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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of: ) Star Lambert and Satellite Broadcasting and) Communications Association of America) )CSR 4913-O Petition for Declaratory Ruling ) Under 47 C.F.R.  1.4000 ) MEMORANDUM OPINION AND ORDER Adopted: July 22, 1997 Released: July 22, 1997 By the Chief, Cable Services Bureau: I.Introduction 1.Petitioners Star Lambert and Satellite Broadcasting and Communications Association of America ("SBCA"), jointly filed a Petition for Declaratory Ruling ("Petition") seeking a determination that Ordinance No. 741 adopted by the City of Meade, Kansas, imposing certain restrictions on the installation and placement of video programming antennas, is preempted by the Commission's Over-The-Air Reception Devices Rule (the "Rule"). Subsequent to the filing of the Petition, Meade repealed Ordinance No. 741 and replaced it with Ordinance No. 745. On February 24, 1997, Petitioners amended the Petition and asked the Commission to rule that Ordinance No. 745 also is preempted by the Rule. Meade's response merely raised procedural objections and thus did not address the claims that neither Ordinance No. 741 nor Ordinance No. 745 comply with the Rule. For the reasons discussed below, we find that Meade Ordinance No. 745 is preempted under the Rule. II.Background 2.On August 6, 1996, the Commission adopted a rule, 47 C.F.R.  1.4000, that prohibits governmental and private restrictions that impair the ability of antenna users to install, maintain, or use over- the-air reception devices. The adoption of the Rule followed the enactment of Section 207 of the Telecommunications Act of 1996 (the "Act"), which required 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 . . . direct broadcast satellite services." The Congressional directive to the Commission promotes one of the primary objectives of the Communications Act of 1934: "to make available, so far as possible, to all the people of the United States . . . a rapid, efficient, nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges." 3.Paragraph (a) of the Rule provides that a restriction impairs installation, maintenance, or use of a protected 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. The only exceptions to the Rule are restrictions that are necessitated by safety or historic preservation concerns, and even then, the restrictions must be as narrowly tailored as possible, impose as little burden as possible, and apply in a nondiscriminatory manner throughout the regulated area. 4.The Rule provides parties who are affected by antenna restrictions the opportunity to petition the Commission to determine if the restrictions are permissible or prohibited by the Rule. The Rule places the burden of demonstrating that the challenged restriction complies with the Rule on the party seeking to impose the restriction. 5.Ordinance No. 741 provided that satellite receiving antennas could not be maintained or used within the City of Meade without a written permit from Meade. The Ordinance prohibited installation of antennas of any size or type in a front yard, and when placed in a rear yard, antennas were subject to an unspecified "side yard requirement for the district." Antennas had to be ground-mounted and could not extend more than 12 feet above the ground. The Ordinance specified, however, that satellite antennas of 18 inches or less could be attached to the back or side of a building or ground-mounted in the rear or side yard subject to unspecified "setback" requirements. Such antennas could be roof-mounted only if no other location was suitable and only after review and approval by the Planning Commission. Under the Ordinance, antennas had to conform to Meade's building and utility codes. A person who erected or maintained an antenna without first obtaining a permit was subject to unspecified penalties. After the Petition was filed, Meade repealed Ordinance No. 741 and replaced it with Ordinance No. 745. 6.Ordinance No. 745 similarly provides that installers and users of satellite antennas must apply for a permit from Meade. If the application complies with the requirements of Ordinance No. 745, the Building Official will issue the permit upon payment of a $5.00 application fee. Under Ordinance No. 745, satellite antennas of 39 inches or less may be installed on the side or rear of a building, the roof, or in a side or rear yard. Such placement is subject to unspecified property setback requirements just as in Ordinance No. 741. Under Ordinance No. 745, an antenna may be installed at an alternative location if an applicant demonstrates to the Building Official that installation is required at the alternative location in order to receive an acceptable signal. Satellite antennas of more than 39 inches may be ground-mounted only in side and rear yards. Ground-mounted antennas may not extend more than 14 feet above the ground, unless an applicant demonstrates to the Building Official that the extra height is necessary to receive an acceptable signal. As under Ordinance No. 741, under the new Ordinance antennas must conform to Meade's building and utility codes. A penalty of up to $500 per day may be assessed against violators of the Ordinance. 7.Petitioner Star Lambert owns Stargate Enterprises ("Stargate"), which is located in Meade, Kansas. Stargate sells and installs Primestar satellite antennas, which are direct-to-home satellite antennas measuring one meter or less in diameter. Petitioner SBCA is a trade association that includes among its members Primestar and other manufacturers, retailers, and distributors of satellite equipment and receiving devices. During the period that Ordinance No. 741 was in effect, Meade notified a few of Stargate's customers that they were in violation of that Ordinance. After Meade repealed Ordinance No. 741 and enacted Ordinance No. 745, Meade informed two of the same Stargate customers that they were in violation of Ordinance No. 745. 8.As permitted under the Rule, Petitioners filed their Petition with the Commission and served responsive pleadings on all parties within the time periods set forth in the Public Notice relating to the pleading cycle for this Petition. Nine parties filed responses in support of Petitioners' argument that Ordinance No. 741 was preempted by the Rule. After the Petition was filed, but before the close of the response period, Meade repealed Ordinance No. 741 and enacted Ordinance No. 745. Petitioners then amended their Petition and contended that Ordinance No. 745, like Ordinance No. 741, should be preempted. Neither Meade nor any other party filed an opposition to the Petition during the initial response period. Learning that Meade's failure to file a response was the consequence of a misunderstanding as to the applicable procedural rules, the Cable Services Bureau granted Meade permission to file its response late, during the period in which reply comments were due. As a result, a second reply comment period was granted to give Petitioners and other parties an opportunity to address Meade's response. Petitioners and other parties filed additional comments contending that Ordinance No. 745 should be preempted. III.Position of Parties 9. In their initial Petition, Petitioners challenged all provisions of Ordinance No. 741 as prohibited under the Rule, including requirements for permits, specific placements, and penalties. Although Meade repealed Ordinance No. 741 while this proceeding was pending, Meade replaced Ordinance No. 741 with Ordinance No. 745, which retained similar provisions. Consequently, the parties' contentions regarding Ordinance No. 745 are similar to those raised with respect to Ordinance No. 741. Petitioners contend that Ordinance No. 745, like its predecessor, contains provisions that impair the installation, maintenance, or use of antennas, and, therefore, is preempted by the Rule. Specifically, Petitioners dispute the legality of the following provisions of Ordinance No. 745: (1) the requirement for a permit and permit fee prior to the installation of an antenna; (2) the requirement to demonstrate to the Building Official that it will not be possible to receive an acceptable quality signal at one of the sites authorized by the Ordinance and obtain the official's prior approval to install an antenna in the front yard, on the front of a building, or at a height greater than 14 feet above ground level; (3) the requirement to comply with unspecified and allegedly inconsistently enforced setback regulations; (4) the imposition of unreasonable penalties of up to $500 per day for violations of the Ordinance; and (5) the general reference to safety concerns as a justification for the restrictions. 10.In particular, Petitioners and other parties argue that the Rule prohibits permits and other procedural requirements because they amount to an undue burden on the installation process, unless such requirements are justified by safety or historic preservation considerations. They argue that Ordinance No. 745 does not set forth any safety or historic preservation basis to justify its permit or fee requirement. 11.Petitioners further contend that although it may be permissible for Meade to express a preference for the placement of antennas, the procedure set forth in Ordinance No. 745 amounts to a prior approval process that is impermissible under the Rule because it delays and encumbers the installation process. Petitioners offer as an example of unreasonable expense and delay Meade's requirement that a Stargate customer dig a ditch in order to install the dish where required by the Ordinance. 12.Petitioners and other parties maintain that the provision restricting the height of antennas is merely a guise for prior approval, which impedes antenna installation. They assert that this provision violates the Rule because the Commission recognizes that valid safety concerns may exist for roof-mounted masts that extend more than 12 feet above the roofline, but specifically rejects per se height limitations. Pacific Bell emphasizes that the Meade restriction applies to ground-mounted antennas and should be preempted under the Rule. 13.Petitioners declare that the setback regulations are impermissible placement preferences because Meade has applied them inconsistently among antenna users. They state that Meade has not memorialized its setback requirements but, nevertheless, has invoked those requirements as a basis for directing antenna users to relocate their antennas, sometimes to locations from which signal reception is impossible. Petitioners also reported that similar placement restrictions are not imposed on comparable devices. In addition, Primestar argues that the setback regulations are preempted because compliance is required without concern for the effect, if any, on signal reception. According to Petitioners, the result has been that antenna users in Meade have encountered, and will continue to encounter, a confusing, burdensome, and discouraging regulatory regime. 14.Petitioners and other parties contend that the provision of Ordinance No. 745 authorizing a fine of up to $500 a day deters antenna installation because it creates the risk of significant financial punishment for even the smallest violation of the Ordinance, and would amount to an unreasonable increase in the cost of using an antenna. 15.Finally, Petitioners state that the general reference to safety concerns in Ordinance No. 745 fails to qualify as "a clearly defined safety objective" under the Rule, and, thereby, is not worthy of the exemption provision contained within Paragraph (b)(1) of the Rule. Pointing to the text of Paragraph (b)(1), Pacific Bell argues that the Rule requires that the safety justification must be clearly stated either in the text of the restriction, its preamble, its legislative history, or "in a document readily available to antenna users." In sum, Pacific Bell states, Meade should not be allowed to shield its regulations behind some undefined "safety" objective. 16.In response, Meade claims, among other things, that because it repealed Ordinance No. 741 on January 22, 1997, the Commission has no basis upon which to adjudicate this dispute, and that, accordingly, the Commission should dismiss the Petition. Meade does not set forth any substantive justification for Ordinance No. 741 or Ordinance No. 745, nor does it address the contentions raised by Petitioners and the other parties that Ordinance Nos. 741 and 745 do not comply with the Rule in that they impair installation, maintenance, or use of antennas protected by the Rule. 17.Meade further claims that because Star Lambert did not make her (first) declaration under the penalty of perjury, the Commission should disregard that document. Meade also disputes the allegations that its officials threatened to turn off antenna users' electricity, and asserts that at the time the Petition was filed its Planning Commission was preparing new guidelines concerning installation and placement of antennas. Meade states that it hoped that the revisions would address the concerns Petitioners raised and thus render the Petition moot. 18.In reply, Petitioners and other parties dispute Meade's mootness argument. First, they argue that Ordinance No. 745 and Ordinance No. 741 raise similar issues and appear to conflict with the Rule. Second, Petitioners and others argue that local governmental authorities should not be able to evade the petition process by amending or repealing an ordinance after a petition is filed, and then be permitted to argue that the petition is moot. They contend that if the Commission accepts the mootness rationale, local authorities could perpetually evade a Commission ruling by revising an ordinance while a proceeding is pending. Petitioners and other parties argue that the Commission should not dismiss a petition as moot unless, and until, the petitioner asks that it be withdrawn. IV.Discussion A.Procedural Issues 19.As an initial matter, we reject Meade's contention that the Petition is moot because Meade repealed Ordinance No. 741 while this proceeding was pending. We note that the issues raised in the Petition have not been resolved, but rather, simply appear in different form by the subsequent adoption of Ordinance No. 745. Many of the provisions that are the subject of the Petition are present in Ordinance No. 745, including the requirement for permits and prior approval, the presence of fines for violations, identical references to "setback regulations" and "building and utility codes," and the reference to safety concerns as a justification for the restrictions. As noted above, Meade officials have notified at least two antenna users who were warned pursuant to Ordinance No. 741 that they now are in violation of Ordinance No. 745. We agree with Petitioners and other parties that our review process should not cease when one ordinance is replaced with another ordinance with a similar set of requirements. To do so will deprive the industry and consumers of the protections the Rule was clearly designed to afford. 20.Moreover, we note that Ordinance No. 745 properly has been included in the record of this proceeding, and, therefore, appropriately is subject to our review. Petitioners amended their Petition immediately upon receiving notice that Meade had repealed Ordinance No. 741 and replaced it with Ordinance No. 745. All parties were on notice of this fact, and had an opportunity to address the validity of Ordinance No. 745. Foremost among the parties, Meade knew of the impending repeal and enactment and was afforded several opportunities to justify both Ordinances but chose not to so do. Thus, we do not believe that any party will be prejudiced by our review of Ordinance No. 745 at this time. This case presents us with an opportunity to evaluate the validity of a currently effective local ordinance under the Rule, and we believe that addressing the issues raised herein will provide valuable guidance in the future to both local authorities and consumers. 21.We also reject Meade's other procedural objection that Ms. Lambert's Declaration should be disregarded on the ground that it was unsworn. The Rule provides that "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." The Commission's rules provide that in lieu of a sworn affidavit, a declarant may provide an unsworn declaration subscribed by the declarant as true under penalty of perjury and dated. In view of the fact that a revised copy of Ms. Lambert's Declaration was filed with a declaration of its truth under penalty of perjury, we find that she has provided an affidavit meeting the requirements of the Commission's rules. B.Ordinance Provisions 1.Permit and fee requirements 22.We agree with Petitioners and others that the requirement in Ordinance No. 745 that an installer or antenna user obtain a permit upon written application and the requirement to pay a permit fee of $5.00 before installing an antenna is prohibited under the Rule. Ordinance No. 745(1) provides: Prior to installing, using, or maintaining a satellite receiving antenna and associated equipment in any district classification or zone outside an enclosed building the installer or primary benefactor of the proposed installation shall make written application for a permit from the City of Meade. So as to not unreasonably delay the ability to make or enjoy such installation and the reception of a signal, the Building Official of the City of Meade shall immediately review the application and if the same complies with the following requirements a permit shall be issued forthwith by the Building Official in consideration for the payment of a Five Dollar and no/100 ($5.00) permit fee to the City of Meade, Kansas. 23.As noted above, one of the purposes of the Rule is to prohibit restrictions that unreasonably delay or prevent antenna installation, maintenance, or use. The Rule is intended to promote one of the primary objectives of the Act, which is to make communication services readily available to the public at a reasonable expense. In our Report and Order, we stated that procedural requirements might act as a barrier between the new technology and the potential consumer because of the administrative delay and the myriad regulatory obstacles that the potential antenna user must hurdle before being able to utilize the new technology. We specifically concluded that requirements for permits or fees might prove to be a disincentive for potential antenna users, effectively "preventing" access to the video programming signals that Congress sought to protect under Section 207 of the Act. The Commission noted that permits may be permissible when there is a local condition involving safety or historic preservation, but such requirements should be no more burdensome than necessary to achieve the stated purpose. We note that, under the Rule, the party seeking to impose these requirements is required to carry the burden of demonstrating that its restrictions comport with the Rule. 24.The Ordinance sets forth preferred antenna placements and provides that where antennas are so placed, siting permission will be granted automatically. However, the Ordinance requires prospective antenna users to obtain permits for such placements. Thus, even where a location is per se permissible under the Ordinance and raises no safety or historic preservation issues, a potential user is required to submit a written application for a permit, pay a fee and delay any installation or use until the Building Official issues a permit. This subjects the user to delay and expense without reason. While some might argue that the application for a permit is simple, the fee is small and the period of time for permit issuance is mandated to be short, the fact remains that a potential user is required to take these steps in circumstances in which the City has previously determined (by enacting the Ordinance) that it has no quarrel with the proposed placement. Requiring a prospective user to apply for, and then to await, a pro forma permit issuance unreasonably delays installation, and requiring a prospective user to pay a fee for a permit that must, under the terms of the Ordinance be issued automatically, unreasonably increases the cost of installation. 25.As required by the Rule, Ordinance No. 745 provides that where it is not possible to obtain an acceptable signal in a preferred placement location, an alternative placement will be permitted. However, the Ordinance conditions such placement on a prior demonstration to the Building Official that an acceptable signal cannot be obtained at a preferred location and on the prior issuance of a permit by the Building Official for the alternative location. Again, no safety or historic preservation reason is given to justify the need for the demonstration or permit requirements. 26.Where prospective users cannot receive acceptable signals in preferred locations, they have the same rights under the Rule to place their antennas in alternative locations as other users have to place their antennas in preferred locations -- that is, an absolute right of placement absent safety or historic preservation considerations. In the case of the former class of users, alternative locations become per se approved locations. Requirements such as prior demonstrations of unacceptable signals and prior issuance of permits are as unreasonable in the case of users who cannot otherwise receive acceptable signals as prior permits for preferred locations are with respect to users who can receive acceptable signals at such locations. 27.We note that it appears that prior demonstrations and prior permit requirements for alternative placements would only be necessary to prevent such placements by users who can receive acceptable signals at preferred locations; that is, by users who are violating the law. It therefore seems that to protect against illegal actions, the Ordinance subjects all lawful users of alternative placements (i.e. those who cannot receive acceptable signals at preferred locations) to unreasonable delay and expense, which is prohibited by the Rule except when justified as necessary for safety or historic preservation. The Act and the Rule require the City to enforce its preferred placement provisions through methods that do not burden those who have a right to site their antennas at alternative locations. Therefore, the prior demonstration and permit requirements in Ordinance No. 745 cannot stand. 2. Antenna Location Requirements. 28.For reasons similar to those discussed above, we agree with Petitioners and others that the requirements in Ordinance No. 745 respecting antenna location are preempted under the Rule. Ordinance No. 745(2)(A) specifies where antennas measuring 39 inches or less may be installed: Subject to property setback regulations, such antenna and equipment shall be placed and installed on the side or rear of the main building, or in the side or rear yards, or on the roof of the main building. The Ordinance also provides that, wherever placed, ground-mounted antennas shall not extend higher than 14 feet above ground level. The antenna installer or user may be able to avoid both of these location constraints if "it is reasonably explained or demonstrated to the Building Official that it will not be possible to receive a quality acceptable signal" at any of the officially sanctioned locations. 29.In the Report and Order, we stated that local communities could specify particular locations for the placement of antennas provided those placement specifications do not impair the installation, maintenance or use of antennas covered by the Rule. Meade has specified particular locations that could be in compliance with the Rule, provided restriction to those locations does not unreasonably delay installation, add unreasonably to the cost of installation, maintenance or use, or impair the reception of an acceptable quality signal. However, as noted above, Meade allows deviation from its placement specifications only if an antenna user or installer demonstrates to a Building Official that the installation of the antenna at the location specified by the Ordinance precludes reception of an acceptable signal. If the Building Official is convinced by the antenna user or installer's demonstration, then a permit will be issued. 30.We find that this aspect of Meade's regulation of antennas violates the Rule for two reasons. First, the imposition of this demonstration requirement constitutes an unjustified prior approval process which, as discussed above, is prohibited by the Rule. Second, subsections (2)(B) and (4)(C) of Ordinance No. 745 do not list unreasonable delay and unreasonable cost as acceptable justifications for placing an antenna other than where specified. Ordinance No. 745 recognizes as a valid exception to its placement restrictions only a demonstration that the required placement interferes with reception. Thus, Meade's regulatory approach fails to recognize that under the Rule, there are two additional types of impairment, delay and cost, which must be acknowledged as valid justifications for placing an antenna other than where the locality prefers. The same rationale and analysis applies to the 14 foot antenna restriction. A requirement that an installer or user obtain prior approval in order to exceed the 14 foot height limit also amounts to an unacceptable impairment. No party has suggested that, in this case, the height restriction is safety-related. Our Rule requires that a safety-based restriction must spring from a clearly stated and defined safety objective. Meade proffers no such basis herein. We conclude, therefore, that subsections (2)(A) and (B) and 4(C) of Ordinance No. 745 are preempted under the Rule. 3.Unspecified Setback Regulations and Building Codes 31.Ordinance No. 745(2)(A) subjects antenna installation to unarticulated "property setback regulations." Ordinance No. 745(4)(B) requires that all antennas and associated equipment must conform to unspecified building and utility codes. No citation is given in Ordinance No. 745 for either set of regulations, and neither Petitioners nor Meade have described them. If the setback regulations and building codes had been specified, they might have been permissible under the Rule if they did not impair installation, maintenance or use or if they contained a clearly defined safety or historic preservation objective. In the absence of specification with respect to the setback regulations, and in light of Petitioners' allegation that these regulations have been used inconsistently and arbitrarily to require antenna users to remove or relocate their antennas, thus causing unreasonable delay and expense, as well as impairing reception, we conclude on this record that the reference to these regulations in Ordinance No. 745 is prohibited. 4.Penalty Provisions 32.We believe that in the absence of an explanation, the provision of Ordinance No. 745 that authorizes the imposition of a $500 per day fine for violations of the Ordinance is prohibited under the Rule. Ordinance No. 745(5) provides: Any person who violates this ordinance, which shall include but not be limited to vendors of satellite receiving antennas and associated equipment, installers of satellite receiving antennas and associated equipment, owners of real property, real property tenants, architects, building contractors, or any of their agents, may be punishable by a fine not to exceed Five Hundred Dollars and no/100 ($500.00) with each and every day that such violation continues, constituting a distinct and separate offense. 33.Meade has offered no explanation or justification for the amount of the fine. We believe that penalties of this magnitude are likely to deter installation. In the absence of any acceptable justification for the amount of the penalty at issue, we find that this provision imposes an unreasonable risk of financial penalty that impairs installation, maintenance and use of the antenna because the mere prospect of a continuing $500 per day fine may prevent antenna installation altogether. Therefore, we find that Meade's $500 per day fine for violations of its antenna restrictions is prohibited by the Rule. 5.Safety restrictions 34.Finally, we agree with Petitioners and others that Meade has not made the required showing that the restrictions contained within Ordinance No. 745 are permissible exceptions to our Rule because they are necessary to accomplish a clearly defined safety objective. In a general reference to the denial of permits, Meade Ordinance No. 745(4)(A) refers to public health and safety concerns, as follows: The public health, safety and welfare interests of the inhabitants of the City of Meade shall at all times be taken into consideration prior to the issuance of any permit and if any of these interests might be jeopardized by the issuance of a permit, the Building Official shall clearly define to the applicant his/her reasons for the failure to issue a permit. 35.As noted in the Report and Order, there is an exception under the Rule for "legitimate safety goals . . . that serve a stated safety purpose." We also stated that safety restrictions must be clearly defined in the text, preamble, or legislative history of the restriction, and be no more burdensome than necessary to achieve the articulated objective. In addition, we provided an avenue for local governments to comply with the Rule, in lieu of having to revise their regulations, by preparing and making "readily available" to antenna users a separate document that describes the safety restriction and defines the safety objective. 36.Meade has not stated a specific safety objective in its Ordinance, nor set forth its safety purpose in a separate document. Ordinance No. 745(4)(A) provides a general statement of "health, safety and welfare interests," but does not provide the type of specific guidance and clear purpose that we believe is required by the Rule. In particular, we do not believe that Meade has sufficiently identified the type of safety concern it intends to address, and are concerned that the general statement of safety interests is so broad and ill-defined that it constitutes little more than a pro forma recitation. Therefore, we find that Ordinance No. 745(4)(A) does not qualify for an exception under the Rule because we have no basis upon which to conclude that the restrictions are necessary to accomplish a clearly defined safety objective. V.Conclusion 37.For the aforementioned reasons, we find that those provisions of Ordinance No. 745 that conflict with the Rule are hereby preempted. VI.Ordering Clauses 38.Accordingly, IT IS ORDERED, pursuant to Section 1.4000(d) of the Over-the-Air Reception Devices Rule, 47 C.F.R.  1.4000(d), and Section 1.2 of the Commission's rules, 47 C.F.R.  1.2, that, with respect to Meade, Kansas Ordinance No. 745, the Petition for Declaratory Ruling filed by Star Lambert and Satellite Broadcasting and Communications Association of America, on December 23, 1996, as amended on February 24, 1997, is GRANTED. 39.This action is taken by the Chief, Cable Services Bureau, pursuant to authority delegated by Section 0.321 of the Commission's rules. 47 C.F.R. 0.321. FEDERAL COMMUNICATIONS COMMISSION Meredith J. Jones Chief, Cable Services Bureau