FEDERAL COMMUNICATIONS COMMISSION

FACT SHEET

August 1996

Placement of Direct Broadcast Satellite, Multichannel Multipoint Distribution Service, and Television Broadcast Antennas

As directed by Congress in the Telecommunications Act of 1996, the Federal Communications Commission has adopted rules concerning restrictions on viewers' ability to receive video programming signals from direct broadcast satellites (DBS), multichannel multipoint distribution (wireless cable) providers (MMDS), and television broadcast stations (TVBS).

Receiving video programming from any of these services requires use of an antenna, and the installation, maintenance or use of these antennas may be restricted by local governments or community associations. These restrictions have included such provisions as requirements for permits or prior approval, and requirements that a viewer plant trees around the antenna to screen it from view, as well as absolute bans on all antennas. In passing this new law, Congress believed that local restrictions were preventing viewers from choosing DBS, MMDS, or TVBS because of the additional burdens that the restrictions imposed. To implement this legislation, on August 5, 1996, the Commission adopted a new rule that is intended to eliminate unnecessary restrictions on antenna placement and use while minimizing any interference caused to local governments and associations. This rule will become effective after it is approved by the Office of Management and Budget in accordance with the requirements of the Paperwork Reduction Act.

The new rule prohibits restrictions that impair the installation, maintenance or use of antennas used to receive video programming. These antennas include DBS satellite dishes that are less than one meter (39") in diameter (larger in Alaska), TV antennas, and antennas used to receive MMDS. The rule prohibits most restrictions that: (1) unreasonably delay or prevent installation, maintenance or use, (2) unreasonably increase the cost of installation, maintenance or use, or (3) preclude reception of an acceptable quality signal. This rule means that, in most circumstances, viewers will be able to install, use and maintain an antenna on their property if they directly own the property on which the antenna will be located.

The Telecommunications Act and this new rule are designed to promote competition among video programming service providers, enhance consumer choice, and assure wide access to communications. The rule allows local governments and homeowners' associations to enforce restrictions that do not impair reception of these signals as well as restrictions needed for safety or historic preservation. The rule balances these public concerns with an individual's desire to receive video programming. The Commission has asked for further comment on whether additional rules should apply to situations where a viewer wants to install an antenna on property owned by a landlord or on common property controlled by a condominium or homeowners' association.

This fact sheet provides general answers to questions that may arise about the implementation of the rule. For further information, call the Federal Communications Commission at (202) 418-0163.

Q: What types of restrictions are prohibited?

A: The rule prohibits restrictions that impair a viewer's ability to receive signals from a provider of DBS, MMDS or TVBS. The rule applies to state or local laws or regulations, including zoning, land-use or building regulations, private covenants, homeowners' association rules or similar 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. A restriction impairs if it: 1) unreasonably delays or prevents use of, 2) unreasonably increases the cost of, or 3) precludes a subscriber from receiving an acceptable quality signal from, one of these antennas. The rule does not prohibit safety restrictions or restrictions designed to preserve historic districts.

Q: What types of restrictions unreasonably delay or prevent subscribers from receiving a signal?

A: A local restriction that prohibits all antennas would prevent subscribers from receiving signals, and is prohibited by the Commission's rule. Procedural requirements can also impair the ability to receive service. Thus, local regulations that require a person to obtain a permit or approval prior to receiving service will delay reception; this is generally allowed only if it is necessary to serve a safety or historic preservation purpose.

Q: What is an unreasonable additional cost to install, maintain or use an antenna?

A: Any requirement to pay a fee to the local authority in order to be allowed to install an antenna would be unreasonable, unless it is a permit fee that is needed to serve safety or historic preservation or a permit is required in the case of installation on a mast greater than 12 feet. Things to consider in determining the reasonableness of any costs imposed include: the cost of the equipment and services, whether there are similar requirements for other similar installations like air conditioning units or trash receptacles, and what visual impact the antenna has on the surroundings. Restrictions cannot require that relatively unobtrusive DBS antennas be screened by expensive landscaping. 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 general, the costs imposed by local regulations cannot be unreasonable in light of the cost of the equipment or services and the visual impact of the antenna.

Q: What restrictions prevent a subscriber from receiving an acceptable quality signal?

A: A requirement that an antenna be placed in a position where reception would be impossible or would be substantially degraded would conflict with the rule. However, a regulation requiring that antennas be placed to the extent feasible in locations that are not visible from the street would be permitted, if this placement would still permit reception of an acceptable quality signal.

Q: Are all restrictions prohibited?

A: No, many restrictions are still valid. Safety restrictions are permitted even if they impair reception, because local governments bear primary responsibility for protecting public safety. Examples of valid safety restrictions include fire codes preventing people from installing antennas on fire escapes, restrictions requiring that a person not place an antenna within a certain distance from a power line, electrical code requirements to properly ground the antenna, and installation requirements that describe the proper method to secure an antenna. The safety reason for the restriction must be written in the text, preamble or legislative history of the restriction, or in a document that is readily available to antenna users, so that a person wanting to install an antenna knows what restrictions apply. The restriction cannot impose a more burdensome requirement than is needed to ensure safety.

Restrictions in historic areas may also be valid. Because certain areas are considered uniquely historical and strive to maintain the historical nature of their community, these areas are excepted from the rule. To qualify as an exempt area the area must be listed or eligible for listing in the National Register of Historic Places. In addition, the area cannot restrict antennas if such a restriction would not be applied to the extent practicable in a non-discriminatory manner to other other modern structures that are comparable in size, weight and appearance and to which local regulation would normally apply. Valid historical areas cannot impose a more burdensome requirement than is needed to ensure the historic preservation goal.

Q: Whose restrictions are prohibited?

A: Restrictions are prohibited in state or local laws or regulations, including zoning, land-use or building regulations, private covenants, homeowners' association rules or similar restrictions relating to what people can do on land within their exclusive use or control where they have a direct or indirect ownership interest in the property.

Q: If I live in a condominium where the land and the roof are commonly owned, or in an apartment building where the landlord owns the land and the roof, does this rule apply to me?

A: A Further Notice of Proposed Rulemaking has been adopted by the Commission, to obtain comments from interested persons about whether rules should apply in these situations. The Commission will use those comments to reach a decision on this question.

Q: What types of antennas are covered?

1. A "dishA" antenna that is one meter (39") or less in diameter or is located in Alaska and is designed to receive direct broadcast satellite service, including direct-to-home satellite service.
2. An antenna that is one meter or less in diameter or diagonal measurement and is designed to receive video programming services via MMDS (wireless cable). Such antennas may be mounted on "masts" to reach the height needed to establish line-of-sight contact with the transmitter. Masts higher than 12 feet may be subject to local permitting requirements.
3. An antenna that is designed to receive television broadcast signals. Masts higher than 12 feet may be subject to local permitting requirements.

Q: What can a local government, association, or consumer do if there is a dispute over whether a particular restriction is valid?

A: If the local authority defines the restriction as safety-related it is valid, unless a court or the Commission determines that it is not safety-related or is not the least burdensome way to ensure the safety goal. If a local government or association has "highly specialized or unusual" concerns about antenna installation, maintenance or use, it may apply to the Commission for a waiver of the rule, to have its restriction declared valid. Interested parties may petition the Commission or a court of competent jurisdiction for a ruling to determine whether a particular restriction is permitted or prohibited under this rule.

Q: Who is responsible for showing that a restriction is enforceable?

A: When a conflict arises about whether a restriction is valid, the government or association trying to enforce the restriction will be responsible for proving that the restriction is valid. This means that no matter who questions the validity of the restriction, the burden will always be on the local government or association to prove that the restriction is permitted under the rule or that it qualifies for a waiver.

Q: Who do I call if my town or neighborhood association is enforcing an invalid restriction?

A: Call the Federal Communications Commission at (202) 418-0163. Some assistance may also be available from the direct broadcast satellite company, multichannel multipoint distribution service or television broadcast station whose service is desired.

- FCC -