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                              Before the
                     Federal Communications Commission
                          Washington, D.C. 20554

In re                                )
                                     )
Wireless Broadcasting Systems        )           
of Sacremento, Inc.                  )
                                     )           CSR 5001-O
Petition for Declaratory Ruling      )
Under 47 C.F.R.  1.4000             )
                                     

                      MEMORANDUM OPINION AND ORDER

   Adopted:  November 25, 1997                     Released: 
November 28, 1997

By the Chief, Cable Services Bureau:

I.      Introduction

  1.    Petitioner Wireless Broadcasting Systems of Sacramento,
Inc. ("Petitioner") filed a Petition
for Declaratory Ruling ("Petition") seeking a determination that
Morrison Creek Homeowners
Association's ("Morrison Creek") covenants, conditions, and
restrictions that prohibit or restrict the use
of externally mounted over-the-air video programming reception
antennas are prohibited by 47 C.F.R. 
1.4000, the Commission's Over-the-Air Reception Devices Rule
("Rule").  In addition, Petitioner asks
us to examine those portions of Section 1376 of the California
Civil Code that it alleges Morrison Creek
relies upon to support its restrictions.  Morrison Creek did not
file a response to the Petition.  For the
reasons discussed below, we find that Morrison Creek's
restrictions that contravene the Rule are prohibited
and unenforceable.

II.      Background

  2.     On August 5, 1996, the Commission adopted the Rule,
which prohibits governmental and
private restrictions that impair the ability of antenna users to
install, maintain, or use over-the-air reception
devices.  The Rule implemented Section 207 of the
Telecommunications Act of 1996 (the "Act"), which
requires the Commission to "promulgate regulations to prohibit
restrictions that impair a viewer's ability
to receive video programming services through devices designed
for over-the-air reception of . . .
multichannel multipoint distribution services. . . ."  The
Congressional directive to the Commission
promotes one of the primary objectives of the Communications Act
of 1934: "to make available, so far
as possible, to all the people of the United States . . . a
rapid, efficient, nation-wide, and world-wide wire
and radio communication service with adequate facilities at
reasonable charges. . . ."

  3.     The Rule applies to antennas designed to receive direct
broadcast satellite services that are
one meter or less in diameter; antennas designed to receive video
programming services via multipoint
distribution services, including multichannel multipoint
distribution services, instructional television fixed
services, and local multipoint distribution services that are one
meter or less in diameter or diagonal
measurement; and antennas designed to receive television
broadcast signals "on property within the
exclusive use or control of an antenna user where the user has a
direct or indirect ownership interest in
the property" upon which the antenna is to be located.  The Rule
provides that a restriction impairs
installation, maintenance, or use of a protected antenna if it:
(1) unreasonably delays or prevents
installation, maintenance, or use; (2) unreasonably increases the
cost of installation, maintenance, or use;
or (3) precludes reception of an acceptable quality signal. 
There are exceptions to the Rule for valid
safety or historic preservation restrictions, which must be as
narrowly tailored as possible, impose as little
burden as possible, and apply in a nondiscriminatory manner
throughout the regulated area.

  4.     The Rule provides that parties who are affected by
antenna restrictions may petition the
Commission to determine if the restrictions are permissible or
prohibited by the Rule.  The Rule places
the burden of demonstrating that a challenged restriction
complies with the Rule on the party seeking to
impose the restriction.

  A.     Wireless Cable

  5.     Multipoint Distribution Services ("MDS"), Multichannel
Multipoint Distribution Services
("MMDS"), and Instructional Television Fixed Services ("ITFS"),
which use microwave frequencies to
transmit video programming to subscribers, commonly are referred
to as wireless cable systems.  Local
Multipoint Distribution Service ("LMDS") also is a form of
wireless cable.  The specific characteristics
of MDS, MMDS, ITFS, and LMDS signals require that wireless cable
antennas be situated outdoors with
a direct line-of-sight to the transmitter or repeater.

IV.      The Petition

  6.     Petitioner, a wireless cable service provider,
challenges Sections X and 12 of Morrison
Creek's covenants, conditions, and restrictions, and, indirectly,
challenges Section 1376 of the California
Civil Code, which it alleges Morrison Creek relies upon to
buttress its restrictions.  Sections X and 12
provide as follows:

  X.  Architecture.  1) Any exterior structural changes,
including but not limited to
  greenhouse windows, patio covers, window safeguards, etc., must
conform to the existing
  architectures.  2) No antennas, fixed sports equipment
installed on outside of building, or
  satellite dishes are allowed within the premises without prior
approval of the HOA
  [homeowners association].

  Section 12.  No Alterations or Antennas.  In order to insure
adequate aesthetic
  controls and to maintain the general attractive appearance of
the Properties, no Owner,
  resident or lessee shall, at his expense or otherwise,
construct fences, walls, or make any
  alterations, additions or modifications to or on any part or
portion of the Common Areas
  or exterior or interior surfaces of Units, or place or maintain
any objects, such as
  television and radio antennas, flag poles or clotheslines or
awnings, on or about the
  exterior of any building within the project except as
authorized by the Association.  No
  wiring, insulation, air conditioning, plumbing or other
construction, alteration or
  improvements may be undertaken on [sic] any Owner or agent
thereof in any Unit unless
  authorized by the Association.

In a letter to residents, dated June 21, 1996, Morrison Creek
stated, in part, "The Association rules prohibit
the installation of antennas or satellite dishes on the exterior
of the building."  On November 7, 1996,
Morrison Creek's General Manager sent a facsimile to a Pacific
West Broadcasting System Engineer, in
which he noted their previous conversation and pointed out, among
other things, that Pacific West
Broadcasting needed to "remove the equipment [antennas installed
on roofs in Morrison Creek] at the
locations listed as soon as possible.  If you are unable to
comply with this request, by November 21, 1996,
we will contact Eastham Builders to remove the equipment." 
Attached to the facsimile were "a list of
the antennas currently installed on roofs in our homeowners
association area, warning letter to resident,
3 documents prohibiting antennas and dishes, and a copy of
Assembly Bill 104[] addressing antennas
and dishes."

  7.     Petitioner alleges that on or about April 15, 1997,
Morrison Creek's agent "ordered and
orchestrated" the removal of its one meter or less in diameter or
diagonal measurement wireless cable
antennas from the Morrison Creek development.  It requests that
we prohibit Morrison Creek from
enforcing its covenants, conditions, and restrictions that relate
to over-the-air reception devices
encompassed by Section 1.4000 because they either prohibit
antenna installation or require that a
prospective antenna user seek and obtain Morrison Creek's
approval before installing any one of these
devices.  In addition, Petitioner states that Morrison Creek
offers no "health, safety or historic
preservation objective" in justification of its restrictions. 
Even if, Petitioner continues, Section 1376 of
the California Civil Code applies to this dispute, we should
preempt those provision that are inconsistent
with Section 1.4000.  Finally, Petitioner notes that Morrison
Creek, which bears the burden of defending
the restrictions at issue, failed to justify its restrictions.

V.Comments

  8.     BellSouth Corporation ("BellSouth"), Community
Associations Institute ("CAI"), Consumer
Electronics Manufacturers Association ("CEMA"), Pacific Bell
Video Services ("Pacific Bell"), and
Satellite Broadcasting and Communications Association ("SBCA")
filed comments in support of the
Petition.  BellSouth, CAI, Pacific Bell, and SBCA maintain that
Morrison Creek's restrictions conflict with
Section 1.4000.  Pacific Bell argues that Morrison Creek's
reliance upon Section 1376 of the California
Civil Code should not be condoned because that Section is
"unenforceable to the extent that it deems a
prior approval requirement to be reasonable."

VI.      Discussion

  A.     Prohibition of Antennas

  9.     We find that Morrison's Creek has enforced its
covenants, conditions, and restrictions in
a manner that effectively prohibits the use of over-the-air
reception devices protected by Section 1.4000. 
Wireless cable antennas of the sort that Petitioner uses operate
on direct line-of-sight with the transmitter
or repeater and given current technology require an unobstructed
view of the transmitter or repeater.  
Morrison Creek's prohibition violates the Rule because it
"prevents" installation, maintenance, or use of
the antennas and, thereby, "precludes reception of an acceptable
quality signal."  The burden of justifying
the outright prohibition of antennas lies with Morrison Creek; it
has chosen not to participate in this
proceeding.  We find no support in the record for upholding this
prohibition.

  B.     Prior Approval of Antennas

  10.    Notwithstanding its prohibition of over-the-air
reception devices protected by Section
1.4000, Morrison Creek's covenants, conditions, and restrictions
reveal that antenna installation may be
acceptable pursuant to Morrison Creek's unspecified authorization
process.  The preamble to Section 12
states that Morrison Creek's restrictions were enacted "[i]n
order to insure adequate aesthetic controls and
to maintain the general attractive appearance of the Properties.
. . ."  Although the Commission has
preserved the restricting entity's right to consider aesthetic
factors when promulgating antenna placement
restrictions, aesthetic factors may not justify a prior approval
process.

  11.    A prior approval process is impermissible unless it is
necessary for bona fide safety or
historic preservation considerations.  In the instant case, the
record reveals neither a safety nor historic
preservation justification for Morrison Creek's authorization
process.  Accordingly, we find Morrison
Creek's authorization process impermissible under the Rule.

  C.     Section 1376 of the California Civil Code

  12.    Petitioner alleges that Morrison Creek attached a copy
of Assembly Bill 104 (Section 1376
of the California Civil Code) to a facsimile that directed a
Pacific West Broadcasting System Engineer
to remove that firm's antennas from properties located in
Morrison Creek and stated that if Pacific West
did not act, Morrison Creek would have the equipment removed. 
Although Morrison Creek referenced
Section 1376 in its facsimile correspondence, we will not address
that Section here because, as noted
above, Morrison Creek's restrictions impermissibly conflict with
the Rule, which controls in this instance.

VIII.    Ordering Clauses

  13.    Accordingly, IT IS ORDERED, pursuant to Section
1.4000(d) of the Over-the-Air
Reception Devices Rule, 47 C.F.R.  1.4000(d), and Section 1.2 of
the Commission's rules, 47 C.F.R. 
1.2, that Section X and Section 12 of Morrison Creek Homeowner's
Association's covenants, conditions,
and restrictions are hereby prohibited and unenforceable to the
extent that they impair the installation,
maintenance, or use of over-the-air reception antennas protected
by 47 C.F.R.  1.4000 and as discussed
herein.

  14.    This action is taken by the Chief, Cable Services
Bureau, pursuant to authority delegated
by Section 0.321 of the Commission's rules.  47 C.F.R.  0.321.

  FEDERAL COMMUNICATIONS COMMISSION



  Meredith J. Jones
  Chief, Cable Services Bureau