[Code of Federal Regulations]

[Title 47, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 47CFR1.4000]



[Page 412-414]

 

                       TITLE 47--TELECOMMUNICATION

 

              CHAPTER I--FEDERAL COMMUNICATIONS COMMISSION

 

PART 1_PRACTICE AND PROCEDURE--Table of Contents

 

  Subpart S_Preemption of Restrictions That ``Impair'' the Ability to 

 

Sec. 1.4000  Restrictions impairing reception of television broadcast 

signals, direct broadcast satellite services or multichannel multipoint 

distribution services.



   Receive Television Broadcast Signals, Direct Broadcast Satellite 

   Services, or Multichannel Multipoint Distribution Services or the 

  Ability To Receive or Transmit Fixed Wireless Communications Signals



    Source: 66 FR 2333, Jan. 11, 2001, unless otherwise noted.





    (a)(1) Any restriction, including but not limited to any state or 

local law or regulation, including zoning, land-use, or building 

regulations, or any private covenant, contract provision, lease 

provision, homeowners' association rule or similar restriction, on 

property within the exclusive use or control of the antenna user where 

the user has a direct or indirect ownership or leasehold interest in the 

property that impairs the installation, maintenance, or use of:

    (i) An antenna that is:

    (A) Used to receive direct broadcast satellite service, including 

direct-to-home satellite service, or to receive or transmit fixed 

wireless signals via satellite, and

    (B) One meter or less in diameter or is located in Alaska;

    (ii) An antenna that is:

    (A) Used to receive video programming services via multipoint 

distribution services, including multichannel multipoint distribution 

services, instructional television fixed services, and local multipoint 

distribution services, or to receive or transmit fixed wireless signals 

other than via satellite, and

    (B) That is one meter or less in diameter or diagonal measurement;

    (iii) An antenna that is used to receive television broadcast 

signals; or

    (iv) A mast supporting an antenna described in paragraphs (a)(1)(i), 

(a)(1)(ii), or (a)(1)(iii) of this section; is prohibited to the extent 

it so impairs, subject to paragraph (b) of this section.



[[Page 413]]



    (2) For purposes of this section, ``fixed wireless signals'' means 

any commercial non-broadcast communications signals transmitted via 

wireless technology to and/or from a fixed customer location. Fixed 

wireless signals do not include, among other things, AM radio, FM radio, 

amateur (``HAM'') radio, Citizen's Band (CB) radio, and Digital Audio 

Radio Service (DARS) signals.

    (3) For purposes of this section, a law, regulation, or restriction 

impairs installation, maintenance, or use of an antenna if it:

    (i) Unreasonably delays or prevents installation, maintenance, or 

use;

    (ii) Unreasonably increases the cost of installation, maintenance, 

or use; or

    (iii) Precludes reception or transmission of an acceptable quality 

signal.

    (4) Any fee or cost imposed on a user by a rule, law, regulation or 

restriction must be reasonable in light of the cost of the equipment or 

services and the rule, law, regulation or restriction's treatment of 

comparable devices. No civil, criminal, administrative, or other legal 

action of any kind shall be taken to enforce any restriction or 

regulation prohibited by this section except pursuant to paragraph (d) 

or (e) of this section. In addition, except with respect to restrictions 

pertaining to safety and historic preservation as described in paragraph 

(b) of this section, if a proceeding is initiated pursuant to paragraph 

(d) or (e) of this section, the entity seeking to enforce the antenna 

restrictions in question must suspend all enforcement efforts pending 

completion of review. No attorney's fees shall be collected or assessed 

and no fine or other penalties shall accrue against an antenna user 

while a proceeding is pending to determine the validity of any 

restriction. If a ruling is issued adverse to a user, the user shall be 

granted at least a 21-day grace period in which to comply with the 

adverse ruling; and neither a fine nor a penalty may be collected from 

the user if the user complies with the adverse ruling during this grace 

period, unless the proponent of the restriction demonstrates, in the 

same proceeding which resulted in the adverse ruling, that the user's 

claim in the proceeding was frivolous.

    (b) Any restriction otherwise prohibited by paragraph (a) of this 

section is permitted if:

    (1) It is necessary to accomplish a clearly defined, legitimate 

safety objective that is either stated in the text, preamble, or 

legislative history of the restriction or described as applying to that 

restriction in a document that is readily available to antenna users, 

and would be applied to the extent practicable in a non-discriminatory 

manner to other appurtenances, devices, or fixtures that are comparable 

in size and weight and pose a similar or greater safety risk as these 

antennas and to which local regulation would normally apply; or

    (2) It is necessary to preserve a prehistoric or historic district, 

site, building, structure or object included in, or eligible for 

inclusion on, the National Register of Historic Places, as set forth in 

the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 

470, and imposes no greater restrictions on antennas covered by this 

rule than are imposed on the installation, maintenance, or use of other 

modern appurtenances, devices, or fixtures that are comparable in size, 

weight, and appearance to these antennas; and

    (3) It is no more burdensome to affected antenna users than is 

necessary to achieve the objectives described in paragraphs (b)(1) or 

(b)(2) of this section.

    (c) In the case of an antenna that is used to transmit fixed 

wireless signals, the provisions of this section shall apply only if a 

label is affixed to the antenna that:

    (1) Provides adequate notice regarding potential radiofrequency 

safety hazards, e.g., information regarding the safe minimum separation 

distance required between users and transceiver antennas; and

    (2) References the applicable FCC-adopted limits for radiofrequency 

exposure specified in Sec. 1.1310 of this chapter.

    (d) Local governments or associations may apply to the Commission 

for a waiver of this section under Sec. 1.3 of this chapter. Waiver 

requests must comply with the procedures in paragraphs (f) and (h) of 

this section and



[[Page 414]]



will be put on public notice. The Commission may grant a waiver upon a 

showing by the applicant of local concerns of a highly specialized or 

unusual nature. No petition for waiver shall be considered unless it 

specifies the restriction at issue. Waivers granted in accordance with 

this section shall not apply to restrictions amended or enacted after 

the waiver is granted. Any responsive pleadings must be served on all 

parties and filed within 30 days after release of a public notice that 

such petition has been filed. Any replies must be filed within 15 days 

thereafter.

    (e) Parties may petition the Commission for a declaratory ruling 

under Sec. 1.2 of this chapter, or a court of competent jurisdiction, 

to determine whether a particular restriction is permissible or 

prohibited under this section. Petitions to the Commission must comply 

with the procedures in paragraphs (f) and (h) of this section and will 

be put on public notice. Any responsive pleadings in a Commission 

proceeding must be served on all parties and filed within 30 days after 

release of a public notice that such petition has been filed. Any 

replies in a Commission proceeding must be served on all parties and 

filed within 15 days thereafter.

    (f) Copies of petitions for declaratory rulings and waivers must be 

served on interested parties, including parties against whom the 

petitioner seeks to enforce the restriction or parties whose 

restrictions the petitioner seeks to prohibit. A certificate of service 

stating on whom the petition was served must be filed with the petition. 

In addition, in a Commission proceeding brought by an association or a 

local government, constructive notice of the proceeding must be given to 

members of the association or to the citizens under the local 

government's jurisdiction. In a court proceeding brought by an 

association, an association must give constructive notice of the 

proceeding to its members. Where constructive notice is required, the 

petitioner or plaintiff must file with the Commission or the court 

overseeing the proceeding a copy of the constructive notice with a 

statement explaining where the notice was placed and why such placement 

was reasonable.

    (g) In any proceeding regarding the scope or interpretation of any 

provision of this section, the burden of demonstrating that a particular 

governmental or nongovernmental restriction complies with this section 

and does not impair the installation, maintenance, or use of devices 

used for over-the-air reception of video programming services or devices 

used to receive or transmit fixed wireless signals shall be on the party 

that seeks to impose or maintain the restriction.

    (h) All allegations of fact contained in petitions and related 

pleadings before the Commission must be supported by affidavit of a 

person or persons with actual knowledge thereof. An original and two 

copies of all petitions and pleadings should be addressed to the 

Secretary, Federal Communications Commission, 445 12th Street, SW, 

Washington, DC 20554. Copies of the petitions and related pleadings will 

be available for public inspection in the Reference Information Center, 

Consumer and Governmental Affairs Bureau, Federal Communications 

Commission, 445 12th Street, SW, Washington, DC 20554. Copies will be 

available for purchase from the Commission's contract copy center, and 

the Commission decisions will be available on the Internet.



[66 FR 2333, Jan. 11, 2001, as amended at 67 FR 13224, Mar. 21, 2002]