**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of: )

)

Victor Frankfurt ) CSR-5238-O

)

Petition for Declaratory Ruling )

Under 47 C.F.R. § 1.4000 )

**MEMORANDUM OPINION AND ORDER**

**Adopted: January 19, 2001 Released: February 7, 2001**

By the Deputy Chief, Cable Services Bureau:

**I. Introduction**

1.  Number range level0Number range level1Number range level2Number
    range level3Number range level4Number range level5Number range
    level6Number range level7Petitioner Victor Frankfurt (\"Frankfurt\"
    or \"Petitioner\") filed a Petition for Declaratory Ruling
    (\"Petition\") seeking a determination that the townhome rules (the
    \"Guidelines\") governing the installation of over-the-air reception
    antennas adopted by New Century Town Townhouse Association No. 2
    (\"New Century\" or the \"Association\"), located in Vernon Hills,
    Illinois, are prohibited by the Commission\'s Over-the-Air Reception
    Devices Rule (the \"Rule\").[^1] After reviewing the Guidelines, we
    find that the Guidelines contain some legitimate safety requirements
    and some safety requirements that are more burdensome than necessary
    to achieve their safety objective. Therefore, for the reasons
    discussed below, the petition is granted in part and denied in part.

**II. Background**

2.  On August 6, 1996, the Commission issued a *Report and Order,
    Memorandum Opinion and Order, and Further Notice of Proposed
    Rulemaking* (\"*Report and Order*\") adopting 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.[^2] This Rule was enacted pursuant to Section 207
    of the Telecommunications Act of 1996 (the \"1996 Act\"), which
    required 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\" certain enumerated services.[^3] The law is intended
    to promote 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.\"[^4]

3.  Paragraph (a) of the Rule provides that a restriction impairs
    installation, maintenance, or use of a protected antenna[^5] 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.[^6] The Rule applies to restrictions on property
    within the exclusive use or control of an antenna user who has a
    direct or indirect ownership or leasehold interest in the
    property.[^7] The only exceptions to the Rule are restrictions that
    are necessitated by safety or historic preservation concerns, and
    even then, the restrictions must be as narrowly tailored as
    possible, impose as little burden as possible, and apply in a
    nondiscriminatory manner throughout the regulated area.[^8]

4.  The Rule provides parties who are affected by antenna restrictions
    the opportunity to petition the Commission to determine if the
    restrictions are permissible or prohibited by the Rule.[^9] The Rule
    places the burden of demonstrating that the challenged restriction
    complies with the Rule on the party seeking to impose the
    restriction.[^10] As permitted under the Rule, Petitioner filed his
    Petition with the Commission and served a copy on New Century.

5.  New Century and the Community Associations Institute (\"CAI\") filed
    responses opposing the Petition, and the Satellite Broadcasting and
    Communications Association (\"SBCA\") filed a response supporting
    the Petition. The Wireless Cable Association International, Inc.
    (\"WCA\"), BellSouth Corporation and BellSouth Wireless Cable, Inc.
    (collectively \"BellSouth\"), New Century (\"New Century Reply I\"),
    SBCA and Frankfurt filed reply comments. New Century then filed a
    second reply (\"New Century Reply II\") after the close of the reply
    period in order to respond to the replies of Frankfurt, WCA and
    SBCA.[^11]

**III. PLEADINGS**

**A. The Petition**

6.  This is the second petition that Frankfurt has filed with the
    Commission. In his first petition, Frankfurt challenged a New
    Century restriction that forbid the installation of any antenna on
    his townhome.[^12] In a *Memorandum Opinion and Order* released on
    October 31, 1997, the Cable Services Bureau found that the New
    Century restriction was prohibited by the Rule because the
    restriction created an absolute prohibition on antennas and New
    Century had not shown that an absolute prohibition was necessary for
    safety or historic preservation reasons.[^13] On November 18, 1997,
    after the order on Frankfurt\'s first petition was issued, the
    Association adopted new antenna Guidelines and restrictions that are
    the subject of Frankfurt\'s instant petition.[^14]

7.  Frankfurt asserts that New Century\'s Guidelines impair the
    installation, maintenance and use of a satellite dish on his
    townhome. The New Century Guidelines are set forth in Appendix A to
    this *Order*. Under the Guidelines, prior to installing an antenna,
    a townhome owner must seek New Century\'s approval and complete New
    Century\'s \"Appearance and/or Architectural Change or Improvement
    Application\" (the \"Application\"). The Application's requirements
    are set forth in Appendix B to this *Order*.

8.  Frankfurt argues that the Guidelines' provisions requiring prior
    approval unreasonably delays installation, requiring antennas to
    exhibit a UL label prevents the installation of an antenna because
    antennas do not bear this label, and requiring antennas to withstand
    50 mph winds unreasonably increases the cost of installation.[^15]

**B. Responses in Opposition to the Petition**

9.  In its response, New Century states that Frankfurt improperly
    installed his satellite dish on his townhome\'s balcony railing by
    securing the dish with six thin straps of unknown material.[^16] New
    Century further states that Frankfurt did not properly ground his
    satellite dish until after the city\'s electrical inspector had
    twice found that the dish installation did not meet the grounding
    requirements of the city\'s electrical code.[^17] The electrical
    inspector states that if lightning had struck the antenna, the
    electrical charge would have travelled into Frankfurt\'s
    townhome.[^18] New Century requested that Frankfurt complete the
    Application for installing the dish and issued an Association
    complaint against Frankfurt after he refused to do so. At a New
    Century board complaint hearing held on April 21, 1998 (after
    Frankfurt\'s instant petition was filed on March 14, 1998),
    Frankfurt declined to tell the board how the antenna was grounded,
    mounted, and whether it could withstand winds of 50 mph. The
    Association then found that Frankfurt had installed the dish in an
    unsafe manner in violation of the Guidelines and fined him
    \$1000.[^19]

10. New Century asserts that its Guidelines fall within the Rule\'s
    safety exception. New Century notes that the Guidelines\' preamble
    states specifically that they are designed to promote the safety and
    welfare of the Association. With regard to particular Guidelines,
    New Century argues that, without its required application process,
    it will be unable to determine whether the applicant\'s proposed
    installation method meets the Guidelines\' safety criteria and that
    its application process could avert injuries, deaths and property
    damage.[^20] New Century asserts that it must be provided with
    evidence that the antenna will withstand wind, sun and other weather
    exposure.[^21] New Century argues that its 30 day prior approval
    system is not an unreasonable burden on the antenna user when
    weighed against the possibility of death, injury or property damage.
    Thirty days is not too long to require the antenna user to wait, New
    Century asserts, because if the antenna user can afford to purchase
    a satellite system, the antenna user can afford to pay for an
    additional thirty days of cable service.[^22]

11. In support of its argument that the Association\'s requirement that
    an antenna withstand 50 mph winds is reasonable, the Association
    states that according to the *National Roof Contractor\'s
    Association Residential Steep-Slope Roofing Materials Guide* most
    manufacturers warranty shingled roofing at winds up to 60 mph and
    that the *Uniform Building Code* has set a standard of 73.8 mph for
    minor structures such as signs and flag poles.[^23] In addition,
    according to data collected from April 1997 to February 1998 by the
    National Climate Control Center for the Chicago O\'Hare
    International Airport, the wind speed in New Century\'s area
    exceeded 50 mph on two occasions (56 and 52 mph).[^24] New Century
    argues that its requirement that the antenna exhibit a UL label
    provides assurance that the antenna is reasonably safe in design and
    manufacture.

12. With regard to its antenna location Guidelines, New Century asserts
    that they do not impair under the Rule because the location
    Guidelines specifically state that if a location requirement impairs
    signal reception, then the antenna user may select another location
    for the antenna.

13. In its response in support of New Century, CAI states that, although
    the New Century Guidelines do not appear to reflect maximum
    compliance with the Rule, the Guidelines address legitimate safety
    concerns.[^25] According to CAI, requiring antennas to withstand
    strong winds (to keep them from becoming airborne) and to be
    grounded (to keep them from conducting electricity into the
    dwelling) will prevent personal injury or property damage.[^26] CAI
    states that it will not take a position on New Century\'s particular
    prior approval guidelines, but argues it is impossible for
    associations to enforce necessary and legitimate safety concerns if
    there is no prior approval process for ensuring that safety criteria
    are met before damage or an injury occurs.[^27]

**C. Responses and Reply Comments in Support of the Petition**

14. In their comments supporting the Petition, commenters argue that
    certain of the Guidelines impair under the Rule and that New Century
    has generally failed to show that the Guidelines are safety-related.
    SBCA, BellSouth, and WCA argue that New Century\'s declaration in
    the Guidelines\' preamble that the Guidelines are for the \"safety
    and welfare\" of the Association does not articulate the specific
    safety objective of the Guidelines and accordingly the Guidelines
    are not protected by the Rule.[^28] SBCA and WCA state that New
    Century\'s general reference to safety concerns does not meet the
    Rule\'s requirement that the safety concern be clearly defined and
    that the general safety reference is \"\`so broad and ill-defined
    that it constitutes little more than a pro forma
    recitation.\'\"[^29] WCA argues that the Association is attempting
    to prohibit antennas outright under the guise of purported safety
    concerns.[^30]

15. BellSouth argues that the Association has failed to carry its burden
    of proof by not providing any evidence or analysis of findings that
    its \"purported\" safety restrictions will serve safety objectives,
    and WCA states that the Association has not presented any evidence
    from any antenna manufacturer showing that antennas would not be
    wind resistant if installed pursuant to the manufacturer\'s
    specifications.[^31] BellSouth states that the Association fails to
    understand that it carries the burden of proof to show evidence
    under the Rule when the Association asserts that it was justified in
    assessing a penalty against Frankfurt because he provided no
    evidence that the antenna was safe from wind damage or that the
    antenna was properly grounded.[^32] BellSouth asserts that the
    Association, not Frankfurt, should demonstrate whether the antenna
    complies with the Guidelines.

16. SBCA argues that New Century has not articulated the safety
    objective of the prior approval process, and BellSouth argues that
    New Century must provide evidence that the process serves a
    \"compelling safety need.\"[^33] SBCA states that even if the
    Guidelines provided clearly defined safety objectives, the use of a
    prior approval process is not necessary to ensure compliance with
    those Guidelines and subjects even prospective antenna users who
    intend to install their antennas appropriately to a lengthy
    application process.[^34] SBCA argues that an application process
    inherently delays the installation of an antenna and therefore
    impairs under the Rule.[^35] SBCA argues that the prior approval
    process demonstrates bias towards cable because the Association
    asserts in support of this process that an antenna user can simply
    purchase a month of cable while waiting for a decision on the
    antenna user\'s application.[^36]

17. Both SBCA and WCA state that, even if the Application process were
    justified by safety concerns, the Application process is overly
    burdensome.[^37] SBCA and WCA state that it will take the applicant
    a significant amount of time and will likely cause the applicant to
    incur expenses by requiring the applicant to prepare the attachments
    required by the Application, such as the preparation of a sketch of
    the installation, a legal description of the property, and a
    property survey.[^38] In addition, after the Application is
    submitted and expenses have been incurred to obtain the supporting
    documents, the applicant might be required to wait as long as 30
    days for the Association to approve the Application.[^39] WCA states
    that it is also burdensome to require the applicant to file an
    approved Application with the Recorder of Deeds and to submit proof
    of that filing to the Association.[^40] Finally, WCA states that the
    Guidelines do not provide any standards by which the applications
    will be reviewed and do not provide that a technically qualified
    individual will review the applications.[^41]

18. WCA states that the Association\'s other safety restrictions,
    setting windload and UL requirements, are more burdensome than
    necessary and are discriminatory. WCA argues that where a local
    government, which is charged with the protection of public safety,
    determines that a restriction is not necessary, the Commission
    should, as a matter of policy, accept this determination as
    dispositive evidence that the association restriction is more
    burdensome than necessary.[^42] Because there is no evidence that
    the local Vernon Hills government imposes windload or UL
    restrictions or has found that such restrictions are necessary, WCA
    argues that the Association restrictions are more burdensome than
    necessary.[^43] The New Century Guidelines are also discriminatory,
    WCA and BellSouth argue, because there is no evidence in the record
    that New Century imposes similar safety requirements on other types
    of appurtenances, devices or fixtures that are comparable in size
    and weight.[^44]

19. Regarding the Guidelines\' requirement that antennas carry a UL
    label, WCA and BellSouth state that the Association has provided no
    safety objective for this requirement and even if a safety objective
    were provided, New Century has not shown that the UL requirement is
    the least burdensome way to achieve that objective.[^45] SBCA states
    that no satellite antennas carry the UL label and UL has never
    tested any satellite antennas.[^46] WCA states that wireless cable
    antennas are not subject to safety testing by UL or any other
    private certifying entity.[^47] Because antennas are not tested by
    UL, SBCA and BellSouth argue that the UL requirement operates as an
    outright prohibition on antennas which is impermissible under the
    Rule.[^48] SBCA argues that the UL restriction is unnecessarily
    burdensome because it would require an antenna manufacturer to
    obtain a UL label to satisfy one homeowner\'s association\'s
    guidelines whereas SBCA is not aware of any homeowner\'s association
    or local government in the country that also imposes this
    restriction.[^49]

20. BellSouth and SBCA argue that certain mounting, height and location
    restrictions constitute impairments under the Rule. First, the
    guidelines barring the installation of free standing or pole mounted
    antennas impair because such installations might be the least
    expensive and best way for the antenna user to receive video
    programming services and New Century has not proffered any evidence
    why such an installation should be prohibited.[^50] Second,
    BellSouth states that the Guidelines\' prohibition against antennas
    over 12 feet is prohibited by the Rule because the prohibition might
    impair reception and the Commission has stated that it would find
    \"unenforceable any restriction that establishes specific *per se*
    height limits.\"[^51] Third, although New Century permits the
    antenna user to install the antenna in locations other than those
    specified in the Guidelines if the antenna\'s signal would be
    impaired, the location guidelines are prohibited because they do not
    permit alternative installation locations where the required
    location would unreasonably delay or increase the cost of
    installation, which are the two additional types of impairment.[^52]

21. In his reply, Frankfurt disputes the Association\'s assertion that
    his antenna was attached to the balcony railing by \"six thin strips
    of unknown material\" and states that his antenna was secured with
    six screws and that the six straps provided additional
    security.[^53] Frankfurt also states that the city inspector
    confirmed that his antenna was installed properly.[^54] Frankfurt
    asserts that he cannot be in violation of the Guidelines because
    they were passed after he installed the antenna.

**D. Reply Comments in Opposition to the Petition**

22. The Association argues that its Guidelines must be applied to
    Frankfurt\'s previously installed antenna because it has safety
    concerns.[^55] The Association disagrees that the Guidelines\'
    safety objectives regarding prior approval and installation are not
    clearly defined. The prior approval process is necessary so that the
    Association can determine whether the antenna installation will
    satisfy the safety guidelines and to ensure that the antenna is
    installed in a proper location.[^56] That antennas do not exhibit UL
    labels confirms, the Association asserts, that a prior approval
    method is necessary to ensure that there is compliance with safety
    standards.[^57] Concerning the installation guidelines, the
    Association states that they specifically address safety concerns
    regarding wind resistance, grounding, and reasonably adequate
    instructions on installation and maintenance.[^58] Furthermore, the
    Association states that the Guidelines forbid pole mounts on
    balconies because such installations present safety concerns such as
    the depth of the pole mount and the amount of concrete necessary to
    support the mount.[^59] The Association states that its Guidelines
    forbid installation on chimneys because New Century does not have
    chimneys as such but rather has sheet metal flue stacks. These flue
    stacks, New Century asserts, would fall off the roof if antennas are
    attached to them.[^60]

23. In response to SBCA\'s argument that a prior approval process is
    more burdensome than necessary to meet this safety goal, the
    Association states that SBCA has not presented any less restrictive
    methods that would achieve this goal.[^61] Responding to WCA\'s
    argument that the Association\'s prior approval process is overly
    burdensome because the Association has not presented any evidence
    that Vernon Hills, the local government, requires prior approval for
    antenna installations, the Association states that many local
    governments have permit processes for safety purposes.[^62] In
    addition, the Association states that the prior approval process is
    not invalid, as WCA argues, merely because the process fails to set
    forth standards by which the applications will be reviewed.[^63] The
    Association suggests that WCA would not be satisfied even if the
    Association specified that the applications would be reviewed by
    electrical or structural engineers.[^64] The Association argues that
    because the restrictions governing where an antenna may be installed
    permit an antenna user to install an antenna on the front of a
    building, presumably an unattractive location, its Guidelines are
    not merely a pretext, as WCA and SBCA suggest, for imposing the
    Association\'s aesthetic concerns.[^65]

24. The Association argues that its Guidelines are not applied in a
    discriminatory fashion because the prior approval process has been
    in place for years and applies to all exterior modifications and a
    satellite dish presents a risk of attracting lightning that other
    modifications do not, such as wooden decks, landscape modifications
    and wooden plaques.[^66]

25. The Association challenges WCA\'s assertion that the Association
    must present evidence that satellite and wireless cable antennas
    would not be wind resistant if not installed pursuant to the
    manufacturer\'s specifications.[^67] The Association asserts that
    the antenna manufacturer is the more appropriate entity to
    demonstrate windload compliance and that Frankfurt could meet this
    modest burden by simply giving the Association a copy of the
    antenna\'s installation and specifications brochure.[^68]

**IV. Discussion**

**A. The Retroactive Application of Newly-Enacted Restrictions to
Antennas Previously Installed**

26. Frankfurt argues that the Association cannot charge him with
    violating the Guidelines because the Guidelines were enacted after
    his antenna was installed. The Association asserts that it may
    enforce the Guidelines against Frankfurt because the Guidelines were
    enacted to address safety concerns. We have previously ruled that an
    antenna user may challenge an association\'s restrictions that were
    enacted after the user\'s antenna was installed when the association
    attempts to enforce the restrictions against the antenna user.[^69]

27. Where a newly enacted restriction does not \"impair,\" as that term
    is defined in the Rule,[^70] or where the restriction falls within
    the Rule\'s safety or historic preservation exceptions,[^71] the
    newly enacted restriction may be applied retroactively to a
    previously installed antenna. For example, if a restriction required
    a homeowner to move an antenna from the back to the side of the
    house, such a restriction would be permissible if it did not impair
    (i.e. cause the homeowner unreasonable expense or prevent the
    reception of an acceptable quality signal) or if it fell within the
    Rule\'s safety or historic preservation restrictions. In this case,
    we will analyze whether the Guidelines are enforceable against
    Frankfurt because they fall, as New Century alleges, within the
    Rule\'s safety exception. If the Guidelines do not fall with the
    Rule\'s safety exception, we will then analyze whether New Century
    may nevertheless enforce them because they do not impair.

B. Summary of Decision

28. We find that the Association\'s mounting, windload, grounding and
    power line guidelines are intended to accomplish legitimate safety
    objectives. However, as discussed below, the windload and grounding
    guidelines as they are currently written are not enforceable against
    Frankfurt. In addition, the Association has not shown that Frankfurt
    installed his antenna in a manner that violated any of the
    Association\'s permissible guidelines. Given that Frankfurt has not
    violated any permissible guideline, the \$1000 fine against him is
    not enforceable.

**C. The Rule\'s Safety Exception**

**1. The Elements of the Safety Exception**

29. Although the Rule generally prohibits restrictions that impair the
    installation, maintenance and use of Section 207 reception devices,
    the Rule provides an exception for \"legitimate safety goals . . .
    that serve a stated safety purpose.\"[^72] In order to satisfy this
    safety exception, the proponent of the safety restriction, in this
    case the Association, has the burden of demonstrating that the
    restriction satisfies four elements:[^73]

1\) The legitimate safety objective of the restriction must be clearly
defined;[^74]

2\) the restriction must be necessary to accomplish the safety
objective;[^75]

3\) the restriction must be \"no more burdensome to affected antenna
users than is necessary to achieve\" the defined safety objective;[^76]
and

4\) the restriction must not be discriminatory and should 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.\"[^77]

The legitimate safety objective must be clearly defined in either (1)
the text, preamble or legislative history of the restriction or (2) a
separate document that is readily available to affected antenna
users.[^78] The definition must set forth the specific type of safety
concern that the restriction is intended to address.[^79] A general,
passing statement that the restriction at issue serves a safety
objective will not satisfy this element of the Rule,[^80] for a
\"general statement of safety interests is so broad and ill-defined that
it constitutes little more than a pro forma recitation.\"[^81]

30. In this case, the statement in the Guidelines\' preamble that the
    Guidelines have been enacted in the \"interest of promoting the
    safety and welfare of the Association\"[^82] is a general statement
    of safety that fails to set forth the specific safety objectives of
    the individual Guidelines.[^83] Accordingly, the preamble\'s
    statement of \"safety and welfare\" alone will not bring all of the
    Guidelines within the Rule\'s safety exception. Nevertheless, where
    the safety objective of a particular restriction is clearly apparent
    on the face of the restriction, we can find that a safety objective
    is adequately defined. Thus, we will examine the individual
    guidelines to determine whether they satisfy this standard and the
    other elements of the safety exception.

**2. Prior Approval Requirement**

31. The Guidelines require that an antenna user submit an
    \"Architectural and/or Appearance Application\" (the
    \"Application\") to New Century for prior approval before the
    antenna user may install an antenna.[^84] If a prior approval
    requirement falls within the Rule\'s safety or historic preservation
    exceptions, then the prior approval requirement is enforceable even
    if the requirement otherwise impairs under the Rule.[^85] However,
    outside of the safety and historic preservation contexts, it is
    unreasonable under the Rule to subject viewers who install antennas
    according to the applicable association guidelines or local
    regulations to the delay and expense of obtaining prior approval in
    order to protect against the potential illegal actions of
    others.[^86] New Century argues that its application requirement
    falls within the safety exception.[^87] For the reasons set forth
    below, we find that the application requirement does not meet the
    elements of the safety exception.

32. New Century did not clearly define a legitimate safety objective for
    its application requirement in the Guidelines, the Application, or
    any other document that is readily available to antenna users.[^88]
    Indeed, the very title of the Application, \"Architectural and/or
    Appearance Application,\" suggests that the Application requirement
    is an impermissible pretext for imposing the Association\'s
    aesthetic preferences. However, in its response filed in this
    proceeding, New Century states that the application\'s safety
    objective is to allow New Century to review the application to
    determine whether the antenna user\'s proposed installation method
    meets New Century\'s alleged \"safety\" installation guidelines.

33. According to New Century and CAI, a prior approval process is the
    only way to ensure that New Century\'s safety installation
    guidelines are met before injuries or property damage occur. In
    order to determine whether the antenna user will install the antenna
    according to these safety guidelines, New Century\'s prior approval
    process requires the user to submit a brochure containing the
    antenna\'s specifications and installation instructions and a sketch
    demonstrating where the dish will be installed.[^89] Although it is
    a legitimate safety objective for the Association to set forth a
    requirement to determine whether an installation meets its safety
    installation guidelines, we find, for three reasons, that New
    Century\'s prior approval process is not necessary to achieve
    compliance with this objective. A legitimate method for achieving
    compliance with safety installation guidelines would be for the
    Association to inspect the antenna installation after it is
    installed.

34. First, requiring a homeowner to submit a sketch and a copy of the
    antenna manufacturer\'s brochure will not ensure that the homeowner
    will install the antenna according to those documents. The only way
    New Century can truly ensure that an antenna installation satisfies
    New Century\'s safety installation Guidelines is to have a qualified
    person inspect the installation once the installation is complete. A
    legitimate restriction to ensure compliance with the safety
    restrictions would be to require the antenna user to notify the
    Association that the antenna user is installing an antenna and to
    submit the antenna\'s brochure. After the installation, the
    Association could, if it desired, inspect the installation for
    compliance with the antenna brochure\'s installation instructions
    and the Guidelines.

35. Second, a sketch prepared pursuant to the Guidelines would not
    demonstrate compliance with the safety restrictions. In addition,
    the sketch requirement appears to be a pretext for imposing New
    Century\'s aesthetic preferences by way of a prior approval process,
    which the Rule forbids. The Application requires that the sketch
    show the antenna\'s colors, dimensions, and location with respect to
    property lines. The Application does require that the sketch show
    the antenna\'s location with respect to power lines, but this
    requirement is not necessary because the Guidelines already inform
    the homeowner that the antenna may not be installed near power
    lines. In addition, we agree with WCA and Frankfurt that the
    Application process would not achieve safety compliance because New
    Century does not have a procedure for someone technically qualified
    to review the sketch and determine whether the installation depicted
    in the sketch would be properly grounded and wind resistant. The
    Application process also does not provide any standards by which New
    Century would review the Application.

36. Third, it is unnecessary to require an antenna user to submit a
    sketch prior to installation simply to enable New Century to
    determine whether the antenna user is aware of the Guidelines. If
    New Century ensures that the Guidelines are disseminated to its
    homeowners, then the homeowner will already be aware of the
    Guidelines and will be able to determine whether the specifications
    of the antenna satisfy the Guidelines. After giving the Guidelines
    to the homeowner, it is unnecessary to require homeowners to spend
    time and money hiring a professional to draw a technically accurate
    installation sketch of the antenna in order to complete an
    application that merely asks the homeowner to give the Guidelines
    back to the Association. New Century\'s prior approval requirement
    differs significantly from a notification requirement that
    permissibly requires an antenna user to notify an association of his
    or her intention to install an antenna in order to afford the
    association an opportunity to give installation guidelines to the
    antenna user. If the association does not have a procedure in place
    for immediately giving installation guidelines to the antenna user,
    the antenna user is not required to wait for them and may proceed to
    install the antenna without delay.

37. Finally, the thirty day waiting period for the processing of the
    Application is clearly unnecessarily burdensome.[^90] A review of
    two pieces of paper, the sketch and the antenna\'s brochure, by a
    technically qualified individual should not take thirty days.

**3. Requirement that the Antenna Withstand 50 MPH Winds**

38. We find that the Guidelines\' requirement that an antenna
    installation withstand 50 mph winds without becoming airborne is a
    clearly defined legitimate safety objective. However, the parties
    dispute how the homeowner may demonstrate that the installation is
    capable of withstanding 50 mph winds. In its reply comments, New
    Century states that the homeowner may demonstrate that the antenna
    complies with this restriction simply by giving the Association a
    copy of the antenna's installation and specifications brochure. We
    find that this would not be a burdensome method for requiring
    compliance if the Association were to implement such a requirement.
    Nevertheless, because this compliance method was not in place when
    Frankfurt installed his antenna, New Century may not fine him for
    noncompliance.

39. New Century has shown that a windload requirement of 50 mph is
    necessary to meet the safety objective in Vernon Hills, Illinois by
    providing data regarding local wind patterns. New Century provided
    April 1997 to February 1998 reports from the National Climate
    Control Center for the Chicago O\'Hare International Airport that
    show that the wind at that airport exceeded 50 mph on two
    occasions.[^91] New Century also states that, according to the
    *National Roofing Contractor\'s Association Residential Steep-Slope
    Roofing Guide* most manufacturers guarantee shingle roofs up to 60
    mph and that the *Uniform Building Code* sets a wind criteria for
    minor structures such as signs and flag poles at 73.8 mph.[^92]
    Nothing in the record suggests that 50 mph is unnecessarily high
    given that the *Uniform Building Code* has set its windload
    requirement at 73.8 mph and given that SBCA states that satellite
    antennas are designed to withstand winds up to 125 mph without
    becoming airborne.[^93]

40. BellSouth argues that New Century erroneously places the burden of
    proof on Frankfurt to demonstrate that the antenna meets this
    windload requirement.[^94] New Century argues that the antenna
    manufacturer is the more appropriate entity to demonstrate that the
    antenna meets this requirement, and that an antenna user could meet
    this modest burden by simply giving the Association a copy of the
    antenna\'s installation brochure in order to demonstrate the
    antenna\'s windload specifications.[^95] The Rule places the burden
    of proof on the homeowners\' association to demonstrate that its
    restriction complies with the Rule.[^96] However, where a valid
    safety requirement is at issue, and the association sets forth a
    reasonable mode of compliance that is no more burdensome than
    necessary to achieve the legitimate safety objective,[^97] the
    antenna user must comply with the requirement. In this case, New
    Century expresses its willingness to accept an antenna installation
    and specification brochure as acceptable compliance with this
    requirement. New Century\'s Guidelines, however, are silent on this
    point and leave Frankfurt and other townhome owners with the
    mistaken impression that they are responsible for a burdensome test
    or other costly course of proof. If New Century had included
    reference to a brochure as an acceptable means of compliance, then
    the windload restriction would not have been unnecessarily
    burdensome. In the absence of this reference, an unnecessary burden
    is placed on the antenna user because the antenna user has no
    reasonable way to ascertain how to comply with this restriction. As
    written, the windload restriction appears calculated to deter any
    antenna installation rather than to promote safe antenna
    installations. Therefore, the restriction was unnecessarily
    burdensome when it was enforced against Frankfurt.

41. There is nothing in the record to suggest that New Century permits
    the installation of objects similar in size to antennas that pose
    the same risk of becoming airborne as do antennas; thus, we disagree
    that New Century\'s windload restriction discriminates against
    antennas.

**4. Grounding Requirement**

42. The grounding requirement requires that the antenna be \"grounded in
    accordance with N.E.C. \[National Electric Code\] and local
    codes.\"[^98] We find that it is clearly apparent on the face of the
    grounding requirement that the requirement\'s legitimate safety
    objective is to prevent lightning from travelling into the building;
    thus the requirement is not invalid because this objective is not
    stated in the Guidelines. The Association has also shown that a
    grounding requirement is necessary for an antenna installed on a
    balcony railing because the city electrical inspector stated that
    lighting could travel into the building via an antenna installed in
    that manner.

43. However, neither the grounding requirement nor the comments set
    forth verbatim the specific requirements of the N.E.C. or of any
    applicable local codes.[^99] Without the language of the N.E.C. and
    local code sections before us, we cannot decide whether those
    sections contain clearly defined legitimate safety objectives or
    whether the requirements to achieve those objectives are
    unreasonably burdensome under the Rule; thus we cannot permit the
    Association to enforce the N.E.C. or the unspecified local
    codes.[^100]

44. There is nothing in the record to suggest that New Century permits
    the installation of other objects that would require grounding;
    thus, we reject arguments that New Century\'s grounding requirement
    is discriminatory.

**5. Other Code Requirements**

45. The Guidelines and the Application also require that the antenna be
    \"installed in complete accordance with local codes and
    Requirements\" and that the antenna \"comply with all ordinances,
    laws, regulations and industry standards.\"[^101] It is unclear from
    New Century\'s Guidelines which codes, laws, regulations,
    ordinances, etc., an antenna user is required to obey. It is
    likewise unclear who or what the enforcing entity is with respect to
    these unspecified requirements. Because we have nothing in the
    record to enable us to determine whether the code sections are
    safety related or whether they otherwise impair installation,
    maintenance or use under the Rule, New Century cannot enforce
    them.[^102] In addition, these requirements are unenforceable
    because it is unnecessarily burdensome to require a homeowner to
    cull through all ordinances, laws, regulations and industry
    standards to determine which ones apply.

**6. Requirement that Antennas bear a UL Label or Equivalent**

46. Guideline 5.b.4 requires all antennas to exhibit a \"UL
    (Underwriters Laboratory) label or equivalent.\" The safety
    objective of this requirement is not defined in the requirement and
    is not clearly apparent on the face of the restriction. New Century
    states that the safety objective of this requirement is to ensure
    that the antenna is reasonably safe in design. However, New Century
    has not clearly defined a legitimate safety objective because it has
    not clarified the nature of the safety concern that would be
    addressed by a UL examination of the antenna. In other words, New
    Century has not shown how an examination of an antenna by UL is
    necessary to address a specific safety concern. New Century\'s
    assertion that a review by UL or an equivalent entity would ensure
    that the antenna is safe is nothing more than a \"general statement
    of safety\" that does not contain the level of specificity required
    by the Rule.[^103]

**7. Requirement that Exterior Wiring Be Hidden**

47. Guideline 5.b.10 requires that exterior wiring be \"hidden from view
    as much as possible in order to prevent such wiring from coming
    loose and causing bodily injury or property damage.\" Although we
    find that it is conceivable that loose wiring could cause injury or
    damage, we do not believe that keeping the wiring hidden from view
    will achieve that objective and that this requirement is likely
    designed merely to satisfy New Century\'s aesthetic preferences. If
    the legitimate concern is that the wiring might become loose and
    cause harm, then an appropriate guideline would be to require
    specific installation procedures to prevent such an occurrence, such
    as securing the wiring tightly to the building in some manner. Thus,
    we find that this guideline does not have a legitimate safety
    objective. However, New Century may enforce this guideline as a
    non-safety restriction in order to enforce its aesthetic preferences
    so long as the guideline and its enforcement do not impair
    installation, maintenance or use of the antenna under the Rule.

**8. Prohibition of Free Standing, Pole, Roof and Chimney Mounted
Antenna Installations**

48. Guideline 1 prohibits the installation of antennas on free standing
    mounts, poles, roofs and chimneys. We find that the flat prohibition
    on these types of installations does not have a legitimate safety
    objective.[^104] Regarding pole mounts, New Century appears to argue
    that an antenna might topple over if the pole is not planted deeply
    enough in concrete. If ensuring the stability of the mount is its
    actual safety objective, then New Century may address this objective
    with a guideline less burdensome than a flat prohibition. For
    example, New Century could require the antenna user to install the
    pole in concrete according to the antenna manufacturer\'s depth
    standards. New Century has not shown any legitimate safety
    objectives for the remaining installation prohibitions.

**9. Guidelines for Securing Antennas to their Mounts**

49. Guidelines 5.b.1 and 5.b.2 set forth requirements for securing and
    fastening antennas to their mounts. Because it is clear on the face
    of these requirements that they are designed to prevent antennas
    from detaching from their mounts and possibly causing a safety
    hazard, we find that these requirements are enforceable under the
    Rule\'s safety exception.[^105]

**10. Per se Height Restriction on Antenna Mounts**

50. Guideline 2 prohibits the installation of any antenna on a mast that
    exceeds 12 feet above the roof level. This requirement is prohibited
    because it sets a *per se* bar to antennas over 12 feet, and an
    antenna exceeding this height that does not pose any safety risks
    may be necessary for the antenna user to receive an acceptable
    quality signal.[^106]

**D. Non-Safety Restrictions**

51. Regarding guidelines that were not specifically addressed in Section
    B above, New Century has not shown that these guidelines have
    clearly defined safety objectives; thus, those guidelines do not
    fall within the Rule\'s safety exception. Upon examining these
    remaining guidelines under the Rule\'s impairment standard, we find
    that two guidelines impair on their face and a third guideline may
    impair in the particular circumstances of its enforcement.[^107]

52. First, Guideline 4\'s required locations for antenna installations
    permit the antenna user to install an antenna in alternative
    locations if the antenna\'s signal would be impaired in the required
    locations. Nevertheless, this Guideline is unenforceable because
    requiring installation in the required locations may unreasonably
    delay or increase the costs of installation, maintenance or use of
    the antenna, which are the two other types of impairments that
    location requirements may create.[^108] To be valid, a location
    requirement must permit exceptions where the required location would
    not provide an adequate quality signal or where the installation,
    maintenance or use of an antenna in that required location would
    cause the antenna user unreasonable delay or unreasonable
    costs.[^109]

53. Second, requiring the applicant to file an approved Application with
    the Recorder of Deeds is not safety related and constitutes an
    impairment under the Rule. The Association\'s stated purpose for the
    recording requirement is to inform potential purchasers of the
    property that the antenna is attached to the townhome. This
    requirement subjects the antenna user to an unreasonable delay and
    expense to record the Application given that an antenna would be
    readily apparent to any purchaser and given that the antenna user
    would most likely not bestow personal property on a purchaser.
    Therefore, this guideline is prohibited.

54. Third, Guideline 4.e requires that a device not obstruct the
    exterior maintenance responsibilities of New Century. Although an
    association may have, under its by-laws, reasonable maintenance
    responsibilities that do not impair, if the Association were to use
    this Guideline in a manner that impaired an antenna user\'s
    installation, maintenance and use of an antenna, then the Guideline
    would be unenforceable under those circumstances. Thus, as written,
    Guideline 4.e does not impair; as implemented under particular
    circumstances, Guideline 4.e may impair.

**E. The Penalty Against Frankfurt is Not Enforceable**

55. New Century assessed a \$1000 fine against Frankfurt after New
    Century determined that Frankfurt had not shown that the antenna met
    the Associations\' Application, windload, grounding, and mounting
    requirements.[^110] For the reasons set forth above, the Application
    requirement is not enforceable, and the windload and grounding
    requirements as they are currently written are not enforceable
    against Frankfurt. In addition, the Association has not shown that
    Frankfurt\'s antenna was not mounted in accordance with any of the
    Association\'s enforceable guidelines. Therefore, the Association
    had no basis for assessing the fine against Frankfurt, and the fine
    is not enforceable. Accordingly, we need not decide whether the size
    of the potential fine, \$1000, is unreasonably large and might
    constitute an impairment under the rule by deterring and thereby
    unreasonably preventing homeowners from installing antennas.[^111]

**VI. Ordering Clauses**

56. 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 the
    Petition for Declaratory Ruling filed by Victor Frankfurt is
    **GRANTED IN PART AND DENIED IN PART** with respect to preemption of
    New Century Town Townhomes Association\'s Guidelines and
    Application, as discussed above.

57. This action is taken by the Deputy 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

William H. Johnson

Deputy Chief, Cable Services Bureau

**Appendix A**

New Century Town Townhouse Association Guidelines regarding the
installation, maintenance and use of antenna devices read as follows:

\[T\]he following rules shall apply to devices covered by Section 207 of
the \[Telecommunications \] Act \[of 1996\] in the interest of promoting
the safety and welfare of the Association:

1\. [Type of Mountings Permitted/Prohibited.]{.underline}

a\. Free standing on patio or deck ‑ prohibited

b\. Fence/railing ‑ prohibited

c\. Siding mounted ‑ permitted

d\. Roof mounts ‑ prohibited

e\. Fireplace chimney mounted ‑ prohibited

f\. Balcony mounts on railing or deck ‑ permitted

g\. Pole Mounted on detached footing ‑ prohibited

2\. [Height Restrictions]{.underline}.

a\. DBS ‑ Not more than 12 feet above roof level.

b\. MMDS ‑ Not more than 12 feet above roof level.

c\. TVBS ‑ Not more than height limitations above roof level as
specified in local BOCA Code.

d\. Devices are to generally be mounted so they are not visible from
front of unit.

e\. Mounted devices shall only be as high as necessary above a structure
surface to give the device the required clear view of the transmitting
signal antenna/satellite.

3\. [Size Restrictions.]{.underline}

a\. DBS ‑ Dish shall not exceed 1 meter (39.37 inches) in diameter.

b\. MMDS ‑ Dish shall not exceed 1 meter (39.37 inches) in diameter or
diagonally.

c\. TVBS ‑ Antennas shall be limited in size pursuant to local BOCA
Code.

4\. [Location of Device]{.underline}.

a\. Rear of dwelling unit unless signal would be impaired.

b\. Device may be mounted on owners side of firewall toward rear of
unit.

c\. If rear of unit is not suitable, device shall be placed on side of
dwelling unit or end unit.

d\. If rear and side of dwelling unit is not suitable, device shall only
then be permitted in front of dwelling unit in a location as
inconspicuous as possible.

e\. Device shall not interfere nor obstruct exterior maintenance
responsibilities of Association.

f\. Device shall not be located near power lines or other utilities,
e.g. gas, water, phone, etc.

g\. Device shall not extend beyond unit lot lines.

h\. Devices are prohibited on Association common property.

5\. [Installation]{.underline}.

a\. Device shall be grounded in accordance with N.E.C. and local codes.

b\. Device shall be installed in complete accordance with local codes
and requirements. It shall be securely fastened as follows:

1\. Siding mounted devices shall be anchored securely to a wall stud
with corrosive resistant fasteners.

2\. Mounting brackets and corrosive resistant fasteners (except those
furnished with the antenna by it\'s manufacturer) shall be painted to
match the unit siding color. If desired the antenna and it\'s factory
furnished mounting materials (usually a medium gray color) may be
painted to match the unit siding color. The goal of this painting
requirement/permission is to help maintain the aesthetics of the
community.

3\. All devices shall be able to withstand 50 mph winds without failure.

4\. All devices shall exhibit UL (Underwriters Laboratory) label or
equivalent.

5\. All devices shall comply with all ordinances, laws, regulations and
industry standards.

6\. Any permits required shall be at owner\'s expense.

7\. All energy needed to operate said device shall be at owner\'s
expense.

8\. No device shall impair the signals of other devices or any other
type of signal.

9\. Owner is responsible for maintaining the paint or other finishes on
the device and its, brackets, fasteners, or other associated hardware so
they do not rust and weaken over time.

10\. For safety, all exterior wiring shall be neatly attached to the
device

and building structure and hidden from view as much as possible to
prevent such wiring from coming loose and causing bodily injury or
property damage. If practical, wiring shall be run internally to prevent
U.V. deterioration and wind damage.

6\. [Removal]{.underline}.

Should the device be removed, owner shall restore premises to condition
it was in prior to installation, wear and tear excepted.

7\. [Architectural and/or Appearance Application]{.underline}.

Owner shall submit an Architectural and/or Appearance Application
(Application) to the Association prior to installation. Said Application
shall be acted upon by the Association no more than 30 days after
receipt of a fully completed Application along with all required
attachments.

8\. [Damage]{.underline}.

Owner is responsible for any damage caused directly or indirectly by the
device or installation or removal thereof.

9\. [Severability]{.underline}.

Should any provision of this Resolution be found to be unenforceable,
all other provisions shall remain in full force and effect.[^112]

**Appendix B**

The New Century Town Townhouse Association's "Appearance or
Architectural Change of Improvement Application" (the "Application")
requires the homeowner to perform the following tasks in order to get
prior approval for the installation of an antenna:

• submit a sketch of the antenna\'s installation; including its colors,
construction materials and its location; a copy of the property\'s
survey; and a legal description of the applicant\'s property;

• record the Application and supporting documents with the Recorder of
Deeds and/or Registrar of Torrens within 14 days after the Association
approves the Application, to supply the Association with a copy of the
recording documents, and to bear the recording costs;

• agree to obtain and comply with applicable building codes;

• agree to comply with the Association\'s declarations, by-laws, rules
and regulations regarding the antenna installation;

• agree to remove an antenna installation and bear the costs of such
removal, or to have the Association remove the installation at the
applicant\'s expense, if the installation interferes with the
Association\'s maintenance responsibilities;

• indemnify the Association, its members, and agents from liability
arising from the antenna installation;

• permit the Association access to the property for purposes of
enforcing the Application;

• agree that failure to comply with any of the Application\'s
requirements may result in revocation of the approval for the antenna
installation and that the applicant will remove the installation at his
or her own expense; and

> • agree to permit the Association to enter the applicant\'s property
> in order to repair an antenna installation if the applicant does not
> repair the installation after 14 days written notice from the
> Association that the installation requires repair.[^113]

# 

[^1]: ^?^47 C.F.R. § 1.4000(a).

[^2]: ^?^*See In re Preemption of Local Zoning Regulation of Satellite
    Earth Stations and In re Implementation of Section 207 of the
    Telecommunications Act of 1996, Restrictions on Over-the-Air
    Reception Devices: Television Broadcast Service and Multichannel
    Multipoint Distribution Service*, IB Docket No. 95-59 and CS Docket
    No. 96-83, Report and Order, Memorandum Opinion and Order, and
    Further Notice of Proposed Rulemaking, 11 FCC Rcd 19276 (1996)
    (consolidated) (\"*Report*\"), *on Reconsideration*, CS Docket No.
    96-83, FCC-98-214 (rel. Sept. 25, 1998) (\"*Order on
    Reconsideration*\"). The Rule became effective on October 14, 1996.
    Public Notice DA 96-1755 (October 23, 1996).

[^3]: ^?^Telecommunications Act of 1996, Pub. L. No. 104-104, § 207, 110
    Stat. 56, 114 (1996).

[^4]: ^?^Communications Act of 1934, § 1 as amended, 47 U.S.C. § 151.

[^5]: ^?^The Rule applies to antennas designed to receive direct
    broadcast satellite (\"DBS\") service that are one meter or less in
    diameter or located in Alaska; antennas designed to receive video
    programming services via multipoint distribution services (\"MDS\"),
    including multichannel multipoint distribution services (\"MMDS\"),
    instructional television fixed services (\"ITFS\"), and local
    multipoint distribution services (\"LMDS\") that are one meter or
    less in diameter or diagonal measurement; and antennas designed to
    receive television broadcast signals (\"TVBS\") (referred to herein
    collectively as \"antennas\"). 47 C.F.R. § 1.4000(a).

[^6]: ^?^47 C.F.R. § 1.4000(a).

[^7]: ^?^*See* *In re Preemption of Local Zoning Regulation of Satellite
    Earth Stations and In re Implementation of Section 207 of the
    Telecommunications Act of 1996, Restrictions on Over-the-Air
    Reception Devices: Television Broadcast Multichannel Multipoint
    Distribution and Direct Broadcast Services*, Second Report and
    Order, CS Docket No. 96-83, FCC 98-273 (rel. Nov. 20, 1998)
    (amending 47 C.F.R. § 1.4000 to cover leased property).

[^8]: ^?^47 C.F.R. § 1.4000(b).

[^9]: ^?^47 C.F.R. § 1.4000(d).

[^10]: ^?^47 C.F.R. § 1.4000(f).

[^11]: ^?^In the interest of a complete record, we will exercise our
    discretion and accept the late filing.

[^12]: ^?^*See In re Victor Frankfurt*, 12 FCC Rcd 17631 (1997).

[^13]: ^?^*Id.* at 17636.

[^14]: ^?^Petition at App. 1.

[^15]: ^?^Petition at 1.

[^16]: ^?^New Century Response at 1.

[^17]: ^?^Response at 3; Affidavit of Charles Skinner at Ex. D.

[^18]: ^?^*Id.*

[^19]: ^?^*Id.* at 2; Ex. C.

[^20]: ^?^*Id.* at 1, 6.

[^21]: ^?^*Id.* at 6.

[^22]: ^?^*Id.* at 6.

[^23]: ^?^*Id.* at 5; Exs. F and G.

[^24]: ^?^*Id.* at 5; Ex. H.

[^25]: ^?^CAI Response at 3.

[^26]: ^?^*Id.* at 3.

[^27]: ^?^*Id.* at 4.

[^28]: ^?^SBCA Response at 4 n.11 (*citing In re Michael J. MacDonald*,
    13 FCC Rcd 4844, 4851 (1997)); WCA Reply Comments at 2-4; BellSouth
    Reply Comments at 4.

[^29]: ^?^SBCA Response at 4 n.11 (*quoting In re Star Lambert and
    Satellite Broadcasting and Communications Ass\'n of America*, 12 FCC
    Rcd 10455, 10469 (1997)); WCA Reply Comments at 3 n.6; BellSouth
    Reply Comments at 4-5; SBCA Reply Comments at 2.

[^30]: ^?^WCA Reply Comments at 2.

[^31]: ^?^BellSouth Reply Comments at 9; WCA Reply Comments at 4 n.8.

[^32]: ^?^BellSouth Reply Comments at 9-10 (*citing* New Century
    Response at 6).

[^33]: ^?^SBCA Response at 5-7; BellSouth Reply Comments at 8 (\"prior
    approval requirements, absent a demonstration that they are
    necessary for safety or historic preservation, are prohibited\")
    (*citing MacDonald*, 13 FCC Rcd 4844 at 4852-53).

[^34]: ^?^SBCA Reply Comments at 2-3.

[^35]: ^?^SBCA Reply Comments at 3 n.5 (*citing Star Lambert*, 12 FCC
    Rcd at 10465; *MacDonald*, 13 FCC Rcd at 4853).

[^36]: ^?^SBCA Reply Comments at 4 (*citing* New Century Response at 6).

[^37]: ^?^WCA Reply Comments at 7; SBCA Response at 5-7 (arguing that
    the prior approval requirement unreasonably delays installation and
    imposes unreasonable costs on the antenna user); BellSouth Reply
    Comments at 9.

[^38]: ^?^SBCA Response at 5-6; WCA Reply Comments at 7.

[^39]: ^?^SBCA Response at 5-6; WCA Reply Comments at 7.

[^40]: ^?^WCA Reply Comments at 7.

[^41]: ^?^WCA Reply Comments at 7-8. *See also* Frankfurt Response at 1
    (asserting that New Century does not have the proper qualifications
    to decide whether an antenna is properly installed).

[^42]: ^?^WCA Reply Comments at 4-5.

[^43]: ^?^WCA Reply Comments at 4 n.8.

[^44]: ^?^WCA Reply Comments at 6; BellSouth Reply Comments at 10.

[^45]: ^?^WCA Reply Comments at 4 n.8; BellSouth Reply Comments at 7-8.

[^46]: ^?^SBCA Response at 4-5.

[^47]: ^?^WCA Reply Comments at 4 n.8; *see also* BellSouth Reply
    Comments at 7 (\"DBS and wireless cable antennas generally are not
    rated by UL and do not carry a UL certification\").

[^48]: ^?^SBCA Response at 4-5; BellSouth Reply Comments at 7-8.

[^49]: ^?^SBCA Reply Comments at 4.

[^50]: ^?^BellSouth Reply Comments at 5; SBCA Response at 4 n.10.

[^51]: ^?^BellSouth Reply Comments at 6.

[^52]: ^?^BellSouth Reply Comments at 7 n.25 (*citing Star Lambert*, 12
    FCC Rcd at 10467).

[^53]: ^?^Frankfurt Reply Comments at 1.

[^54]: ^?^Frankfurt Response at 1, Att. 2 (field inspection report dated
    May 8, 1998 by Charles Skinner).

[^55]: ^?^New Century Reply Comments II at 2.

[^56]: ^?^New Century Reply Comments II at 2, 6.

[^57]: ^?^*Id.* at 3. The Association states that while a UL label may
    not be an absolute guarantor of safety, a UL label is better than no
    safety guarantee. *Id.*

[^58]: ^?^New Century Reply I at 1; New Century Reply Comments II at 2.

[^59]: ^?^New Century Reply Comments II at 2. In addition, the
    Association asserts that mounts are more expensive than siding or
    balcony railing mounts. *Id.*

[^60]: ^?^New Century Reply Comments II at 2.

[^61]: ^?^*Id.* at 2.

[^62]: ^?^New Century Reply Comments II at 6.

[^63]: ^?^*Id.* (noting that most ordinances do not specify such
    detail).

[^64]: ^?^*Id.*

[^65]: ^?^*Id.* at 2.

[^66]: ^?^*Id.* at 4-5.

[^67]: ^?^*Id.* at 5.

[^68]: ^?^*Id.*

[^69]: ^?^*See In re James Sadler*, 13 FCC Rcd 12559, 12568 (1998).

[^70]: ^?^*See* 47 C.F.R. § 1.4000(a).

[^71]: ^?^*See* 47 C.F.R. § 1.4000(b)(1), (2).

[^72]: ^?^47 C.F.R. §1.4000(b)(1); *Report and Order*, 11 FCC Rcd at
    19290; *Order on Reconsideration* at para. 12.

[^73]: ^?^The proponent of a restriction has the burden of demonstrating
    that a restriction complies with the Rule. 47 C.F.R. § 1.4000(f).

[^74]: ^?^47 C.F.R. §1.4000(b)(1); *Order on Reconsideration* at para.
    12.

[^75]: ^?^47 C.F.R. §1.4000(b)(1).

[^76]: ^?^47 C.F.R. §1.4000(b)(3).

[^77]: ^?^47 C.F.R. §1.4000(b)(1).

[^78]: ^?^47 C.F.R. §1.4000(b)(1). This second alternative was provided
    so that local governments and associations could comply with the
    Rule without being required to revise their regulations or
    restrictions in order to incorporate therein the definition of the
    legitimate, safety objective. *Report and Order*, 11 FCC Rcd at
    19292.

[^79]: ^?^*Star Lambert*, 12 FCC Rcd at 10469 (the ordinance in question
    did not \"provide the specific guidelines and clear purpose . . .
    required by the Rule . . . \[and did not\] sufficiently identif\[y\]
    the type of safety concern\" that the restriction was intended to
    address).

[^80]: ^?^*MacDonald*, 13 FCC Rcd at 4851 (a \"passing reference to
    \'safety\'\" did not articulate a safety objective which required
    that the restrictions at issue be imposed).

[^81]: ^?^*Star Lambert*, 12 FCC Rcd at 10469.

[^82]: ^?^New Century Response at App. B.

[^83]: ^?^*See Star Lambert*, 12 FCC Rcd at 10469 (ordinance\'s
    \"general statement of \'health, safety and welfare interests\'\"
    did not satisfy the Rule).

[^84]: ^?^New Century Response at App. B, Guideline 7.

[^85]: ^?^*Order on Reconsideration* at para. 41 (permissible \"safety
    or historic preservation objectives are enforceable even if they
    impair a viewer\'s ability to install, maintain or use a Section 207
    reception device\").

[^86]: ^?^*Order on Reconsideration* at para. 41 (\"it is an
    unreasonable delay to subject viewers who install reception devices
    in lawful locations to the delay and expense of obtaining a permit
    in order to protect against the potential illegal actions of
    others\"); *see also id.* at para 41 n.20 and cases cited therein.

[^87]: ^?^New Century does not argue that its Guidelines are necessary
    for historic preservation.

[^88]: ^?^*See* 47 C.F.R. §1.4000(b)(1).

[^89]: ^?^Petition at App. 2; New Century Response at 5-6; New Century
    Reply Comments II at 5.

[^90]: ^?^*See* 47 C.F.R. § 1.4000(b)(3).

[^91]: ^?^New Century Response at 5, Ex. H (56 and 52 mph).

[^92]: ^?^*Id.* at 5.

[^93]: ^?^SBCA Reply Comments at 1.

[^94]: ^?^BellSouth Reply Comments at 10 (under the Rule \"\[c\]onsumers
    are not required. . . to plan, plead and argue a full-scale
    proceeding on the merits before he or she may install and use
    tested, widely-available consumer electronics products such as DBS
    or wireless cable receiving equipment\").

[^95]: ^?^New Century Reply Comments II at 5 (a homeowner\'s association
    should not be required to prove that an antenna is not wind
    resistant and \"that the wind tunnel tests should be conducted by
    the manufacturer, not by the local governmental entity or
    association trying to determine whether the device can withstand a
    certain wind force\").

[^96]: ^?^In *In re Lubliner*, the antenna user installed his TVBS
    antenna on the roof in violation of the association\'s requirement
    that antennas be installed inside attics. The association argued
    that its requirement did not impair under the Rule because an
    antenna could receive an acceptable quality signal when installed in
    the attic. The Commission held that the association, not the antenna
    user, had the burden to prove that the antenna could receive an
    acceptable quality signal in the attic. *In re Lubliner*, 13 FCC Rcd
    4834, 4841 (1997), *application for review denied*, FCC 98-201 (Aug.
    21, 1998).

[^97]: ^?^*See* 47 C.F.R. § 1.4000(b)(3).

[^98]: ^?^New Century Response at Ex. B, Guideline 5.a.

[^99]: ^?^The question of whether the codes are enforceable by the local
    government is not before us.

[^100]: ^?^*Star Lambert*, 12 FCC Rcd at 10468 (city could not enforce
    ordinance because specific language of ordinance was not presented
    for Commission review, and Commission therefore could not determine
    whether ordinance was permissible under the Rule); *Order on
    Reconsideration* at para. 36 (the Commission would preempt portions
    of the *Building Officials & Code Administrators International, Inc.
    Code* if the code established *per se* height limits in violation of
    the Rule).

[^101]: ^?^New Century Response at Ex. B, Guideline 5.b., 5.b.5.

[^102]: ^?^*See Star Lambert*, 12 FCC Rcd at 10468; *Order on
    Reconsideration* at para. 31.

[^103]: ^?^*Star Lambert*, 12 FCC Rcd at 10469; *MacDonald*, 13 FCC Rcd
    at 4851.

[^104]: ^?^New Century\'s assertion that pole mounting is a more
    expensive way to install an antenna has no bearing on whether the
    restriction is safety-related.

[^105]: ^?^*Report and Order* at para. 24 (\"Safety regulations
    stipulating the adequate bolting or guying of antennas are
    enforceable. . . .\").

[^106]: ^?^*Order on Reconsideration* at para. 19 (\"If a local
    authority created a *per se* bar to antennas over a certain height,
    the restriction would be prohibited.\"); *Report and Order*, 11 FCC
    Rcd at 19299 (\"we would find unenforceable any restriction that
    establishes specific *per se* height limits\").

[^107]: ^?^Frankfurt and the commenters do not argue that other
    guidelines impair.

[^108]: ^?^*See Star Lambert*, 12 FCC Rcd at 10467 (although the city\'s
    location requirements allowed exceptions for cases where an
    antenna\'s signal would impaired, the location requirements violated
    the Rule because they did not allow exceptions for cases whether the
    required location would unreasonably delay or increase the cost of
    installation, maintenance or use).

[^109]: ^?^*See* 47 C.F.R. § 1.4000(a).

[^110]: ^?^New Century Response at 2.

[^111]: ^?^*See* 47 C.F.R. § 1.4000(a)(1).

[^112]: ^?^New Century Response at Ex. B. In the Petition, Frankfurt
    submitted the Association rules adopted on November 18, 1997. In its
    response, New Century asserts that the November 18, 1997 rules
    contain typographical errors and should not have been mailed to
    Frankfurt. New Century Response at 5. New Century attaches its
    corrected version of the rules, which were readopted by the
    Association on April 21, 1998, to its response as Exhibit B. Because
    Exhibit B reflects the current rules of the Association that the
    Association is seeking to enforce against Frankfurt, we will examine
    the April 21, 1998 rules.

[^113]: ^?^*See* Petition at App. 2.