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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 re ) ) Victor Frankfurt, ) CSR 5024-O Vernon Hills, Illinois ) ) Petition for Declaratory Ruling ) Under 47 C.F.R.  1.4000 ) MEMORANDUM OPINION AND ORDER Adopted: October 30, 1997 Released: October 31, 1997 By the Chief, Cable Services Bureau: I. Introduction 1. On April 1, 1997, Petitioner Victor Frankfurt ("Petitioner") filed a Petition for Declaratory Ruling ("Petition") seeking a determination that the covenants, conditions, and restrictions applicable to externally mounted over-the-air video programming reception antennas of New Century Town Townhouse Association No. 2 ("New Century") are prohibited by 47 C.F.R.  1.4000, the Commission's Over-the-Air Reception Devices Rule ("Rule"). New Century responded to the Petition by informing the Commission that it had filed an action with the Circuit Court of Lake County, Illinois on April 8, 1997. For the reasons discussed below, we find that New Century's restrictions contravene the Rule and are prohibited. II. Background 2. On August 5, 1996, the Commission adopted 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. The Rule implemented Section 207 of the Telecommunications Act of 1996 (the "Act"), which requires 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. The Rule applies to antennas designed to receive direct broadcast satellite services that are one meter or less in diameter; antennas designed to receive video programming services through multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services that are one meter or less in diameter or diagonal measurement; and antennas designed to receive television broadcast signals "on property within the exclusive use or control of an antenna user where the user has a direct or indirect ownership interest in the property" upon which the antenna is to be located. 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. There are exceptions to the Rule for valid safety or historic preservation restrictions, which 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 that parties who are affected by antenna restrictions may petition the Commission to determine if the restrictions are permissible or prohibited by the Rule. The Rule places the burden of demonstrating that a challenged restriction complies with the Rule on the party seeking to impose the restriction. 5. Petitioner claims that he owns the townhouse in which he lives and that he installed a 92 centimeter (less than one meter) DBS antenna on his balcony railing. Petitioner acknowledges that New Century, the homeowner's association, maintains the balcony (e.g., inspection and maintenance), but asserts that he has exclusive use of the balcony (i.e., no other resident may use the balcony). Petitioner asserts that, if necessary, he will move the antenna as dictated by maintenance concerns and will "place it at any location shown by [the] Association [New Century]." Petitioner states that New Century objects to his external "antenna installation [because it] is diminishing property values." 6. According to Petitioner, the restrictions at issue provide, in pertinent part: Antennas No antennas of any kind may be attached to any part of the building exterior. Patios & Balconies 1. Homeowners are responsible to keep patios and balconies clean and free of clutter. No unsecured item shall be placed outside of balcony rails, nor positioned or hung over said rails. 2. Patios and balconies may not be enclosed or altered in any way. 3. Patios and balconies may not be used for storage, other than for storage of barbecue grills and other items usually associated with patios and balconies. 7. In its Response, New Century did not address the arguments raised in the Petition, but noted that the "issues raised in this petition are already subject to an action for declaratory relief filed by New Century Town Townhouse Association against Victor Frankfurt . . . in the Circuit Court of Lake County, Illinois." New Century further noted that the declaratory ruling provision of the Rule provides that a petitioner may file his or her action before either the Commission or a "court of competent jurisdiction," and that "a state court now has jurisdiction over this matter." 8. New Century set forth its factual and legal positions in its Complaint for Declaratory Judgment ("Complaint") filed in the Circuit Court of Lake County, Illinois ("Circuit Court"). In the Complaint, New Century alleges that Petitioner installed his antenna on or about May 15, 1995, without first obtaining prior approval from New Century. New Century claims that in response to its formal complaint, Petitioner removed the antenna, but subsequently reinstalled it on or about March 22, 1996. New Century further states that in April 1996, New Century conducted a complaint hearing at which its Board of Directors denied Petitioner's request to continue using his antenna and the Board of Directors again requested Petitioner to remove the antenna and Petitioner refused. New Century states that it held a third complaint hearing on May 22, 1996, at which it assessed a penalty against Petitioner; however, New Century offered to waive the penalty if Petitioner removed the antenna from his balcony and Petitioner complied with the request. New Century states that, on or about December 16, 1996, Petitioner again reinstalled his antenna. New Century states that it held a fourth complaint hearing and again assessed a penalty against Petitioner that it offered to waive if the antenna was removed and that Petitioner complied with the request. 9. According to New Century, Petitioner has indicated that he does not accept New Century's decision regarding the antenna and has threatened to reinstall the antenna, thereby compelling New Century to file its Complaint in the Circuit Court. In its Complaint, New Century appears to rely, in part, upon easements that permit it to enter a unit to inspect and make repairs to exterior areas such as balconies, and upon its prohibition of television antennas that it has not authorized. 10. Specifically, in the Complaint, New Century argues that: [p]ursuant to the terms of the Declaration of Covenants, Conditions, Easements & Restrictions for New Century, the balcony in question is not within the exclusive use or control of the defendants [Petitioner]. Therefore, Section 207 of the Telecommunications Act of 1996 is not applicable. Moreover, the Section indicates that it only applies to a homeowners' association (not a townhome owners' association), thereby rendering it inapplicable to New Century. 11. The Satellite Broadcasting and Communications Association ("SBCA") filed comments in this proceeding. It argues that New Century's restrictions violate the Rule because they either prohibit antennas or require that potential antenna users first obtain approval from the Board of Directors. Furthermore, SBCA points to the parallel state court action and argues that the Commission should assert its primary jurisdiction in this matter. In its reply comments, SBCA stresses that this matter is not outside of the Commission's jurisdiction. It notes that "the filing of a petition in court, particularly here where it was filed after the filing of a petition at the Commission, does not usurp the Commission's jurisdiction over the matter." 12. In reply to SBCA's comments and reply comments, New Century argues that SBCA is not a party to this action and, therefore, lacks standing to present arguments to the Commission. Moreover, New Century adds that by filing a Notice of Appearance before the Circuit Court, Petitioner has agreed to subject himself to that court's jurisdiction. 13. On August 1, 1997, the Commission's Office of General Counsel notified the Circuit Court that the Commission was aware of the proceeding brought by New Century before the Circuit Court. The Commission requested that the "Court either refer the Complaint to the Commission for consolidation with the pending Petition or hold the Association's [New Century] Complaint in abeyance pending a ruling by the Cable Services Bureau on the Petition." The Circuit Court has not made any dispositive ruling on the Complaint. The Complaint is on the active docket, however, and a motions hearing is set for November 6, 1997. III. Discussion 14. As noted above, Petitioner filed this Petition with the Commission on April 1, 1997. Seven days later, on April 8, 1997, New Century filed its Complaint in Circuit Court challenging Petitioner's right to situate and use his antenna on his balcony. To date the Circuit Court has not rendered a judgment in that matter. Under the Rule, a petition for declaratory ruling may be filed either with the Commission or a court of competent jurisdiction. Petitioner chose to file his Petition with the Commission, and therefore the matter is properly before us. We will address the following two issues: (1) whether New Century's restrictions are encompassed by Section 207 and the Rule and, if so, (2) whether those restrictions are prohibited by the Rule. 15. As to whether the restrictions are encompassed by the Rule, we note that in its Complaint in Circuit Court, New Century argues that the Rule "only applies to a homeowners' association (not a townhome owners' association), thereby rendering it inapplicable to New Century." We find that a "townhome owners' association" is merely a form of homeowners' association or an entity that promulgates restrictions on "property within the exclusive use or control of the antenna user where the antenna user has a direct or indirect ownership interest in the property. . . .'' The Commission has stated that it "has authority to prohibit enforcement of restrictive covenants and other similar nongovernmental restrictions that are inconsistent with the federal directive written by Congress in Section 207 of the 1996 Act." For our purposes, we find no distinction between a homeowners' association and a "townhome owners' association" as long as each promulgates and enforces restrictive covenants that impair a viewer's ability to receive over-the-air programming through antennas protected by the Rule. 16. Second, Petitioner acknowledges that he does not have exclusive control over the balcony because New Century has easement rights to enter his unit in order to maintain the balcony, which is its responsibility, but states that he "directly own[s] the balcony. . . ." Under the Rule, in addition to having either a direct or indirect ownership interest in the subject property, an antenna user must have the right to exercise exclusive use or control over the property. New Century does not refute Petitioner's ownership and does not contend that anyone other than Petitioner is entitled to use the balcony. We therefore find that Petitioner not only owns the balcony, but that he is entitled to exercise exclusive use over that property and that the restrictions at issue are encompassed by the Rule. 17. Under the Rule, as the restricting entity, New Century has the burden to show that its restrictions do not impair the installation, maintenance, or use of over-the-air reception antennas or that the restrictions qualify for either the safety or historic preservation exceptions to the Rule. New Century's restrictions create an outright prohibition of these antennas. By definition, restrictions such as this impair the installation, maintenance, or use of these antennas. Moreover, there is nothing in the record to show that the prohibition is necessary for safety or historic preservation reasons. Thus, we find that New Century's prohibition of Petitioner's DBS antenna on his balcony is prohibited by the Rule. We note, however, that New Century may require Petitioner to maintain his DBS antenna in a manner that would satisfy its safety concerns (e.g., securely mounting the DBS antenna to the balcony) and that should a safety issue arise, New Century, as the restricting entity, may enforce a safety restriction while a determination is made as to the validity of the restriction at issue. IV. Ordering Clauses 18. 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 covenants, conditions, and restrictions of New Century Town Townhouse Association No. 2 are hereby prohibited and unenforceable to the extent that they impair the installation, maintenance, or use of over-the-air reception antennas protected by 47 C.F.R.  1.4000 and as discussed herein. 19. 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