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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 ) ) CS Wireless Systems, Inc. ) CSR 4947-O d/b/a OmniVision of San Antonio ) ) 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 CS Wireless Systems, Inc. d/b/a OmniVision of San Antonio ("Petitioner"), filed a Petition for Declaratory Ruling seeking a determination that the covenants, conditions, and restrictions of the Property Owners of Northampton Association, Inc. ("Northampton Association"), which restrict the use of externally mounted antennas, are prohibited by 47 C.F.R.  1.4000, the Commission's Over-the-Air- Reception Devices Rule ("Rule"). For the reasons discussed below, we find that Northampton Association's actions constitute an outright prohibition that contravenes the Rule and is, therefore, prohibited. II. Background 2. On August 5, 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 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 . . . multichannel multipoint distribution service. . . ." 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 a challenged restriction complies with the Rule on the party seeking to impose the restriction. A. Wireless Cable 5. Multipoint Distribution Services ("MDS"), Multichannel Multipoint Distribution Services ("MMDS"), and Instructional Television Fixed Services ("ITFS"), which use microwave frequencies to transmit video programming to subscribers, commonly are referred to as wireless cable systems. Local Multipoint Distribution Service ("LMDS") also is a form of wireless cable. The specific characteristics of MDS, MMDS, ITFS, and LMDS signals require that wireless cable antennas be situated outdoors with a direct line-of-sight to the transmitter or repeater. III. The Petition 6. Petitioner is a MMDS wireless cable service provider serving more than 13,000 consumers in the San Antonio, Texas area. Petitioner states that specialized antennas are required to receive its wireless cable microwave signals, which it transmits on frequencies between 2.1 and 2.7 GHz (gigahertz) and which are dependent upon line-of-sight for reception. Petitioner challenges Northampton Association's restrictions on installation of wireless cable antennas on the ground that they have prevented and will continue to prevent Petitioner from installing antennas in the Northampton community and have required at least one of Petitioner's customers to remove an antenna. Petitioner contends that the Rule preempts Section 3.14 of Northampton Association's Declaration of Protective Covenants ("Covenants"), which provides: Section 3.14. Antenna and Flagpoles. No antenna or device of any type for receiving or transmitting signals (electronic or otherwise) shall be erected, constructed, placed or permitted to remain on the exterior of any houses, garage or buildings constructed on any Lot; nor shall any free standing antenna of any style be permitted to remain on any Lot. No flagpole shall be permanently erected on any Lot (other than Lots on which model homes are constructed and the entry way and the Lots adjacent thereto), unless prior written approval has been granted by the Architectural Control Committee. TV satellite reception discs shall be screened by a fence or other similar facility, so as to conceal them from view of any other Lot or public street. 7. Specifically, Petitioner alleges that in October 1996 it obtained a Northampton Association newsletter that included an article entitled, "Antennas are in violation of deed restrictions." The article noted that the Commission's new, but not yet effective, regulations relating to antennas would permit Northampton Association to use a prior approval process for the "protection of safety, health, and the welfare of the community." The article further noted that, to date, Northampton Association had not approved a single antenna installation. 8. Thereafter, Petitioner asserts that it contacted Northampton Association's president and informed him of the effective date of the Rule, explained that OmniVision intended to take advantage of the Rule to provide antennas to its customers, and requested, without success, to schedule a meeting to discuss installation of antennas in the Northampton community. 9. Petitioner contends that, relying on Section 3.14 of its Covenants, Northampton Association took action against its customers, Daniel and Patricia Jermier. The Jermiers own a home in the Northampton community and installed an antenna less than twelve feet above the peak of the roof, the minimum height necessary to obtain a line-of-sight signal. On November 12, 1996, Northampton Association wrote a letter to the Jermiers notifying them that the installation of the antenna violated the Covenants, specifically Section 3.14 and Article IV, because they installed the antenna without first obtaining approval from the Architectural Control Committee. The letter requested that the Jermiers correct the violation or notify Northampton Association if they denied the violation. The letter, however, did not specify what the Jermiers should do to correct the violation. Petitioner states that it contacted Northampton Association on the Jermiers' behalf and attempted, without success, to resolve the problem. Petitioner notes that similar notices of violation were sent to residents of four other communities that are managed by the same individuals who manage the Northampton Association. 10. Petitioner contends that the strict prohibition of outdoor antennas contained in section 3.14 contravenes Congress' intent and the Rule. Petitioner further contends that section 3.14 does not qualify for either the safety or historic preservation exception to the Rule and is, therefore, unenforceable. Petitioner further notes that if Northampton Association allows the installation of antennas subject to prior approval, as suggested by its November letter to the Jermiers, then it has failed to articulate any standards for obtaining such approval. IV. Northampton Association's Response 11. Northampton Association acknowledges the Commission's authority to preempt restrictions that impair the installation, maintenance, or use of over-the-air reception antennas that are protected by the Rule. Northampton Association states, however, that it is not prohibiting antennas, but contends, citing Section 4.01 of its Covenants, that it is requiring that a resident file an application and receive approval prior to the installation of an antenna. Northampton Association contends that the relevant issue here is whether the process of submitting an application to its Architectural Control Committee for approval of a "residential construction" (i.e., installation of an over-the-air reception antenna) unreasonably delays installation, maintenance, or use of over-the-air reception antennas. Section 4.01 states, in relevant part: Section 4.01. Approval of Building Plans. No building, garage, driveway or sidewalk shall be erected, placed, or altered on any Lot until the construction plans and specifications and a plot plan showing the location of the structure, driveway and sidewalk, have been approved in writing by the Board of Directors of the Association, or by an Architectural Control Committee. . . . Approval by the Board or Architectural Control Committee . . . shall be granted or withheld based on matters of compliance with the provisions of this Declaration, quality of materials, harmony of external design with existing and proposed structures and location with respect to topography and finished grade elevation. . . . 12. Northampton Association contends that, absent a safety or historic preservation reason, it will not "flatly deny or refuse permission" if a resident seeks to install an antenna. Northampton Association states, however, that it uses the prior approval process in Section 4.01 to preserve the aesthetic quality of its neighborhoods; that it is "prepared to expedite approval by the Architectural Control Committee for the installation of antennas or satellite dishes without unreasonable delay; and [that it] is willing to coordinate its approval process with Petitioner's installation schedules upon determination of the proposed location for placement of the antenna." V.Petitioner's Reply 13. In its reply, Petitioner contends that it is unclear whether section 4.01 applies to over-the- air reception antennas. Petitioner further contends that, even assuming that this provision applies, Northampton Association does not provide either a safety or historic preservation basis for the prior approval process, but inappropriately relies upon its right to control its community's aesthetic climate. Petitioner also asserts that the expedited approval process proposed by Northampton Association is unacceptable because it also would constitute an unreasonable delay under the Rule. VI. Comments 14. BellSouth Corporation ("BellSouth"), Pacific Bell and Southwestern Bell Telephone Company ("Pacific Bell and Southwestern Bell"), and the Wireless Cable Association International, Inc. ("WCA") filed comments in support of the Petition. Each commenter maintains that Northampton Association's outright prohibition of externally mounted over-the-air reception antennas is impermissible under the Rule. WCA contends that because wireless cable relies upon line-of-sight transmission and reception, an "absolute ban on outdoor antennas clearly represents an impairment of service banned under" the Rule. Pacific Bell and Southwestern Bell and WCA also argue that Northampton Association's Architectural Control Committee's prior approval process, if applicable here, creates an unreasonable delay and lacks justification on either a safety or a historic preservation basis. Moreover, Pacific Bell and Southwestern Bell note that the Jermier's wireless cable antenna is less than twelve feet above the peak of their roof, the minimum height necessary to receive a line-of-sight signal, and is in compliance with the Rule. VII. Reply Comments 15. Jesse Murphy, Secretary-Treasurer of Northampton Association, filed two separate sets of reply comments, one on behalf of seventeen named homeowners associations and the other a letter signed by 194 individual residents of Northampton. Both support Northampton Association's position. Eugene Dark, on behalf of Eckhert Crossing Homeowners Association, also filed reply comments in support of Northampton Association's position. Murphy and the Northampton Association residents request that the Commission set forth guidelines applicable to their situation. In particular, Murphy and the Northampton Association residents request that the Commission consider whether post-installation approval of rear yard mounts and expedited prior approval (Murphy suggests within two working days) of front or side yard mounts would be permissible under the Rule. 16. In its reply, WCA reiterates that the record is unclear as to whether Northampton Association's prior approval process even applies to the installation and use of externally mounted over- the-air reception antennas. WCA contends that Northampton Association's aesthetic-based concerns do not justify the Architectural Control Committee's prior approval process. VIII. Discussion A. Prohibition of Antennas 17. We find that the first and last sentences of Section 3.14 of Northampton Association's Covenants violate the Rule. The first sentence is an outright prohibition against the installation of externally mounted antennas that is not justified on either safety or historic preservation grounds. Wireless cable antennas operate on line-of-sight contact with the transmitter or repeater and, given current technology, require an unobstructed view of the transmitter or repeater. Northampton Association's outright prohibition violates the Rule because it "prevents" installation, maintenance, or use of the antennas; and thereby, necessarily, "precludes reception of an acceptable quality signal." Further, we find nothing in the language of either Section 3.14 or 4.01 to suggest to a potential antenna user that the approval mechanism in Section 4.01 applies to antennas. Consequently, the language in Section 4.01 of the Covenants does not change the import of the outright prohibition language contained in Section 3.14. 18. Finally, we also find that the last sentence of Section 3.14 of Northampton Association's Covenants appears to except "TV satellite reception disc[s]" from the outright prohibition but, nevertheless, mandates screening of the dish to render it less visible. We note that mandatory screening of satellite dishes or other antennas would be permissible if the Covenants provided for exceptions to the screening requirement in situations where screening would unreasonably delay installation, or unreasonably increase the cost of installation, maintenance or use of the antenna, or preclude reception of an acceptable quality signal. However, as written, Section 3.14 does not allow for exceptions to the screening requirement and is, therefore, prohibited by the Rule as such screening may impair installation, maintenance or use of satellite dishes by imposing unreasonable delay or unreasonable cost or by precluding reception of an acceptable quality signal. B. Prior Approval of Antennas 19. Notwithstanding the outright prohibition language of Section 3.14, Northampton Association suggests that it contemplates allowing installation of antennas subject to prior approval by its Architectural Control Committee pursuant to Section 4.01 of its Covenants. As noted above, we do not find that Section 4.01 changes the import of the outright prohibition language contained in Section 3.14. However, assuming that Section 4.01 can be read as applying to antenna installation, we agree with Petitioner that Northampton Association's Covenants fail to describe the prior approval process, including the steps a potential antenna user must take to obtain the requisite prior approval. In the absence of specific requirements, we cannot make any determinations with respect to the prior approval process here. However, we note that recently in In re Star Lambert and SBCA ("Star Lambert") we found that, except for valid safety or historic preservation reasons, the Rule prohibits permit requirements because they unreasonably delay installation as well as prior approval procedures that subject "lawful users of alternative placements . . . to unreasonable delay and expense." Although Star Lambert involved application of the Rule to a city ordinance, our holding is equally applicable to a non-governmental restriction, such as present here. IX. Ordering Clauses 20. For the foregoing reasons, 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 Declaration of Covenants of the Property Owners of Northampton Association, Inc. is hereby prohibited and unenforceable to the extent that the Covenants impair the installation, maintenance, or use of over-the-air reception antennas protected by 47 C.F.R.  1.4000, as discussed herein. 21. 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