******************************************************** 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 re ) ) Jay Lubliner and Deborah Galvin, ) CSR 4915-O Potomac, Maryland ) ) 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. Petitioners Jay Lubliner and Deborah Galvin ("Petitioners") filed a Petition for Declaratory Ruling seeking a determination that the covenants, conditions, and restrictions of their homeowners association, Potomac Ridge Homeowners Association, Inc. ("Potomac Ridge"), which prohibit the use of externally mounted television broadcast reception antennas, are prohibited by 47 C.F.R.  1.4000, the Commission's Over-the-Air-Reception Devices Rule ("Rule"). Potomac Ridge claims that its prohibition of externally mounted television broadcast reception antennas does not impermissibly impair the maintenance, installation, or use of these antennas because Petitioners can receive acceptable quality signals from within their residence through the use of an internally mounted antenna. For the reasons discussed below, we find that the evidence presented by Potomac Ridge fails to satisfy its burden of demonstrating that Petitioners can receive acceptable quality signals from within their house. 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. 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. 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. 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 a challenged restriction complies with the Rule on the party seeking to impose the restriction. III. The Petition 5. Petitioners contend that Potomac Ridge's prohibition of externally mounted television broadcast reception antennas impairs the installation, maintenance, or use of these antennas because it has precluded their reception of an acceptable quality television broadcast signal. Petitioners allege that the cost of installing an internally mounted, rotatable television broadcast reception antenna within their attic would be unreasonable, requiring them to remove the aluminum siding from their house to reduce signal attenuation. Petitioners also assert that Potomac Ridge's response to their architectural change request was not timely and created unreasonable delay. 6. Petitioners state that in July 1996, they filed an architectural change request with Potomac Ridge's Architectural Review Committee ("Committee"), in which they described their proposed addition of a television broadcast reception antenna to the peak of their roof. The Chairperson of the Committee returned the application to Petitioners a few weeks later with a notation that the Committee had disapproved the proposed change because outdoor television broadcast reception antenna installations were specifically prohibited by Potomac Ridge's architectural guidelines. 7. Petitioners further state that despite the disapproval they installed a mast mounted television broadcast reception antenna to the peak of their roof, and that in early September, Potomac Ridge informed Petitioners that they had to remove their antenna because it violated Potomac Ridge's covenant. Petitioners state that along with the violation notice, Potomac Ridge sent them a letter providing its interpretation of Section 1.4000, stating, "[t]he position of the AERC [Architectural Review] committee and Board of Directors regarding TV antennas is that an acceptable quality signal may be received by placement of the antenna in the attic. This is the only acceptable placement for an off-the-air TV antenna." 8. Petitioners contend that they responded to the letter by stating that they believed that Section 1.4000 applied to their situation because "what is acceptable signal quality according to you, does not satisfy my [our] needs. The attic is not suitable for me [us] to rotate appropriate antennas in the desired directions for my [our] interests. It would be too costly to design an attic for rotatable antennas and the aluminum siding would deter good signal reception." 9. Petitioners further state that by a letter dated September 30, 1996, Potomac Ridge again directed Petitioners to remove their antenna, and stated that it could "readily supply overwhelming proof that an acceptable-quality TV broadcast signal can be received with no delay and at [a] reasonable cost using only interior antennas." IV. The Response 10. Potomac Ridge argues that its covenant does not violate the Rule because it does not unreasonably delay the installation, maintenance, or use of, or unreasonably increase the cost of installation, maintenance, or use of a television broadcast reception antenna, and it does not preclude reception of an acceptable quality signal. Potomac Ridge contends that there is no delay because it does not interfere or attempt to regulate the internal installation of a television broadcast reception antenna. Potomac Ridge further contends that the costs of installing an internally mounted television broadcast reception antenna are comparable to those incurred in installing an externally mounted television broadcast reception antenna and that any difference between costs would not be unreasonable. Potomac Ridge states that when determining what is reasonable, consideration must be given to the visual impact and to the existence of requirements that other out-of-door devices comply with its covenant. Potomac Ridge points out that it requires screening or enclosures for such things as machinery, equipment, boats, campers, and wood piles. With respect to the testing of signal quality, Potomac Ridge submits television broadcast signal strength studies, which it claims are from within and without properties located close to Petitioners' and that are of similar physical make-up. Potomac Ridge states that the studies "show adequate signal reception of all local broadcast signals." Furthermore, Potomac Ridge asserts, "[t]he signal strength studies demonstrate that the Association's Covenant does not force homeowners to place antennas where reception becomes either impossible or substantially degraded." V. Comments 11. Various comments were filed supporting Petitioners' filing. One commenter argued that many viewers who reside in restrictive settings do not have the financial resources to subscribe to cable or digital satellite services, and that "[a]mplified or 'active' indoor antennas frequently offer no remedy because they boost competing signals, creating new reception problems due to poor signal rejection and selectivity." Golden Orange Broadcasting Co., Inc., licensee of television station KDOC, Anaheim, California ("KDOC"), states that "[t]hroughout the United States, untold number of television viewers who live within the coverage area of local stations do not receive off-air signals of local stations--for a variety of reasons, i.e., terrain, antenna orientation or, as in the case of the Petitioners herein, aluminum siding." The National Association of Broadcasters ("NAB") points out that Petitioners live in an area where television broadcast stations provide predicted Grade B contour intensity signals from various transmitter sites and that to receive these signals Petitioners need to employ a rotatable antenna. The NAB states that substantial signal attenuation would occur if Petitioners placed an antenna within their attic because the attic is surrounded by aluminum siding. The NAB further states that the cost to install an internally mounted antenna similar to Petitioners' externally mounted antenna would be "substantially higher," and that it "may not be able to deliver acceptable signal quality." 12. Two parties filed comments in support of Potomac Ridge's position. Community Associations Institute ("CAI") contends that no delay is involved in installing an internally mounted television broadcast reception antenna because Potomac Ridge does not involve itself in that process. Community Associations Institute also asserts that cost is not an issue because internally mounted television broadcast reception antennas do not need to be camouflaged, and that "indoor antennas cost approximately the same as outdoor antennas. . . ." Referring to the Commission's statement in the Report and Order that a "substantially degraded" signal would not comport with our interpretation of what is an acceptable quality signal, CAI states that although the data provided by Potomac Ridge reveals that "[i]n some cases, there is a minimal discrepancy in signal strength" between signals received by outdoor and indoor television broadcast reception antennas, that "difference does not amount to a substantial degradation in signal quality." Comments were also filed by Petitioners' neighbors. They contend that they live in a two-story aluminum-sided house that was constructed in the same year and by the same builder that constructed Petitioners' house, and that their "attic antenna provides excellent reception of all local television stations." VI. Replies 13. In reply, Petitioners submit a videotape that allegedly contains a representation of the quality of television broadcast signals that they receive within their house through the use of a television set mounted antenna. With respect to acceptable quality signals, Petitioners state that Potomac Ridge's studies do not reflect "what you see on the screen" and are insufficient, by themselves, to meet Potomac Ridge's burden of defending its covenant. Petitioners also state that a rooftop installation would avoid the interference created by aluminum siding and multipaths, among other things, and would enable them to "receive adequate signal quality for any regional station not just the ones sited [sic] by the Associations' testing firm." Petitioners further state that the re-engineering costs to modify their attic trusses to allow free rotation of an indoor antenna would be prohibitive. Moreover, they state that they would have to replace the aluminum siding on their house and their neighbors' houses to eliminate "signal attenuation and poor picture quality." 14. The NAB and Network Affiliated Stations Alliance ("NASA") address Potomac Ridge's Response. According to the NAB, the unit of measurement used in Potomac Ridge's television broadcast signal strength studies, decibels ("dB"), cannot be correct; it should be decibels relative to one milliwatt ("dBm"), decibels relative to one microvolt ("dBuV"), or decibels relative to one microvolt per meter ("dBuV/m"). The NAB states that although that error does not affect the comparative value of the data (indoor versus outdoor), it does call into question the validity of Potomac Ridge's testing procedure and precludes comparison of the data with data collected in other studies. The NAB further contends that data were not collected from outdoors and indoors on each property, thereby making performance comparisons among the properties difficult. 15. Network Affiliated Stations Alliance argues that the proper cost comparison should be among similar models of indoor and outdoor antennas. It contends that the study is deficient because Potomac Ridge is located within the predicted Grade B contour of several Baltimore stations that were not tested. Apart from the deficiencies in the testing procedure, NASA notes that the requirement to install antennas indoors prevents reception of "one or more signals at five of the six tested sites." 16. Community Associations Institute and H.A. Lapa, Jr. ("Lapa") filed reply comments in support of Potomac Ridge's Response. Community Associations Institute asserts that there was no delay and that the studies showed signal strength in surrounding houses. It states that there are "questions concerning the reception of channels 26, 32, and 50 in some, but not all, of the homes." Community Associations Institute further contends that the burden of proof has shifted to Petitioners because they have failed to produce evidence that compliance with Potomac Ridge's restrictions would preclude reception of acceptable quality signals. 17. Lapa states that he has lived in Potomac Ridge since 1989 in a house constructed by the same builder who built Petitioners' house, and which is located in the same geographic area. He states that his indoor television set mounted antenna provides him with more than acceptable reception of all local stations (4, 5, 7, 9, 20, 26, and 50), and that his over-the-air reception is better than his cable. VII. Discussion A. Acceptable Quality Signal 18. As noted above, the Rule prohibits restrictions that impair installation, maintenance, or use of a protected antenna by, among other things, precluding reception of an acceptable quality signal and by unreasonably increasing the cost of antenna installation. The threshold issue before us is whether Petitioners are able to receive acceptable quality local television broadcast signals from within their house using an internally mounted television broadcast reception antenna. In a proceeding before the Commission under Section 1.4000, the burden of demonstrating that the restrictions at issue do not impair the installation, maintenance, or use of an over-the-air reception device is placed upon the enforcing entity. We find that, based on the Record before us, Potomac Ridge has failed to meet its burden. 19. In the Report and Order, the Commission discussed the acceptable quality signal criteria. Third, a regulation will be deemed to impair a viewer's ability to receive video programming signals if it precludes reception of an acceptable quality signal. We affirm the consensus opinion of commenters who discuss this issue that the signals here are signals intended for reception in the viewing area. Under this criterion, for example, our rule would invalidate a requirement that an antenna be placed in a position where reception would be impossible or would be substantially degraded. However, a regulation requiring that antennas be placed to the extent feasible in locations that are not visible from the street would be permitted under our rule, if this placement would not impair reception of an acceptable quality signal. Requirements that antennas be set back from the street could be deemed to impair reception if compliance would mean that the antenna could not receive an acceptable quality signal. 20. We find that the evidence presented by Potomac Ridge fails to support its contention that Petitioners can receive acceptable quality signals. For example, it is not clear that Potomac Ridge used the correct unit of measurement. Potomac Ridge used dB, in contrast to dBm or decibels relative to one milliwatt, which commenters advance as the proper unit of measurement. Moreover, we note that several readings are not labeled with a unit of measurement. Further, it is unclear whether Potomac Ridge correctly oriented or positioned the equipment used to gather the data or whether it was positioned in a manner to receive the strongest signal possible (i.e., positioned to achieve maximum gain for each tested signal). Additionally, Potomac Ridge failed to even take measurements from inside of Petitioners' attic-- the very location from which it claims that Petitioners can receive acceptable quality signals. Thus, we find that we cannot rely upon the data presented to support Potomac Ridge's contention that Petitioner can receive acceptable quality signals of adequate signal strength and that its restrictions do not impair the installation, maintenance, and use of over-the-air reception antennas. B. Cost of Installation 21. Potomac Ridge contends that internally mounted television broadcast reception antennas, on average, cost less than their externally mounted counterparts. Given the insufficiency of the evidence presented by Potomac Ridge, as noted above, we cannot determine what type of antenna, if any, is able to receive acceptable quality local television broadcast signals from within Petitioners' house and are, therefore, unable to make a cost comparison. VIII. Ordering Clauses 22. 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 Potomac Ridge Homeowners Association, Inc.'s covenants, conditions, and restrictions are hereby prohibited and enforceable 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. 23. 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 Attachment A Potomac Ridge Field Strength Studies Channel 4 5 7 9 20 26 32 50 Attic (1) +16 +22 +16 -2dB +18 - 2dB +15 - 1dB +12 - 1dB +2 +13 - 3dB Roof (1) +20 +19 +21 +21 +18 +15 +6 +20 Attic (2) +19 +16 +16 flux 3dB +15 +14 - 5dB +2 - 3dB -5 -10 - 4dB Roof (2) +19 +17 +20 +20 +17 +14 +4 +21 Attic (3) +5 +8 +7 +8 +2 -2dB -8 -10 0* Attic (4) +15 +15 +14 +18 +16 +14 +4 -5 - 3dB flux 2nd flr (6) +15 +17 +8 +10 -22 flux -20 -10 3-2 dB -4 no reading * not readable Sites: (1) 11804 Riding Loop Terrace; (2) 6 Saddleview Court; (3) 13800 Mustang Hill Lane; (4) 13925 Saddleview Drive; (6) 13830 Mustang Hill Lane. Potomac Ridge withdrew the data from Site 5 because that property did not share similar physical characteristics with Petitioners' house. Potomac Ridge Supplemental Response.