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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 ) ) Jason Peterson ) CSR 5115-O ) ) Petition for Declaratory Ruling ) Under 47 C.F.R.  1.4000 ) MEMORANDUM OPINION AND ORDER Adopted: January 30, 1998 Released: February 4, 1998 By the Chief, Cable Services Bureau: I. Introduction 1. Petitioner Jason Peterson ("Petitioner") filed a Petition for Declaratory Ruling ("Petition") seeking a determination that the Declaration of Party Wall Right, Covenants, Conditions, Restrictions and Easements for Chesapeake Commons ("Chesapeake Restrictions") applicable to externally installed over- the-air video programming reception antennas are prohibited by 47 C.F.R.  1.4000, the Commission's Over-the-Air Reception Devices Rule ("Rule"). The Petition is unopposed. For the reasons discussed below, we find that the Chesapeake 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 ("DBS") 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 states that he owns and resides in a townhouse in Geneva, Illinois, which is subject to covenants and restrictions administered and enforced by the Chesapeake Commons Homeowners Association ("Chesapeake" or the "Association"). Petitioner further states that he was told by the Association that installation of an 18 inch DBS satellite dish is prohibited "and that upon installation of such a dish the Association would have it removed and would bill [Petitioner] for the expense." 6. According to Petitioner, the restriction at issue provides, in relevant part: Section 9.10Without prior authorization of the Board, no television . . . antennas, or satellite dishes of any sort shall be placed, allowed or maintained on the exterior of any Townhouse Unit . . . Petitioner asserts that his townhouse is an end unit and that he has ownership and exclusive use of the roof and three of the exterior walls. He states further that the Association told him "that the only manner in which [Petitioner] could receive broadcast programming was via Cable TV." Petitioner argues that the Chesapeake restrictions impede competition and are preempted by the Commission's rule. 7. Chesapeake did not respond to the Petition, nor did any other party file a response or reply to the Petition. II. Discussion 8. Petitioner asserts that the Association's antenna restriction prevents him from installing and using a DBS satellite dish. The restriction in question prohibits exterior installation of satellite dishes and other antennas covered by the Rule absent prior written authorization from the Association, and Petitioner asserts that he was orally told that he would not be authorized to install an antenna. Under the Rule, Chesapeake, as the restricting entity, has the burden to show that its restrictions do not impair the installation, maintenance, or use of over-the-air reception antennas or that its restrictions qualify for either the safety or historic preservation exceptions to the Rule. Chesapeake has not responded to the Petition and therefore has not met its burden. 9. We find that Chesapeake's written restriction and its implementation thereof with respect to Petitioner create an outright prohibition of antennas covered by the Rule. By definition, restrictions and implementation such as present here impair the installation, maintenance, or use of covered antennas. Furthermore, there is nothing in the record to show that the prohibition is necessary for valid safety or historic preservation reasons. Thus, we find that Chesapeake's antenna restriction and its prohibition of Petitioner's DBS antenna are prohibited by the Rule. We find further that, in the absence of justification as necessary for legitimate safety or historic preservation considerations, Chesapeake's requirement of prior authorization is prohibited. III. Ordering Clauses 10. 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 Section 9.10 of the Declaration of Party Wall Right, Covenants, Conditions, Restrictions and Easements for Chesapeake Commons is hereby prohibited and unenforceable to the extent that it impairs the installation, maintenance, or use of over-the-air reception antennas protected by 47 C.F.R.  1.4000 as discussed herein. 11. 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