******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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: ) ) Michael J. MacDonald ) ) ) CSR 4922-O Petition for Declaratory Ruling ) Under 47 C.F.R.  1.4000 ) MEMORANDUM OPINION AND ORDER Adopted: October 10, 1997 Released: October 14, 1997 By the Chief, Cable Services Bureau: I. Introduction 1. Petitioner Michael J. MacDonald (herein "Petitioner"), filed a Petition for Declaratory Ruling ("Petition") seeking a determination that the Architectural Control Committee Rules and Regulations adopted by the Savannah Lakes Village Property Owners Association, Inc. (herein "Savannah"), which impose certain restrictions on the installation and placement of antennas designed to receive video programming, are preempted by the Commission's Over-The-Air Reception Devices Rule (the "Rule"). For the reasons discussed below, we grant the Petition. II. Background 2. On August 6, 1996, the Commission issued a Report and Order, Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking ("Report and Order") adopting the Rule, which prohibits governmental and private restrictions that impair the ability of antenna users to install, maintain, or use over-the-air reception devices. This Rule was enacted pursuant to Section 207 of the Telecommunications Act of 1996 (the "1996 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 Rule applies to restrictions on property within the exclusive use or control of an antenna user who has a direct or indirect ownership interest in the property. 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. As permitted under the Rule, the Petitioner filed his Petition with the Commission and served a copy on Savannah. BellSouth Corporation ("BellSouth"), Consumer Electronics Manufacturers Association ("CEMA"), Network Affiliated Stations Alliance ("NASA"), and Pacific Bell filed responses in support of the Petition and served all parties within the time periods set forth in the Public Notice relating to the pleading cycle for this Petition. Savannah filed a response opposing the Petition, which was received two days after the close of the response period. Petitioner and one other party submitted a reply to Savannah's response.In the interest of a complete record, we will exercise our discretion to accept the late filings. III. The Pleadings A. Arguments in the Petition 6. Petitioner contends that Savannah implemented new regulations governing the installation and use of antennas in October and November, 1996, after the Rule took effect. He describes the regulations as containing the following restrictions: i. Only antennas of one meter or less in diameter are permissible. ii. An Architectural Control Committee (ACC) permit is required before an antenna may be installed. There is a $5.00 fee for the permit. iii. Permit applications must include a plot plan showing proposed location and size of antenna; description of screening, if applicable; and certification of "signal reception locations" by a dealer or installer. iv. Installation must comply with "building codes, screening, unobtrusive placement, painting, camouflage or other reasonable measures to ensure safety and minimize the visual effect. . .". Installation is preferred in the rear yard, not visible from the street, the golf course or to neighbors, and ground mounted, as long as signal reception is not impaired. v. Failure to have a permit or properly screen either propane tanks or satellite dishes "may result in loss of privileges or use of [SLV]POA facilities." 7. Petitioner argues that each of Savannah's antenna restrictions violates the Rule. First, he alleges Savannah's attempt to impose a size restriction of "one meter or less in diameter" on television broadcast service ("TVBS") antennas is contrary to the Rule. Petitioner notes that restrictions expressed in diameter measurement are "inappropriate if not almost meaningless" with respect to TVBS antennas that typically extend several feet in each axis. 8. Second, Petitioner contends that permits are prohibited by the Rule because they impose delay, and the $5.00 fee adds impermissible expense. Third, in a similar argument, Petitioner asserts that requiring that permit applications include a dealer or installer's certification of a particular placement imposes additional delay as well as cost. Petitioner argues that such a requirement compels a potential antenna user to hire an installer and then pay the installer to visit the site twice and prepare a certificate for the ACC. Petitioner argues further that there is an additional delay of up to two weeks while the ACC considers the permit application, and there is no certainty that the permit will be approved. Petitioner also objects to taking added time and expense to obtain and include a plot plan and a description of screening. 9. Fourth, Petitioner objects to the requirement that antennas be screened from view. He argues that screening may impair reception and add unreasonably to the cost of installation, both of which are prohibited by the Rule. 10. Fifth, Petitioner contends that the threat of loss of privileges and access to community facilities is needlessly severe. He asserts that the risk of such punishment intimidates potential antenna users because they must continue to pay for amenities that they may not be allowed to enjoy. This intimidation, he argues, violates the Rule because it can effectively prevent use of antennas. 11. Finally, Petitioner asserts that there is no justification for the impairments imposed by the Savannah regulations because they are based upon aesthetic concerns and not safety, health, or historic preservation. B. Comments in Support of the Petition 12. Four industry representatives supported the Petition. Pacific Bell argues that the threat of loss of community privileges is serious punishment, and one which should not be permitted because it will deter potential antenna users from taking the risk of installing an antenna. Pacific Bell asserts that loss of privileges is unreasonable in light of the cost of the antenna equipment and its visual impact. Pacific Bell also argues that the purported safety justification offered by Savannah is "flimsy," and that the context of the regulations suggests that Savannah's actual motivation is aesthetics. 13. Pacific Bell further asserts that Savannah's requirements for screening or painting antennas are impermissible because they could interfere with reception, and the Report and Order prohibits requiring expensive landscaping to conceal unobtrusive antennas. Pacific Bell also contends that the requirement to paint an antenna could add unreasonably to the cost of installation. C. Response in Opposition to the Petition 14. In response to the Petition, Savannah states that Savannah Lakes Village is on Lake Strom Thurmond in the middle of Sumter National Forest between two South Carolina State Parks, and that the lake is controlled by the United States Army Corps of Engineers ("USACE"). Savannah also states that a 1984 archeological survey of an area including Savannah Lakes Village identified a late Paleo-Indian archeological site in the area, which it designated as 38MC284. Savannah asserts that USACE and the South Carolina State Historic Preservation Officer determined that this site was "eligible for inclusion on the National Register of Historic Places." 15. Savannah argues that because Savannah Lakes Village is subject to agreements with government agencies and in the area of an historic Paleo-Indian site, it should be allowed to require potential antenna users to complete an application form and pay an administrative fee of $5.00 in order to obtain a permit prior to installing an antenna. Savannah also seeks to review proposed locations for antenna placement prior to installation. 16. Savannah asserts, "The most direct satellite shots in Savannah Lakes Village are along the lake shoreline. This is [USACE] property. This is also where the majority of paleoindian areas are located." Savannah avers that its goal in imposing antenna restrictions is to "protect our agreements with our neighbors and those property owners who charge us with protecting property values and aesthetics." D. Reply Comments 17. Petitioner and SBCA filed comments in reply to Savannah's response. Petitioner asserts that the South Carolina Department of Archives and History says the site number provided by Savannah, 38MC284, is not on the National Registry and historic designation has not been pursued. SBCA states that Savannah Lakes Village is neither listed nor eligible to be listed on the National Register of Historic Places. 18. Petitioner further argues that the site mentioned by Savannah is actually on property jutting into Thurmond Lake and is owned and controlled by USACE. Petitioner also disputes Savannah's contention that the majority of Paleo-Indian sites are on the lakeshore. Petitioner agrees with Savannah that all of the shoreline is USACE property and contends that, therefore, no one may install anything on the lakefront without express permission from USACE, which requires setbacks ranging from a few feet to several hundred feet inland. 19. SBCA argues that Savannah's antenna regulations neither describe the alleged historic preservation concern nor cite it as a justification for the restrictions imposed on antennas. Further, SBCA asserts that Savannah's response to the Petition fails to explain whether similar restrictions are imposed on similar appurtenances, as required by the Rule. Likewise, Petitioner contends that Savannah has not explained how installation of an antenna at a homesite affects a Paleo-Indian site miles away. Petitioner notes also that Savannah refers to "government agreements" in general but does not provide particular cites or provisions. 20. SBCA also argues that the Savannah restrictions should be preempted because the requirements for permit and prior approval impose unreasonable delay; the requirements for screening and camouflage impose unreasonable cost; and the threatened loss of community privileges is unreasonable in light of the cost of the antenna equipment and its visual impact. IV. Discussion 21. The issues presented for determination are whether Savannah's antenna regulation is necessary to preserve an historic district and thus permissible under the Rule; and if so, whether the regulation is no more burdensome than necessary; or, if not necessary for historic preservation, whether the Savannah antenna regulation impairs installation, maintenance or use of antennas covered by the Rule. A. Historic Preservation Exemption 22. The Rule provides that a restriction that otherwise would be prohibited is permissible if "it is necessary to preserve an historic district listed or eligible for listing in the National Register of Historic Places . . . 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." For the reasons discussed below, we find inadequate evidence to conclude that Savannah Lakes Village is, or is eligible to be, in the National Register of Historic Places ("National Register"). Furthermore, neither Savannah's antenna regulation nor its response to the Petition offers a sufficient connection between the restrictions it imposes on antennas and its concerns about preserving a Paleo-Indian site. 23. The Rule places the burden of proof in these proceedings on the entity seeking to enforce a restriction. Savannah asserts that there is "a late Paleo-Indian archeological site in the area of Savannah Lakes Village." Savannah provides a site number, 38MC284, and claims that this site is eligible to be included in the National Register of Historic Places but provides no documentation in support of this assertion. Petitioner and SBCA state that, after consulting with local archaeological experts, this site is not in the National Register and does not include Savannah Lakes Villages, and that Savannah Lakes Village is neither in, nor eligible for inclusion in, the National Register. Petitioner also reports that the Paleo-Indian site in the area is on land belonging to and controlled by the USACE and, therefore, not at issue in this proceeding. In the absence of proof of listing or eligibility for listing, and in light of the contrary information offered by Petitioner and SBCA, we conclude that this is not an historic district as defined in the Rule. B. Savannah Regulations 24. Having determined that the Savannah antenna regulations are not exempt from the Rule for reasons of historic preservation, we now examine whether the regulations impair installation, maintenance or use of antennas covered by the Rule. For the reasons discussed below, we conclude that the Savannah antenna regulations violate the Rule because the permit requirement unreasonably delays installation and imposes unreasonable costs. We note that although Savannah's regulations make passing reference to "safety," neither the regulations nor Savannah's response articulates a safety objective achievement of which necessitates the restrictions imposed. Savannah's defense of its regulations relies solely on the exception to the Rule for historic preservation, which we have rejected, above. Both the regulations and the response acknowledge that Savannah's goal in imposing the antenna regulations is protecting "agreements with our neighbors and . . . property values and aesthetics." In addition, to the extent the Savannah antenna regulations prohibit installation of TVBS antennas larger than one meter "in diameter," they are preempted because the Rule protects all TVBS antennas without a per se limitation on the size or shape. We find that the screening and camouflaging requirements would comply with the Rule insofar as they are limited by definition to those requirements which are "reasonable" provided Savannah specifies that its use of that term has the same meaning as the Rule. In addition, the regulation also imposes placement preferences which allow for exceptions only if the signal would be impaired, ignoring the other types of impairment prohibited by the Rule; i.e. unreasonable delay and expense. 1. Permit Requirement 25. We agree with Petitioner that Savannah's requirement for a permit prior to installation violates the Rule by imposing unreasonable delay and expense. Savannah requires potential antenna users to complete an application for a permit, pay a $5.00 permit fee, attach a plot plan showing the proposed location and size of the antenna, and provide a certificate from the dealer or installer if the antenna will be visible from the street or the golf course. 26. 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 1996 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 approval by community associations 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 1996 Act. 27. Savannah's permit requirement compels all potential antenna users to prepare and submit a plot plan and to wait an unspecified time while the Architectural Control Committee reviews the permit application. Savannah requires a $5.00 fee, which, while a relatively small amount, is an unreasonable expense because it is an unwarranted charge. Savannah also requires a certificate from the dealer or installer certifying that installation in a location other than that preferred by Savannah ("non-preferred location") is necessary to avoid impaired reception. Although Savannah's preference for ground mounted installation in a rear yard not visible from the street may be a permissible preference, Savannah may not implement its preference by delaying installation while it determines whether to grant a permit. These approval procedures are time-consuming and likely to deter potential antenna users. We conclude that they impose unreasonable delay in violation of the Rule. 28. In addition, Savannah's certification requirement applies to antenna users who install the antenna themselves, as well as to those who hire an installer. This requirement compels users to hire an installer for the purpose of certifying that the installation in a non-preferred location is necessary. We find that requiring an antenna user to hire an installer solely to provide a certificate is an unreasonable expense that violates the Rule. 29. Similarly, Savannah's regulation lists only one exception to its placement preferences; that is, if the preferred placement impairs signal reception. However, under the Rule there are two additional types of impairment, i.e. delay and cost, that must also be accepted as valid justifications for placing an antenna other than where the association prefers. 30. Where prospective antenna users cannot receive acceptable signals in the locations preferred by a community association, 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 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 are as unreasonable in the case of users who cannot otherwise receive acceptable signals as prior approval procedures for preferred locations are with respect to prospective antenna users who can receive acceptable signals at such locations. The 1996 Act and the Rule require homeowner associations to enforce preferred placement provisions through methods that do not delay or hinder those who have a right to site their antennas at alternative locations. Therefore, the regulation's prior approval requirements cannot stand. 2. Screening and Camouflaging Requirements 31. Savannah's antenna regulation requires screening and camouflaging, which may impose unreasonable expense in some circumstances. Petitioner and others assert that this requirement, on its face, violates the Rule because screening and camouflaging may interfere with reception and impose costs that are disproportionate in light of the visual impact of the antenna. While we agree that such requirements can be unreasonable, the Savannah regulation purportedly requires only "reasonable measures." There is no assertion in the record that Savannah's implementation or enforcement of this requirement, thus far, has imposed unreasonable expense or delay or precluded acceptable quality reception. However, petitioner alleges that the screening and camouflaging requirements could add unreasonable cost or delay installation. We conclude that Savannah must specifically state that by "reasonable" it means those requirements that do not impose unreasonable expense or delay or preclude reception of an acceptable quality signal. 3. Loss of Community Privileges 32. Petitioner alleges that Savannah has threatened to punish homeowners who violate the antenna regulations by revoking unspecified privileges and prohibiting access to certain facilities in the community. Savannah did not respond to this allegation. In proceedings concerning petitions for declaratory ruling under the Rule, the burden of demonstrating that a restriction complies with the Rule is on the entity seeking to impose the restriction. Savannah has offered no explanation or justification for this penalty, and we believe that penalties of this sort are likely to deter installation. Therefore, in the absence of any justification offered by the association, we cannot uphold this penalty. V. Conclusion 33. We conclude, based on the record, that Savannah Lakes Village is not an historic district as defined in the Rule, and the Savannah antenna regulations are not exempt from the Rule for reasons of historic preservation. We find that the prior approval requirement in Savannah's antenna regulation violates the Rule because it is likely to delay unreasonably the installation of antennas covered by the Rule. Moreover, the antenna regulation fails to provide adequately for exceptions to its placement preference and screening/camouflaging requirements if installation as required would impair installation, maintenance or use of the antenna. 34. For the aforementioned reasons, we find that those provisions of the Savannah regulations pertaining to installation of antennas that conflict with the Rule are hereby preempted. VI. Ordering Clauses 35. 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 the Petition for Declaratory Ruling filed by Michael J. MacDonald on January 15, 1997, is GRANTED with respect to preemption of Savannah Lakes Village Property Owners Association's antenna regulations, as discussed herein. 36. 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