OTARD  

Implementation of Section 207 of the Telecommunications Act of 1996

Restrictions on Over-the-Air Reception Devices: Television Broadcast Service and Multichannel Multipoint Distribution Service

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.