in the case of installation
on a mast greater than 12 feet. Things to consider in determining the
reasonableness of any costs imposed include: the cost of the equipment
and services, whether there are similar requirements for other similar
installations like air conditioning units or trash receptacles, and what
visual impact the antenna has on the surroundings. Restrictions cannot
require that relatively unobtrusive DBS antennas be screened by expensive
landscaping. A requirement to paint an antenna in a fashion that will
not interfere with reception so that it blends into the background against
which it is mounted would likely be acceptable. In general, the costs
imposed by local regulations cannot be unreasonable in light of the cost
of the equipment or services and the visual impact of the antenna.
Q: What restrictions prevent a subscriber
from receiving an acceptable quality signal?
A: requirement that an antenna be
placed in a position where reception would be impossible or would be substantially
degraded would conflict with the rule. However, a regulation requiring
that antennas be placed to the extent feasible in locations that are not
visible from the street would be permitted, if this placement would still
permit reception of an acceptable quality signal.
Q: Are all restrictions prohibited?
A: No, many restrictions are still
valid. Safety restrictions are permitted even if they impair reception,
because local governments bear primary responsibility for protecting public
safety. Examples of valid safety restrictions include fire codes preventing
people from installing antennas on fire escapes, restrictions requiring
that a person not place an antenna within a certain distance from a power
line, electrical code requirements to properly ground the antenna, and
installation requirements that describe the proper method to secure an
antenna. The safety reason for the restriction must be written in the
text, preamble or legislative history of the restriction, or in a document
that is readily available to antenna users, so that a person wanting to
install an antenna knows what restrictions apply. The restriction cannot
impose a more burdensome requirement than is needed to ensure safety.
Restrictions in historic areas
may also be valid. Because certain areas are considered uniquely historical
and strive to maintain the historical nature of their community, these
areas are excepted from the rule. To qualify as an exempt area the area
must be listed or eligible for listing in the National Register of Historic
Places. In addition, the area cannot restrict antennas if such a restriction
would not be applied to the extent practicable in a non-discriminatory
manner to other other modern structures that are comparable in size, weight
and appearance and to which local regulation would normally apply. Valid
historical areas cannot impose a more burdensome requirement than is needed
to ensure the historic preservation goal.
Q: Whose restrictions are
prohibited?
A: Restrictions are prohibited in
state or local laws or regulations, including zoning, land-use or building
regulations, private covenants, homeowners' association rules or similar
restrictions relating to what people can do on land within their exclusive
use or control where they have a direct or indirect ownership interest
in the property.
Q: If I live in a condominium where the
land and the roof are commonly owned, or in an apartment building
where the landlord owns the land and the roof, does this rule apply to
me?
A: A Further Notice of Proposed Rulemaking
has been adopted by the Commission, to obtain comments from interested
persons about whether rules should apply in these situations. The Commission
will use those comments to reach a decision on this question.
Q: What types of antennas are covered?
A: 1. A "dish" antenna that is one
meter (39") or less in diameter or is located in Alaska and is designed
to Receiver direct broadcast satellite service, including direct-to-home
satellite service.
2. An antenna that is one meter or less in
diameter or diagonal measurement and is designed to Receiver video programming
services via MMDS (wireless cable). Such antennas may be mounted on "masts"
to reach the height needed to establish line-of-sight contact with the
transmitter. Masts higher than 12 feet may be subject to local permitting
requirements.
3. An antenna that is designed to Receiver
television broadcast signals. Masts higher than 12 feet may be subject
to local permitting requirements
Q: What can a local government, association,
or consumer do if there is a dispute over whether a particular restriction
is valid? .
A: If the local authority defines
the restriction as safety-related it is valid, unless a court or the Commission
determines that it is not safety-related or is not the least burdensome
way to ensure the safety goal. If a local government or association has
"highly specialized or unusual" concerns about antenna installation, maintenance
or use, it may apply to the Commission for a waiver of the rule, to have
its restriction declared valid. Interested parties may petition the Commission
or a court of competent jurisdiction for a ruling to determine whether
a particular restriction is permitted or prohibited under this rule.
Q: Who is responsible for showing that
a restriction is enforceable?
A: When a conflict arises about whether
a restriction is valid, the government or association trying to enforce
the restriction will be responsible for proving that the restriction is
valid. This means that no matter who questions the validity of the restriction,
the burden will always be on the local government or association to prove
that the restriction is permitted under the rule or that it qualifies
for a waiver.
Q: Who do I call if my town or neighborhood
association is enforcing an invalid restriction?
A: Call the Federal Communications
Commission at (202) 418-0163. Some assistance may also be available from
the direct broadcast satellite company, multichannel multipoint distribution
service or television broadcast station whose service is desired
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