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Format DownloadFormat Downloaded Document[iޛ r5- XX    \ #d6X@`7Ͽ@#"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\pBnnBsgg>\\7"yyyy\nlc\gnn\7jC:,3Xj\  P6G;XPy.X80,IX\  P6G;P7nC:,Xn4  pG;X W!@(#,9h@\  P6G;hP2a=5,(&a\  P6G;&P2e=5,D&e4  pG;&inapps\office\shared\wpc ???2, X-,0Í Í,0Í ÍҊX` hp x (#%'0*,.8135@8:bV XI-ԍXxTexas and Michigan Communities at 19.(#^ It goes on to assert, "The proposed rule will create a diminution of value. Property owners will be economically impacted if neighbors are free to install unsafe, highly visible media monstrosities on their lot lines in the front yards. The average home buyer will not purchase, or at least not pay full market value for property that is negatively impacted by dangerous and  X_-unsightly conditions on neighboring land."I?_wV X -ԍXxId. at 20.(#I This assertion is not supported by any facts showing that satellite earth station antennas affect property values. As previously stated, our rule only presumes a regulation to be unreasonable if it affects very small antennas. Large antennas remain subject to reasonable aesthetic requirements. Further, commenters have failed to demonstrate that any diminution of property values is caused by the presence of small satellite earth station antennas.  X -B. Specific Rule Sections  X-x28.` ` In crafting our preemption policies, we have attempted to reflect the differences in the antennas involved and have tried to accommodate the varying local interests. The main state and local concerns regarding installation of satellite earth stations relate to aesthetics, health, and safety. These concerns would appear to be greater for larger antennas, thus the rule permits greater local regulation for larger antennas. For smaller antennas, local interests are less compelling and, accordingly, we more narrowly define permissible local regulation. After reviewing the record, we conclude that the basic thrust of our proposals is appropriate and will adequately address concerns of antenna users while accommodating interests of state and local governments. However, commenters have raised concerns about the clarity of certain portions of our rule and, accordingly, we made adjustments to the adopted version to address these problems. 1. Revised Rule Section 25.104: Preemption of Local Zoning of Earth Stations x` ` Xx(a) Any state or local zoning, landuse, building, or similar regulation that materially limits transmission or reception by satellite earth station antennas, or imposes more than minimal costs on users of such antennas, is preempted unless the promulgating authority can demonstrate that such regulation is reasonable, except that nonfederal"?0*((" regulation of radio frequency emissions is not preempted by this rule. For purposes of this paragraph (a), reasonable means that the local regulation:(# XxX` ` (1) has a clearly defined health, safety, or aesthetic objective that is stated in the text of the regulation itself; and(#` XxX` ` (2) furthers the stated health, safety, or aesthetic objective without unnecessarily burdening the federal interests in ensuring access to satellite services and in promoting fair and effective competition among competing communications service providers.(#` Xx(b)(1) Any state or local zoning, landuse, building, or similar regulation that affects the installation, maintenance, or use of: (# XxX` ` (A) a satellite earth station antenna that is two meters or less in diameter and is located or proposed to be located in any area where commercial or industrial uses are generally permitted by nonfederal landuse regulation; or (#` XxX` ` (B) a satellite earth station antenna that is one meter or less in diameter in any area, regardless of land use or zoning category(#`  X4- x xshall be presumed unreasonable and is therefore preempted subject to paragraph (b)(2). XxNo civil, criminal, administrative, or other legal action of any kind shall be taken to enforce any regulation covered by this presumption unless the promulgating authority has obtained a waiver from the Commission pursuant to paragraph (e), or a final declaration from the Commission or a court of competent jurisdiction that the presumption has been rebutted pursuant to subparagraph (b)(2).aa(# XxX` ` (2) Any presumption arising from subparagraph (b)(1) of this section may be rebutted upon a showing that the regulation in question: ` XxX` ` X (A) is necessary to accomplish a clearly defined and health or safety objective that is stated in the text of the regulation itself; (# XxX` ` X (B) is no more burdensome to satellite users than is necessary to achieve the health or safety objective; and(# XxX` ` X (C) is specifically applicable on its face to antennas of the class described in subparagraph (b)(1).(# Xx(c) Any person aggrieved by the application or potential application of a state or local zoning or other regulation in violation of paragraph (a) of this section may, after exhausting all nonfederal administrative remedies, file a petition with the Commission requesting a declaration that the state or local regulation in question is preempted by"#'?0*((%" this section. Nonfederal administrative remedies, which do not include judicial appeals of administrative determinations, shall be deemed exhausted when:(# XxX` ` (1) the petitioner's application for a permit or other authorization required by the state or local authority has been denied and any administrative appeal and variance procedure has been exhausted;(#` XxX` ` (2) the petitioner's application for a permit or other authorization required by the state or local authority has been on file for ninety (90) days without final action;(#` XxX` ` (3) the petitioner has received a permit or other authorization required by the state or local authority that is conditioned upon the petitioner's expenditure of a sum of money, including costs required to screen, polemount, or otherwise specially install the antenna, greater than the aggregate purchase or total lease cost of the equipment as normally installed; or (#` XxX` ` (4) a state or local authority has notified the petitioner of impending civil or criminal action in a court of law and there are no more nonfederal administrative steps to be taken.(#` Xx(d) Procedures regarding filing of petitions requesting declaratory rulings and other related pleadings will be set forth in subsequent Public Notices. All allegations of fact contained in petitions and related pleadings must be supported by affidavit of a person or persons with personal knowledge thereof. (# Xx(e) Any state or local authority that wishes to maintain and enforce zoning or other regulations inconsistent with this section may apply to the Commission for a full or partial waiver of this section. Such waivers may be granted by the Commission in its  Xe-sole discretion, upon a showing by the applicant that local concerns are of a highly specialized or unusual nature. No application for waiver shall be considered unless it specifically sets forth the particular regulation for which waiver is sought. Waivers granted in accordance with this section shall not apply to laterenacted or amended regulations by the local authority unless the Commission expressly orders otherwise.(# 2. Clarification regarding transmitting antennas  X"-x29.` ` Several commenters urge that we rearrange the rule to clarify its application to transmitting antennas. For example, HNS understands that the Commission intends to give transmitting antennas the same protection as receiving antennas with the exception of issues"h$?0*(((#"  X-related to RF emission. @V Xy-ԍXxContra Comments of Duncan at 5 which state, without explanation, that "widespread transmission capability could have significant consequences at the local level, different from mere reception capability" .(#  However, HNS asserts that the structure of the proposed rule, with transmitting facilities not mentioned at the outset, does not accomplish this objective as clearly as it should. HNS urges us to restructure the rule and to refer in paragraph (a) specifically to  X-local regulations that limit transmission as well as reception.LAKV X -ԍXxHNS Comments at 14.(#L GE also stresses the need to  X-clarify that the rule extends to transmitting antennas.JB`V X -ԍXxGE Comments at 6.(#J  Xv-x30.` ` We agree that a reworded rule would be clearer. Therefore, the rule we adopt specifically includes transmitting facilities, with the exception of RF emission hazard regulation, in the scope of the first paragraph. 3. Operation of Presumptions  X -x31.` ` HNS requests clarification that if an antenna is within the category covered by the presumption of unreasonableness, a user can install it without seeking a declaration from the Commission that the local ordinance is preempted. Then, if the locality has an objection that is arguably within the purview of a rebuttal, the local authority can enforce its ordinance by rebutting the presumption as in subparagraph (b)(2). We agree that in order for the presumptions to be effective, the burden should fall on the localities to justify regulation of small antennas. Because such regulation is presumed unreasonable, users should be free to install antennas covered by the presumption without first proving the unreasonableness of the local requirement. Accordingly, we have adopted DIRECTV's suggestion that the words  X-"therefore preempted" be added to section (b)(1) of the rule..pCuV X-ԍXxSee Comments of DIRECTV at 6; HNS at 2324.(#p In addition, we have added language to assure that local authorities can not take enforcement action until their regulation  X-is deemed in compliance with our rule.D V X!-ԍXxConsumers are not liable for any penalties that may accrue for noncompliance with a regulation during the pendency of any case brought for determination of the reasonableness of that regulation.(# We caution users that a particular local ordinance may have previously been declared not to be preempted, either because the local authority has obtained a waiver from the Commission pursuant to subparagraph (e), or because the local authority has rebutted the presumption of preemption based on subparagraph (b)(2). "qD0*((Q"Ԍ X-x32.` ` Local government representatives claim that the presumptions shift the burden of persuasion to the locality and that this violates established state law precedent holding that  X-local laws are presumed valid.>EV XK-ԍxDallas at 17.> These commenters state that placing the burden on the local  X-government will encourage antenna users, who do not have to sustain a burden of proof, to file petitions with the Commission. Commenters' argument that our system of presumptions illegally shifts justification burdens is not determinative. Our preemption, by its nature, replaces the state or local law with our federal rule. Moreover, in adopting our rule, we are establishing a test by which both municipalities and consumers can determine the applicability of local regulations. Ordinances that meet this test will be presumed valid unless shown otherwise under the general test for reasonableness. The presumptions are designed to clarify for all parties the extent of permissible local regulation and thus should decrease, not increase, the number of petitions.  X -x 33.` ` With respect to the size of antenna covered by a presumption, the record demonstrates that the one and twometer proposals accurately reflect the current state of the industry. According to commenters, most DTH services provided by higherpower satellites  X-use antennas less than one meter in diameter.FvyV X-ԍXxSee Comments of DIRECTVat 2, USSB at 10 and Primestar at 3. We refuse to adopt the suggestion of Sony that the size be reduced to 24 inches because this limit would  X-exclude several existing services that are using slightly larger antennas. See also Comments of Duncan at 11 that urge a size based on the smallest size antennas proposed for use; Comments of Midwest Star Satellite at  31, suggesting that the size be raised to three meters.(# Likewise for commercial areas, the twometer  Xy-size appears to encompass most antennas used by VSAT providers.eGy V X-ԍXxSee Comments of HNS at 21, GE at 10. (#e  XK-x!34.` ` GE urges us to change the geographic designation in the presumption for two X4-meter antennas.NH40 V Xy-ԍXxComments of GE at 12.(#N The rule we proposed limits the presumption to areas where commercial uses are "generally permitted" and GE asks that this be changed to "in fact permitted". According to GE, one of its largest VSAT customers is a national drugstore chain and this type of facility could be located in an area where commercial uses are not "generally permitted". GE asserts that if a commercial establishment is in fact operating in a particular area, it should be permitted to install a VSAT antenna. We decline to make this change. As GE points out, landuse authorities sometimes make casebycase exceptions to allow one or two particular businesses to operate in a neighborhood where commercial uses are generally forbidden. They may do so based on very specific proposals (e.g., a drugstore in a Victorian"|E H0*((" house) or strict conditions (e.g., on signage or dumpsters) designed to preserve the neighborhood's noncommercial character. We do not believe these situations, which are by definition exceptional, should be subject to a general presumption. Nor do we believe that local balances already carefully struck for discrete parcels of land should be upset after the  X-fact by a federal rule that commercial use carries with it the right to a VSAT antenna. Again, however, these cases are fully subject to our general preemption rule, stated in section 25.104(a), and a locality that has not otherwise restricted the trappings of commercial activity in a noncommercial neighborhood will find it more difficult to justify antenna regulation in such areas on aesthetic grounds.  X -x"35.` ` The presumption against local regulation can be rebutted by a demonstration of the necessity for health and safety regulation. MCI suggests that the word "reasonable" be added to the presumption to assure that local regulations are carefully tailored to meet their objective. We believe that this addition would add complexity to the rule and is unnecessary. Under the rule as originally proposed, local governments are required to be reasonable. A local ordinance, for example, could not use RF emission hazard concerns as a basis to regulate receiveonly antennas that do not emit radiation. Similarly, safety regulations must be realistic and not discriminate against satellite earth station antennas. For example, the city of Plantation, Florida argues that localities in hurricaneprone areas should have blanket waivers to impose more stringent safety regulations. However, HNS points out that during Hurricane Andrew, none of its antennas were lost where the underlying building was not destroyed. According to HNS, the antennas remained secure while the air conditioning units  X-next to them were ripped off the roof.oIV X-ԍXxHNS Ex Parte presentation on November 14, 1995. (#o If a local government can demonstrate that a health or safety requirement meets the criteria for rebuttal, its regulation is not preempted. For example, local regulations that address require secure antenna mounting, require clearance of electric wires, or restrict access by children would appear to be reasonable under our rule. We note that these precautions would probably be taken in any event by consumers or professional installers. We also emphasize that a locality cannot rebut the presumption  X|-covering small antennas with aesthetic concerns."J|yV X -ԍXxSee Comments of GE at 13. Duncan at 1213 expresses concerns about particular  X-areas such a historic districts that can be addressed in waiver requests. See also Comments of Madison Heights, Michigan.(#"  XN-x#36.` ` SBCA states that larger Cband antennas that range in size from 6 to 7.5 feet can be disguised as rocks or umbrellas. SBCA suggests that such disguised antennas be included under the presumption of unreasonable regulation. We decline to adopt this suggestion as we believe it would complicate the application of the rule. A size designation is a more objective standard, whereas the concept of disguise could introduce uncertainty to the rule. We emphasize, however, that in challenging the reasonableness of particular regulations, it may well be easier to attack restrictions on antennas that have been made to look like" `J0*((" natural objects or like other nonobtrusive structures commonly found in residential  X-neighborhoods, at least when those restrictions are based on aesthetic grounds.   X-x $37.` ` We also are changing former sections (b) and (c) to clarify the relationship between presumption and rebuttal, and between the rebuttable presumption on one hand and the general reasonableness standard on the other. First, we have combined paragraphs (b) and (c) of our proposed rule into one new paragraph (b) governing the entire system of rebuttable presumptions. Second, we have modified paragraph (b)(1) to make clear that the presumption of unreasonableness applies only to small (2 meters or less) satellite antennas. We believe the changes we adopt will clarify how the system of rebuttable presumption fits together with the general preemption rule. Therefore, we will change paragraph section (b)(1) to say Xx "Any state or local zoning, landuse, building, or similar regulation that affects the installation, maintenance, or use of:  XxX` ` X (A) a satellite earth station antenna that is two meters or less in diameter and is located or proposed to be located in any area where commercial or industrial uses are generally permitted by nonfederal landuse regulation; or XxX` ` X (B) a satellite earth station antenna that is one meter or less in diameter in any area, regardless of land use or zoning category shall be presumed unreasonable and is therefore preempted subject to paragraph (b)(2). No civil, criminal, administrative, or other legal action of any kind shall be taken to enforce any regulation covered by this presumption unless the promulgating authority has obtained a waiver from the Commission pursuant to paragraph (e), or a final declaration from the Commission or a court of competent jurisdiction that the presumption has been rebutted  X|-pursuant to subparagraph (b)(2)."h 4. Revision of reasonableness standard  X -x%38.` ` Paragraph (a) of the rule contains the basic reasonableness test to determine  X -whether a local regulation is preempted.K V X -ԍXxWe believe that the operation of the reasonableness test will accomplish the same objective as the alternatives suggested by the City of Dallas etc. in their comments at 14.(# Our proposal contained several revisions of the old rule: eliminating the threshold discrimination test, requiring that the locality's legislative objective be expressly stated, and requiring that the burdens imposed by the regulation be balanced against the federal interest in promoting competition in and access to satellite services. ""KK0*((!"Ԍ X-x&39.` ` Comments filed in response to the Notice suggested some additions and changes to our proposal. Commenters were especially concerned about the term "substantial costs" in paragraph (a). This section would preempt nonfederal regulations that impose substantial costs on antenna users unless such costs are demonstrably reasonable. As the Notice explained, "substantial" is not the same as "enough to be reasonable" and is a low threshold showing that a federal interest has been impacted in a manner that is "not  Xv-insignificant."QLvV X-ԍXxNotice at  58.(#Q Several commenters expressed concern that the use of the word "substantial" does not clearly convey our intent that the financial burden be minimal. GE, for example,  XH-suggests that "material" would be a clearer measure.mMHyV X -ԍXxSee also Comments of Primestar at 5, MCI at 2.(#m SBCA suggests that only "de minimis"  X1-costs be permitted.PN1V X-ԍXxComments of SBCA at 26.(#P Primestar and DIRECTV urge that the Commission should preempt all costs or fees for consumer use antennas. Primestar also argues that when calculating a permissible fee, a local government must consider services where customers lease antennas and whose entry costs are necessarily lower than those which require an up front purchase. Primestar also urges that time burden and service delay should be factored into a consideration of costs. NTCA argues that if providers are going to be required to pay for spectrum, additional local costs should not be permitted. HNS urges adoption of a brightline test to define substantial costs. For business use antennas, HNS argues that the following nonfederal requirements should be deemed substantial: x  XK-xi.` ` Imposition of more that $50 in costs, including governmental fees, engineering x` ` or legal fees, and the cost of any construction or alteration necessitated by the x` ` regulation:  X-Xxii.X` ` being required to wait more than seven days for a permit or other authorization before installation is allowed; andx`  X-Xxiii.X` ` being required to attend a hearing or meeting of any kind.POV X-ԍXxComments of HNS at 18. (#Px`  X-x'40.` ` Local governments, on the other hand, argue that the Commission's rule allows them to collect reasonable costs based on permit and inspection fees so that costs attributable to the satellite industry be paid by those who benefit from the technology and not be passed"|O0*(("  X-on to the taxpayer in general.PV Xy-ԍXxComments of Texas and Michigan Communities at 28. This commenter also complains that the term "substantial" is unclear.(#Ʊ One group suggests that the Commission abolish its own fee  X-system if it preempts local fees.nQbV X`-ԍXxComments of Southwest Suburban Cable Commission at 2.(#n  X-x(41.` ` In response to the requests for greater clarity, we are changing the threshold for  X-costs to "more than minimal" instead of "substantial".RwV X0 -ԍXxWe decline to adopt HNS's brightline test because we are concerned that it too narrowly addresses possible costs.(#ƫ We believe that this better conveys the nature of the costs we believe should be imposed on antenna users absent specific justification. Thus, any nonfederal costs including those related to permitting or installation requirements must be very low or must be justified by the governmental entity imposing them pursuant to paragraphs (a)(1) and (2). In addition, any costs imposed on users of small antennas as defined in paragraph (b)(1) are presumed to be unreasonable and therefore preempted unless the imposing authority affirmatively rebuts the presumption using the higher standard of paragraph (b)(2). We believe that this change will address the concerns of local governments as well. Under our rule, if a city can demonstrate that circumstances make it necessary to require a permit, a fee for such a permit may be charged if it reasonably reflects the city's costs in processing an application. The key words in this analysis are "reasonable" and "necessary". For example, it would not appear to be either reasonable or necessary to require a permit for a consumerinstalled, 18inch DBS antenna and thus a corresponding fee would also be unwarranted. For a larger antenna, a permitting process with a required fee might be appropriate as long as the requirements for the permit and the fee are the minimum necessary to accomplish a permissible local objective.  X-x)42.` ` GE asserts that local governments should be required to include their legislative  X-objective in the text of the specific regulation on satellite earth station antennas.MSuV X-ԍXxComments of GE at 8.(#M It states that this would then ensure that a regulation's objective is directly related to antennas and is not merely part of a general building code that may or may not specifically apply. Texas and Michigan Communities object to this suggestion on the ground that this will force amendment  X-of many local codes.RT V XI$-ԍXxComments of Dallas at 18.(#R We agree with GE and have accordingly changed our proposal to reflect the requirement that the objective be expressly stated in the text of the antenna regulation. We believe this will assure that antenna users will be more likely to be aware of a specific regulation and that localities will more narrowly tailor their requirements. We also"e T0*((" note that, in light of the significant changes in our rule, many local codes will have to be amended in any event.  X-x*43.` ` GE argues that we should change the standard from "substantially" limits  X-reception to "materially" limits.UV X-ԍXxComments of GE at 7. See also Comments of Midwest Star Satellite at  44.(#ƌ We agree that this term more accurately reflects the limited burden that should be placed on the use of satellite earth station facilities by local governments.  XH-x+44.` ` Finally, the rule we adopt clarifies the federal interests that must not be  X1-unnecessarily burdened by local regulation.[V1yV X -ԍXxSee Comments of Duncan at 9.(#[ As stated in the Notice, there is a strong federal interest in ensuring access to a variety of communications services including satellite services,  X -and in adopting procompetitive regulatory policies that facilitate such access.[W V X-ԍxSee Comments of GE at 9; 1986 Order.[ In addition,  X -we have clarified how federal interests should be accommodated. 4. Procedures for Commission review  X-x,45.` ` In the Notice, the Commission concluded that it is time to abandon its policy  Xy-requiring exhaustion of all remedies in light of the Deerfield case and because of concerns raised by satellite earth station antenna users. After meeting with industry representatives  XK-prior to the adoption of the Notice, representatives of local governments acknowledged the  X4-need for Commission review of certain disputes.X4V X-ԍXxNotice at  38. Accord, Comments of Duncan at 1; Texas and Michigan Communities at 9.(#Ɲ Accordingly, we proposed procedures for review of zoning cases after nonfederal administrative remedies have been exhausted. We also announced our intention to receive, during this rulemaking, petitions for declaratory rulings on the validity of local ordinances under the 1986 rule.  X-x-46.` ` Based on the comments filed and on the five petitions we have received, the major issue with respect to Commission review is the question of when administrative remedies have been exhausted. First, parties representing industry complain that the 90day waiting period in our proposal is too long and that local authorities should be able to rule on  Xe-applications within 30 days.Ye V X&-ԍXxSee, e.g., Comments of Primestar at 8, SBCA at 35, HNS at 8, and MCI Reply Comments at 6. (#ƥ Local governments, on the other hand, assert that 90 days is"e Y0*(("  X-too short and that they should not be forced to comply with a specific deadline.vZV Xy-ԍXxComments of Madison Heights, Michigan at 1; Dallas at 19. (#v On balance,  X-we adopt our 90day proposal as a reasonable amount of time for a local ruling.[yV Xw-ԍXxSee Comments of U.S.S.B. at 15 asserting that the period be no longer than 90 days.(#ƒ Local officials need to have time to act within their own processes. An unreasonably short period could result in a greater volume of cases filed with the Commission. However, the record supports our conclusion that there should be a time after which delay becomes unreasonable and local remedies are not working. We believe that 90 days strikes the appropriate balance.  X_-x.47.` ` Local governments have expressed concern that complying with review  XH-procedures will require appearances before the Commission and will be unduly expensive.6\HV X -ԍXxTexas at 5. Commenters representing the satellite industry complain that complying with the Commission's previous exhaustion of litigation remedies was so burdensome as to force users to abandon satellite technology altogether. Comments of HNS at iii.(#6 We emphasize that our intention is to adopt simple procedures that require only paper filings  X - ĩ not personal appearances. Antenna users and local governments are also free to pursue litigation remedies in federal or state courts if they wish to forfeit Commission review. In addition, we disagree with comments that suggest we include procedures to allow participation of adjacent property owners in disputes before the Commission as such participation would not be relevant in the context of a determination of the reasonableness of a particular  X -ordinance as applied.\] uV X1-ԍxReply comments of City of Dallas etc. at 6.\  Xy-x/48.` ` Another issue that has been raised is whether exhaustion of nonfederal remedies includes exhaustion of available variance procedures. The rule we are adopting requires antenna users to exhaust all nonfederal administrative remedies before seeking Commission review of a local zoning decision. We strongly believe that local governments need to have the opportunity to review their own landuse decisions. Exhaustion, however, has been  X-defined in a variety of ways. Subparagraph (c)(1) outlines the most straightforward type of exhaustion a final denial of a necessary permit with no possibility of appeal. For purposes of this path to exhaustion, we think it is appropriate to require users to apply for variances if necessary. However, there are other paths outlined in subparagraphs (c)(2) through (4), and the mere availability of a variance procedure has no effect upon these other paths. x  X|-x049.` ` Industry representatives suggest that the cost threshold for exhaustion be  Xe-lowered.s^e V X'-ԍXxEg., Comments of Midwest Star Satellite at  45. (#s MCI suggests that costs not exceed those for a typical overtheair antenna or the"e ^0*(("  X-antenna user can come to the Commission.N_V Xy-ԍXxComments of MCI at 7.(#N SBCA suggests that we eliminate the necessity that a potential petitioner actually be informed about costs and that a good faith belief that he will incur excessive costs is sufficient. We decline to adopt both of these suggestions because we believe that they would unduly circumvent the power of local governments to act before we become involved.  Xv-x150.` ` Finally, R.J. Abbot suggests that the Commission institute a noncompliance penalty for local governments. We do not believe a penalty is necessary in light of our review procedures. Mr. Abbot also suggests that the Commission adopt a complaint form, and we agree that such a form would be very helpful. However, we intend to gain some additional experience with review procedures before proposing a form and would consider this issue at a later time. We are adopting a requirement that factual allegations be supported by affidavit.  X -6. Waivers  X-x251.` ` Local governments have also requested that we clarify our waiver standard and  Xy-enumerate some examples of what circumstances would justify a waiver of our rule.`yyV X-ԍXxComments of City of Dallas etc. at 28. This waiver procedure should address the concerns of Duncan at 13 with respect to preemptability of particular ordinances.(# We do not agree with some local representatives that all zoning ordinances would generally qualify for waivers because they address peculiar or unique situations. In fact, the opposite is true. Local legislation is generally directed at the common uses of property in particular zones. Some examples of circumstances that might warrant consideration of a waiver, depending on the circumstances and on how other types of antennas or modern accoutrements are treated,  X-are genuine historic districts,qawV X{-ԍXxSee Comments of Midwest Star Satellite at  41.(#q waterfront property, or environmentally sensitive areas.ibV X-ԍXxSee Comments of Sanibel Island., Florida. (#i We emphasize that this list is not exhaustive nor is it determinative. Localities must demonstrate something peculiar or unique about the situation to justify a waiver. 7. RF Emissions "| b0*(("Ԍ X-x352.` ` A number of commenters urge the Commission to preempt all local regulations  X-related to RF emissions.cV Xb-ԍXxComments of GE at 14, EIA Replies at 6; SBCA at 33, HNS at 3134, Interlink Satellite Services.(#Ƙ Because we proposed not to preempt this type of nonfederal regulation, the record in this proceeding is insufficient to take action on this issue. Parties wishing to raise these concerns should do so by formally requesting additional rulemaking action. We note, however, that in reviewing local regulations under revised Section 25.104, we will examine the reasonableness of any health or safety regulation, and that we are not aware of any reasonable health concerns associated with installation of receiveonly antennas that do not emit radiation. 8. Miscellaneous issues  X -x453.` ` Several commenters urge us to expand the scope of this proceeding to include  X -antennas used for other than satellite services.Ad bV Xc-ԍXxSee Comments of ACS Enterprises (wireless cable); Assoc. for Maximum Service Television,Inc. (all antennas); Bell Atlantic (MMDS); NAB; Sony (need to get over the air stations with regular antennas or customers will turn to cable); MCI; Wireless Cable Assoc.(#A As we have stated previously, we decline to broaden the issues here to include other services. This proceeding is directed specifically to Section 25.104 and our proposals to revise it. Several other petitions to preempt local regulation of other types of antennas are pending with the Commission and concerns about  X-other services should be discussed in the context of these petitions.0e2V X-ԍXxPetition for Declaratory Ruling filed by the Cellular Telecommunications Industry Association on December 22, 1994 (RM8577); Petition of ACS Enterprises, Inc. for Preemption of Norristown Zoning Ordinance filed September 26, 1995 (MDS service). (#0 In addition, as required by section 207 of the 1996 Act, the Commission does plan to initiate a separate rulemaking proceeding to adopt rules relating to MMDS and overtheair broadcast antennas.  X4-x554.` ` Similarly, we have consistently declined to consider the preemption of private covenants and deed restrictions that ban or inhibit installation of satellite antennas. However,  X-the 1996 Act directs the Commission to now undertake to prohibit the enforcement of such restrictions. We therefore revisit this question in the Further Notice of Proposed Rulemaking below. x  X-  Further Notice of Proposed Rulemaking ă  X|-x655. ` ` On February 1, 1996, both houses of Congress passed the Telecommunications Act of 1996. The President signed it into law on February 8, 1996. Section 207 of the 1996 Act states:"N e0*(("ԌXx` ` Within 180 days after the date of enactment of this Act, the Commission shall, pursuant to section 303 of the Communications Act of 1934, promulgate regulations to prohibit restrictions that impair a viewers ability to receive video programming services through devices designed for overtheair reception of television broadcast signals, multichannel multipoint distribution  X-service, or direct broadcast satellite services.KfV X-ԍXx1996 Act  207.(#K  We note that the scope of this Notice is limited to the implementation of section 207 as it relates to restrictions that impair a viewer's ability to receive video programming services through devices designed for direct broadcast satellite services. We will address the other  X -services specified in section 207 in a separate proceeding.  X -x756.` ` Section 207 is not limited by its terms to governmental restrictions like zoning ordinances; rather it speaks simply to restrictions that impair a viewers ability to receive video programming. The House Committee Report explains that this Houseoriginated section was intended to preempt enforcement of State or local statutes and regulations, or  X-State or local legal requirements; or restrictive covenants or encumbrances . . . . Existing regulations, including but not limited to, zoning laws, ordinances, restrictive covenants or  Xb-homeowners association rules, shall be unenforceable to the extent contrary to this section.gbyV X-ԍXx H.R. Rep. No. 204, 104th Congress, 1st Sess. 124 (1995) (emphasis added).(#ƈ  X4-x857. ` ` The legislative history also sheds light on Congresss use of the phrase direct broadcast satellite services in section 207. The House Report explains that the `Direct Broadcast Satellite Service is a specific service that is limited to higher power DBS satellites. This service does not include lower power Cband satellites, which require larger dishes in order for subscribers to receive their signals. Thus, this section does not prevent the enforcement of State or local statutes and regulations, or State or local legal requirements, or restrictive covenants or encumbrances that limit the use and placement of Cband satellite  X-dishes.BhV X6-ԍXxId.(#B  Xe-x958. ` ` Reading section 207 in light of its legislative history, we see four issues about how to implement this section within the framework of our newly adopted preemption rule: (1) Does our newly adopted presumption for antennas smaller than one meter preempt nonfederal governmental restrictions as fully as Congress intended? (2) Does our presumption for all antennas smaller than one meter faithfully reflect Congresss focus on direct broadcast satellite services(i.e. does the legislation mandate that our regulations apply to certain types of services rather than to certain size earth station antennas)? (3) Does Congress's focus on  X -DBS antennas suggest that we should not preempt local regulation of other services, such as" h0*((" VSAT and Cband services? And (4) how should we implement Congresss intent to prevent enforcement of private restrictions such as deed covenants and homeowners associations? We address these questions in turn.  X-x:59. ` ` First, section 207 clearly recognizes that state and local regulation can and does interfere with the federal interest in widespread access to all forms of video delivery, and that preemption by this Commission is the appropriate response to such interference with the federal interest. We tentatively conclude that insofar as governmental restrictions are concerned, our newly adopted preemption rule is a reasonable way to implement Congress's intent with respect to DBS antennas. It might be argued that by seeking to prohibit all restrictions that impair reception of video programming, Congress set a higher standard than we have adopted. We note, however, that Congress did not simply preempt all restrictions that impair a viewers ability to receive video programming services from DBS providers.  X -Instead, Congress required that the Commission shall, pursuant to section 303 of the  X -Communications Act of 1934, promulgate regulations to prohibit restrictions that impair a viewer's ability to receive video programming services" from DBS providers (emphasis added). Section 303, authorizes the Commission to issue rules and regulations "as public  Xy-convenience, interest, or necessity requires."LiyV X-ԍXx47 U.S.C.  303.(#L Because Congress invoked the Commission's normal rulemaking authority, and because Congress did not prohibit all regulations but rather only those that impaired reception, we think accommodation of local concerns remains permissible under the statute. We think it reasonable to infer that Congress did not mean, for  X-example, to prevent the Commission from preserving reasonable local health and safety regulations; or from granting waivers where unusual circumstances require specialized local regulation. We seek comment, however, on whether there is any procedural mechanism that might further Congress's special concern with DBS even more effectively than the presumption approach we have adopted. For example, we seek comment whether, for DBS in particular, a prospective approach relying solely on waivers would be preferable to our retrospective system of rebuttable presumptions. We also seek comment on any respect in which our newly adopted section 25.104 fails to implement the 1996 Act.  XN-x;60. ` ` Second, we tentatively conclude that our presumed preemption for antennas smaller than one meter is consistent with Congresss definition of direct broadcast satellite services. Our onemeter presumption would include not only services that are technically  X -DBS, but also medium power directtohome services (such as that offered by Primestar) that are technically part of the Fixed Satellite Service even though they use antennas only a few inches larger than true DBS antennas. We do not believe Congress intended for these  X - medium power systems to face local regulatory burdens not shared by their true DBS  X!-counterparts . The legislative history indicates that Congress intended for section 207 to apply to almost all providers of wireless video programming; among such services, only directtohome systems using large, Cband antennas were excluded. We interpret this language as evidence that Congress agreed with our initial determination that antenna size is a major"h$yi0*((F#" variable to be considered in crafting preemption rules, and that the much larger Cband antennas should be subject to greater local regulation than the smaller DBS antennas. It does not follow that the much smaller size difference between an 18inch DBS antenna and a slightly larger FSS antenna should also trigger differential treatment, and we tentatively conclude that the protection of section 207 should extend to the receipt of video programming over any antenna smaller than one meter. Again, we seek comment on this conclusion.  Xv- Finally, although DBS service is currently provided using antennas smaller than one meter, in the future, service to areas outside the continental U.S. may be provided using larger antennas. We seek comment on how to accommodate this possibility.  X -x<61. ` ` Third, we tentatively conclude that the 1996 Act does not require us to repeal or otherwise modify our preemption rule insofar as it affects services other than those that deliver video programming or antennas larger than one meter. All satellite antennas, of whatever size and for whatever service, have been protected by our preemption rule since 1986. If Congress wished to preclude the Commission from enforcing this preemption rule with respect to services other than directtohome video, it could have done so expressly. It did not. Even the House Committee Report language discussed above, which expressly distinguishes between the "Direct Broadcast Satellite Service" and "lower power Cband  Xb-satellites," only states that "this section [i.e., section 207 itself] does not prevent the enforcement of State or local statutes and regulations, or State or local legal requirements, or restrictive covenants or encumbrances that limit the use and placement of Cband satellite  X-dishes.BjV X-ԍXxId.(#B This language simply does not address our limited, preexisting preemption of  X-unreasonable restrictions on Cband video reception or on VSAT or other services. We also seek comment on this tentative conclusion. x` `  X-x=62. ` ` Finally, we tentatively conclude that section 207 of the 1996 Act requires us to  X-promulgate a new rule prohibiting enforcement of nongovernmental restrictions on smallantenna video reception. We therefore propose to add the following paragraph (f) to section 25.104 of our rules:  XN-Xx(f)X` ` No restrictive covenant, encumbrance, homeowners' association rule, or other nongovernmental restriction shall be enforceable to the extent that it impairs a viewer's ability to receive video programming services over a satellite antenna less than one meter in diameter. ` This proposed rule closely tracks the language of section 207, as amplified by the House  X -Committee Report. The per se nature of the rule does treat private restrictions differently from restrictions imposed by state or local governments. However, as we have recognized throughout this proceeding, state and local landuse regulations have traditionally been near the core of those governments' general police powers. The presumption in favor of small antennas can be rebutted only by health or safety concerns. Nongovernmental restrictions"h$yj0*((F#" would appear to be directed to aesthetic considerations. Thus, we tentatively conclude that it is appropriate to accord private restrictions less deference on this basis. We seek comment on this conclusion and on all aspects of our proposed rule.  X- 0Conclusion ă  Xv-x>63.` ` We believe that the rule adopted today furthers the public interests in promoting competition between service providers and in assuring wide access to communications facilities. It does so without unduly interfering with local governments interests in regulating landuse. In addition, the Further Notice of Proposed Rulemaking reflects Congress's newly mandated objective.  X - Ordering Clauses ă  X -x?64.` ` Accordingly, IT IS ORDERED that the revisions to  25.104 of the Commission's rules as set out in Appendix B are hereby adopted.  Xy-x@65.` ` The analysis required pursuant to Section 606 of the Regulatory Flexibility Act, 5 U.S.C.  608, is contained in Appendix C attached.  X4-xA66.` ` IT IS FURTHER ORDERED that the amendments to 47 CFR  25.104 adopted in the Report and Order that comprises paragraphs 1 through 52 of this Report and Order and Further Notice of Proposed Rulemaking WILL BECOME EFFECTIVE thirty (30) days after publication in the Federal Register. This action is taken pursuant to Sections 1, 4(i), 4(j), 7, and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 154(j), 157, and 309(j). The Federal Communications Commission as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the information collection in the adopted rule, as required by the Paperwork Reduction Act of 1995. Comments concerning the Commision's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated information techniques, are requested. The Commission has requested an emergency Office of Management & Budget review of this collection with an approval by April 10, 1996.  X-xB67.` ` IT IS FURTHER ORDERED that pursuant to the Communications Act of 1934, 47 U.S.C.  151, 154, 303(r), 403, and 405, 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 55 through 62 of this Report and Order and Further Notice of Proposed Rulemaking.  Xh$-xC68. ` ` This is a nonrestricted notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are  X:&-disclosed as provided in Commission rules. See generally 47 C.F.R.  1.1202, 1.1203, and 1.1206(a)."#'j0*((%"Ԍx  X-xD69. ` ` 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 document. The IRFA is set forth in Appendix III. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines as comments on the rest of the Notice, but they must have a separate and distinct heading designating them as responses to the Initial Regulatory Flexibility Analysis. x  X1- ` xE70. ` ` Pursuant to applicable procedures set forth in sections 1.415 and 1.419 of the  xCommission's Rules, 47 C.F.R.  1.415 and 1.419, interested parties may file comments on or  xbefore April 15, 1996 and reply comments on or before May 6, 1996. To file formally in this  x proceeding, you must file an original and five copies of all comments, reply comments, and  xsupporting comments. If you want each Commissioner to receive a personal copy of your  xcomments, you must file an original plus nine copies. You should send comments and reply  xcomments to Office of the Secretary, Federal Communications Commission, Washington, D.C.  xM20554. Comments and reply comments will be available for public inspection during regular  Xy- x[business hours in the FCC Reference Center of the Federal Communications Commission, 1919  xMM Street, N.W., Washington, D.C. 20054. For further information contact Rosalee Chiara at (202) 4180754.  X- ` BxF71. ` ` IT IS FURTHER ORDERED that the Secretary shall send a copy of this Report  xand Order and Further Notice of Proposed Rulemaking to the Chief Counsel for Advocacy of the  xSmall Business Administration in accordance with paragraph 603(a) of the Regulatory Flexibility  X-Act, Pub. L. No. 95354, 94 Stat. 1164, 5 U.S.C.  601 et seq. (1981). X` pX` px` `  @FEDERAL COMMUNICATION COMMISSION  XN-x` `  @William F. Caton x` `  @Acting Secretary"7 j0*((?"  S-    ! #f\  PC(&P#`(#Appendix I ă -Commenter List  S- Comments: due by July 14, 1995   Abbott, Robert J. (6/28/95) ACS Enterprises, Inc. ALLTEL Mortgage Information Services (formerly Computer Power, Inc. CPI) (7/11/95) Association for Maximum Service Television, Inc. B&H Antenna Systems Bell Atlantic Burke Enterprises (7/13/95) Cannon Township Board, Kent County, Michigan Comsat Video Enterprises, Inc. Dallas, City of (on behalf of Local Communities) DIRECTV Duncan, Weinberg, Miller & Pembroke, P.C. (representing about 100 local and state govt) ESPN, Inc. GE American Communications, Inc. Home Box Office Hughes Network Systems, Inc. Hughes Communications Galaxy, Inc. Maine Municipal Association Michigan and Texas Communities Midwest Star Satellite Muskegon, MI, City of National Association of Broadcasters National Rural Telecommunications Cooperative National Telephone Cooperative Association Plantation, City of PRIMESTAR Partners L.P. Satellite Broadcasting and Communications Association of America Sony Electronics Inc. United States Satellite Broadcasting Company, Inc. Wharf Cluster Association, The Wireless Cable Association International, Inc. !  S`-   Reply Comments (due August 15, 1995):   American Planning Association Coconut Creek, FL (City of) Consumer Electronics Group of the Electronics Industries Association Coral Gables, FL (City of) David J. Russ, AICP, Planning Director Hughes Network Systems, Inc. Local Communities (cities of Dallas, TX; Denton, TX, et. al) Madison Heights, MI MCI Telecommunications Corporation Michigan & Texas Communities National Rural Telecommunications Cooperative National Association of Broadcasters Phillips Electronics N.A. Corporation and Thomas Consumer Electronics, Inc. PRIMESTAR Partners L.P. Sanibel, FL (City of) Satellite Broadcasting and Communications Association of America United States Satellite Broadcasting Company, Inc. ",!j---."Ԍ S-   Ex parte/late filed:   Satellite Broadcasting and Communications Association response to Michigan & Texas 5 5 (8/29/95) Michael Jeffers (9/5/95)  S`-   Assorted Letters (various dates):   Alfe, John ALLTEL Alpena, MI, City of Amoco Corporation Ann Arbor, MI, City of Arlington, TX AutoZone B & H Antenna Systems Baldwin Township, MI Belding, MI, City of Benton Charter Township, MI Berryman, Jim, Senator, State of Michigan Birmingham, MI, City of Bloomfield Township, MI Brownstown, MI, Charter Township of Builders Square Burke Enterprises Burleson, TX, City of Calumet, MI, Village of Cedar Creek Township, MI Charlevoix, MI, City of Chelsea, MI, Village of Clinton, MI, Charter Township of Clinton Village Office, MI Coldwater, MI, City of Collier County Government, FL Concord, MI, Village of Cracker Barrel Old Country Store CVS Headquarters Dearborn, MI, City of Denver, CO, City and County of Dept. of Environmental Protection, ME Durham, NC East Tawas, MI, City of Edward D. Jones & Co. Ely Township, MI Ford Motor Company Forsyth Township, MI Frenchtown Charter Township, MI Gap Inc. Gaylord, MI Georgetown Charter Township, MI Glen Rose, TX, City of Grand Haven Charter Township, MI Harrison, MI, Charter Township of Highland, MI, Township of Howard County, MD, Department of Planning & Zoning "+"j-?,?,,"ԌHoyt Lakes, MN Hudsonville, MI, City of Huron Charter Township, MI Independence, MI, Charter Township of Indianapolis, IN, Cable Communications Agency InterLink Satellite Services Irish Beach (CA) residents Iron Mountain, MI, City of Ishpeming, MI, City of Keene, TX Keller, TX Kentwood, MI, City of Lansing, MI, Planning Board Little Canada, MN, City of Livonia, MI, City of Marquette City Planning Commission, MI Metropoliton Dade County, FL, Consumer Services Department Microwave, Dish & Cable, Inc. Milpitas, CA, City of Minnesota Association of Community Telecommunications Administrators (Macta) Muskegon, MI, City of Oscoda, MI (Charter Township) Otsego, MI, City of Paw Paw, MI, Village of Pembroke Pines, FL, City of Plano, TX, City of Portage, MI, City of Prince Georges County, MD Resort Township, MI Richmond, MI River Oaks, TX, City of Robinson Township, MI Rockford, MI, City of Royal Oak, MI, City of Saline, MI, City of Sarasota, FL, City of Satellite Enclosures, Inc. Service Merchandise Shawnee, KS, City of Shelby, MI, Charter Township of Southwest Surburban Cable Commission Southwestern Oakland Cable Commission Spring Lake, MI, Village of Springfield, MO, City of St. Peters, MO, City of St. Louis, MO, City of Studio 8 McCausland, Teri Target Stores, Inc. Tilden Township, MI Traverse City, MI, City of Troy, MI, City of Van Buren, MI, Charter Township of "+#j-?,?,,"ԌVidcom Corporation Watauga, TX, City of Watertown Charter Township, MI Waxahachie, TX, City of Wayland Township, MI WINCOM Systems, Inc. Wohlgemuth, Arlene, State Representative, State of Texas, House of Representatives Wyoming, MI, City of Yankee Springs, MI, Township of Zeeland Charter Township, MI  SH -   Congressional letters in IB Doc. 9559:    Barcia, James (U.S. HouseMI) Bonior, David (U.S. HouseMI) Camp, Dave (U.S. HouseMI) Dingell, John (U.S. HouseMI) Frost, Martin (U.S. HouseTX) (forwarded letter Waxahachie, TX) Graham, Bob (U.S. SenateFL) (forwarded letter Sarasota, FL) Gramm, Phil (U.S. SenateTX) Gramm, Phil (U.S. SenateTX) (forwarded letter Keene, TX) Gramm, Phil (U.S. SenateTX) (forwarded letter Waxahachie, TX) Helms, Jesse (U.S. SenateNC) Hancock, Mel (U.S. HouseMO) Hutchinson, Kay (U.S. SenateTX) Levin, Carl (U.S. SenateMI) Lugar, Richard (U.S. SenateIN) Mack, Connie (U.S. SenateFL) (forwarded lettersSarasota and Collier County, FL) Minge, David (U.S. HouseMN) Rivers, Lynn (U.S. HouseMI) Upton, Fred (U.S. HouseMI) (forwarded Otsego, MI) Wellstone, Paul (U.S. SenateMN) "$j-?,?, "  S-   `_(#Appendix II ă  L/For the reasons set forth in the Report and Order, the Federal Communications Commission amends Title 47, Part 25 of the Code of Federal Regulations, as follows:  I. A. 1. a.(1)(a) i) a)G I. A. 1. a.(1)(a) i) a)  S8-1.,xThe authority citation for Part 25 continues to read as follows:(#  S- ",x AUTHORITY: Sections 25.101 to 25.601 issued under Sec. 4, 48 Stat. 1066, as amended;  n47 U.S.C. 154. Interpret or apply secs. 101104, 76 Stat. 416427; 47 U.S.C. 701744; 47 U.S.C. 554.!  SH -2.,xSection 25.104 is revised to read as follows:(# Section 25.104: Preemption of Local Zoning of Earth Stations x` `  S -  n,x(a) Any state or local zoning, landuse, building, or similar regulation that materially limits   ?transmission or reception by satellite earth station antennas, or imposes more than minimal costs   on users of such antennas, is preempted unless the promulgating authority can demonstrate that   ^such regulation is reasonable, except that nonfederal regulation of radio frequency emissions is   not preempted by this rule. For purposes of this paragraph (a), reasonable means that the local regulation:(#  ` ,xX` ` (1) has a clearly defined health, safety, or aesthetic objective that is stated in the text of the regulation itself; and(#`  ` ,xX` ` (2) furthers the stated health, safety or aesthetic objective without unnecessarily  ` 2burdening the federal interests in ensuring access to satellite services and in promoting fair and effective competition among competing communications service providers.(#`   ,x(b)(1) Any state or local zoning, landuse, building, or similar regulation that affects the installation, maintenance, or use of: (#  ` ,xX` ` (A) a satellite earth station antenna that is two meters or less in diameter and is located  ` Qor proposed to be located in any area where commercial or industrial uses are generally permitted by nonfederal landuse regulation; or (#`  ` ,xX` ` (B) a satellite earth station antenna that is one meter or less in diameter in any area, regardless of land use or zoning category(#`  Lshall be presumed unreasonable and is therefore preempted subject to paragraph (b)(2). No civil,  Lcriminal, administrative, or other legal action of any kind shall be taken to enforce any regulation  Lcovered by this presumption unless the promulgating authority has obtained a waiver from the  LCommission pursuant to paragraph (e), or a final declaration from the Commission or a court of competent jurisdiction that the presumption has bee rebutted pursuant to subparagraph (b)(2). ,x(#  ",x(2) Any presumption arising from subparagraph (b)(1) of this section may be rebutted upon a showing that the regulation in question:!  ` ,xX` ` (A) is necessary to accomplish a clearly defined health or safety objective that is stated in the text of the regulation itself;(#`  ` 3,xX` ` (B) is no more burdensome to satellite users than is necessary to achieve the health or safety objective; and(#` ",%j---."Ԍ ` ~,xX` ` (C) is specifically applicable on its face to antennas of the class described in paragraph (b)(1).(#`   0,x(c) Any person aggrieved by the application or potential application of a state or local zoning or   other regulation in violation of paragraph (a) of this section may, after exhausting all nonfederal   administrative remedies, file a petition with the Commission requesting a declaration that the state   or local regulation in question is preempted by this section. Nonfederal administrative remedies,   Nwhich do not include judicial appeals of administrative determinations, shall be deemed exhausted when(#  ` ,xX` ` (1) the petitioner's application for a permit or other authorization required by the state  ` or local authority has been denied and any administrative appeal and variance procedure has been exhausted;(#`  ` ,xX` ` (2) the petitioner's application for a permit or other authorization required by the state or local authority has been on file for ninety days without final action;(#`  ` $,xX` ` (3) the petitioner has received a permit or other authorization required by the state or  ` local authority that is conditioned upon the petitioner's expenditure of a sum of money,  ` including costs required to screen, polemount, or otherwise specially install the antenna,  ` Cgreater than the aggregate purchase or total lease cost of the equipment as normally installed; or (#`  ` ,xX` ` (4) a state or local authority has notified the petitioner of impending civil or criminal action in a court of law and there are no more nonfederal administrative steps to be taken.(#`   P,x(d) Procedures regarding filing of petitions requesting declaratory rulings and other related   pleadings will be set forth in subsequent Public Notices. All allegations of fact contained in   petitions and related pleadings must be supported by affidavit of a person or persons with personal knowledge thereof. (#   ,x(e) Any state or local authority that wishes to maintain and enforce zoning or other regulations   minconsistent with this section may apply to the Commission for a full or partial waiver of this   section. Such waivers may be granted by the Commission in its sole discretion, upon a showing   by the applicant that local concerns of a highly specialized or unusual nature. No application for   waiver shall be considered unless it specifically sets forth the particular regulation for which   ]waiver is sought. Waivers granted in accordance with this section shall not apply to laterenacted or amended regulations by the local authority unless the Commission expressly orders otherwise.(# " &j-?,?,G""  S-  `(#  Appendix III x` ` Initial Regulatory Flexibility Analysis  S`- Reason for Action  LMThe rulemaking is initiated to obtain comment on the proposed changes to the Commission's satellite antenna preemption rule, 47 CFR  25.104.  S-Objectives  LkThe Commission seeks to evaluate whether the proposed changes to the satellite antenna preemption  Lrule will facilitate the installation of antennas and assist in the development of satellite based technologies.  S -Legal Basis  LNThe proposed action is authorized under Sections 4 (i) and 303 (r) of the Communications Act of 1934, as amended, 47 U.S.C.  154 (i) and 303 (r), Section 207 of the 1996 Telecom Act  S-Reporting, Recordkeeping, and Other Compliance Requirements Private restrictions on satellite antennas would be preempted.  S@-Federal Rules that Overlap, Duplicate or Conflict With These Requirements None  S-Description, Potential Impact and Number of Small Entities Involved  LAny policies or regulations adopted in this proceeding could affect small businesses that install or use satellite antennas.  S- LlAny Significant Alternatives Minimizing the Impact on Small Entities Consistent With the Stated  S-Objectives x` ` This Notice solicits comments on any suggested alternatives.