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PE37XP D7zC;,amXz_ pi7Xl;xC4,oXxjp P7XP<zC8,[XzV p7X&;sC0,Xs4@ x7XX",tB^ f ^88Qdd4??d888ddddddddddd88N||NHx|k?d?dd4]oUoYFkv;8o;vkooUHHvkkh`dddd4ddddd8ddddddddv;]]]]]U~Y~Y~Y~YN;N;N;N;vkkkkvvvvh]pkkhk~odddXXddX|d|dXdkkkkvvL;dvddNvsddo8PxdzQz;ppvdkXXdpLkHpLkdPDdvpvvpvhX`Xoxdvkddh8dd444WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNddd8N``ddd]]dFodddF44]]d??ddzzdddvv4]dF"dhd9dCCz8ddoddddYds`zUvddd????zozoY~NYYYN8YooYdYz~dzddYYzozzz~NdzYzzzz88dddddddzdzdYC\   pxtll\tll@\@\`L2f t",tB^ f ^00U``000`000d``````````00FsvdC?vo]x~0d0dd0]`HdH8U`;0d8o]]`N;?hh]YUYdY`4`````0``````d`d;]]]]]~JvJvJvJvJC;C;C;C;o]]]]hhhhY]d]]Y]o]xd`xdXX``xxXv`v`xXd``````D;`d``Cdk``dp8pHv`vCv8ddod`xLxL`dL];dL``pHp8x`hdhhdh`pL~UpLdv`o``x`dx0dd080WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNd``4FQQ```YY`CYdd`C00QQ`;;``zzdddhdk0QdC"dYd9dCCz0d`o`d``Y`s]zUvdYY0000zsozoYvN~YdYC8YooYdYzodzddzYYzozzzvC`zYzzzz00```````z`sdYC\   pxtll\tll@\@\`L yO- X   ) X-w #Xj\  P6G;9XP# Federal Communications Commission`(# FCC 96328 ă  yxdddy )T ă  yO-v3 Before the Federal Communications Commission  yOX} Washington, D.C. 20554 ă  X-#Xj\  P6G;9XP#  X-#Xj\  P6G;9XP##Xj\  P6G;9XP#In the Matter of Th) x` `  hh@h)  X-Preemption of Local Zoning Regulation@h)ppIB Docket No. 9559  X-of Satellite Earth Stations hh@h) x` `  hh@h)  X^ -In the Matter of  hh@h) x` `  hh@h)  X0 -Implementation of Section 207 of the @h)ppCS Docket No. 9683  X -Telecommunications Act of 1996hh@h) x` `  hh@h)  X -Restrictions on OvertheAir Reception Devices:h)  X-Television Broadcast Service and hh@h)pp  X-Multichannel Multipoint Distribution Serviceh)  Xx-  REPORT AND ORDER ,  Xa-  MEMORANDUM OPINION AND ORDER, and  XJ- FURTHER NOTICE OF PROPOSED RULEMAKING ă   X-X` hp x (#%'0*,.8135@8:XX yO- xԍIt should be noted that the Commission's general environmental processing rules categorically exclude the  xmounting of antenna(s) on existing buildings unless the building is an historic site. See 47 C.F.R. 1.1306(b)(3) Note 1./ 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  X-American history, architecture, archeology, engineering, and culture."?x {O/-ԍNational Historic Preservation Act of 1966, as amended, 16 U.S.C.  470a(a)(1)(A). Restrictions on the installation, use and maintenance of overtheair 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 overtheair 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  X7-such as air conditioning units, trash receptacles, or antennas.@7  {O$-ЍSee NRTC DBS Reply at 2; DIRECTV DBS Reply at 9; SBCA ex parte presentation June 11, 1996.  X -x27. Thus as stated above, state and local restrictions, as well as nongovernmental" @,-(-(ZZy" restrictions, e.g., restrictive covenants, that are designed to protect historic areas that are listed  X-or eligible for listing in the National Register of Historic Places,OA {Ob-ԍSee 16 U.S.C.  470a(a)(1)(A).O 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.  XH- #Xj\  P6G;9XP#  x#Xj\  P6G;9XP#C. Technologies Covered by Rule  X -x28. The rules that we adopted in the DBS Order and Further Notice and proposed in  X -the TVBSMMDS Notice are intended to implement Section 207 fully with regard to TVBS,  X -MMDS and DBS. Although we did not define TVBS or MMDS in the TVBSMMDS Notice,  X -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 KuBand DTH services, such as that offered by Primestar, because they use  X-antennas one meter or less in diameter.BZ {O-#X\  P6G;P#  č  #X\  P6G;P#DBS Order and Further Notice  60. We said that "[w]e do not believe Congress intended for these  yOm-medium power systems to face local regulatory burdens not shared by their true DBS counterparts." #X\  P6G;P#ќ We also noted that in the House Report, Congress expressly excluded larger Cband satellite antennas from Section 207, and seemed to focus on  Xj-the size of the antenna, rather than the specific technology, as a basis of distinction.Cj {O-#X\  P6G;P#  č#X\  P6G;P#DBS Order and Further Notice  57, citing House Report at 124. #X\  P6G;P# As the  XS-House Report states, "This service does not include lower power Cband satellites, which  X>-require larger dishes in order for subscribers to receive their signals."D>F yO5-#X\  P6G;P#э #X\  P6G;P#House Report at 124 (emphasis added). #X\  P6G;P#  X- x29. 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  X-services.E {Ok-#X\  P6G;P#Ѝ#X\  P6G;P#See, e.g., ITFS Parties TVBSMMDS Comments at 34 ("[T]he effective intent [of Section 207] was to encourage the widest dissemination of services in the MDS, MMDS and ITFS bands."); NIA TVBSMMDS Comments at 3 (include ITFS); WCAI TVBSMMDS Reply at 3 n.4 (include ITFS and MD); CAI Wireless TVBSMMDS Comments at 2 n.4 ("It was obviously not the intent of the Congress to limit the applicability of Section 207 to antennas that receive only MMDS frequencies."); Bell Atlantic TVBSMMDS Comments at 46 (include LMDS and other new technologies); WANTV TVBSMMDS Comments at 2 (noting the impact restrictions have on ITFS); PBS TVBSMMDS Comments at 3 n.3; Microcom DBS Comments at 23 (stating  {O$-that Section 207 should cover DBS dishes greater than one meter in diameter); CAI Wireless ex parte  {O%-presentation May 20, 1996; WCAI ex parte presentation June 13, 1996; Alphastar DBS Petition at 2; SBCA ex  {Oy&-parte June 11,1996. #Xj\  P6G;9XP#ї These commenters and petitioners contend that the terms "MMDS" and "DBS" should be interpreted broadly because Congress intended Section 207 to promote competition"vE,-(-(ZZ" among video programming services by prohibiting restrictions that impair reception of all  X-forms of video programming.F yOb-#X\  P6G;P#Ѝ#X\  P6G;P#Some commenters also urge that the rule should be sufficiently broad to accommodate the transition to  {O*-advanced television (ATV) because ATV will require new transmission antennas and towers. See MSTV TVBSMMDS Comments at 5 (include transmission antennas under Section 207); CEMA TVBSMMDS Reply at 3 (same). Transmission towers are outside the scope of Section 207, and we accordingly decline to address these  yO-comments here. #Xj\  P6G;9XP#ф 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  X-television fixed service (ITFS),Gz yO -#X\  P6G;P#Ѝ#X\  P6G;P#WANTV TVBSMMDS Comments at 2; PBS TVBSMMDS Comments at 3 n.2; WCAI TVBSMMDS  {O -Comments at 1819; ITFS Parties TVBSMMDS Comments at 12; CAI Wireless ex parte presentation May 20,  {OJ -1996; WCAI ex parte presentation June 13, 1996 (noting that ITFS sometimes uses larger antennas because it is an educational broadcasting service designed to reach distant schools, but that these antennas will be on schools,  yO-not residential property). #Xj\  P6G;9XP#Ѣ and local multipoint distribution service (LMDS).HZ.  yOl-#X\  P6G;P#э#X\  P6G;P#Bell Atlantic TVBSMMDS Comments at 46; ComTech TVBSMMDS Comments at 45; CellularVision TVBSMMDS Comments at 3; CellularVision TVBSMMDS Reply at 23; ComTech TVBSMMDS Reply at 2;  {O-Bell Atlantic ex parte presentation March 13, 1996; ComTech ex parte presentation April 5, 1996. #Xj\  P6G;9XP# 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  X1-information,I{1P  yO2-#X\  P6G;P#  č #X\  P6G;P#AT&T DBS Comments at 45 (declaring that "there is not a valid basis for distinguishing between  {O-[transmit/receive antennas and DBS antennas]"); Abbott DBS Reply at 23; SBCA ex parte presentation June 11,  X-1996. #Xj\  P6G;9XP# ù and mediumpower Kuband DTH satellite services.3J"1 yOu-#X\  P6G;P#  č Primestar DBS Comments at 10; CEMA DBS Comments at 34, n.7; Primestar DBS Reply at 13, 14;  {O=-Alphastar DBS Petition at 2. Contra NLC DBS Reply at 89. NRTC opposes the inclusion of medium power fixed satellite services within the meaning of DBS, but argues that DBS providers should be permitted to use  yO-dishes larger than one meter in diameter outside the continental United States. NRTC DBS Comments at 5. 3 According to one commenter, the legislative history indicates that Congress intended Section 207 to apply to  X -most reception of wireless video programming except systems using large antennas.K } yO1 -#X\  P6G;P# č  Primestar DBS Comments at 1011. Æ x  X - x30. We believe that by directing the Commission to prohibit restrictions that impair viewers' ability to receive overtheair signals from TVBS, MMDS and DBS services, Congress did not mean to exclude closelyrelated 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 pointtomultipoint subscription video distribution service can be provided over each of them. We note that MMDS is the product of MDS technology, the"b K,-(-(ZZJ" 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  X_-the purview of the statute because it is not used to provide overtheair video programming.HL_ yO- x#X\  P6G;P#эIssues relating to VSAT and other satellite services will be addressed separately. The International Bureau will  xYissue a public notice soliciting comments to supplement and refresh the record on any issues remaining in IB Docket  xNo. 9559. In the interim, the rules in 47 C.F.R.  25.104 regarding antennas not covered by Section 207 remain  xin effect. Similarly, the rule adopted here will have no application to services other than those named here.  xiSpecifically, the rule does not affect restrictions on towers or other equipment used in personal communications,  yO -amateur radio, or other such services.#Xj\  P6G;9XP#H  X1-x31. We also believe that the statute can be construed to include mediumpower satellite services using antennas of one meter or less that are used to receive overtheair 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 highpower and mediumpower satellite  X -services using reception devices of one meter or less in diameter.  X-x32. 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  X4-Alaska requires larger antennas than those used in the lower part of the United States. M4@ {O%-#X\  P6G;P#  č  See Microcom DBS Comments at 2 (services offered by DIRECTV, USSB and Echostar are available in  yO-Alaska using antennas ranging in size from one to 2.4 meters.)  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  X-the devices exceed one meter in diameter or diagonal measurement.N {O# -#X\  P6G;P# č  See Attachment A, 47 C.F.R.  25.104. Ì 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 Cband. 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  Xe-Commission policy to ensure that DBS is available to residents across the United States. Oe,  {OB&- x#X\  P6G;P# č  See Revision of Rules and Policies for the Direct Broadcast Satellite Service, IB Docket No. 95168, 60 Fed.  yO '-Reg. 65587 (Dec. 20, 1995).  As"e O,-(-(ZZ" 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  X-other parts of the country, and the need for this exemption may be obviated. P yOK- x#X\  P6G;P#э We are not, however, suggesting that consumers with existing DBS antennas in Alaska can be required to  yO-upgrade if smaller antennas become available.   X-  X-x 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  Xv-TVBSMMDS Notice, we remarked that Section 207 addresses TVBS, MMDS, and DBS  Xa-receiving devices as a group, which suggests that they should be treated similarly.vQa  {O2 -#X\  P6G;P#э  TVBSMMDS Notice  7. v 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  X -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  X -shapes, and may be mounted on a higher "mast."R|  {OQ-#X\  P6G;P#э  TVBSMMDS Notice  7, n.15. We stated: XxMMDS antennas usually take one of three general forms: a rounded disk about 18 inches across, with a metal screen or solid cover; a parabolic (curved rectangular) sheet about 12 inches by 18 inches, either solid or open grillwork; or a "Yagi" antenna, which is a straight,  {O;-branchlike device of varying length. See, e.g., Petition of ACS Enterprises, Inc. for  yO-Preemption of Norristown Zoning Ordinance, filed Sept. 26, 1995. Ƅ In the TVBSMMDS Notice, we sought comment on what types of restrictions would be appropriate for TVBS and MMDS, and  X -particularly whether limits should be placed on mast size.|S  {Oi-#X\  P6G;P#э  TVBSMMDS Notice  7. |  X-x!34. Some commenters and petitioners argue that a widelyadopted model building  X}-code provides a useful description of permitted antennas.T }  yO-#X\  P6G;P#Ѝ Haley DBS Comments at 2; Community DBS Comments at 7, 20; NAA DBS Comments at 1719; O'Brien DBS Comments at 1; Coordinated DBS Comments at 2; NAHB DBS Comments at 2; Mayors TVBSMMDS Comments at 2; Indianapolis TVBSMMDS Comments at 2; Elisha TVBSMMDS Comments at 12; MIT DBS  yO -Petition at 7, 8; NLC DBS Petition at 1315. ù Of four general model codes,UX}p yO!-#X\  P6G;P#Ѝ  Model codes are promulgated by Building Officials & Code Administrators International, Inc. (BOCA), International Conference of Building Officials (ICBO), Southern Building Code Congress International, Inc.  yO.#-(SBCCI), and Council of American Building Officials (CABO). Æ the Building Officials & Code Administrators International, Inc. (BOCA) code is the only one"fU,-(-(ZZh"  X-that includes provisions on antenna installation.VX yOy-#X\  P6G;P#Ѝ The ICBO code is the only other code to mention height limitations for rooftop installations at all, and the ICBO code sets a limit of 25 feet for a structure of combustible materials, and no limit for structures of non yO -combustible materials. We believe that antennas for reception of overtheair signals are noncombustible. ü The BOCA code has been adopted in seventeen states and numerous municipalities nationwide, and therefore its provisions on  X-antenna installation seem wellsuited as a starting place for our discussion.#W {Ok-#X\  P6G;P#Ѝ  See "Who uses BOCA National Codes?" published by Building Officials & Code Administrators  {O5-International, Inc.;  NATOA ex parte presentation March 13, 1996. # 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  X-provisions as model restrictions because of BOCA's inclusion of height and size restrictions.WXD yO -#X\  P6G;P#Ѝ #X\  P6G;P# WCAI TVBSMMDS Comments at 7, 2425; HNS DBS Opposition at 10, 1213; DIRECTV DBS  yOJ -Opposition at 9; NRTC DBS Reply at 5; Primestar DBS Reply at 56. #Xj\  P6G;9XP#W These commenters maintain that such restrictions are not related to safety and are of the sort that Congress intended to prohibit, not permit.  X1-x"35. Several commenters suggest that the Commission expressly preempt all  X -restrictions addressing the shape of antennas or the permitted height of masts.XY|  {Og-#X\  P6G;P#Ѝ#X\  P6G;P#See, e.g., WANTV TVBSMMDS Comments at 12 (discussing factors that can affect the design, size and height of antennas and masts); BellSouth TVBSMMDS Comments at 5 (preempt any restrictions on mast height); MSTV TVBSMMDS Comments at 35 (preempt restrictions relating to the mounting and installation of devices used in conjunction with antennas); NYNEX TVBSMMDS Comments at 56; NASA TVBSMMDS Comments at 6; NAB TVBSMMDS Comments at 78; CEMA TVBSMMDS Reply at 23, 5; CEMA DBS Comments at 78 (ensure that final DBS rule covers all DBS antennas, including those greater than one meter in  {O-diameter); WCAI ex parte presentation June 11, 1996. #Xj\  P6G;9XP#X Some of these commenters, representing the DBS and MMDS industries, note that their antennas are  X -usually less than one meter in diameter or diagonal measurement.Z\  {O}-#X\  P6G;P#Ѝ#X\  P6G;P#See, e.g., NYNEX TVBSMMDS Comments at 56; WANTV TVBSMMDS Comments at 1; Alphastar  {OG-DBS Petition at 2 (antenna size measuring between 24 and 30 inches); Bell Atlantic ex parte presentation March  yO-13, 1996. #Xj\  P6G;9XP#ѱ Some commenters contend that masts should be considered part of the devices used for overtheair reception,  X -and thus regulations restricting them should be prohibited.[C  {Os -#X\  P6G;P#Ѝ#X\  P6G;P#See, e.g., MSTV TVBSMMDS Comments at 35; WANTV TVBSMMDS Comments at 12; BellSouth TVBSMMDS Comments at 5; NYNEX TVBSMMDS Comments at 56; NASA TVBSMMDS Comments at 6; NAB TVBSMMDS Comments at 78; CEMA TVBSMMDS Reply at 23, 5; CEMA DBS Comments at 67;  X"-WCAI ex parte presentation June 11, 1996. #Xj\  P6G;9XP#  Moreover, industry commenters  X -assert that masts are well secured and do not pose a health or safety problem.\  {Og%-#X\  P6G;P#э#X\  P6G;P#Id. #Xj\  P6G;9XP#ѩ 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"y\,-(-(ZZ"  X-DBS, that for technical reasons do not face such limits.d]$ {Oy-#X\  P6G;P#Ѝ#X\  P6G;P#See, e.g., NASA TVBSMMDS Comments at 89 (seek regulatory parity to prevent a competitive  {OC-imbalance between satellite providers and their competitors); see also NYNEX TVBSMMDS Comments at 5 n.9 (rule should accommodate masts of varying heights); BellSouth TVBSMMDS Comments at 56 (cost of entry  yO-into the market would be raised by a mast height restriction); NASA TVBSMMDS Reply at 56. #Xj\  P6G;9XP#d MMDS industry commenters have suggested that the usual heights for masts range from three feet to fifty feet, and they oppose  X-the twelve foot limit included in the BOCA code as too limiting.4^J {O7-#X\  P6G;P#Ѝ#X\  P6G;P#Bell Atlantic ex parte presentation March 13, 1996 (average mast height is 1015 feet); NYNEX ex parte presentation March 13, 1996 (mast heights are usually less than 3 feet or greater than 10 feet); People's Choice  {O -ex parte presentation June 13, 1996 (largest mast commercially produced is 40 feet); PacTel ex parte presentation  {O -June 18,1996 (in Riverside, California, the largest mast used is 20 feet); WCAI ex parte presentation July 2, 1996 (largest mast used is 50 feet). Some commenters also note that in some communities, they rely on "tree mounts," installing MMDS antennas on trees. They note that tree mounts are often shielded by foliage or by  {O -other trees, and are thus relatively unobtrusive. See, e.g., WCAI ex parte presentation June 11, 1996; Bell  {O -Atlantic ex parte presentation April 16, 1996. 4 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  X-offer service in communities in which unusually high masts would be required._  {O-#X\  P6G;P#э#X\  P6G;P#People's Choice ex parte presentation June 13, 1996. #Xj\  P6G;9XP#  X_-x#36. Other commenters suggest that reasonable limits are necessary to promote health,  XH-safety, and aesthetic interests as well as to maintain property values.`zHX  {OQ-#X\  P6G;P#Ѝ#X\  P6G;P#See, e.g., Community TVBSMMDS Reply at 17; MIT TVBSMMDS Reply at 3; NLC DBS Petition at 1516; Boulder DBS Petition at 78 (noting that "incursions of antennas into the hitherto pristine airspace . . . will cause substantial degradation in Boulder County's ongoing effort to preserve scenic views"); Coordinated DBS Comments at 1 ("the appearance of a building directly affects its marketability"); Mass DBS Comments at 2 (unregulated installation of antennas will "lead to a haphazard maze of these devices which will have an adverse visual impact on the community . . . [and] market value"); C&G DBS Comments at 1 (same); NAHB DBS  yO-Comments at 2; NAA DBS Comments at 15; Stonecroft DBS Comments at 1; CMC DBS Comments at 1, 3. #Xj\  P6G;9XP#ѣ One nongovernmental association indicates that a onemeter diameter limit would be reasonable to further regulatory  X -parity among the different services.a  yOe-#X\  P6G;P#э#X\  P6G;P#Community TVBSMMDS Reply at 17. #Xj\  P6G;9XP# Some governmental and nongovernmental commenters encourage limits on mast height, suggesting that we should adopt the BOCA code's twelve X -foot limit.b  * yO!-#X\  P6G;P#Ѝ#X\  P6G;P#Haley DBS Comments at 2; Community DBS Comments at 7, 20; NAA DBS Comments at 1719; O'Brien DBS Comments at 1; Coordinated DBS Comments at 2; NAHB DBS Comments at 2; Mayors TVBSMMDS Comments at 2; Indianapolis TVBSMMDS Comments at 2; Elisha TVBSMMDS Comments at 12; MIT DBS  yO$-Petition at 7, 8; NLC DBS Petition at 1315. #Xj\  P6G;9XP# Others suggest that, at a minimum, mast heights should be no higher than" b,-(-(ZZ" "  X-necessary to receive signals, and no more than a few meters above the roofline.cD {Oy-#X\  P6G;P#Ѝ#X\  P6G;P#See, e.g., Silverman TVBSMMDS Comments at 3; Community TVBSMMDS at 26, Montgomery Village Letter; Community TVBSMMDS Reply at 17; Boulder DBS Petition at 9 (preempt only where the proposed owner/user has no reasonable alternative as to placement). Community also suggests that the Commission impose a standard distance that the transmitter may be from a receiving antenna, and that only viewers who live within this standard distance should be allowed to install a receiving antenna. Community TVBSMMDS Reply at 18. Similarly, representatives from the broadcast industry indicate that while they believe that viewers should be able to receive signals from broadcasters licensed for their area, they did not envision subscribers mounting an  {O-antenna to receive signals from all neighboring cities. NAB ex parte presentation June 14, 1996. #Xj\  P6G;9XP#  X-x$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 safetyrelated, 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  X1-feet above the roofline in order to receive signals.yd1 yO-#X\  P6G;P#эWe note that commenters' references to the BOCA code's 12foot height limitation are inaccurate; the BOCA code does not limit antenna height to 12 feet, but states only that permits may be required for installations that exceed 12 feet. It would not be inappropriate for parties to work with BOCA to develop a uniform model code that would apply to taller masts and obviate the need for a permit up to that taller height. If the code were revised, it would be reasonable to assume that deviations from such a revised code would be prohibited.y However, we would find unenforceable  X -any restriction that establishes specific per se height limits. Similarly, we believe that the BOCA code guideline regarding permits for setbacks is safetybased, is reasonable, and does  X -not impose an unreasonable burden.e@ L  yO-#X\  P6G;P#э#X\  P6G;P#In the section of the BOCA code entitled "Permits not required" it says:   XxThe installation of any antennal structure mounted on the roof of a building shall not be erected nearer to   =the lot line than the total height of the antennal structure above the roof, nor shall such structure be erected near electric power lines or encroach upon any street or other public space.(#  xThus, subject to the other provisions of the code, if an antenna is no closer to the lot line than its total height above  yOc-the roof, no permit will be required. #Xj\  P6G;9XP# 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 onemeter 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  Xd-diameter.fdT {Oi&-#X\  P6G;P#эComTech ex parte presentation April 5, 1996; Bell Atlantic ex parte presentation March 13, 1996. 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"Mf,-(-(ZZ+" signals. However, one commenter notes that the largest antenna used to receive ITFS signals  X-within a 30 mile radius in residential areas is 24 inches in diameter.gZ {Ob- x#X\  P6G;P#э#X\  P6G;P#PacTel ex parte presentation July 24, 1996; People's Choice ex parte presentation June 13, 1996. While  xPeople's Choice notes that larger ITFS antennas, up to six feet in diameter, may be used on schools for distance learning, these antennas would not fall within the purview of our rule.  X-x%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  Xx-commercial or industrial areas, would have the same protection as receiving stations.hx {O -#X\  P6G;P#э#X\  P6G;P#DBS Order and Further Notice  30. We expressly excepted issues related to RF emissions from the rule. #Xj\  P6G;9XP# In contrast, in our proposed implementation of Section 207, we adhered to the statutory text,  XJ-which refers only to reception, not transmission, devices.iJ| {Ow-#X\  P6G;P#э#X\  P6G;P#TVBSMMDS Notice  7. #Xj\  P6G;9XP#Ѿ Several commenters to the DBS  X5-Order and Further Notice and the TVBSMMDS Notice nonetheless urge the Commission to include transmitting antennas under the scope of the rule, arguing that some of the enumerated  X -technologies, particularly MMDS, have transmission as well as reception capabilities.[j   {O-#X\  P6G;P#Ѝ#X\  P6G;P#See, e.g., MSTV TVBSMMDS Comments at 56; WCAI TVBSMMDS Comments at 25 (noting that wireless cable operators will be deploying new transmitting antennas which should be covered under Section 207); PacTel TVBSMMDS Comments at 2 (MMDS will likely have transmission capabilities, and the rule should reference these capabilities now to avoid the need to amend later); ComTech TVBSMMDS Comments at 3 (include LMDS antennas despite their ability to transmit); CellularVision TVBSMMDS Comments at 4 (same); Cellular TVBSMMDS Reply at 3 (preempt restrictions that impair a viewer's ability to transmit information back to the hub); CEMA TVBSMMDS Reply at 5 (transition to advanced television will require new transmission antennas that should be included under Section 207 protection); AT&T DBS Comments at 27;  {O -Bell Atlantic ex parte presentation March 13, 1996; NYNEX ex parte presentation March 13, 1996. #Xj\  P6G;9XP#[ 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  X -transmission.k  yOW-#X\  P6G;P#э#X\  P6G;P#Mayors DBS Petition at 46; Community TVBSMMDS Reply at 1415; Community DBS Reply at 8. #Xj\  P6G;9XP#  X-x&39. We note that MMDS and LMDS antennas may be employed to both receive and transmit signals. In the future, many overtheair video services may provide basic signal  Xh-transmission capability to offer payperview and other interactive options.lhr yO"-#X\  P6G;P##X\  P6G;P#Ѝ"2-Way High-Speed Data Service Tested on Wireless Cable Systems," 16 Comm. Daily 5, June 28, 1996 (American Telecasting completed test of wireless cable system delivering 2-way high-speed data service and  yO$-Internet access showing that wireless cable can operate at same speeds as fastest wired cable modems).  However, by definition, such basic signal transmission capability is often and appropriately considered as a"Q"l,-(-(ZZg" component part of reception of multichannel video programming. Cable service, for example,  X-is defined in part as the oneway transmission of video programming or other programming service together with the capability for subscriber interaction that might be required for the  X-selection of use of such video programming or other programming service.m yO4-#X\  P6G;P#э#X\  P6G;P#47 U.S.C.  602(6). #Xj\  P6G;9XP#Ѷ Thus, antennas that have transmission capability designed for the viewer to select or use video programming  X-are considered reception devices under the rule.nX yO- xԍTo the extent that these antennas have transmission capability, they must meet the standards established in the RF Emissions proceeding noted above. Our rule does not apply to devices that have transmission capability only.  XH- #Xj\  P6G;9XP# x'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  X -antennas exist, especially from nongovernmental authorities,o  {Od-#X\  P6G;P#эNASA TVBSMMDS Comments at 5; NAB ex parte Presentation Jun#X\  P6G;P#e 14, 1996.#Xj\  P6G;9XP# 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.  X- #Xj\  P6G;9XP# xD. Nongovernmental Restrictions  X-x` ` 1. Authority to preempt nongovernmental restrictions  X-x(41. In this section, we address the argument raised by commenters that we lack the  X|-authority to prohibit nongovernmental restrictions, such as restrictive covenants,&p|B yOo!-Ѝ#X\  P6G;P#A restrictive covenant is an interest in real property in favor of the owner of the "dominant estate" that prevents the owner of the "servient estate" from engaging in an activity that he or she would otherwise be  {O"-privileged to do. See R. Powell, Powell on Real Property  34.02[2], (Rohan, ed. 1995). Restrictive covenants are recognized to be "part and parcel of the land to which they are attached." Chapman v. SheridanWyoming Coal Co., 338 U.S. 621, 627 (1950). Restrictive covenants are sometimes used by homeowners' associations to  yOY%-prevent property owners within the association from installing antennas. #Xj\  P6G;9XP#& because such a prohibition would constitute a taking, requiring compensation under the Fifth"e p,-(-(ZZ"  X-Amendment of the Constitution.q^ {Oy-Ѝ#X\  P6G;P#See, e.g., National Trust TVBSMMDS Comments at 2, 4; NAA TVBSMMDS Comments at 3;  {OC-Community TVBSMMDS Reply at 3; NAA TVBSMMDS Reply passim; Corporon DBS Comments at 2;  {O -NAA DBS Comments passim; Southbridge DBS Comments; NAA DBS Reply at 34; ICTA DBS Reply at 56. #Xj\  P6G;9XP# 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.  X-x)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 overtheair 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  X -covenants and encumbrances."r  {O-ԍ#X\  P6G;P#See House Report at 124; note 36, supra. #Xj\  P6G;9XP#Ѯ 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  X -this section."s  {O-ԍ#X\  P6G;P#Id. #Xj\  P6G;9XP#т Thus, in promulgating a regulation that prohibits these restrictions, we are fulfilling the Congressional mandate set forth in Section 207.  X-x*43. We have no authority to declare the Congressional mandate contained in a statute  Xy-to be unconstitutional.ty {O<-Ѝ#X\  P6G;P#See GTE California, Inc. v. FCC, 39 F.3d 940, 946 (9th Cir. 1994) (citing Johnson v. Robison, 415 U.S.  yO-361, 368 (1974)). #Xj\  P6G;9XP# In any event, however, we find that preemption of nongovernmental restrictions does not conflict with the Fifth Amendment. The Fifth Amendment requires the  XK-government to compensate a property owner if it "takes" the homeowner's property.uKl  {Oh-Ѝ#X\  P6G;P#See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 101415 (1992). #Xj\  P6G;9XP# A  X4-taking may involve either the direct appropriation of propertyv4  yO-Ѝ#X\  P6G;P#Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). #Xj\  P6G;9XP# or a government regulation which is so burdensome that it amounts to a taking of property without actual condemnation  X-or appropriation.w  {OE"-ԍ#X\  P6G;P#Lucas, 505 U.S. at 1015. #Xj\  P6G;9XP#ї 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  X-"denies all economically beneficial or productive use of land."x  {O%-ԍ#X\  P6G;P#Id. #Xj\  P6G;9XP#т If a regulation does not  X-result in a per se taking, the courts will engage in an "ad hoc inquiry" to examine "the"x,-(-(ZZ" character of governmental action, its economic impact, and its interference with reasonable  X-investmentbacked expectations."y yOb-ԍ#X\  P6G;P#PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 83 (1980). #Xj\  P6G;9XP#ѳ We do not believe our rule results in a taking of property.  X-x+44. The government may abrogate restrictive covenants that interfere with federal  X-objectives enunciated in a regulation. In Seniors Civil Liberties Ass'n v. Kemp,zZX {O-Ѝ#X\  P6G;P#761 F. Supp. 1528 (M.D. Fla. 1991), aff'd, 965 F.2d 1030 (11th Cir. 1992). See also Westwood Homeowners Ass'n v. Tenhoff, 745 P.2d 976 (Ariz. Ct. App. 1987) (holding that a state legislative refusal to  yO( -enforce restrictive covenants against group homes for the developmentally disabled was not a taking). #Xj\  P6G;9XP# the District Court found no taking in an implementation of the Fair Housing Amendments Act (FHAA) that declared unlawful agebased 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  X -the common good," and not a taking subject to compensation.{ z {O0-ԍ#X\  P6G;P#Id. at 155859. #Xj\  P6G;9XP#ю Similarly, the Commission's rule implementing Section 207 promotes the common good by advancing a legitimate federal  X -interest in ensuring access to communications,|  yO-Ѝ#X\  P6G;P#In addition, the assertion 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, or interferes  {O$-with investmentbacked expectations, is unsupported by the record here.  See, e.g., Penn Central, 438 U.S. 104 (1978). Indeed, some commenters argue that the rule enhances the value of the homeowner's property to  {O-prospective purchasers who want access to video programming services competitive with cable. SBCA ex parte presentation June 11, 1996. and therefore justifies prohibition of  X -nongovernmental restrictions that impair such access.}"  yO-Ѝ#X\  P6G;P#Moreover, if preemption of the restrictive covenants at issue here could be viewed as a taking, the Tucker Act, 28 U.S.C. 1491, presumptively would provide an avenue for obtaining just compensation, thus obviating  {O-any potential constitutional problem. See Bell Atlantic Tel. Cos. v. FCC, 24 F.3d 1441, 1445 n.2 (D.C. Cir.  yOS-1994). #Xj\  P6G;9XP#  X-x,45. Some commenters also challenge our authority to prohibit these restrictions under the Commerce Clause. The Supreme Court has made it clear that Congress not only can supersede local regulation, but also can change contractual relationships between private parties through the exercise of its constitutional powers, including the Commerce Clause, U.S.  X6-Const. art. I,  8, cl. 3. In Connolly v. Pension Benefit Guaranty Corp.,~6r yOY$-ԍ#X\  P6G;P#475 U.S. 211 (1986). #Xj\  P6G;9XP#э the Court stated, XxContracts, however express, cannot fetter the constitutional authority of Congress. Contracts may create rights in property, but when contracts deal"~,-(-(ZZ" 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.  XxIf 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  X_-rights, does not always transform the regulation into an illegal taking._ X-ԍ#X\  P6G;P#Id. at 22324 (quotations and citations omitted) #Xj\  P6G;9XP#. ķ   X1-Moreover, in FCC v. Florida Power Corp.,1y yO[ -ԍ#X\  P6G;P#480 U.S. 245 (1987). #Xj\  P6G;9XP#ѓ 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,  X -including contracts entered into prior to the enactment of the Pole Attachment Act.D  {O-Ѝ#X\  P6G;P#Cf. United States v. Midwest Video Corp., 406 U.S. 649, 674 n.31 (1972) (in upholding a Commission rule that required cable operators to originate programming, the Court, quoting from General Telephone Co. of the Southwest v. United States , 449 F.2d 846, 86364 (5th Cir. 1971), stated the "property of regulated industries is held subject to such limitations as may reasonably be imposed upon it in the public interest and the  {O-courts have frequently recognized that new rules may abolish or modify preexisting interests."); see also Federal Radio Comm'n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. at 282 ("This Court has had frequent occasion to observe that the power of Congress in the regulation of interstate commerce is not fettered by the necessity of  yO -maintaining existing arrangements which would conflict with the execution of its policy"). #Xj\  P6G;9XP# Courts have also found that homeowner covenants do not enjoy special immunity from federal  X -power.\   {Oo-Ѝ#X\  P6G;P#See, e.g., Shelly v. Kraemer, 334 U.S. 1 (1948) (finding racially restrictive covenants judicially  {O9-unenforceable); Mayers v. Ridley, 465 F.2d 630 (D.C. Cir. 1972) (per curiam) (the Court of Appeals en banc  yO-permitted a challenge by homeowners attacking the legality of racially restrictive covenants to proceed). #Xj\  P6G;9XP# 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.  XM- x-46. In proposing a strict preemption of such private restrictions without a specific  X6-rebuttal or waiver provision,69 {O "-ԍ#X\  P6G;P#DBS Order and Further Notice  62 and Appendix II; TVBSMMDS Notice  10 and Appendix A. #Xj\  P6G;9XP# 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  X-and safety considerations. {Om&-ԍ#X\  P6G;P#DBS Order and Further Notice  62. #Xj\  P6G;9XP#Ѫ We note, however, that there was an almost complete lack of a record on nongovernmental restrictions and their purposes."],-(-(ZZ"Ԍ X-  X-x.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  X_-user where the user has a direct or indirect ownership interest in the property._ {O-ԍ#X\  P6G;P#See discussion of waivers and declaratory rulings, infra at III. E. Process and Procedure. #Xj\  P6G;9XP# We seek comment below on the application of Section 207 in other kinds of ownership situations.  X - x/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.  Xe- x2. Installation on property within the exclusive use or control of the viewer and  XN-in which the viewer has a direct or indirect ownership interest  X -x049. 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  X"-ownership],""Z yO&-ԍ#X\  P6G;P#Community DBS Comments at 17. #Xj\  P6G;9XP#і but that an association should be able to enforce reasonable rules related to"",-(-(ZZ!"  X-antenna installation if those rules do not impair reception.pZ {Oy-Ѝ#X\  P6G;P#Id. See also Reston TVBSMMDS Comments at 3; Huckleberry TVBSMMDS Comments at 2; Silverman TVBSMMDS Comments at 3; Oakland TVBSMMDS Comments at 2; Oakland DBS Comments at 2; City of  yO -Foster City DBS Comments. #Xj\  P6G;9XP#p Community association commenters urge that the burden be placed on the homeowner to show why her or his antenna  X-cannot be installed in compliance with the applicable covenant. yOm-ԍ#X\  P6G;P#Silverman TVBSMMDS Comments at 3; Community DBS Comments at 17. #Xj\  P6G;9XP#ѿ Other commenters strongly  X-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  X-the homeowners' association.Nz yO -Ѝ#X\  P6G;P#Community TVBSMMDS Comments at 89; Evermay TVBSMMDS Comments at 2; Georgia TVBSMMDS Comments at 34; Huckleberry TVBSMMDS Comments at 12; Caughlin TVBSMMDS Comments at 2; NAA TVBSMMDS Comments at Attachment 1 at 1415; Community DBS Comments at 78; Corporon DBS Comments at 12; Southbridge DBS Comments; Drummer DBS Comments at 2; Montgomery Village DBS  yO-Comments; Mount DBS Comments; Heritage DBS Comments; Carriage DBS Comments. #Xj\  P6G;9XP#N Some argue that Section 207 does not authorize different treatment of governmental and nongovernmental restrictions, and that nongovernmental  X_-entities should be able to seek waivers or rebut presumptions. _*  yO:-Ѝ#X\  P6G;P#Reston TVBSMMDS Comments at 4; Montgomery Village TVBSMMDS Comments; Caughlin TVBSMMDS Comments at 5; NAA TVBSMMDS Comments at Attachment 2 at 2; National Trust TVBSMMDS Comments at 5. The rule we adopt today allows these entities the same waiver process as is allowed to  yO-governmental entities. #Xj\  P6G;9XP# 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  X -available from an individual antenna installation.  yO-ԍ#X\  P6G;P#Community DBS Comments at 19. #Xj\  P6G;9XP#і  X -x150. 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'  X-association rules,rC yO-Ѝ#X\  P6G;P#WCAI TVBSMMDS Comments at 2324; ARRL TVBSMMDS Comments at 4; CBA TVBSMMDS  {O -Comments at 2; Kraegel DBS Comments; Jindal DBS Comments; NRTC DBS Comments at 56; DIRECTV ex  Xu!-parte presentation June 11, 1996; People's Choice ex parte pr#X\  P6G;P#esentation June 11, 1996#Xj\  P6G;9XP#; #X\  P6G;P#PacTel ex parte  yO^"-presentation June 17, 1996.#Xj\  P6G;9XP#r and that they support our proposed rule.I yO#-Ѝ#X\  P6G;P#Bell Atlantic TVBSMMDS Comments at 34; MSTV TVBSMMDS Comments at 5; NAB TVBSMMDS Comments at 5; NASA TVBSMMDS Comments at 67; NYNEX TVBSMMDS Comments at 45; PacTel TVBSMMDS Comments at 2; WCAI TVBSMMDS Comments at 6, n.14; AT & T DBS Comments at 3; Bell  {OF&-Atlantic ex parte presentation June 17, 1996; PacTel ex parte presentation June 17, 1996; NYNEX ex parte  yO'-presentation June 24, 1996. #Xj\  P6G;9XP#I People's Choice, a wireless"_,-(-(ZZ" 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  X-the influence of cable companies. {OK-Ѝ#X\  P6G;P#People's Choice ex parte presentation June 11, 1996; People's Choice TVBSMMDS Reply at 2, 4. #Xj\  P6G;9XP# Once covenants are in place, they are difficult to amend, according to these commenters, often requiring approval by a twothirds majority of  X-homeowners and recording of changes in local land records.Z {O-Ѝ#X\  P6G;P#People's Choice TVBSMMDS Reply at 56; Bell Atlantic ex parte presentation June 18, 1996.#Xj\  P6G;9XP#  Xv-x251. 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  X1-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  X -governed by the same standards as governmental restrictions.U|  yO-Ѝ#X\  P6G;P#We reject the suggestion made by some commenters that the Commission exempt existing  {Oh-nongovernmental restrictions from the application of the rule. See, e.g., Danberry DBS Comments; Zalco DBS Comments; Sully Station DBS Comments (each arguing that grandfathering existing rules would allow developers of new communities to accommodate antennas in the design of the community and to include covenants that are consistent with Commission regulations.) The legislative history of Section 207 specifically says that "existing" regulations are to be covered by our rule, and thus a grandfathering approach would not  {OR-implement Congressional intent. See House Report at 124. #Xj\  P6G;9XP#U 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.  XK-x352. 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  X-the installation.0  yO -ԍ#X\  P6G;P#Community DBS Comments at 20. #Xj\  P6G;9XP#і As argued by commenters, community associations retain the right to  X-impose restrictions on installation as long as they do not impair reception.  {OI#-ԍ#X\  P6G;P#Id. #Xj\  P6G;9XP#т 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.  X|- "| R ,-(-(ZZ2"Ԍ X- #Xj\  P6G;9XP#  #Xj\  P6G;9XP#xE. Process and Procedure  X- x453. 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  Xy-proceeding.7"y yO- xԍFor example, if the fine for violating a restriction is $50, the viewer may be subject to that fine if the  xwrestriction is determined to be enforceable. If the restriction establishes an ongoing or cumulative fine (e.g., $50 per  xmonth, interest, late fees, or other penalties), these shall not accrue while a court or the Commission is considering  {OJ-the enforceability of the restriction. See DIRECTV DBS Petition at 12; Primestar DBS Petition at 14.7  Xb-  XK-x554. 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  X-preempted. The rules that we adopted in the DBS Order and Further Notice and proposed in  X-the TVBSMMDS 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  X-rebutted. {O-ԍ#X\  P6G;P#DBS Order and Further Notice at Appendix II; TVBSMMDS Notice at Appendix A. #Xj\  P6G;9XP# 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  X-applicability of local regulations.}D {Ow!-#X\  P6G;P#эDBS Order and Further Notice  32. } Commenters from industry support our proposal to place  Xk-the burden of persuasion on the local authorities."k {O#-Ѝ#X\  P6G;P#See, e.g., NASA TVBSMMDS Comments at 78; NAB TVBSMMDS Comments at 7; CEMA TVBSMMDS Reply at 4; NASA TVBSMMDS Reply at 7; Bell Atlantic TVBSMMDS Reply at 6; NAB TVBSMMDS Reply; WCAI TVBSMMDS Reply at 1011; CEMA DBS Comments at 7; DIRECTV DBS Reply at 5;  yOL&-SBCA DBS Reply at 8. #Xj\  P6G;9XP#ѷ These commenters contend that in order to foster competition, the local authority, and not an individual consumer, should have to"T! ,-(-(ZZ"  X-demonstrate that a regulation does not impair access. {Oy-ԍ#X\  P6G;P#Id. #Xj\  P6G;9XP#т Local authorities disagree, and argue that the party seeking to install the reception device or the video service provider should  X-demonstrate that a local regulation impairs his access to TVBS, MMDS or DBS signals.\Z {O-Ѝ#X\  P6G;P#See, e.g., Community TVBSMMDS Reply at 11; Reston DBS Comments at 3; Mayors DBS Petition at  {O-12; NAA DBS Comments at 46; NATOA ex parte presentation March 13, 1996 (burden should be on video  yOq-service providers because they have more resources than local governments). #Xj\  P6G;9XP#  X-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  X-regulation.~ {O -ԍ#X\  P6G;P#DBS Order and Further Notice  31, 32. #Xj\  P6G;9XP#Ѭ 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.  X3-x655. Declaratory ruling and waiver petitions require only paper submissions to the  X -Commission, thus minimizing the burden on all parties.l  yO-Ѝ#X\  P6G;P#Commenters suggest that a paper process will be the best and least costly option. CEMA DBS Reply at 4;  {O-SBCA ex parte presentation June 11, 1996. We agree; formal hearings would be far more burdensome. #Xj\  P6G;9XP#l In the latter case, general waiver  X -guidelines will apply2& j  {O -Ѝ#X\  P6G;P#Northeast Cellular Tel. Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (citing WAIT Radio v. FCC,  {O-418 F.2d 1153 (D.C. Cir. 1969)). Northeast Cellular held that a waiver is appropriate only if special circumstances warrant a deviation from the general rule, if the waiver will serve the public interest, and if the  {O|-waiver is granted in a nondiscriminatory fashion. Id. #Xj\  P6G;9XP#2 and petitions must be pled with particularity, X  yO-Ѝ#X\  P6G;P#Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664, 666 (D.C. Cir. 1968). #Xj\  P6G;9XP# setting forth the local regulation in question and its applicability to TVBS, MMDS, or DBS. Petitioners for waiver  X -must show good cause why the rule should be waived;  {Op-ԍ#X\  P6G;P#Id.; see also Northeast Cellular, 897 F.2d at 1166. #Xj\  P6G;9XP#Ѿ 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  XM-parties ,.Mz yOx#-Ѝ#X\  P6G;P#For example, a community association requesting a waiver should serve any residents who have challenged  yO@$-its restriction and/or have installed antennas. #Xj\  P6G;9XP#. 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"6",-(-(ZZf"  X-permitted, but are not required.Q yOy- xԍ#X\  P6G;P#In order to expedite action on these petitions, we hereby delegate authority to the staff to issue the initial  yOA-rulings in these matters, subject to the usual Commission review process. #Xj\  P6G;9XP#Q  X-x756. In the DBS Order and Further Notice and the TVBSMMDS 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  X-exclusive jurisdiction to resolve disputes between local authorities and consumers.4  {O` -ЍSee e.g., SBCA DBS Opposition at 35; DIRECTV DBS Petition at 812; CEMA DBS Petition and  yO* -Opposition at 6; Primestar DBS Petition at 1213; HNS DBS Petition at 34; USSB DBS Petition at 3. #Xj\  P6G;9XP#4 They contend that if local courts are allowed to adjudicate federal policy, the results may be  Xa-inconsistent, and that uniformity provides the certainty needed to compete effectively."az yO -Ѝ#X\  P6G;P#CAI Wireless TVBSMMDS Comments at 7; WCAI TVBSMMDS Comments at 2022; CAI Wireless  {OT-TVBSMMDS Reply at 3. But see Community TVBSMMDS Reply at 10; Community DBS Reply at 6 (establishing the Commission as the sole forum for resolving disputes will disadvantage local authorities who  yO-lack experience in practicing before the Commission). #Xj\  P6G;9XP# These commenters cite Section 205 of the 1996 Act as explicitly conferring upon the  X3-Commission the "exclusive jurisdiction to regulate the provision of directtohome [satellite]  X -services." d  yO1-ԍ#X\  P6G;P#1996 Act  205, 47 U.S.C.  303(v) (emphasis added). #Xj\  P6G;9XP#ѳ In addition, they note that Town of Deerfield, New York v. FCC  X-ԍ#X\  P6G;P#992 F.2d 420 (2d Cir. 1992). #Xj\  P6G;9XP# may require  X -the Commission to intervene in a case before judicial review or not at all.  yO]-ԍ#X\  P6G;P#DIRECTV DBS Petition at 10, HNS DBS Petition at 4. #Xj\  P6G;9XP#ѫ 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  X -Commission. 5 X-Ѝ#X\  P6G;P#See, e.g., Mayors DBS Petition at 3,12; MIT DBS Opposition at 45 #Xj\  P6G;9XP#. One commenter states that Section 205, read in its entirety, grants the Commission exclusive jurisdiction over only programming, not the antennas themselves. This  X}-party also cites United States v. Lopez} yO!-ԍ#X\  P6G;P#115 S. Ct. 1624 (1995). #Xj\  P6G;9XP#ђ in arguing that zoning and land use regulation are  Xh-police powers reserved for the states under the Tenth Amendment of the Constitution.hv yO#-ԍ#X\  P6G;P#MIT DBS Opposition at 45. #Xj\  P6G;9XP#ѓ Another commenter asserts that the Commission should give the traditional deference to state  X:-and federal courts with regard to health and safety matters.: yO&-ԍ#X\  P6G;P#Mayors DBS Petition at 12. #Xj\  P6G;9XP#ѓ ":#,-(-(ZZ"Ԍ X-ԙx857. 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 directto X-home satellite services," yO4-ԍ#X\  P6G;P#47 U.S.C.  303(v). #Xj\  P6G;9XP#я 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  X_-from time to time, as public convenience, interest, or necessity requires, shall ..." (emphasis added).  X -x958. 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.  X- #Xj\  P6G;9XP#IV. FURTHER NOTICE OF PROPOSED RULEMAKING  X-  X-x: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.  X -x;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 commonlyowned property, and that  X!-applying it to such property would be unconstitutional.Z!X {O%-Ѝ#X\  P6G;P#Community DBS Comments at 12; Community DBS Reply at 3.  See also related comments in Community TVBSMMDS Comments at 11, 1314; C & R Realty TVBSMMDS Comments; Silverman TVBSMMDS Comments at 3; Parkfairfax TVBSMMDS Comments at 1; Woodburn Village TVBSMMDS"J',-(-(k'"  yO-Comments; Southbridge DBS Comments. #Xj\  P6G;9XP# Commenters also raise issues about"!$X,-(-(ZZ " the validity of warranties for certain common areas such as roofs that might be affected or  X-rendered void if antennas are installed.8X yO-Ѝ#X\  P6G;P#Community DBS Comments at 14, Appendix A (letters from Peterson Roofing, Premier Roofing, and  {O-Schuller Roofing Systems); see also Elisha TVBSMMDS Comments at 2; Christianson DBS Comments. 8 These commenters suggest that, in areas where most of the available space is common property, there should be coordinated installation  X-managed by the community association that would assure access to services by all residents.z yO -Ѝ#X\  P6G;P#Community DBS Comments at 21. Community offers several examples of possible approaches that would  {O -accomplish this result. See also Parkfairfax TVBSMMDS Comments at 2; MASS DBS Comments at 2 (associations should be allowed to solicit bids from service providers so that the owners can select a provider); Orten DBS Comments (developers and community associations should be free to bargain with cable, satellite and  yO@ -MMDS providers to serve community). #Xj\  P6G;9XP#z 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  Xv-access available to all services desired by residents.vd  {O-ԍ#X\  P6G;P#NAB ex parte presentation June 14,1996. See also DIRECTV DBS Comments at 10.  #Xj\  P6G;9XP#  X_-  XH-x<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  X -landlord.X  yO-Ѝ#X\  P6G;P#NAA TVBSMMDS Comments; NAA DBS Comments; ICTA TVBSMMDS Comments at 46; FRM DBS Comments. In addition, there are approximately 442 letters in the record, designated as "Coordinated,"  yOQ-from property managers and similar groups expressing the same concerns. #Xj\  P6G;9XP#љ These commenters urge the Commission to clarify that the rule does not affect landlordtenant agreements for occupancy of privatelyowned residential property, and does  X -not apply at all to commercial property.X  yO-Ѝ#X\  P6G;P#National Trust TVBSMMDS Comments at 5; NAA DBS Comments at 1; Brigantine DBS Comments at  yO{-1; Coordinated DBS Comments at 1; C&G DBS Comments at 2; Haley DBS Comments at 2; FRM DBS  yOC-Comments at 1; Hendry DBS Comments at 1; Hancock DBS Comments at 1; Compass DBS Comments at 1. #Xj\  P6G;9XP# Citing the Supreme Court's ruling in Loretto v.  X -Teleprompter Manhattan CATV Corp.,c 6 yO-ԍ#X\  P6G;P#458 U.S. 419 (1982).c 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  X -unconstitutional taking in violation of the Fifth Amendment.6  {O""-Ѝ#X\  P6G;P#National Trust TVBSMMDS Comments at 2, 4, citing Loretto; NAA DBS Comments, citing Loretto. See  {O"-discussion, supra. #Xj\  P6G;9XP#6 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  Xh-permanent occupation.h" yO;'-ԍ#X\  P6G;P#458 U.S. at 421, 440. #Xj\  P6G;9XP#ю NAA argues that a rule requiring antenna installation on landlord"h%,-(-(ZZ"ԫowned 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  X-authorized such compensation.  yOK-Ѝ#X\  P6G;P#NAA argues that if a subscriber chooses to live where cable service is available but antennas are not permitted, he is not prevented from getting some form of video programming, and that the legislation does not mean that every technology must be available to every individual under every circumstance. NAA DBS  yO-Comments at 1213. ü 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  X-marketability, and that our rule could interfere with effective property management.) {O -Ѝ#X\  P6G;P#See, e.g., Elisha TVBSMMDS Comments at 12 (preemption compromises security of buildings by allowing providers access to rooftops); Georgia TVBSMMDS Comments at 34. Coordinated DBS Comments at 1 (noting that aesthetics directly affect a building's value and marketability); Mass DBS Comments at 2 (same); C&G DBS Comments at 1; NAHB DBS Comments at 2. We note NAA DBS Comments at 14, discussing landlords' provision of facilities for data transmission. Our rule applies only to reception devices.  {O-But see, 47 C.F.R.  25.104, regarding transmitting antennas and local zoning restrictions. #Xj\  P6G;9XP##X\  P6G;P# )  X_-x=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  X1-renters and owners, or to exclude renters from the protection of the Commission's rule.1,  yO-ԍ#X\  P6G;P#DIRECTV DBS Comments at 6; SBCA DBS Reply at 24. #Xj\  P6G;9XP#Ѫ 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  X -for these viewers.  yOY-ԍ#X\  P6G;P#DIRECTV DBS Comments at 7. #Xj\  P6G;9XP#ѓ 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  X -landlord, and that the holding in Loretto is very narrow. L  yO-ԍ#X\  P6G;P#SBCA DBS Reply at 5; DIRECTV DBS Reply at 8. #Xj\  P6G;9XP#Ѧ In support of its argument, SBCA  X -contends that in Loretto, a dispositive fact was that the New York law gave outside parties  X-(cable operators) rights, and did "not purport to give the tenant any enforceable property  X-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  XU-different question. . . .'"U yO!-ԍ#X\  P6G;P#SBCA DBS Comments at 5. #Xj\  P6G;9XP#ѐ SBCA also argues that the installation of a DBS antenna is not a  X>-permanent occupation and does not qualify as a taking under Loretto.>l {O[$-ԍ#X\  P6G;P#Id. at 56. #Xj\  P6G;9XP#ѐ DIRECTV argues that the Fifth Amendment is not implicated by a rule preempting private antenna restrictions because other regulations of the landlordtenant relationship, e.g., a regulation requiring a"&,-(-(ZZ("  X-landlord to install sprinkler systems, have not been deemed a taking.`& {Oy-Ѝ#X\  P6G;P#DIRECTV DBS Comments at 8, citing FCC v. Florida Power Corp. for the distinction between the  {OC-treatment of a tenant and an "interloper with a government license" such as the cable company in Loretto.  {O -DIRECTV DBS Reply at 8, quoting Florida Power, 480 U.S. at 25253; see also NYNEX TVBSMMDS  yO-Comments at 67; Philips Electronics DBS Reply at 69. #Xj\  P6G;9XP#`  X-x>63. Neither the DBS Order and Further Notice nor the TVBSMMDS 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  X -exterior surface issues.uX  yO- xԍDIRECTV DBS Reply at 910 (stating that a decision on the issue of antenna installation in multiple dwelling  xunits should be deferred pending the Commission's action on inside wiring rules and policies, Telecommunications Services Inside Wiring and Customer Premises Equipment, CS Docket No. 95184). u 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 landlordowned 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 overtheair reception devices on rental or commonlyowned 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.  X-x?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  X-or control and a direct or indirect ownership interest in the property. On the question of our  X~-legal authority, we note that in Loretto,<~ yO#-ԍ458 U.S. 419 (1982).< 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";'f ,-(-(ZZ"  X-installation desired by the tenant.? {Oy-ԍId. at 440 n.19. ? 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  X-constitute a taking under Loretto, for which just compensation would be required, and if so, what would constitute just compensation in these circumstances.  Xx-x@65. In this regard, we also request comment on how the case of Bell Atlantic  Xc-Telephone Companies v. FCCFcZ yOn -ԍ24 F.3d 1441 (D.C. Cir. 1994).F 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  X -orders that raise substantial constitutional questions.":  {Ov-ԍId. at 1444.:  X - V. CONCLUSION  X-xA66. 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.  X- VI. PROCEDURAL PROVISIONS  X-x A. Final Regulatory Flexibility Analysis  XT-xB67. As required by Section 603 of the Regulatory Flexibility Act, 5 U.S.C.  603  X=-(RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the DBS Order  X(-and Further Notice and the TVBSMMDS Notice. The Commission sought written public  X-comments on the proposals in the two proceedings, including comments on the IRFA.X| yO@%- xԍ#X\  P6G;P#Joint Comments were filed by: National League of Cities; The National Association of Telecommunications  xOfficers and Advisors; The National Trust for Historic Preservation; League of Arizona Cities and Towns; League  x-of California Cities; Colorado Municipal League; Connecticut Conference of Municipalities; Delaware League of"&,-(-(&"  xLocal Governments; Florida League of Cities; Georgia Municipal Association; Association of Idaho Cities; Illinois  x0Municipal League; Indiana Association of Cities and Towns; Iowa League of Cities; League of Kansas  xZMunicipalities; Kentucky League of Cities; Maine Municipal Association; Michigan Municipal League; League of  x,Minnesota Cities; Mississippi Municipal Association; League of Nebraska Municipalities; New Hampshire Municipal  xhAssociation; New Jersey State League of Municipalities; New Mexico Municipal League; New York State Conference  xof Mayors and Municipal Officials; North Carolina League of Municipalities; North Dakota League of Cities; Ohio  xLMunicipal League; Oklahoma Municipal League; League of Oregon Cities; Pennsylvania League of Cities and  xiMunicipalities; Municipal Association of South Carolina; Texas Municipal League; Vermont League of Cities and  xTowns; Virginia Municipal League; Association of Washington Cities; and Wyoming Association of Municipalities  yO-(together, "NLC"). #Xj\  P6G;9XP# The"(` ,-(-(ZZ[" 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  X-(CWAAA), Pub. L. No. 104121, 110 Stat. 847.Z`  yO - x#X\  P6G;P#э#X\  P6G;P#Subtitle II of the CWAAA is The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),  {O - x<codified at 5 U.S.C.  601 et seq. (1996). We note that the Initial Regulatory Flexibility Analysis needed for our  yOu-further rulemaking is provided in Attachment D.#Xj\  P6G;9XP#  X-xC68. Need for Action and Objectives of the Rule. The rulemaking implements Section 207 of the Telecommunications Act of 1996, Pub. L. 104104, 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 overthe XJ-air reception of TVBS, MMDS and DBS.J  yO}-ԍ#X\  P6G;P#1996 Act  207. #Xj\  P6G;9XP#ы This action is authorized under the  X3-Communications Act of 1934  1, as amended, 47 U.S.C.  151, pursuant to the  X -Communications Act of 1934  303, as amended, 47 U.S.C.  303, and by Section 207 of the Telecommunications Act of 1996.  X -xD69. 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 overtheair 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.  X-xE70. Summary and Assessment of Issues Raised by Commenters in Response to the  X-Initial Regulatory Flexibility Analysis. The Commission, in its DBS Order and Further  X-Notice and TVBSMMDS Notice, invited comment on the IRFA and the potential economic"),-(-(ZZ"  X-impact the proposed rules would have on small entities. {Oy-#X\  P6G;P#эDBS Order and Further Notice at Appendix III; TVBSMMDS Notice at Appendix B.#Xj\  P6G;9XP# NLCZ {O -Ѝ#X\  P6G;P#See supra note 192.#X\  P6G;P# Ü comments that the proposed rule would have a "substantial economic and administrative impact" on over 37,000  X-small local governments. yOo-ԍ#X\  P6G;P#NLC DBS IRFA Comments at 2. #Xj\  P6G;9XP#є NLC states that the proposed rule would require "local governments to amend their laws and to file petitions at the FCC . . . for permission to  X-enforce those laws."X| {O -ԍ#X\  P6G;P#Id.X  X- x  Xv-xF71. 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  XH-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  X -governments, while effectively implementing Congress' directive. Finally, the inclusion in the  X -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  Xy-Commission, decreasing the potential economic burden.  XK-xG72. Numerous apartment complexes filed comments seeking clarification of Section  X4-207's impact on their lease terms._4 yO-#X\  P6G;P#эNAA Compilation._ 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  X-raised in the Further Notice of Proposed Rulemaking.u {O!-#X\  P6G;P#эSee  6365, supra.u  X-xH73. 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"|*0 ,-(-(ZZ2"  X-taking, requiring compensation under the Fifth Amendment of the Constitution.^ {Oy-Ѝ#X\  P6G;P#See, e.g., National Trust TVBSMMDS Comments at 2, 4; NAA TVBSMMDS Comments at 3;  {OC-Community TVBSMMDS Reply at 3; NAA TVBSMMDS Reply passim; Corporon DBS Comments at 2;  {O -NAA DBS Comments passim; Southbridge DBS Comments; NAA DBS Reply at 34; ICTA DBS Reply at 56. #Xj\  P6G;9XP# We do not  X-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  X-homeowner's property, nor that it interferes with investmentbacked expectations. {OC -#X\  P6G;P##X\  P6G;P#эSee  4345, supra.#Xj\  P6G;9XP#  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  Xa-services competitive to cable.~a {O -#X\  P6G;P#эSBCA ex parte presentation June 11, 1996.~  X3-xI74. 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  X -markets and compete more effectively, achieving one of the purposes of Section 207.   X{-xJ75. 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  X!-Act."! yO-ԍ#X\  P6G;P#Regulatory Flexibility Act, 5 U.S.C.  601(3) (1980). #Xj\  P6G;9XP#ѱ 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  X-by the Small Business Administration (SBA). XF-ԍ#X\  P6G;P#Small Business Act 15 U.S.C.  632 ( #Xj\  P6G;9XP# 1996).  The rule we adopt today applies to small organizations and small governmental jurisdictions, rather than businesses.  X-xK76.  The term "small governmental jurisdiction" is defined as "governments of . . .  X-districts, with a population of less than fifty thousand."S  yO$-ԍ#X\  P6G;P#5 U.S.C.  601(5). #Xj\  P6G;9XP#ю There are 85,006 governmental  X-entities in the United States.  {O'-#X\  P6G;P#эUnited States Dept. of Commerce, Bureau of the Census, 1992 Census of Governments. Į This number includes such entities as states, counties, cities,"+u ,-(-(ZZP" 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  X-governmental jurisdictions" that may be affected by the proposed rule. yO-#X\  P6G;P#э#X\  P6G;P#NLC IRFA Comments at 2. #Xj\  P6G;9XP#ѷ  Xv-xL77. Section 601(4) of the Regulatory Flexibility Act defines "small organization" as "any notforprofit enterprise which is independently owned and operated and is not dominant  XH-in its field."HX yOQ -ԍ#X\  P6G;P#5 U.S.C.  601(4). #Xj\  P6G;9XP#ю This definition includes homeowner and condominium associations that operate as notforprofit organizations. The Community Associations Institute estimates that  X -there were 150,000 associations in 1993.  yO-ԍ#X\  P6G;P#Community DBS Comments at 2. #Xj\  P6G;9XP#ѕ Given the nature of a neighborhood association, we assume for the purposes of this FRFA that all 150,000 associations are small organizations.  X -x M78. 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  Xd-rule.udx {O-#X\  P6G;P#эSee  5355, supra.u 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.  X-xN79. 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  X-legislative history, preamble or text of the restriction.J  {O-ԍSee  25,  supra. J 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.  X9-xO80. Steps Taken to Minimize the Economic Impact on Small Entities and Significant  X$-Alternatives Rejected. The Commission considered various alternatives that would have impacted small entities to varying extents. These included a rebuttable presumption approach,",,-(-(ZZ" the use of the term "affect" in the rule, and a rule that allowed for adjudicatory proceedings in  X-courts of competent jurisdiction, all of which were adopted in the DBS Order and Further  X-Notice and proposed in the TVBSMMDS 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.  Xc-  XL-xP81. In the DBS Order and Further Notice and the TVBSMMDS Notice, we adopted  X7-and proposed, respectively, a rebuttable presumption approach to governmental regulations,7 {O -Ѝ#X\  P6G;P#DBS Order and Further Notice at  28 and Appendix II; TVBSMMDS Notice at  8 and Appendix A. #Xj\  P6G;9XP#  X -and proposed strict preemption of nongovernmental restrictions. Z {O+ -ԍ#X\  P6G;P#DBS Order and Further Notice  62 and Appendix II; TVBSMMDS Notice  10 and Appendix A. #Xj\  P6G;9XP# We acknowledged in the  X -DBS Order and Further Notice that a rule relying on a presumptive approach would be more  X -difficult to administer than a rule based upon a per se prohibition,  {O-ԍ#X\  P6G;P#DBS Order and Further Notice  25. #Xj\  P6G;9XP#Ѫ and we sought comment  X -in the TVBSMMDS Notice on less burdensome approaches.m ~ {O-#X\  P6G;P#эTVBSMMDS Notice  8.m 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  X)-presumption approach for a less burdensome preemption approach.u) {O-#X\  P6G;P#эSee  2327, supra.u In addition we have provided recourse for both neighborhood associations and municipalities. The rule we adopt  X-today provides for a per se prohibition of restrictions that impair a viewer's ability to install, maintain or use devices designed for overtheair reception of video programming services. Our Report and Order provides examples of reasonable regulations that can be enforced  X-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  X-for local governments, neighborhood associations, and this Commission.   X^-xQ82. In adopting the new rule, the Commission rejected the alternative of preempting  XG-all restrictions that "affect" the reception of video programming services through devices designed for overtheair 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"-,-(-(ZZ" and exempts restrictions necessary to ensure safety or to preserve historic districts. In  X-defining the term "impair" we reject the interpretation that impair means prevent| {Ob- x#X\  P6G;P#эSee, e.g., Caughlin TVBSMMDS Comments at 2 (nongovernmental restrictions should be preempted only if  xYthey preclude reception); Reston TVBSMMDS Comments at 3 (restrictions that "do not operate as complete bans"  xhor that do not "limit reception" are not inconsistent with Section 207); NLC TVBSMMDS Comments at 34; NAA  yO- xTVBSMMDS Comments, Attachment 2 at 5 (only restrictions that completely prevent); Community TVBSMMDS  yO- xReply at 10; NAA DBS Comments at 13; NLC DBS Reply at 5; NLC DBS Petition at 23 (impair means prevent).  {OL- xBut see DIRECTV DBS Opposition at 6 (opposing NLC's claim that impair means prevent); SBCA ex parte presentation June 11, 1996. because that definition would not properly implement Congress' objective of promoting competition. We find that a restriction impairs a viewer's ability to receive overtheair video programming signals, if it (a) unreasonably delays or prevents installation, maintenance or use of a device used for the reception of overtheair video programming signals by DBS, TVBS, or MMDS; (b) unreasonably increases the cost of installation, maintenance or use of such devices; (c)  X_-precludes reception of an acceptable quality signal.m_  {O-#X\  P6G;P#эSee  5, supra.m The use of the term impair will decrease the burden on small entities while implementing Congress' objective.  X1-  X -xR83. In the DBS Order and Further Notice and the TVBSMMDS 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.  Xd-xS84. 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.  X-xT85. 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. x  XR-x B. Paperwork Reduction Act  X$-xU86. 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".,-(-(ZZ=" 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. x  X-xV87. In the DBS Order and Further Notice and the TVBSMMDS 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. 10413. 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.  X6-xW88. Written comments by the public on the modified information collections are due  X- 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.  XP- VI. xORDERING CLAUSES  X"-xX89. 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. 104104, 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.  X"-xY90. 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.  XS%-xZ91. 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"%'/,-(-(ZZ%"  X-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.  X-x[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. 104104, 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.  X -x\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.  Xd-x]94. This is a nonrestricted notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided that they are  X8-disclosed as provided in the Commission rules. See generally, 47 C.F.R.  1.1202, 1.1203, and 1.1206(a).  X-x^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) 4187200.  X -x_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,")'0,-(-(ZZ%" Pub. L. No. 10413. 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.  X -x`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. 96354, 94  X4-Stat. 1164, 5 U.S.C.  601 et seq. (1981). x X` "(#%'0*,.8135@8: