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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Preemption of Local Zoning Regulation ) IB Docket No. 95-59 of Satellite Earth Stations ) ) In the Matter of ) ) Implementation of Section 207 of the ) CS Docket No. 96-83 Telecommunications Act of 1996 ) ) Restrictions on Over-the-Air Reception Devices: ) Television Broadcast Service and ) Multichannel Multipoint Distribution Service ) REPORT AND ORDER, MEMORANDUM OPINION AND ORDER, and FURTHER NOTICE OF PROPOSED RULEMAKING Adopted: August 5, 1996 Released: August 6, 1996 Comment date: September 27, 1996 Reply Comment date: October 28, 1996 By the Commission: Commissioners Quello and Chong issuing separate statements. Table of Contents Paragraph I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . .1 II. SUMMARY 5 III. DISCUSSION A. Authority to Preempt . . . . . . . . . . . . . . . . . . . . . . .9 B. Restrictions on Reception . . . . . . . . . . . . . . . . 13 C. Technologies Covered . . . . . . . . . . . . . . . . . . . 28 D. Nongovernmental Restrictions . . . . . . . . . . . . . . . . . . 41 1. Authority to preempt nongovernmental restrictions. . . . . . 41 2. Installation on property within the exclusive control of the viewer and. . . in which the viewer has a direct or indirect ownership interest 49 E. Process and Procedure. . . . . . . . . . . . . . . . . . . . . . 53 IV. FURTHER NOTICE OF PROPOSED RULEMAKING. . . . . . . . . . . . . . 59 V. CONCLUSION 66 VI. PROCEDURAL PROVISIONS A. Regulatory Flexibility Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 B. Paperwork Reduction Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 VII. ORDERING CLAUSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Attachment A - Rule Attachment B - Parties in DBS Proceeding Attachment C - Parties in TVBS-MMDS Proceeding Attachment D - Initial Regulatory Flexibility Analysis for Further Notice I. INTRODUCTION 1. Section 207 of the Telecommunications Act of 1996 (the 1996 Act), titled "Restrictions on Over-the-Air Reception Devices," states: Within 180 days after the date of enactment of this Act, the Commission shall, pursuant to Section 303 of the Communications Act, 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 television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite services. The 1996 Act's direction to the Commission to prohibit restrictions that impair reception of over-the-air video programming services promotes the primary objective of the Communications Act, 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." 2. This Report and Order adopts a single rule to implement Section 207. In doing so, we consolidate herein two rulemaking proceedings that involve Section 207. In International Bureau (IB) Docket No. 95-59 (DBS Order and Further Notice) we adopted rules prohibiting certain restrictions on satellite antenna reception, including a rule partially implementing Section 207 by prohibiting governmental restrictions on reception by direct broadcast satellite (DBS) service receiving devices. In Cable Services Bureau (CS) Docket No. 96-83 (TVBS- MMDS Notice), we sought comment on a similar proposed rule to implement Section 207 for restrictions on over-the-air reception of television broadcast service (TVBS) and multichannel multipoint distribution service (MMDS). Our DBS rule was a revision of a 1986 rule that preempted local governmental regulations of satellite earth stations unless the regulations (a) had a reasonable and clearly defined health, safety, or aesthetic objective, and (b) did not unreasonably limit, or did not prevent reception, or impose unreasonable costs on users. In 1995 the Commission commenced a new proceeding to review and amend aspects of this rule. In 1996 the DBS Order and Further Notice modified the 1986 rule to create a rebuttable presumption of unreasonableness of local regulations that impose restrictions affecting the installation, use, or maintenance of devices used to receive DBS signals. 3. Although the Commission tentatively concluded that the modified rule satisfactorily implemented Section 207 with regard to governmental restrictions on reception of DBS service, because the revised rule was proposed prior to passage of the 1996 Act, the Commission sought further comment on the impact of the legislation. The Commission also proposed to implement Section 207 for DBS service by prohibiting enforcement of nongovernmental restrictions on devices used to receive DBS programming signals. Subsequently, the Commission released the TVBS-MMDS Notice to begin to implement Section 207 with regard to over-the-air TVBS and MMDS video antennas, proposing a rule similar to that adopted in the DBS Order and Further Notice. In both proceedings we also asked whether there was a simpler, less burdensome means of implementing the statute than through the proposed rebuttable presumption approach. 4. We have carefully considered all submissions filed in both proceedings. We received comment from various local governments, video programming service providers, individual subscribers, telecommunications organizations, nongovernmental associations, homeowners and others. We have also considered petitions for reconsideration of the DBS Order and Further Notice and responsive pleadings that bear on Section 207 implementation. II. SUMMARY 5. We implement Section 207 by adopting the following rule, and by amending Section 25.104 as indicated in Attachment A: (a) Any restriction, including but not limited to any state or local law or regulation, including zoning, land-use, or building regulation, or any private covenant, homeowners' association rule or similar restriction on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership interest in the property, that impairs the installation, maintenance, or use of: (1) an antenna that is designed to receive direct broadcast satellite service, including direct-to-home satellite services, that is one meter or less in diameter or is located in Alaska; or (2) an antenna that is designed to receive video programming services via multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services, and that is one meter or less in diameter or diagonal measurement; or (3) an antenna that is designed to receive television broadcast signals, is prohibited, to the extent it so impairs, subject to paragraph (b). For purposes of this rule, a law, regulation or restriction impairs installation, maintenance or use of an 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. No civil, criminal, administrative, or other legal action of any kind shall be taken to enforce any restriction or regulation prohibited by this rule except pursuant to paragraph (c) or (d). No fine or other penalties shall accrue against an antenna user while a proceeding is pending to determine the validity of any restriction. (b) Any restriction otherwise prohibited by paragraph (a) is permitted if: (1) it is necessary to accomplish a clearly defined safety objective that is either stated in the text, preamble or legislative history of the restriction or described as applying to that restriction in a document that is readily available to antenna users, and would be applied to the extent practicable in a non-discriminatory manner to other appurtenances, devices, or fixtures that are comparable in size, weight and appearance to these antennas and to which local regulation would normally apply; or (2) it is necessary to preserve an historic district listed or eligible for listing in the National Register of Historic Places, as set forth in the National Historic Preservation Act of 1966, as amended, 16 U.S.C.  470a, 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; and (3) it is no more burdensome to affected antenna users than is necessary to achieve the objectives described above. (c) Local governments or associations may apply to the Commission for a waiver of this rule under Section 1.3 of the Commission's rules, 47 C.F.R.  1.3. Waiver requests will be put on public notice. The Commission may grant a waiver upon a showing by the applicant of local concerns of a highly specialized or unusual nature. No petition for waiver shall be considered unless it specifies the restriction at issue. Waivers granted in accordance with this section shall not apply to restrictions amended or enacted after the waiver is granted. Any responsive pleadings must be served on all parties and filed within 30 days after release of a public notice that such petition has been filed. Any replies must be filed within 15 days thereafter. (d) Parties may petition the Commission for a declaratory ruling under Section 1.2 of the Commission's rules, 47 C.F.R.  1.2, or a court of competent jurisdiction, to determine whether a particular restriction is permissible or prohibited under this rule. Petitions to the Commission will be put on public notice. Any responsive pleadings must be served on all parties and filed within 30 days after release of a public notice that such petition has been filed. Any replies must be filed within 15 days thereafter. (e) In any Commission proceeding regarding the scope or interpretation of any provision of this section, the burden of demonstrating that a particular governmental or nongovernmental restriction complies with this section and does not impair the installation, maintenance or use of devices designed for over-the-air reception of video programming services shall be on the party that seeks to impose or maintain the restriction. (f) All allegations of fact contained in petitions and related pleadings before the Commission must be supported by affidavit of a person or persons with actual knowledge thereof. An original and two copies of all petitions and pleadings should be addressed to the Secretary, Federal Communications Commission, 1919 M St. N.W.; Washington, D.C. 20554. Copies of the petitions and related pleadings will be available for public inspection in the Cable Reference Room in Washington, D.C. Copies will be available for purchase from the Commission's contract copy center, and Commission decisions will be available on the Internet. 6. The rule is designed to promote two complementary federal objectives: (a) to ensure that consumers have access to a broad range of video programming services, and (b) to foster full and fair competition among different types of video programming services. We believe that in invoking Section 303 of the Communications Act, which authorizes the Commission to issue rules and regulations "as public convenience, interest, or necessity requires," Congress intended that we consider and incorporate appropriate local concerns. In the DBS Order and Further Notice we noted that "we think it reasonable to infer that Congress did not mean . . . to prevent the Commission from preserving reasonable local health and safety regulations; or from granting waivers where unusual circumstances require specialized local regulation." Thus, while the statute requires that we prohibit restrictions that impair viewers' ability to receive the signals in question, it also permits the Commission to minimize any interference caused to local governments and associations as a result. We have thus attempted to implement Section 207 in a way that produces greater competition and consumer choice by ensuring viewers' ability to receive over-the-air signals, while preserving local control of regulation of safety and historic areas. 7. The rule we adopt improves on our existing DBS rule and proposed TVBS and MMDS rule in several ways. By limiting the prohibition of local restrictions to those that "impair" -- the statutory term -- rather than applying the prohibition to all restrictions that "affect," it is more faithful to Section 207 and intrudes less into local governance. By more clearly defining and providing examples of which local restrictions are prohibited and which are not, we make our rule simpler, and less burdensome. By abandoning the presumption in the DBS Order and Further Notice that all restrictions affecting reception are unreasonable, and therefore unenforceable until waived by Commission action, we spare localities and antenna users unnecessary administrative burden and expense. Under our revised rule, localities and associations need not come to the Commission to enforce restrictions that may affect but do not impair reception, or that may impair reception but are narrowly tailored to serve public safety or historic preservation objectives. The rule that we adopt applies to governmental regulations and restrictions and to nongovernmental restrictions on property within the exclusive use or control of the viewer in which the viewer has a direct or indirect ownership interest. We also include a Further Notice of Proposed Rulemaking (FNPRM) to seek comment on whether Section 207 applies to restrictions on property not within the exclusive use or control of the viewer and in which the viewer has a direct or indirect property interest. 8. Each element of the rule is discussed in greater detail below. III. DISCUSSION A. Authority to Preempt 9. Some commenters argue that our proposed rule exceeds our constitutional authority, under the Commerce Clause, to prohibit local restrictions. In adopting a rule to implement a statute, we exercise the authority delegated to us by Congress under Section 207. For the reasons stated below, we believe that the authority delegated by Congress to this agency pursuant to Section 207 comports with the Commerce Clause, and that our rule implementing Section 207 is constitutional. 10. In their petition and comments, the NLC and the Mayors suggest that the Commission's proposed rule conflicts with the Supreme Court's holding in United States v. Lopez. In that case the Court struck down a federal statute that defined a crime of possession of firearms within 1000 feet of a local school because there was an insufficient nexus to interstate commerce under the Commerce Clause. The Court held that under the Commerce Clause Congress can regulate only activities that "substantially affect" interstate commerce, and that consequently, Congress lacked statutory authority. According to the Mayors, the Court in Lopez "curtailed the exercise of the Commerce Clause power in areas reserved for the exercise of traditional local police power." 11. In Lopez, the Supreme Court identified three broad categories of activity within Congress's constitutional power to regulate: (a) the use of channels of interstate commerce, (b) the regulation and protection of instrumentalities or things in interstate commerce, even though the threat may come only from intrastate activities, and (c) those activities having substantial relation to interstate commerce. After determining that the regulation at issue could be sustained, if at all, only under the third category, the Court held that the challenged statute was penal and had nothing to do with "commerce" or any sort of economic enterprise, and was not "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." 12. Unlike the situation in Lopez, however, the instant statutory provision directly involves use of the channels of interstate commerce (e.g., channels of DBS, MMDS, and TVBS), or, alternatively, the regulation and protection of instrumentalities or things in interstate commerce (i.e., receiving devices for such services), or both. Indeed, we believe that the regulation would be deemed constitutional even under the third category in Lopez because the regulation we adopt to implement the statute, which is aimed at ensuring reception of radio communications, relates to activities that substantially impact interstate commerce. Moreover, as the Court reaffirmed in Lopez, "where the interstate and intrastate aspects of commerce were so mingled together that full regulation of interstate commerce required incidental regulation of intrastate commerce, the Commerce Clause authorized such regulation." This is clearly the case here, where the receiving aspects of such services are inextricably interwoven with the interstate character of the signals of these services themselves. As the Supreme Court stated long ago in Fisher's Blend Station, Inc. v. State Tax Commission, a case that invalidated a state occupation tax imposed on radio licensees because it placed an unconstitutional burden on interstate commerce: "By its very nature broadcasting transcends state lines and is national in its scope and importance -- characteristics which bring it within the purpose and protection, and subject to the control, of the commerce clause." The Court held that it was immaterial that the radio licensee "[did] not own or control the receiving mechanisms." Although the placement of a radio antenna may be considered an intrastate activity, the reception of radio communications is clearly interstate commerce, and restrictions on such antennas substantially affect such interstate commerce. We therefore conclude that Congress' action in delegating authority to us in Section 207 was fully consistent with the Supreme Court's ruling in the Lopez case and that our exercise of this authority does not exceed the limits of the Commerce Clause. B. Restrictions on Reception 13. Section 207 of the 1996 Act directs the Commission to prohibit restrictions that impair a viewer's ability to receive over-the-air video programming signals from TVBS, MMDS, and DBS. In the DBS Order and Further Notice and the TVBS-MMDS Notice, we created a rebuttable presumption of unreasonableness for state and local government restrictions that "affect the installation, maintenance and use of over-the-air reception devices." We used this phrase as an outgrowth of a proceeding initiated in 1995, prior to passage of Section 207, to revise our satellite antenna rule. The Notice in that proceeding responded to evidence that nonfederal restrictions were impeding access to satellite services; the term "affect" was chosen to reach a broad range of restrictions. In implementing Section 207, we conclude it is more appropriate to apply the specific statutory language. The statute directs the Commission "to prohibit restrictions that impair a viewer's ability to receive." The term "impair" means to make worse or damage. The House Report explains that Congress meant to prohibit restrictions that "prevent" the use of antennas, stating, "[t]he Committee intends this section to preempt enforcement of State or local statutes and regulations, or State or local legal requirements, or restrictive covenants or encumbrances that prevent the use of antenna[s] designed for off-the-air reception of television broadcast signals or of satellite receivers designed for receipt of DBS services." The statute also refers to a viewer's ability to receive, and we continue to use the phrase "installation, maintenance and use" because it encompasses all aspects of reception. 14. Based on our interpretation of the text of the statute and relevant legislative history, as well as consideration of comments, petitions for reconsideration and ex parte presentations in the record, we find that a restriction will be deemed to impair a viewer's ability to receive signals if it: (a) unreasonably delays or prevents installation, maintenance or use of a device used for the reception of over-the-air video programming signals by TVBS, MMDS, or DBS; or (b) unreasonably increases the cost of installation, maintenance or use of such devices; or (c) precludes reception of an acceptable quality signal. As a majority of the commenters and some petitioners noted, the Commission's definition of "impair" will greatly influence our implementation of Section 207. 15. Some commenters and petitioners argue that "impair" should be defined broadly, and should include any extra burden imposed on subscribers. Other commenters and one petitioner recommend that we adopt a narrower reading of the statutory language. Some commenters and a petitioner suggest that Congress intended that the statute be very limited in scope. These commenters and petitioners assert that the language of the House Report that accompanied Section 207 indicates that Congress intended "impair" to mean "prevent," so the only restrictions that should be considered to impair reception are those that preclude access to TVBS, MMDS or DBS signals. 16. The record is replete with examples of various requirements imposed on those who wish to install DBS dishes or MMDS antennas on their property. These range from requirements for permits or other prior approval, to requirements to plant shrubbery to screen the dish, to regulations that the mast and MMDS antenna must look like a tree with leaves, to safety-related restrictions. It is our purpose here to distinguish clearly the sort of restrictions that impair reception from those that do not. 17. Recognizing that effective implementation of our rule hinges on the clarity of our definition of impair, and in response to commenters' arguments, we provide a definition of impair which allows for governmental and nongovernmental restrictions that are necessary to serve valid local interests. First, under our adopted rule, a regulation or restriction that unreasonably delays or prevents antenna installation, maintenance and use will be found to impair reception. This criterion recognizes that the process by which regulations are enforced may be critical in a consumer's choice of video programming service. Procedural requirements -- provisions requiring the approval of community associations or local zoning boards prior to the installation of TVBS, MMDS, or DBS antennas, for example -- can, in practical terms, "prevent" the viewer's access to video programming signals as surely as outright prohibitions, by creating an extra hurdle for consumers to overcome. Similarly, requirements for permits and/or fees may provide a disincentive for potential consumers, if those requirements apply to one programming signal provider but not another. We believe this kind of impairment can impede a service provider's ability to compete, since customers will ordinarily select a service less subject to uncertainty and procedural requirements. We believe that the imposition of delay is an impairment of the sort Congress sought to prohibit; accordingly, these types of procedural requirements and permits are prohibited except as provided herein. Local conditions involving safety or historic preservation may justify imposition of prior approval, permitting, or fee requirements in some circumstances, as discussed below, but we note that our rule requires that any such restriction be no more burdensome than is necessary to achieve its safety or historic preservation purposes. 18. Second, a regulation will be found to impair a viewer's ability to receive video programming signals if it unreasonably increases the costs of installation, maintenance or use of reception devices. Like procedural requirements, requirements to screen or otherwise beautify an antenna may result in additional costs that discourage consumers from choosing particular antenna-based services. Some commenters propose formulas for calculating whether costs expended in complying with a governmental or nongovernmental authority's regulations regarding the installation, maintenance or use of TVBS, MMDS or DBS reception devices constitute an impairment. Some of these commenters suggest that costs amounting to a certain percentage of the cost of equipment or services should be considered an impairment prohibited by our rule. Other commenters and petitioners argue that adding any expense to the installation, maintenance and use of reception devices for TVBS, MMDS or DBS would be an impairment because it would provide a disincentive to consumers to choose these services. Another commenter suggests that a cost-based method is impracticable because communities' needs may vary widely. 19. While we decline to adopt a formula based on a specific percentage of the cost of equipment or services, we do require that the costs of complying with governmental and nongovernmental restrictions on the installation, maintenance and use of devices designed for over-the-air reception not be unreasonable in light of the cost of the equipment or services and the visual impact of the antenna. Under this approach, restrictions cannot require that relatively unobtrusive DBS antennas be screened by expensive landscaping. On the other hand, a requirement to paint an antenna in a fashion that will not interfere with reception so that it blends into the background against which it is mounted would likely be acceptable. In determining the reasonableness of any additional cost, we will also consider the treatment of comparable devices. For example, if costs are imposed to screen other similar devices in the neighborhood, such as air conditioning units, trash receptacles, etc., similar requirements imposed on antennas may be reasonable under our rule even though they might increase the cost of installation, maintenance or use, if such measures are justified by visual impact. We believe that this approach adequately addresses the concerns of those who argue that requirements to paint, screen, or site antennas in particular ways will reduce the competitiveness of particular industries, and accommodates the interests of governmental and nongovernmental authorities, consumers, and providers of TVBS, MMDS and DBS. 20. 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 that are protected 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 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 signal. 21. In refining our rule to prohibit only restrictions that "impair" viewers' abilities to install, use or maintain devices designed for over-the-air reception, we remove from the scope of this prohibition all restrictions that may affect, but do not impair, a viewer's ability to install, use or maintain devices to receive video programming signals through over-the-air TVBS, MMDS, and DBS services. As discussed below, we also exempt certain regulations protecting safety and historic areas, even though the regulations may impair access to over- the-air signals. 22. Some commenters in this consolidated proceeding argue that Congress has spoken clearly, and that local concerns play no role in light of Section 207. Others argue that local concerns are paramount, and that Section 207 can be implemented only to the degree that our implementing regulations do not conflict with recognized local concerns. Most commenters are in agreement that in some limited situations local restrictions should prevail, even if installation, use, and maintenance of devices used to receive over-the-air video signals are thereby precluded. There is, for example, no serious disagreement that regulations addressing valid safety concerns should prevail. Similarly, the record reflects general agreement that valid historic concerns should be honored. Notwithstanding the strong federal policy reflected in Section 207 that reception of over-the-air video programming signals should not be impaired by local regulations, we do not view this policy to be so absolute that it categorically overrides all other concerns. We continue to believe that Congress instructed us to promulgate a rule "pursuant to Section 303," in the public convenience, interest, and necessity, precisely so that we could balance the conflicting interests involved. 23. As noted above, in the DBS Order and Further Notice and the TVBS-MMDS Notice, we adopted and proposed a rebuttable presumption approach to distinguish acceptable government regulations from unacceptable ones. We acknowledged in the DBS Order and Further Notice and the TVBS-MMDS Notice that this presumptive approach would be more difficult to administer than a rule of general applicability. We believed, however, that the presumptive approach would better allow us to recognize the "importance and centrality of the local interests" in regulating safety, and that our regulation under this approach would be less intrusive than under a per se preemption, even though it might require further action by the Commission. Although the rebuttable presumption approach is supported by several commenters, some industry parties suggest that we impose a higher standard for meeting health or safety objectives, or establish a rule of per se preemption. These commenters and petitioners maintain that the rebuttable presumption approach is unnecessarily cumbersome, and does not effectuate Congress' intent. Moreover, although we developed the rebuttable presumption approach to ensure the protection of local interests, several commenters note that the burden of uncertainty and the need to seek individual rulings from the Commission would strain the resources of local authorities. The rule we adopt addresses these concerns. 24. First, we create an exemption for restrictions that serve legitimate safety goals. Difficulties arise because many local regulations combine safety with other concerns, and it is often hard to separate the various concerns. We believe that a recognition that certain types of regulations are permitted is essential to our implementation of Section 207. Thus, regulations that serve a stated safety purpose, such as restrictions requiring minimum distances from high voltage power lines, are permitted. Similarly, a restriction that precludes any installations very near streets and intersections in order to preserve a clear line of sight for drivers is clearly safety-related and permitted, provided that all comparable installations, e.g., foliage, are also precluded. Safety regulations stipulating the adequate bolting or guying of antennas are enforceable under the rule we are adopting, as are the provisions of the model fire code, prohibiting "furnishings, decorations, or other objects . . . [that] obstruct fire exits, access thereto, egress therefrom, or visibility thereof." Although the receive-only devices at issue here do not pose significant local health concerns, to the extent that these antennas have transmit capabilities, they must comply with our RF emissions standards as well as with any applicable local health regulations. 25. Although we are not requiring safety regulations, on their face, to apply to all devices or fixtures similar to antennas, in recognition that safety goals may result in restrictions that apply only to antennas because they are the most likely rooftop installations or appurtenances, we expect local governments and private associations to administer their regulations in a nondiscriminatory manner. A safety regulation is permitted if it would be applied to the extent practicable in a non-discriminatory manner to other appurtenances, devices, or fixtures that are comparable in size, weight, and appearance to these antennas and to which local regulation would normally apply. In any proceeding challenging the validity of a particular regulation, we will look carefully at how safety restrictions are applied across the board. Safety restrictions must be no more burdensome upon antenna users than is necessary to achieve the desired objective. We do not intend, however, that local authorities be required to rewrite their regulations. Our rule also requires that a restriction covered by this exemption must state, in the text, preamble or legislative history, that it has a clearly defined safety objective. Alternatively, local governments or private associations can comply with this section by describing the restriction and the clearly defined health or safety objective it is intended to promote, in a document that is readily available to antenna users. By offering this alternative, we address the concern raised by commenters that it would be a significant burden for them to revise all of their safety codes to make them specifically applicable to antenna installations. We believe that a such a document will provide the necessary guidance to antenna users regarding which restrictions local governments or associations intend to apply. 26. Although we received extensive comment on the effect preemption of such restrictions might have on historic preservation, we received little comment on the effect it might have on environmental concerns in general. Given the size and nature of the antenna facilities covered by Section 207 and given that these devices are usually associated with already existing structures, e.g., residences or office buildings, we do not believe that our action herein will adversely affect the quality of the human environment in a significant way. Thus, while we see no need to create a general exemption for environmental concerns, we are adopting a rule that recognizes the safeguarding of registered historic preservation areas. Congress has authorized the Secretary of the Interior to maintain a National Register of Historic Places composed of "districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture." Restrictions on the installation, use and maintenance of over-the-air reception devices for TVBS, MMDS, and DBS in these sites may be enforced to the extent necessary to preserve their special historic status. These regulations may be enforced even if this results in some cases in the impairment of a viewer's ability to receive over-the-air video programming signals, as long as these restrictions are imposed in a nondiscriminatory way, and are no more burdensome than is necessary to achieve the objective. Under this section, regulations are exempted if they apply to all modern devices, but they may treat objects that are consistent with the historical nature of the community in a different fashion than objects that are clearly more modern in character such as air conditioning units, trash receptacles, or antennas. 27. Thus as stated above, state and local restrictions, as well as nongovernmental restrictions, e.g., restrictive covenants, that are designed to protect historic areas that are listed or eligible for listing in the National Register of Historic Places, will not be preempted. Additionally, restrictions that are designed for safety purposes will not be preempted. Finally, the Commission will consider granting waivers where the state, local, or appropriate nongovernmental entity demonstrates that the restriction is necessary to protect other environmental concerns, in view of the particularly unique environmental character or nature of the given area. C. Technologies Covered by Rule 28. The rules that we adopted in the DBS Order and Further Notice and proposed in the TVBS-MMDS Notice are intended to implement Section 207 fully with regard to TVBS, MMDS and DBS. Although we did not define TVBS or MMDS in the TVBS-MMDS Notice, in the DBS Order and Further Notice we tentatively concluded that Congress intended "direct broadcast satellite service" to include not only services that are technically DBS, but also medium power Ku-Band DTH services, such as that offered by Primestar, because they use antennas one meter or less in diameter. We also noted that in the House Report, Congress expressly excluded larger C-band satellite antennas from Section 207, and seemed to focus on the size of the antenna, rather than the specific technology, as a basis of distinction. As the House Report states, "This service does not include lower power C-band satellites, which require larger dishes in order for subscribers to receive their signals." 29. Several commenters and petitioners suggest that the statute also applies to classes of services related to TVBS, MMDS and DBS, and that our rule should include these related services. These commenters and petitioners contend that the terms "MMDS" and "DBS" should be interpreted broadly because Congress intended Section 207 to promote competition among video programming services by prohibiting restrictions that impair reception of all forms of video programming. For example, some commenters note that MMDS is really a form of multipoint distribution service (MDS), which is a general category of services using the same type of receiving antennas at different frequencies, and recommend that our rule preempt restrictions on the reception of any form of MDS, including MMDS, instructional television fixed service (ITFS), and local multipoint distribution service (LMDS). Other commenters and petitioners suggest that "DBS" also refers to a broad category of technologies. They recommend that we expand our definition of DBS to include other forms of satellite services including very small aperture terminals (VSAT) that transmit information, and medium-power Ku-band DTH satellite services. According to one commenter, the legislative history indicates that Congress intended Section 207 to apply to most reception of wireless video programming except systems using large antennas. 30. We believe that by directing the Commission to prohibit restrictions that impair viewers' ability to receive over-the-air signals from TVBS, MMDS and DBS services, Congress did not mean to exclude closely-related services such as MDS, ITFS, and LMDS. All of these services -- MDS, ITFS, and LMDS -- are similar from a technological and functional standpoint in that point-to-multipoint subscription video distribution service can be provided over each of them. We note that MMDS is the product of MDS technology, the first multipoint distribution service established by the Commission, and that ITFS is a service whose frequencies are available for transmission of MMDS. LMDS is a service that has been authorized to provide services comparable to MMDS as well as other types of services. The origins of all of these services can be traced to MDS. Thus, all of these related services should be treated the same for purposes of Section 207, and are properly included in the scope of Section 207's provision. We also determine, however, that VSAT, a commercial satellite service that may use satellite antennas less than one meter in diameter, is not within the purview of the statute because it is not used to provide over-the-air video programming. 31. We also believe that the statute can be construed to include medium-power satellite services using antennas of one meter or less that are used to receive over-the-air video programming, even though such services may not be technically defined as DBS elsewhere in the Commission's rules. Therefore, for purposes of implementing Section 207, we affirm our conclusion that DBS includes both high-power and medium-power satellite services using reception devices of one meter or less in diameter. 32. Because of the unique and peculiar characteristics applicable to reception of such services outside the continental United States, it is necessary to provide an exception for Alaska to the general size guidelines in our rule. In contrast with those portions of the continental United States (as well as Hawaii) that are at lower latitudes, DBS reception in Alaska requires larger antennas than those used in the lower part of the United States. The installation, maintenance, and use of these larger antennas in Alaska will be covered by the rules we adopt in this Report and Order, and governmental and nongovernmental restrictions impairing the installation, maintenance and use of these devices will be prohibited, even when the devices exceed one meter in diameter or diagonal measurement. This exception is limited, however, to antennas used to receive DBS service as defined by our rule, and will not apply to antennas that receive signals in the C-band. These larger antennas are subject to the more general satellite antenna preemption in Section 25.104 of our rules. Our decision to protect larger DBS antennas in Alaska than in the rest of the country is consistent with Commission policy to ensure that DBS is available to residents across the United States. As DBS service providers design their systems to comply with the Commission's requirement to serve Alaska, it may be possible to use smaller antennas that are closer to the size used in other parts of the country, and the need for this exemption may be obviated. 33. Also, for purposes of our rule, we believe it is appropriate to treat TVBS and MMDS services, as we did DBS, according to the characteristics of their antennas. In the TVBS-MMDS Notice, we remarked that Section 207 addresses TVBS, MMDS, and DBS receiving devices as a group, which suggests that they should be treated similarly. We noted, however, that antennas used to receive TVBS signals can take various forms and sizes, and may not always be comparable to DBS antennas. We also tentatively concluded that antennas used to receive MMDS signals are generally smaller than one meter in diameter or diagonal measurement, and so are comparable to DBS antennas in size, but can be of different shapes, and may be mounted on a higher "mast." In the TVBS-MMDS Notice, we sought comment on what types of restrictions would be appropriate for TVBS and MMDS, and particularly whether limits should be placed on mast size. 34. Some commenters and petitioners argue that a widely-adopted model building code provides a useful description of permitted antennas. Of four general model codes, the Building Officials & Code Administrators International, Inc. (BOCA) code is the only one that includes provisions on antenna installation. The BOCA code has been adopted in seventeen states and numerous municipalities nationwide, and therefore its provisions on antenna installation seem well-suited as a starting place for our discussion. The BOCA code provides guidelines on the siting and installation of antennas, and technical standards on such things as snow loads. Other commenters argue against adoption of the BOCA code antenna provisions as model restrictions because of BOCA's inclusion of height and size restrictions. These commenters maintain that such restrictions are not related to safety and are of the sort that Congress intended to prohibit, not permit. 35. Several commenters suggest that the Commission expressly preempt all restrictions addressing the shape of antennas or the permitted height of masts. Some of these commenters, representing the DBS and MMDS industries, note that their antennas are usually less than one meter in diameter or diagonal measurement. Some commenters contend that masts should be considered part of the devices used for over-the-air reception, and thus regulations restricting them should be prohibited. Moreover, industry commenters assert that masts are well secured and do not pose a health or safety problem. These commenters suggest that placing size or shape limits on one technology, e.g., regulating the size of MMDS masts, will impede this technology's ability to compete with others, such as DBS, that for technical reasons do not face such limits. MMDS industry commenters have suggested that the usual heights for masts range from three feet to fifty feet, and they oppose the twelve foot limit included in the BOCA code as too limiting. Some MMDS providers maintain that their decision to offer MMDS in a market is based upon the average mast size that would be needed in the community to receive the service, and that they do not choose to offer service in communities in which unusually high masts would be required. 36. Other commenters suggest that reasonable limits are necessary to promote health, safety, and aesthetic interests as well as to maintain property values. One nongovernmental association indicates that a one-meter diameter limit would be reasonable to further regulatory parity among the different services. Some governmental and nongovernmental commenters encourage limits on mast height, suggesting that we should adopt the BOCA code's twelve- foot limit. Others suggest that, at a minimum, mast heights should be no higher than necessary to receive signals, and no more than a few meters above the roofline. 37. Because masts are very often a necessary part of an MMDS receiving device, we include them in our definition of MMDS antennas. However, we decline to adopt the suggestion of some commenters that including masts in the definition of MMDS exempts masts from all regulation. Because we believe that the model antenna height and installation restrictions in the BOCA code are safety-related, they will be enforceable under our rule. We do not believe it will be overly burdensome to require, as is provided in the BOCA code, that antenna users obtain a permit in cases in which their antennas must extend more than twelve feet above the roofline in order to receive signals. However, we would find unenforceable any restriction that establishes specific per se height limits. Similarly, we believe that the BOCA code guideline regarding permits for setbacks is safety-based, is reasonable, and does not impose an unreasonable burden. Any such permit application should be handled expeditiously. However, the antenna size restriction for satellite antennas in the BOCA code, 24 inches, is unacceptable, as the diameter or diagonal measurement of the satellite and MMDS antennas covered by our rule is one meter. A one-meter limit will encompass MMDS as well as the other forms of MDS, i.e., LMDS and ITFS. Commenters note that LMDS antennas will be smaller than MMDS antennas, measuring approximately 12 inches in diameter. Generally, ITFS antennas range in size from two feet to twelve feet. Larger antennas are used to receive more distant signals and to minimize interference with other signals. However, one commenter notes that the largest antenna used to receive ITFS signals within a 30 mile radius in residential areas is 24 inches in diameter. 38. In the DBS Order and Further Notice, the Commission concluded that transmitting satellite earth stations of certain sizes, i.e., smaller than one meter in diameter and located in residential areas, and smaller than two meters in diameter and located in commercial or industrial areas, would have the same protection as receiving stations. In contrast, in our proposed implementation of Section 207, we adhered to the statutory text, which refers only to reception, not transmission, devices. Several commenters to the DBS Order and Further Notice and the TVBS-MMDS Notice nonetheless urge the Commission to include transmitting antennas under the scope of the rule, arguing that some of the enumerated technologies, particularly MMDS, have transmission as well as reception capabilities. In contrast, some commenters assert that Congress did not intend to cover transmission antennas, and that Section 207 is directed at "regulations which impair reception," not reception and transmission. 39. We note that MMDS and LMDS antennas may be employed to both receive and transmit signals. In the future, many over-the-air video services may provide basic signal transmission capability to offer pay-per-view and other interactive options. However, by definition, such basic signal transmission capability is often and appropriately considered as a component part of reception of multichannel video programming. Cable service, for example, is defined in part as the one-way transmission of video programming or other programming service together with the capability for subscriber interaction that might be required for the selection of use of such video programming or other programming service. Thus, antennas that have transmission capability designed for the viewer to select or use video programming are considered reception devices under the rule. Our rule does not apply to devices that have transmission capability only. 40. Finally, we note that there is no discussion in the record regarding a history of problems regarding local regulation of the size of TVBS antennas that would suggest the need to impose size or height limitations. While commenters indicate that restrictions on TVBS antennas exist, especially from nongovernmental authorities, these restrictions generally take the form of a total prohibition on antennas rather than limits on their size or placement. The lack of record on size or height limits on TVBS antennas may stem from the fact that TVBS is an older and more familiar technology than DBS or MMDS and thus subject to less regulation. There is general public awareness of the variations in the dimensions of TVBS antennas, and commenters have not sought to define these antennas by size or shape. Based on the lack of record showing any such desire, and on the variations in the dimensions of TVBS antennas, we decline to limit the size or shape of such antennas covered by our rule. Nonetheless, we believe that the BOCA guideline regarding the permissibility of permits for installations reaching more than 12 feet over the roofline, which we believe to be a safety guideline, may apply to TVBS antennas as well as to MMDS antennas on masts. D. Nongovernmental Restrictions 1. Authority to preempt nongovernmental restrictions 41. In this section, we address the argument raised by commenters that we lack the authority to prohibit nongovernmental restrictions, such as restrictive covenants, because such a prohibition would constitute a taking, requiring compensation under the Fifth Amendment of the Constitution. As explained below, we believe the Commission 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. 42. When Congress enacted Section 207 of the 1996 Act, it directed us to prohibit "restrictions" that impair viewers' ability to receive video programming services through devices designed for over-the-air reception of TVBS, MMDS, or DBS. The legislative history to this section makes clear that Congress intended the prohibition to apply not only to governmental restrictions but also to nongovernmental restrictions such as "restrictive covenants and encumbrances." As stated in the House Report, Congress directed that "[e]xisting regulations, including but not limited to zoning laws, ordinances, restrictive covenants or homeowners' associations rules, shall be unenforceable to the extent contrary to this section." Thus, in promulgating a regulation that prohibits these restrictions, we are fulfilling the Congressional mandate set forth in Section 207. 43. We have no authority to declare the Congressional mandate contained in a statute to be unconstitutional. In any event, however, we find that preemption of nongovernmental restrictions does not conflict with the Fifth Amendment. The Fifth Amendment requires the government to compensate a property owner if it "takes" the homeowner's property. A taking may involve either the direct appropriation of property or a government regulation which is so burdensome that it amounts to a taking of property without actual condemnation or appropriation. A regulation results in a per se regulatory taking if it requires the landowner to suffer a permanent physical invasion of his or her property by a third party, or "denies all economically beneficial or productive use of land." If a regulation does not result in a per se taking, the courts will engage in an "ad hoc inquiry" to examine "the character of governmental action, its economic impact, and its interference with reasonable investment-backed expectations." We do not believe our rule results in a taking of property. 44. The government may abrogate restrictive covenants that interfere with federal objectives enunciated in a regulation. In Seniors Civil Liberties Ass'n v. Kemp, the District Court found no taking in an implementation of the Fair Housing Amendments Act (FHAA) that declared unlawful age-based restrictive covenants, thereby abrogating the homeowners' association's rules requiring that at least one resident of each home be at least 55 years of age. The court found that the FHAA provisions nullifying the restrictive covenants constituted a "public program adjusting the benefits and burdens of economic life to promote the common good," and not a taking subject to compensation. Similarly, the Commission's rule implementing Section 207 promotes the common good by advancing a legitimate federal interest in ensuring access to communications, and therefore justifies prohibition of nongovernmental restrictions that impair such access. 45. Some commenters also challenge our authority to prohibit these restrictions under the Commerce Clause. The Supreme Court has made it clear that Congress not only can supersede local regulation, but also can change contractual relationships between private parties through the exercise of its constitutional powers, including the Commerce Clause, U.S. Const. art. I,  8, cl. 3. In Connolly v. Pension Benefit Guaranty Corp., the Court stated, Contracts, however express, cannot fetter the constitutional authority of Congress. Contracts may create rights in property, but when contracts deal with a subject matter which lies within the control of Congress, they have a congenital infirmity. Parties cannot remove their transactions from the reach of dominant constitutional power by making contracts about them. If a regulatory statute is otherwise within the powers of Congress, therefore, its application may not be defeated by private contractual provisions. For the same reason, the fact that legislation disregards or destroys existing contractual rights, does not always transform the regulation into an illegal taking. Moreover, in FCC v. Florida Power Corp., the Court permitted the Commission to invalidate certain terms of private contracts relating to property rights. In that case, the Commission's right to regulate pole attachments as mandated by the Pole Attachment Act was upheld even though the regulation invalidated provisions contained in private contracts, including contracts entered into prior to the enactment of the Pole Attachment Act. Courts have also found that homeowner covenants do not enjoy special immunity from federal power. Thus, we conclude that the authority bestowed upon the Commission to adopt a rule that prohibits restrictive covenants or other similar nongovernmental restrictions is not constitutionally infirm. 46. In proposing a strict preemption of such private restrictions without a specific rebuttal or waiver provision, we noted that nongovernmental restrictions appear to be related primarily to aesthetic concerns. We tentatively concluded that it was therefore appropriate to accord them less deference than local governmental regulations that can be based on health and safety considerations. We note, however, that there was an almost complete lack of a record on nongovernmental restrictions and their purposes. 47. In response to our proposed rules regarding private restrictions, we received extensive comments from consumers as well as representatives of community associations, commercial real estate interests, and video programming services. Based on this record, we have determined that our original proposals should be modified, and that the same rule and procedures applicable to governments will apply to those desiring to enforce certain nongovernmental restrictions on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership interest in the property. We seek comment below on the application of Section 207 in other kinds of ownership situations. 48. Many commenters, including those representing community associations, commercial real estate interests, and building owners, have expressed significant concern about the applicability of our rules to situations in which a resident wishes to install an antenna on property that is owned by the viewer, is commonly owned, or is owned by a landlord. Based on these comments, we have identified three categories of property rights that might be affected by our rules, including: (a) property within the exclusive use or control of a person who has a direct or indirect ownership interest in the property; (b) property not under the exclusive use and control of a person who has a direct or indirect ownership interest in the property, including the outside of the building, including the roof; and (c) residential or commercial property that is subject to lease agreements. At this time, we conclude that we should apply our rule to property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership interest in the property. Such a rule appropriately implements the statute while recognizing these important distinctions in the way in which property is owned. With respect to leased property and property not under the viewer's exclusive use or control but where the viewer has an ownership interest, we have determined that the existing record in this proceeding is inadequate to reach a definitive conclusion and that, as discussed below, a further notice of proposed rulemaking is appropriate. 2. Installation on property within the exclusive use or control of the viewer and in which the viewer has a direct or indirect ownership interest 49. The first category includes the case in which an individual owns his home and the land on which it sits. This type of ownership can apply to either a single family detached home or a single family rowhouse, and the owner may be subject to restrictions in the form of covenants or homeowners' association rules that are usually incorporated in a deed. One community association commenter asserts that enforcement and implementation of our rule in these areas "will be less cumbersome and less problematic [than where there is no individual ownership]," but that an association should be able to enforce reasonable rules related to antenna installation if those rules do not impair reception. Community association commenters urge that the burden be placed on the homeowner to show why her or his antenna cannot be installed in compliance with the applicable covenant. Other commenters strongly object to our limiting community associations' ability to maintain the appearance of their communities, and argue that people buy into a community because they want the protection of the homeowners' association. Some argue that Section 207 does not authorize different treatment of governmental and nongovernmental restrictions, and that nongovernmental entities should be able to seek waivers or rebut presumptions. Community proposes that a restriction should not be prohibited on individually owned or controlled property if a community association makes video programming available to any resident wishing to subscribe to such programming at no greater cost and with equivalent quality as would be available from an individual antenna installation. 50. Commenters representing video programming service providers and consumers contend that they have encountered numerous problems with installations on property owned exclusively by the antenna user but subject to restrictive covenants or homeowners' association rules, and that they support our proposed rule. People's Choice, a wireless cable provider, states that restrictive covenants on the use of property are not the result of negotiated agreements among homeowners, but instead result from coercion by developers and the influence of cable companies. Once covenants are in place, they are difficult to amend, according to these commenters, often requiring approval by a two-thirds majority of homeowners and recording of changes in local land records. 51. As noted above, in light of the statutory language and the legislative history, we conclude that Congress intended Section 207 to apply to nongovernmental restrictions. We adopt a rule that prohibits nongovernmental restrictions that impair reception by antennas installed on property exclusively owned by the viewer. Under our rule, nongovernmental restrictions on antennas installed on such property are limited in the same manner and governed by the same standards as governmental restrictions. Thus, homeowners' associations and similar nongovernmental authorities may regulate antenna placement or indicate a preference for installations that are not visible from the neighboring property, as long as a restriction does not impair reception. In addition, these nongovernmental authorities can enforce the same type of restrictions based on safety or historic preservation that governments can enforce. Finally, these entities can apply for declaratory rulings or waivers of our rule. 52. In addition to covering restrictions on antenna placement on property owned by the viewer, our rule will also apply where an individual who has a direct or indirect ownership interest in the property seeks to install an antenna in an area that is within his or her exclusive use or control. In this situation, other owners will not be directly impacted by the installation. As argued by commenters, community associations retain the right to impose restrictions on installation as long as they do not impair reception. Viewers who have exclusive use or control of property in which they have a direct or indirect ownership interest cannot be prohibited from installing antennas on this property where such a prohibition would impair reception, absent a safety or historic preservation purpose. E. Process and Procedure 53. We envision at least three types of situations where parties might seek Commission relief pursuant to our rule. Individual antenna users or service providers may seek a determination that a restriction is prohibited by our rule. Entities seeking to enforce a restriction may seek a determination that the restriction is not preempted. Finally, enforcing authorities may seek a determination that although their restriction is subject to preemption, our rule should be waived in a particular case. We have adopted procedures addressing each of these scenarios. Under these procedures, if either the antenna user or the enforcing authority has requested a determination from a court or from this Commission on whether the restriction at issue is permitted as an exception for safety or historic preservation, the restriction may be enforced pending this determination. Otherwise, the restriction may not be enforced until the Commission or a court of competent jurisdiction issues a ruling that the restriction is not preempted. In these circumstances, a viewer may install, use and maintain an antenna while the proceeding is pending. While the viewer may be subject to the enforcing authority's fine or other penalty for violation if the restriction is determined to be enforceable, no additional fines or penalties may accrue during the pendency of the proceeding. 54. In any Commission proceeding seeking a determination under our rule, the burden will be on the entity seeking to enforce a restriction to show that such restriction is not preempted. The rules that we adopted in the DBS Order and Further Notice and proposed in the TVBS-MMDS Notice placed the burden of rebutting the presumption and the burden of seeking a waiver on the enforcing authority. Those rules also would have prevented the local authority from taking any action to enforce restrictions that are inconsistent with our rule, unless the authority had secured a waiver or a declaration that the presumption had been rebutted. In the DBS Order and Further Notice, we stated that by placing the burden on the enforcer, our approach allowed municipalities and consumers to determine the applicability of local regulations. Commenters from industry support our proposal to place the burden of persuasion on the local authorities. These commenters contend that in order to foster competition, the local authority, and not an individual consumer, should have to demonstrate that a regulation does not impair access. Local authorities disagree, and argue that the party seeking to install the reception device or the video service provider should demonstrate that a local regulation impairs his access to TVBS, MMDS or DBS signals. For the reasons stated in the DBS Order and Further Notice, we affirm our conclusion that the entity seeking to enforce a restriction bears the burden of demonstrating the validity of its regulation. We believe that placing the burden on consumers would hinder competition and fail to implement Congress' directive, as such a burden could serve as a disincentive to consumers to choose TVBS, MMDS, or DBS services. 55. Declaratory ruling and waiver petitions require only paper submissions to the Commission, thus minimizing the burden on all parties. In the latter case, general waiver guidelines will apply and petitions must be pled with particularity, setting forth the local regulation in question and its applicability to TVBS, MMDS, or DBS. Petitioners for waiver must show good cause why the rule should be waived; petitioners seeking to enforce restrictions should show that the restrictions are so vital to the public interest as to outweigh the federal interest in such a prohibition; challengers of restrictions should show that the restrictions are not reasonably related to, or necessary to serve, the stated public interest function. Petitions for waiver should be targeted as narrowly as possible to achieve the desired end. Petitions for declaratory rulings or waivers must be served on all interested parties, and will be noted by the Commission on a public notice that establishes a pleading period. Oppositions and replies to petitions for declaratory rulings or waivers will be permitted, but are not required. 56. In the DBS Order and Further Notice and the TVBS-MMDS Notice, we discussed the possibility of parties seeking judgment from either the Commission or a court of competent jurisdiction. Many industry commenters recommend that the Commission retain exclusive jurisdiction to resolve disputes between local authorities and consumers. They contend that if local courts are allowed to adjudicate federal policy, the results may be inconsistent, and that uniformity provides the certainty needed to compete effectively. These commenters cite Section 205 of the 1996 Act as explicitly conferring upon the Commission the "exclusive jurisdiction to regulate the provision of direct-to-home [satellite] services." In addition, they note that Town of Deerfield, New York v. FCC may require the Commission to intervene in a case before judicial review or not at all. Finally, these industry commenters argue that the Commission should exercise exclusive jurisdiction to ensure national uniform standards consistent with Section 207 and the Commission's rule. Some community commenters oppose the exercise of exclusive jurisdiction by the Commission. One commenter states that Section 205, read in its entirety, grants the Commission exclusive jurisdiction over only programming, not the antennas themselves. This party also cites United States v. Lopez in arguing that zoning and land use regulation are police powers reserved for the states under the Tenth Amendment of the Constitution. Another commenter asserts that the Commission should give the traditional deference to state and federal courts with regard to health and safety matters. 57. At the outset, we state our disagreement with those commenters who maintain that because Section 303(v), as amended by Section 205 of the Telecommunications Act, states that the Commission shall "[h]ave exclusive jurisdiction to regulate the provision of direct-to-home satellite services," we are required to exercise exclusive jurisdiction over any restrictions that may be applicable to DBS receiving devices. This provision, like all the other provisions appearing in that section, is governed by the prefatory language in Section 303 which, as noted earlier, states, "Except as otherwise provided in this Act, the Commission from time to time, as public convenience, interest, or necessity requires, shall ..." (emphasis added). 58. While we hope that affected persons, entities, or governmental authorities would seek guidance and suitable redress through the processes we have established, we see no reason to foreclose the ability of parties to resolve issues locally. We accordingly decline to preclude affected parties from taking their cases to a court of competent jurisdiction. We expect that in such instances the court would look to this agency's expertise and, as appropriate, refer to us for resolution questions that involve those matters that relate to our primary jurisdiction over the subject matter. We have no basis to believe, and Congress has not suggested, that disputes and controversies arising over such restrictions should or must be resolved by this agency alone or cannot be adequately handled by recourse to courts of competent jurisdiction. IV. FURTHER NOTICE OF PROPOSED RULEMAKING 59. As indicated above, we have generally concluded that the same regulations applicable to governmental restrictions should be applied to homeowners' association rules and private covenants, where the property is within the exclusive use or control of the antenna user and the user has a direct or indirect ownership interest in the property. We are unable to conclude on this record, however, that the same analysis applies with regard to the placement of antennas on common areas or rental properties, property not within the exclusive control of a person with an ownership interest, where a community association or landlord is legally responsible for maintenance and repair and can be liable for failure to perform its duties properly. Such situations raise different considerations. 60. The differences are reflected in the comments received. According to one commenter, an individual resident (or viewer) has no legal right to alter commonly owned property unilaterally, and thus no right to use the common area to install an antenna without permission. It argues that Section 207 does not apply to commonly-owned property, and that applying it to such property would be unconstitutional. Commenters also raise issues about the validity of warranties for certain common areas such as roofs that might be affected or rendered void if antennas are installed. These commenters suggest that, in areas where most of the available space is common property, there should be coordinated installation managed by the community association that would assure access to services by all residents. Broadcasters support a suggestion that community associations with the responsibility of managing common property should be able to enforce their restrictions as long as they make access available to all services desired by residents. 61. NAA and others express concern about situations in which the prospective antenna user is a tenant and the property on which she or he wants to install an antenna is owned by a landlord. These commenters urge the Commission to clarify that the rule does not affect landlord-tenant agreements for occupancy of privately-owned residential property, and does not apply at all to commercial property. Citing the Supreme Court's ruling in Loretto v. Teleprompter Manhattan CATV Corp., they assert that to force property owners to allow installation of antennas owned by a service provider, a tenant, or a resident would result in an unconstitutional taking in violation of the Fifth Amendment. They assert that in Loretto, the Court found that a New York law that required a landlord to allow installation of cable wiring on or across her building was an unconstitutional taking in part because it constituted a permanent occupation. NAA argues that a rule requiring antenna installation on landlord-owned property is similar, and would obligate the Commission to provide compensation based on a fair market value of the property occupied. According to NAA, Congress has not authorized such compensation. Commenters also assert that even if the Commission has jurisdiction in this matter, there are sound reasons not to regulate antenna placement on private property. They state that aesthetic concerns are important and affect a building's marketability, and that our rule could interfere with effective property management. 62. In contrast, video programming service providers argue that the use of the term "viewer" demonstrates that Congress did not intend in Section 207 to distinguish between renters and owners, or to exclude renters from the protection of the Commission's rule. One commenter also asserts that the statute was designed to allow viewers to choose alternatives to cable and not to permit landlords or other private entities to select the service for these viewers. These commenters claim that the Supreme Court's holding in Loretto does not compel a distinction between property owned by an individual and that owned by a landlord, and that the holding in Loretto is very narrow. In support of its argument, SBCA contends that in Loretto, a dispositive fact was that the New York law gave outside parties (cable operators) rights, and did "not purport to give the tenant any enforceable property rights." Also, SBCA states, the court in Loretto noted that if the law were written in a manner that required "`cable installation if a tenant so desires, the statute might present a different question. . . .'" SBCA also argues that the installation of a DBS antenna is not a permanent occupation and does not qualify as a taking under Loretto. DIRECTV argues that the Fifth Amendment is not implicated by a rule preempting private antenna restrictions because other regulations of the landlord-tenant relationship, e.g., a regulation requiring a landlord to install sprinkler systems, have not been deemed a taking. 63. Neither the DBS Order and Further Notice nor the TVBS-MMDS Notice specifically proposed rules to govern or sought comment on the question of whether the antenna restriction preemption rules should apply to the placement of antennas on rental and other property not within the exclusive control of a person with an ownership interest. As a consequence many of the specific practical problems of how possible regulations might apply were not commented on, nor were the policy and legal issues fully briefed. At least one party interested in providing greater access by viewers to DBS service urged the Commission to reserve judgment, noting the insufficiency of the record as to certain common area and exterior surface issues. We conclude that the record before us at this time is incomplete and insufficient on the legal, technical and practical issues relating to whether, and if so how, to extend our rule to situations in which antennas may be installed on common property for the benefit of one with an ownership interest or on a landlord's property for the benefit of a renter. Accordingly, we request further comment on these issues. The Community suggestion, referenced in para. 49 above, involves the potential for central reception facilities in situations where restrictions on individual antenna placement are preempted by the rules, and thus no involuntary use of common or landlord-owned property is involved. We would welcome additional comment in the further proceeding regarding Community's proposal. We seek comment on the technical and practical feasibility of an approach that would allow the placement of over-the-air reception devices on rental or commonly-owned property. In particular, we invite commenters to address technical and/or practical problems or any other considerations they believe the Commission should take into account in deciding whether to adopt such a rule and, if so, the form such a rule should take. 64. Specifically, we seek comment on the Commission's legal authority to prohibit nongovernmental restrictions that impair reception by viewers who do not have exclusive use or control and a direct or indirect ownership interest in the property. On the question of our legal authority, we note that in Loretto, the Supreme Court held that a state statute that allowed a cable operator to install its cable facilities on the landlord's property constituted a taking under the Fifth Amendment. In the same case, the Court stated, in dicta, that "a different question" might be presented if the statute required the landlord to provide cable installation desired by the tenant. We therefore request comment on the question of whether adoption of a prohibition applicable to restrictions imposed on rental property or property not within the exclusive control of the viewer who has an ownership interest would constitute a taking under Loretto, for which just compensation would be required, and if so, what would constitute just compensation in these circumstances. 65. In this regard, we also request comment on how the case of Bell Atlantic Telephone Companies v. FCC should affect the constitutional and legal analysis. In that case, the U.S. Court of Appeals for the District of Columbia invalidated Commission orders that permitted competitive access providers to locate their connecting transmission equipment in local exchange carrier' central offices because these orders directly implicated the Just Compensation Clause of the Fifth Amendment. In reaching its decision, the court stated that "[w]ithin the bounds of fair interpretation, statutes will be construed to defeat administrative orders that raise substantial constitutional questions." V. CONCLUSION 66. We believe that the rule we adopt today reflects Congress' objective as expressed in Section 207 of the 1996 Act. Our rule furthers the public interest by promoting competition among video programming service providers, enhancing consumer choice, and assuring wide access to communications facilities, without unduly interfering with local interests. We also believe it is appropriate to develop the record further before reaching conclusions regarding the application of Section 207 to situations in which the viewer does not have exclusive use or control and a direct or indirect ownership interest in the property where the antenna is to be installed, used, and maintained. VI. PROCEDURAL PROVISIONS A. Final Regulatory Flexibility Analysis 67. As required by Section 603 of the Regulatory Flexibility Act, 5 U.S.C.  603 (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the DBS Order and Further Notice and the TVBS-MMDS Notice. The Commission sought written public comments on the proposals in the two proceedings, including comments on the IRFA. The Commission's Final Regulatory Flexibility Analysis (FRFA) in this Report and Order conforms to the RFA, as amended by the Contract With America Advancement Act of 1996 (CWAAA), Pub. L. No. 104-121, 110 Stat. 847. 68. Need for Action and Objectives of the Rule. The rulemaking implements Section 207 of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56. Section 207 directs 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 TVBS, MMDS and DBS. This action is authorized under the Communications Act of 1934  1, as amended, 47 U.S.C.  151, pursuant to the Communications Act of 1934  303, as amended, 47 U.S.C.  303, and by Section 207 of the Telecommunications Act of 1996. 69. The Commission seeks to promote competition among video service providers and to enhance consumer choice. To accomplish these objectives, the Commission implements Congress' directive by adopting a rule that prohibits restrictions that impair a viewer's ability to install, maintain and use devices designed for over-the-air reception of video programming through TVBS, MMDS, and DBS services. The rule that we adopt preempts governmental regulations and restrictions, and nongovernmental restrictions on property within the exclusive use or control of the viewer in which the viewer has a direct or indirect ownership interest. Our rule exempts regulations and restrictions which are clearly and specifically designed to preserve safety or historic districts, allowing for the enforcement of such restrictions even if they impair a viewer's ability to install, maintain or use a reception device. 70. Summary and Assessment of Issues Raised by Commenters in Response to the Initial Regulatory Flexibility Analysis. The Commission, in its DBS Order and Further Notice and TVBS-MMDS Notice, invited comment on the IRFA and the potential economic impact the proposed rules would have on small entities. NLC comments that the proposed rule would have a "substantial economic and administrative impact" on over 37,000 small local governments. NLC states that the proposed rule would require "local governments to amend their laws and to file petitions at the FCC . . . for permission to enforce those laws." 71. The Commission has modified its proposed rule and has addressed the concerns raised by NLC by providing greater certainty regarding the application of the rule, and by clarifying that local regulations need not be rewritten or amended. The Commission recognizes that some regulations are integral to local governments' ability to protect the safety of its citizens. The rule that we adopt exempts restrictions clearly defined as necessary to ensure safety, and permits enforcement of safety restrictions during the pendency of any challenges. In addition, limiting the rule's scope to regulations that "impair," rather than the proposed preemption of regulations that "affect," will minimize the impact on small local governments, while effectively implementing Congress' directive. Finally, the inclusion in the Report and Order of examples of permissible and prohibited restrictions will minimize the need for local governments to submit waiver or declaratory ruling petitions to the Commission, decreasing the potential economic burden. 72. Numerous apartment complexes filed comments seeking clarification of Section 207's impact on their lease terms. These filings express concern about the impact the rule will have on the rental property industry. This Report and Order applies only to property in the exclusive control or use of the viewer and in which the viewer has a direct or indirect ownership interest. Thus, this order will have no major impact on the rental property industry. The question of the applicability of Section 207 and our rule to rental properties is raised in the Further Notice of Proposed Rulemaking. 73. Several neighborhood associations suggest that our rule will have a negative economic impact on the value of their land and that such a prohibition would constitute a taking, requiring compensation under the Fifth Amendment of the Constitution. We do not believe that implementation of our rule results in a taking of property. There is nothing in the record here to indicate that nullifying a homeowner's ability to prevent his neighbor from installing TVBS, MMDS or DBS antennas has a measurable economic impact on the homeowner's property, nor that it interferes with investment-backed expectations. In support of the rule, several commenters argue that the rule enhances the value of the homeowner's property to prospective purchasers who want access to video programming services competitive to cable. 74. The Commission also notes the positive economic impact the new rule will have on many small businesses. The new rule will allow small businesses that use video programming services to select from a broader range of providers, which could result in significant economic savings; because providers will be competing for customers, more services will be available at lower prices. In addition, small business video programming providers will be faced with fewer entry hurdles, and will thus be able to develop their markets and compete more effectively, achieving one of the purposes of Section 207. 75. Description and Estimate of the Number of Small Entities Impacted. The Regulatory Flexibility Act defines the term "small entity" as having the same meaning as the terms "small business," "small organization," and "small governmental jurisdiction," and "the same meaning as the term small business concern under section 3 of the Small Business Act." A small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). The rule we adopt today applies to small organizations and small governmental jurisdictions, rather than businesses. 76. The term "small governmental jurisdiction" is defined as "governments of . . . districts, with a population of less than fifty thousand." There are 85,006 governmental entities in the United States. This number includes such entities as states, counties, cities, utility districts and school districts. We note that restrictions concerning antenna installation are usually promulgated by cities, towns and counties, not school or utility districts. Of the 85,006 governmental entities, 38,978 are counties, cities and towns; and of those, 37,566, or 96%, have populations of fewer than 50,000. The NLC estimates that there are 37,000 "small governmental jurisdictions" that may be affected by the proposed rule. 77. Section 601(4) of the Regulatory Flexibility Act defines "small organization" as "any not-for-profit enterprise which is independently owned and operated and is not dominant in its field." This definition includes homeowner and condominium associations that operate as not-for-profit organizations. The Community Associations Institute estimates that there were 150,000 associations in 1993. Given the nature of a neighborhood association, we assume for the purposes of this FRFA that all 150,000 associations are small organizations. 78. Reporting, Recordkeeping, and Other Compliance Requirements. The rule does not establish any filing requirements. However, state and local governments and neighborhood associations promulgating regulations that are prohibited by this rule may seek declaratory rulings concerning the validity of a restriction, or may request waivers of the rule. Petitions for declaratory ruling and requests for waiver will be considered through a paper hearing process, and the initiating petition will require only standard secretarial skills to prepare. 79. If a governmental or nongovernmental authority wishes to enforce a safety restriction, the rule requires that the safety reasons for the restrictions be clearly defined in the legislative history, preamble or text of the restriction. Alternatively, the local entity may include a restriction on a list of safety restrictions related to antennas, that is made available to interested parties (including those who wish to install antennas). Thus, governmental entities will not be required to amend their rules. Local officials may need time to review regulations to determine if the safety reasons are clearly defined in the legislative history, preamble or text, or to create a list of applicable restrictions. 80. Steps Taken to Minimize the Economic Impact on Small Entities and Significant Alternatives Rejected. The Commission considered various alternatives that would have impacted small entities to varying extents. These included a rebuttable presumption approach, the use of the term "affect" in the rule, and a rule that allowed for adjudicatory proceedings in courts of competent jurisdiction, all of which were adopted in the DBS Order and Further Notice and proposed in the TVBS-MMDS Notice. The rule we adopt today replaces the rebuttable presumption with a simpler preemption approach, adheres to the statutory language by using the term "impair" rather than "affect" in the rule, and allows for adjudication at the Commission or in a court of competent jurisdiction. We believe that we have effectively minimized the rule's economic impact on small entities. 81. In the DBS Order and Further Notice and the TVBS-MMDS Notice, we adopted and proposed, respectively, a rebuttable presumption approach to governmental regulations, and proposed strict preemption of nongovernmental restrictions. We acknowledged in the DBS Order and Further Notice that a rule relying on a presumptive approach would be more difficult to administer than a rule based upon a per se prohibition, and we sought comment in the TVBS-MMDS Notice on less burdensome approaches. Under the rebuttable presumption approach, local governments would have been required to request a declaratory ruling from the Commission every time they sought to enforce or enact a restriction; and neighborhood associations would not have been able to enforce or enact any restrictions that impaired a viewer's ability to receive the signals in question. The rebuttable presumption approach was adopted to ensure the protection of local interests, including local governments. Based on the record, the Commission recognizes that the burden of rebutting a presumption could strain the resources of local authorities. The Commission has rejected the rebuttable presumption approach for a less burdensome preemption approach. In addition we have provided recourse for both neighborhood associations and municipalities. The rule we adopt today provides for a per se prohibition of restrictions that impair a viewer's ability to install, maintain or use devices designed for over-the-air reception of video programming services. Our Report and Order provides examples of reasonable regulations that can be enforced without a waiver application. The Commission believes that the Report and Order provides such clarity as will make the enforcement of the rule the most efficient and least burdensome for local governments, neighborhood associations, and this Commission. 82. In adopting the new rule, the Commission rejected the alternative of preempting all restrictions that "affect" the reception of video programming services through devices designed for over-the-air reception of TVBS, MMDS and DBS services. The new rule prohibits only those local restrictions that "impair" a viewer's ability to receive these signals and exempts restrictions necessary to ensure safety or to preserve historic districts. In defining the term "impair" we reject the interpretation that impair means prevent because that definition would not properly implement Congress' objective of promoting competition. We find that a restriction impairs a viewer's ability to receive over-the-air video programming signals, if it (a) unreasonably delays or prevents installation, maintenance or use of a device used for the reception of over-the-air video programming signals by DBS, TVBS, or MMDS; (b) unreasonably increases the cost of installation, maintenance or use of such devices; (c) precludes reception of an acceptable quality signal. The use of the term impair will decrease the burden on small entities while implementing Congress' objective. 83. In the DBS Order and Further Notice and the TVBS-MMDS Notice, we discussed the possibility of parties seeking judgment from either the Commission or a court of competent jurisdiction. The Commission is concerned about uniformity in the application of our rule, and about the financial burden that litigation might place on small entities. While we cannot prohibit parties' applications to courts of competent jurisdiction, we address this concern by exercising our Congressional grant of jurisdiction and implementing a waiver process, and encouraging parties to use this approach rather than relying on costly litigation. 84. Waiver proceedings will be paper hearings, allowing the Commission to alleviate the negative potential economic impact from costly litigation. Further, any regulations necessary to the safeguarding of safety will remain enforceable pending the Commission's resolution of waiver requests. The Commission believes that the rule we adopt today effectively implements Congress' intent while minimizing any significant economic impact on small entities. 85. Report to Congress. The Commission shall send a copy of this Final Regulatory Flexibility Analysis, along with this Report and Order, in a report to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.  801(a)(1)(A). A copy of this FRFA will also be published in the Federal Register. B. Paperwork Reduction Act 86. Final Paperwork Reduction Act of 1995 Analysis. This Report and Order has been analyzed with respect to the Paperwork Reduction Act of 1995 and found to contain an information collection requirement on the public. Implementation of an information collection requirement is subject to approval by the Office of Management and Budget as prescribed by the Act. 87. In the DBS Order and Further Notice and the TVBS-MMDS Notice we proposed an information collection process, utilizing waivers and declaratory rulings, that has now been approved by the Office of Management and Budget (OMB). This Report and Order contains a modified information collection that we believe is less burdensome. As part of our continuing effort to reduce paperwork burdens, we invite the general public and OMB to comment on the modified information collections contained in this Report and Order, as required by the Paperwork Reduction Act of 1995, Pub. L. No. 104-13. Public and agency comments are due on or before 30 days from the date of publication of this Report and Order in the Federal Register; OMB comments are due 60 days from the date of publication. Comments should address: (a) whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. 88. Written comments by the public on the modified information collections are due on or before thirty days after publication in the Federal Register. Written comments must be submitted by the Office of Management and Budget (OMB) on the proposed and/or modified collections on or before 60 days after date of publication in the Federal Register. A copy of any comments on the information collections contained herein should be submitted to Dorothy Conway, Federal Communications Commission, Room 234, 1919 M Street, NW, Washington DC 20554, or via the Internet to dconway@fcc.gov, and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 17th Street, NW, Washington DC 20503 or via the Internet to fain_t@al.eop.gov. VI. ORDERING CLAUSES 89. Accordingly, IT IS ORDERED, pursuant to Sections 4(i), 4(j), and 303 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), and 303, and Section 207 of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, that the rule discussed in this Report and Order and set forth in Attachment A IS ADOPTED as Section 1.4000 of the Commission's rules, 47 C.F.R.  1.4000. 90. IT IS FURTHER ORDERED that Section 25.104 of the Commission's rules, 47 C.F.R.  25.104, IS AMENDED as set forth in Attachment A. 91. IT IS FURTHER ORDERED that the Petitions for Reconsideration filed in IB Docket No. 95-59 by Alphastar Television Network, Inc.; County of Boulder, State of Colorado; DIRECTV, Inc.; Florida League of Cities; Hughes Network Systems, Inc.; City of Dallas et al.; National League of Cities et al.; Primestar, Inc.; Satellite Broadcasting and Communications Association of America; and United States Satellite Broadcasting Co., to the extent that they address issues related to Section 207, ARE GRANTED in part as discussed herein, and are otherwise DENIED. 92. IT IS FURTHER ORDERED that pursuant to pursuant to Sections 4(i), 4(j), and 303 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), and 303, and Section 207 of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, NOTICE IS HEREBY GIVEN and COMMENT IS SOUGHT regarding the proposals, discussion, and statement of issues in the Further Notice of Proposed Rulemaking that comprises paragraphs 59 to 65 of this Report and Order, Memorandum Opinion and Order and Further Notice of Proposed Rulemaking. 93. IT IS FURTHER ORDERED that the requirements and regulations established in this decision shall become effective upon approval by the Office of Management and Budget (OMB) of the new information collection requirements adopted herein, but no sooner than 30 days after publication of this Report and Order in the Federal Register. 94. This is a non-restricted notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided that they are disclosed as provided in the Commission rules. See generally, 47 C.F.R.  1.1202, 1.1203, and 1.1206(a). 95. Pursuant to applicable procedures set forth in Sections 1.415 and 1.419 of the Commission's rules, 47 C.F.R.  1.415 and 1.419, interested parties may file comments on or before September 27, 1996 and reply comments on or before October 28, 1996. All pleadings must conform to Section 1.49(a) of the Commission's rules, 47 C.F.R.  1.49(a). To file formally in this proceeding, parties must file an original and six copies of all comments, reply comments and supporting comments. If parties want each Commissioner to receive a personal copy of their comments, they must file an original plus eleven copies. Parties should send comments and reply comments to Office of the Secretary, Federal Communications Commission,Washington, DC 20554. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Room of the Federal Communications Commission, 1919 M Street, NW, Washington, DC 20554. For further information, contact Jacqueline Spindler at (202) 418-7200. 96. This Report and Order, Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking contains both a modified and a proposed information collection. As required by Section 603 of the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the expected impact on small entities of the proposals suggested in this Further Notice of Proposed Rulemaking. The IRFA is set forth in Attachment D. As part of our continuing effort to reduce paperwork burdens, we invite the general public and the OMB to comment on the information collections contained in this Report and Order and Further Notice, as required by the Paperwork Reduction Act of 1995, Pub. L. No. 104-13. Public and agency comments are due at the same time as other comments on this Further Notice; OMB comments are due 60 days from the date of publication of this Report and Order and Further Notice in the Federal Register. Comments should address: (a) whether the modified and proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility and clarity of the information collected; and (d) ways to minimize the burden of collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition to filing comments with the Secretary, a copy of any comments on the information collections contained herein should be submitted to Dorothy Conway, Federal Communications Commission, Room 234, 1919 M Street, NW, Washington DC 20554, or via the Internet to dconway@fcc.gov, and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 17th Street, NW, Washington, DC 20503 or via the Internet to fain_t@al.eop.gov. 97. IT IS FURTHER ORDERED that the Secretary shall send a copy of this Report and Order and Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, including the Final Regulatory Flexibility Analysis and the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with paragraph 603(a) of the Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C.  601 et seq. (1981). FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary ATTACHMENT A Part 1 of Title 47 of the Code of Federal Regulations is amended to read as follows: 1. The authority citation for Part I is revised to read as follows: AUTHORITY: 47 U.S.C. 151, 154, 207, 303 and 309(j) unless otherwise noted. 2. A new Subpart S is added to Part 1 to read as follows:  1.4000. Restrictions impairing reception of Television Broadcast Signals, Direct Broadcast Satellite Services or Multichannel Multipoint Distribution Services (a) Any restriction, including but not limited to any state or local law or regulation, including zoning, land-use, or building regulation, or any private covenant, homeowners' association rule or similar restriction on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership interest in the property, that impairs the installation, maintenance, or use of: (1) an antenna that is designed to receive direct broadcast satellite service, including direct-to-home satellite services, that is one meter or less in diameter or is located in Alaska; or (2) an antenna that is designed to receive video programming services via multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services, and that is one meter or less in diameter or diagonal measurement; or (3) an antenna that is designed to receive television broadcast signals, is prohibited, to the extent it so impairs, subject to paragraph (b). For purposes of this rule, a law, regulation or restriction impairs installation, maintenance or use of an 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. No civil, criminal, administrative, or other legal action of any kind shall be taken to enforce any restriction or regulation prohibited by this rule except pursuant to paragraph (c) or (d). No fine or other penalties shall accrue against an antenna user while a proceeding is pending to determine the validity of any restriction. (b) Any restriction otherwise prohibited by paragraph (a) is permitted if: (1) it is necessary to accomplish a clearly defined safety objective that is either stated in the text, preamble or legislative history of the restriction or described as applying to that restriction in a document that is readily available to antenna users, and would be applied to the extent practicable in a non-discriminatory manner to other appurtenances, devices, or fixtures that are comparable in size, weight and appearance to these antennas and to which local regulation would normally apply; or (2) it is necessary to preserve an historic district listed or eligible for listing in the National Register of Historic Places, as set forth in the National Historic Preservation Act of 1966, as amended, 16 U.S.C.  470a, 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; and (3) it is no more burdensome to affected antenna users than is necessary to achieve the objectives described above. (c) Local governments or associations may apply to the Commission for a waiver of this rule under Section 1.3 of the Commission's rules, 47 C.F.R.  1.3. Waiver requests will be put on public notice. The Commission may grant a waiver upon a showing by the applicant of local concerns of a highly specialized or unusual nature. No petition for waiver shall be considered unless it specifies the restriction at issue. Waivers granted in accordance with this section shall not apply to restrictions amended or enacted after the waiver is granted. Any responsive pleadings must be served on all parties and filed within 30 days after release of a public notice that such petition has been filed. Any replies must be filed within 15 days thereafter. (d) Parties may petition the Commission for a declaratory ruling under Section 1.2 of the Commission's rules, 47 C.F.R.  1.2, or a court of competent jurisdiction, to determine whether a particular restriction is permissible or prohibited under this rule. Petitions to the Commission will be put on public notice. Any responsive pleadings must be served on all parties and filed within 30 days after release of a public notice that such petition has been filed. Any replies must be filed within 15 days thereafter. (e) In any Commission proceeding regarding the scope or interpretation of any provision of this section, the burden of demonstrating that a particular governmental or nongovernmental restriction complies with this section and does not impair the installation, maintenance or use of devices designed for over-the-air reception of video programming services shall be on the party that seeks to impose or maintain the restriction. (f) All allegations of fact contained in petitions and related pleadings before the Commission must be supported by affidavit of a person or persons with actual knowledge thereof. An original and two copies of all petitions and pleadings should be addressed to the Secretary, Federal Communications Commission, 1919 M St. N.W.; Washington, D.C. 20554. Copies of the petitions and related pleadings will be available for public inspection in the Cable Reference Room in Washington, D.C. Copies will be available for purchase from the Commission's contract copy center, and Commission decisions will be available on the Internet. Part 25 of Title 47 of the Code of Federal Regulations is amended as follows: Part 25 - Satellite Communications 1. The authority citation for Part 25 continues to read as follows: AUTHORITY: Sections 25.101 to 25.601 issued under Sec. 4, 48 Stat. 1066, as amended; 47 U.S.C. 154. Interpret or apply secs. 101-104, 76 Stat. 416-427; 47 U.S.C. 701-744; 47 U.S.C. 554. 2. Section 25.104 is amended by revising paragraph (b)(1) and adding paragraph (f) as follows:  25.104 Preemption of Local Zoning of Earth Stations * * * * * (b)(1) Any state or local zoning, land-use, building, or similar regulation that affects the installation, maintenance, or use of a satellite earth station antenna that is two meters or less in diameter and is located or proposed to be located in any area where commercial or industrial uses are generally permitted by non-federal land-use regulation shall be presumed unreasonable and is therefore preempted subject to paragraph (b)(2). No civil, criminal, administrative, or other legal action of any kind shall be taken to enforce any regulation covered by this presumption unless the promulgating authority has obtained a waiver from the Commission pursuant to paragraph (e), or a final declaration from the Commission or a court of competent jurisdiction that the presumption has been rebutted pursuant to subparagraph (b)(2). * * * * * (f) a satellite earth station antenna that is designed to receive direct broadcast satellite service, including direct-to-home satellite services, that is one meter or less in diameter or is located in Alaska is covered by the regulations in 47 C.F.R. Part 1, Subpart S Section 1.4000. ATTACHMENT B Comments in DBS Proceeding AT&T Brigantine Group (Brigantine) C&G Investment Associates May and July Filings (C&G) Carriage Park Condominium (Carriage) Christianson, Ralph and Gwen (Christianson) Cities of Texas, Tennessee, National Association of Counties and the United States Conference of Mayors (Mayors) Community Associations Institute, American Resort Development Association and National Association of Housing Cooperatives (Community) Community Management Corporation (CMC) Compass Retail, Inc. (Compass) Consumer Electronics Manufacturers Association (CEMA) Corporon, Hoehn, Svitavsky, Vaughters & Eyler LLC (Corporon) Danberry Homeowners' Ass'n (Danberry) DIRECTV (DIRECTV) Drummer Boy Homes Assoc., Inc. (Drummer) First Realty Management (FRM) Foster City, City of Haley Realty (Haley) Hancock, Robert & Co. (Hancock) Hendry Investments Inc. (Hendry) Heritage Forest HomeOwners Assoc. (Heritage) Jindal, Dr. Roop L. (Jindal) Joint Comments (NAA) Kraegel, Becky (Kraegel) Microcom (Microcom) Montgomery Village Foundation (Montgomery Village) Mount Vernon Square Townhouse Community Assoc. (Mount) National Association of Home Builders (NAHB) National Rural Telecommunications Cooperative (NRTC) O'Brien, Stewart, Esq. (O'Brien) Oakland Mills Community Assoc., Inc. (Oakland) Orten Hindman & Jordan (Orten) Reston Home Owners Assoc. (Reston) Southbridge Community Assoc. (Southbridge) StoneCroft Condominium (Stonecroft) Sully Station Community Ass'n (Sully Station) Zalco Realty, Inc. (Zalco) Commenters Submitting Similar Letters Fifty community association management companies (Mass) Four hundred and sixty-one property management companies (Coordinated) Reply Comments in DBS Proceeding Robert J. Abbott (Abbott) Community Associations Institute (Community) Consumer Electronic Manufacturers Association (CEMA) DIRECTV, Inc. (DIRECTV) Evermay Community Association (Evermay) Independent Cable & Telecommunications Association (ICTA) Local Communities and National League of Cities (NLC) National Rural Telecommunications Cooperative (NRTC) National Apartment Association, Building Owners & Managers Association, et. al. (NAA) Philips Electronics & Thomson Consumer Electronics, Inc. (Philips) PRIMESTAR Partners L.P. (PRIMESTAR) Satellite Broadcasting and Communications Association (SBCA) DBS Ex Parte Presentations Community Associations Institute, Montgomery Village (Community ex parte) Miller, Canfield, Paddock and Stone. (Miller, Canfield ex parte) National Realty Committee, Rockefeller Group Telecommunications Services, Inc. (NRC ex parte) National Apartment Association, National Multi Housing Council (NAA ex parte) Satellite Broadcasting and Communications Association, DIRECTV, Inc., Hughes Network Systems (SBCA ex parte) DBS Petitions for and Oppositions to Reconsideration Alphastar (Alphastar) Boulder, County of (Boulder) Consumer Electronics Manufacturers Association (CEMA) Cities of Texas, Tennessee, National Association of Counties and the United States Conference of Mayors (Mayors) DIRECTV, Inc. (DIRECTV) Florida League of Cities (FLC) Hughes Network Systems, Inc. (HNS) Michigan, Illinois, Texas Communities (MIT) National League of Cities (NLC) Philips Electronics & Thomson Consumer Electronics (Philips) Primestar Partners L.P. (Primestar) Satellite Broadcasting and Communications Association of America (SBCA) United States Satellite Broadcasting Co. (USSB) Supplemental Filings Compilation of 432 letters and leases apparently submitted by members of National Apartment Association (NAA Compilation) ATTACHMENT C TVBS/MMDS Comments: American Radio Relay League, Inc. (ARRL) Association for Maximum Service Television, Inc. (MSTV) Barrett, Loren Bell Atlantic BellSouth Corporation and BellSouth Interactive Media Services, Inc. (BellSouth) Brody Group (Brody) C & R Realty and Management Co., Inc. (C&R Realty) CAI Wireless Systems, Inc., CS Wireless Systems, Inc. and Heartland Wireless Communications, Inc. (CAI Wireless) Caughlin Ranch Homeowners' Association (Caughlin) CellularVision, USA, Inc. (CellularVision) Cities of Texas, Tennessee, National Association of Counties and the United States Conference of Mayors (Mayors) Client Condominium Ass'n (Client) Community Associations Institute (Community) Community Broadcasters Association (CBA) ComTech Associates, Inc. (ComTech) Consumer Electronics Manufacturers Association (CEMA) Drummer Boy Homes Ass'n (Drummer Boy) Elisha, Ekimoto and Harada (Elisha) Evermay Community Association (Evermay) Georgia Municipal Association (Georgia) Huckleberry Community Association, Inc. (Huckleberry) Independent Cable & Telecommunications Association (ICTA) Indianapolis, Indiana Island Colony ITFS Parties Killeen, Texas Leonard Kryfho (Kryfho) National Apartment Association, et al. (NAA) National Association of Broadcasters (NAB) National ITFS Association (NIA) National League of Cities et al. (NLC) National Trust for Historic Preservation (National Trust) Network Affiliated Stations Alliance (NASA) NYNEX Corporation (NYNEX) Pacific Bell Video Services (PacTel) Parkfairfax Condominium Unit Owners Association (Parkfairfax) Plano, Texas Primestar Partners, L.P. (Primestar) Public Broadcasting Service and the Association of America's Public Television Stations (PBS) Reston Home Owners Association (Reston) Scarinci & Hollenbeck (Scarinci) Silverman & Schild, LLP (Silverman) United Homeowners Association (UHA) WANTV, American Telecasting, Inc. (WANTV) Western Reserve Wireless Cable Association International, Inc. (WCAI) Woodburn Village TVBS/MMDS Reply Comments Bell Atlantic/Bell Atlantic Video Services (Bell Atlantic) CAI Wireless Systems, Inc. (CAI Wireless) CellularVision USA, Inc. (CellularVision) Community Associations Institute (Community) ComTech Associates, Inc. (ComTech) Consumer Electronics Manufacturers Association (CEMA) Michigan, Illinois and Texas Communities (MIT) National Apartment Association, et al. (NAA) National Association of Broadcasters (NAB) Network Affiliated Stations Alliance (NASA) People's Choice TV Corp. (People's Choice) Wireless Cable Association International, Inc. (WCAI) TVBS/MMDS Ex Parte Presentations: Bell Atlantic (Bell Atlantic ex parte ) CAI Wireless (CAI Wireless ex parte ) ComTech (ComTech ex parte) Community Associations Institute (Community ex parte) Independent Cable & Telecommunications Association (ICTA ex parte) National Apartment Association, et al. (NAA ex parte) National Association of Broadcasters (NAB ex parte) National Associaton of Telecommunications Officers and Advisors (NATOA ex parte) National Realty Committee, International Council of Shopping Centers, National Multi Housing Council, National Apartment Association, Rockefeller Group (NRC ex parte) NYNEX (NYNEX ex parte) Pacific Telesis (PacTel ex parte) People's Choice TV (People's Choice ex parte) Wireless Cable Association International, Inc. (WCAI ex parte) ATTACHMENT D Initial Regulatory Flexibility Analysis As required by Section 603 of the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the potential economic impact on small entities of the approach proposed in this Further Notice of Proposed Rulemaking. Written public comments are requested on the IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Further Notice of Proposed Rulemaking provided above. Reason for Action. The rulemaking is initiated to obtain comment on the implementation of Section 207 of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, as it applies to the installation, maintenance or use of antennas on common areas or rental properties, property not within the exclusive control of a person with an ownership interest, where a community association or landlord is legally responsible for maintenance and repair. Objectives. The Commission seeks to evaluate whether preempting non-federal restrictions on commonly owned property and property subject to lease agreements, would: 1) enhance viewers' ability to receive video programming services through devices designed for over-the- air reception of television broadcast signals and multichannel multipoint distribution services; 2) provide an unreasonable management burden for parties owning and legally responsible for the property at issue; and 3) result in the Commission exceeding its statutory authority and Congress' constitutional authority. Legal Basis. The proposed action is authorized under Section 1 of the Communications Act of 1934, as amended, 47 U.S.C.  151, and Section 207 of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56. Reporting, Recordkeeping, and Other Compliance Requirements. Depending on the outcome of the Further Notice of Proposed Rulemaking, neighborhood associations, property management companies and individual landlords promulgating regulations that restrict the installation, maintenance or use of devices designed for receiving over-the-air signals of DBS, MMDS and TVBS may, in certain circumstances, request declaratory rulings from the Commission that their regulations are reasonable, or petition the Commission for waiver of the rule. Federal Rules that Overlap, Duplicate or Conflict with These Requirements. None. Description and Estimate of the Number of Small Entities Impacted. The Regulatory Flexibility Act defines the term "small entity" as having the same meaning as the terms "small business," "small organization," and "small governmental jurisdiction," and "the same meaning as the term small business concern under section 3 of the Small Business Act." A small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). Neighborhood associations and property rental businesses may be affected by the ultimate outcome in the Further Notice of Proposed Rulemaking. These entities might need to revise their covenants and lease restrictions so that they conform with the rule. Section 601(4) of the Regulatory Flexibility Act defines "small organization" as "any not-for-profit enterprise which is independently owned and operated and is not dominant in its field." This definition includes homeowner and condominium associations that operate as not-for-profit organizations. The Community Associations Institute estimates that there were 150,000 associations in 1993. The U.S. Small Business Administration classifies a small entity as a firm with fewer than 500 employees. Utilizing the Standard Industrial Classification Codes for Real Estate Agents and Managers, 100,135 firms (of a total of 100,554) have fewer than 500 employees. This number does include real estate agents, who would not be burdened by the proposed rule, but does not include sole proprietors engaged in leasing rental property, who might be burdened. Any Significant Alternatives Minimizing the Impact on Small Entities Consistent with the Stated Objectives. This Notice solicits comments on a general approach only. August 5, 1996 Separate Statement of Commissi oner James H. Quello Re: In the Matter of Implementation of Section 207 of the Telecommunications Act of 1996, Restrictions on Over-the-Air Reception Devices: Television Broadcast Service and MMDS (CS Docket No. 96-83); Preemption of Local Zoning Regulation of Satellite Earth Stations (IB Docket No. 95-59). This Report and Order, Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking takes several actions to implement the intent of Congress in the Telecommunications Act of 1996 to "prohibit restrictions that impair a viewer's ability to receive video programming services through devices designed for over-the-air reception of television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite service." I previously expressed my concerns that the clear intent of Congress not be applied overbroadly to private, nongovernmental provisions restrictive covenants and homeowners' association rules that run to the placement of over-the-air televison, MMDS, and DBS reception devices. With respect to the impact on private agreements, the Further Notice in this proceeding raises a range questions for further comment including the technical feasibility of providing service in common areas, and legal property issues for access in landlord -owned areas as well as common property for community associations. The issues identified for further comment also reflect an effort to respect rights of property owners as well as an effort to preempt provisions in private agreements only as necessary to preserve reception of signals. Concerning the interests of localities as expressed in this proceeding, I believe that this decision takes appropriate steps in several respects. First, I support the action to eliminate the rebuttable presumption approach and prohibit only state or local laws that "impair", rather than "effect", the installation, maintenance, or use of the reception devices. I am pleased that this clarification will allow local governments more flexibility in traditional land use areas than the previous proposal. The decision also offers greater clarity and guidance to local jurisdictions for their application of the rules. Second, I anticipate that the decision's allowance of exemptions for purposes of safety, and preservation of historic areas will allow local authorities to address the specific needs of their communities through their own rules. In both of the above respects, I believe that the Commission is taking positive steps to address my previous concerns, and will work to resolve the land ownership issues after receiving further comment from interested parties. I also am aware that the issues I have highlighted must be balanced with the intent of Congress not to limit development of competing distributors in the multichannel video marketplace. This is particularly relevant in urban areas or densely populated areas with mulitple dwelling units. Accordingly, I believe that this item takes fair and cautious steps to balance these ownership and jurisdictional issues with the minimal necessary conditions for use of reception devices. August 5, 1996 SEPARATE STATEMENT OF COMMISSIONER RACHELLE B. CHONG Re: Preemption of Local Regulation of Satellite Earth Stations, IB Docket No. 95-59, Implementation of Section 207 of the Telecommunications Act of 1996, CS Docket 96-83, Report and Order, Memorandum Opinion and Order and Further Notice of Proposed Rulemaking In this Report and Order, we implement Section 207 of the Telecommunications Act of 1996. Section 207 directs the Commission to preempt nonfederal restrictions on certain direct-to-home video services, including Direct Broadcast Satellite (DBS) services. I write separately to note my strong support of the rule we adopt today, which is simpler than the one we proposed in our Notice of Proposed Rulemaking. I believe that this rule will be easier to administer and will produce fair results consistent with the intent of Congress. In crafting this rule, we have performed a delicate balancing act. On the one hand, we have weighed the federal interests of ensuring that all consumers have access to a broad range of video programming services and promoting competition among those services. On the other hand, we have weighed important local interests in safety and managing land use in their communities. Ultimately, we have decided to cleave to the language of the 1996 Act and preempt local restrictions that "impair" reception unless the restriction is narrowly tailored to serve public safety or historic preservation objectives. In my judgment, this is very fair to both important interests. I note that we have not completed our work in this proceeding. The rule we adopt applies to governmental and nongovernmental restrictions on property within the exclusive use or control of the viewer, so long as the viewer has a direct or indirect ownership interest. Our Further Notice seeks comment on how Section 207 applies in rental and common ownership situations. This issue is a difficult one. Once again we have competing interests to balance. We must consider the information rights of viewers against the property rights of landlords and those with common ownership, such as condominium associations. It is my view that our resolution of this issue will benefit from a fuller record that fleshes out the legal and practical consequences of either preempting or not preempting in rental and common ownership situations. I encourage interested parties to fully discuss the options and consequences available to us.