Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+---+------------------------------+
| In the Matter of:                | * | CSR 5398-0                   |
|                                  | * |                              |
| Bell Atlantic Video              | ) |                              |
|                                  | * |                              |
| Services Company                 | * |                              |
|                                  |   |                              |
| Petition for Declaratory Ruling  | * |                              |
|                                  | * |                              |
| Pursuant to 47 C.F.R. § 1.4000   | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

MEMORANDUM OPINION AND ORDER

**Adopted**: **April 24, 2000 Released: April 26, 2000**

By the Chief, Cable Services Bureau:

# iNTRODUCTIOn

1.  Bell Atlantic Video Services Company ("Bell Atlantic") filed a
    Petition for Declaratory Ruling ("Petition") seeking a determination
    that The Meadow Community Service Association's ("MCSA" or "The
    Meadow") covenants, conditions, and restrictions that prohibit or
    restrict the use of externally mounted over-the-air video
    programming reception antennas are prohibited by 47 C.F.R. § 1.4000,
    the Commission's Over-the-Air Reception Devices Rule (the
    "Rule").[^1] MCSA did not file a response to the Petition. For the
    reasons discussed below, we find that MCSA's restrictions contravene
    the Rule and are prohibited and unenforceable.

# background

2.  On August 5, 1996, the Commission adopted the Rule, which prohibits
    governmental and private restrictions that impair the ability of
    antenna users to install, maintain, or use over-the-air reception
    devices.[^2] The Rule implemented Section 207 of the
    Telecommunications Act of 1996 (the "Act"), which requires the
    Commission to "promulgate regulations to prohibit restrictions that
    impair a viewer's ability to receive video programming services
    through devices designed for over-the-air reception of ...
    multichannel multipoint distribution services. ..."[^3] The
    Congressional directive to the Commission promotes one of the
    primary objectives of the Communications Act of 1934: "to make
    available, so far as possible, to all the people of the United
    States ... a rapid, efficient, nation-wide, and world-wide wire and
    radio communication service with adequate facilities at reasonable
    charges ..."[^4]

3.  The Rule applies to antennas designed to receive direct broadcast
    satellite services that are one meter or less in diameter; antennas
    designed to receive video programming services via multipoint
    distribution services, including multichannel multipoint
    distribution services, instructional television fixed services, and
    local multipoint distribution services that are one meter or less in
    diameter or diagonal measurement; and antennas designed to receive
    television broadcast signals.[^5] For the Rule to apply, the antenna
    must be installed "on property within the exclusive use or control
    of an antenna user where the user has a direct or indirect ownership
    in the property" upon which the antenna is to be located.[^6] The
    Rule provides that a restriction impairs installation, maintenance,
    or use of a protected antenna if it: (1) unreasonably delays or
    prevents installation, maintenance, or use; (2) unreasonably
    increases the cost of installation, maintenance, or use; or (3)
    precludes reception of an acceptable quality signal.[^7] There are
    exceptions to the Rule for valid safety or historic preservation
    restrictions, which must be as narrowly tailored as possible, impose
    as little burden as possible, and apply in a nondiscriminatory
    manner throughout the regulated area.[^8]

4.  The Rule provides that parties who are affected by antenna
    restrictions may petition the Commission to determine if the
    restrictions are permissible or prohibited by the Rule.[^9] The Rule
    places the burden of demonstrating that a challenged restriction
    complies with the Rule on the party seeking to impose the
    restriction.[^10]

# the petition 

5.  Bell Atlantic, an alternative video service provider,[^11]
    challenges two MCSA restrictions. The first restriction is found in
    Article VII, Section 9(o) of MCSA's Protective Covenants, which
    provides in pertinent part:

No outside television aerial or radio antenna, or other aerial or
antennae for either reception or transmission which may be viewed from
the front yar\[d\] of the Lot, or which projects above the roof ridge
line, shall be maintained upon the Property of Lot, except as addressed
by a Standing Resolution.[^12]

The second restriction is a Standing Resolution adopted by MCSA's
Environmental Preservation Committee ("EPCOM"), which provides:

Whereas the size and placement of TV antennas and satellite reception
dishes are subject to regulation and approval by the Meadow Community
Service Association (MCSA) Environmental Preservation Committee (EPCOM)
and

Whereas the EPCOM is authorized by the MCSA Declaration of Protective
Covenants to adopt a Standing Resolution that permits the placement of
such reception devices in locations other than on the rear roof surface
of a home, if located in accordance with the guidelines of a Standing
Resolution adopted by the EPCOM.

> Now Therefore Be It Resolved that TV satellite dishes/antennas may be
> located within the rear yard of any home, without the necessity of
> securing formal EPCOM approval provided that:

i)  the dish/antenna diameter does not exceed 24 inches and

ii) the distance from the top of any pole-mounted dish/antenna to the
    ground beneath the dish shall not exceed 72 inches

iii) subject to the above limitations as to dish size and height above
     ground, such \[TV\] reception devices also may be located on any
     rear corner or rear wall surface of any home.[^13]

```{=html}
<!-- -->
```
6.  Bell Atlantic argues that MCSA violates Section 1.4000 of the
    Commission rules, and that MCSA uses the two restrictions jointly to
    unreasonably delay or prevent Bell Atlantic's prospective clients at
    The Meadow from installing, maintaining, and using television
    antennas and satellite reception devices on their respective
    properties. Bell Atlantic contends that MCSA's restrictions prohibit
    visible outdoor antennas, require homeowners at The Meadow to obtain
    prior approval from the Association before installing any satellite
    dish or television antenna over 24 inches in diameter, dictate
    specific placement location of the antennas, and restrict the height
    of the dish/antenna.[^14] Bell Atlantic points out that MCSA does
    not apply the restrictions to cable television equipment.[^15] Bell
    Atlantic contends that MCSA's actions contravene Congressional
    policy to promote competitive choice in video services, and
    negatively affect the choices that Bell Atlantic's prospective
    customers in The Meadows can make when offered alternative video
    services. As an example, Bell Atlantic relates the case of one of
    its customers, Ms. JoAnn Bradshaw, a single-family homeowner at The
    Meadow who chose to replace her cable television service with Bell
    Atlantic's video service, but because of MCSA's restrictions, faced
    additional costs and unreasonable delays.[^16]

7.  According to Bell Atlantic, it professionally installed an 18-inch
    satellite dish and a broadcast antenna on Ms. Broadshaw's property,
    constituting the outside equipment Ms. Bradshaw needed to receive
    the type of programming she elected .[^17] Bell Atlantic notes that
    because of the "multi-ridged" structure of the roof in Ms.
    Bradshaw's house and the need for continued reception of
    over-the-air broadcast signals, Bell Atlantic installed the
    reception devices in a location and at a height other than the
    preferences articulated in the MCSA restrictions.[^18] In support of
    its chosen location for the installation and manner in which the
    devices were installed, Bell Atlantic cites the Declaratory Rulings
    issued in *Star Lambert and Satellite Broadcasting and
    Communications Association of America*[^19] *and Michael J.
    MacDonald*.[^20]

8.  Bell Atlantic notes that on January 28, 1999, Mr. D. Stephen
    Seawright, Chairman of EPCOM, wrote a letter to Ms. Bradshaw, in
    which he requested that the "satellite dish and antenna installed on
    the roof ridge of your home be removed and relocated so as to
    conform to the requirements of the Community Association's
    protective covenants and the Standing Resolution of the EPCOM
    pertaining to TV dishes."[^21] Mr. Seawright then noted that if Ms.
    Bradshaw did not remove and relocate her antenna by February 28,
    1999, MCSA would take "further action."[^22] Bell Atlantic objects
    to MCSA's interference with Ms. Bradshaw's right to install the dish
    where she needed to place it.[^23]

9.  Bell Atlantic asks the Commission to issue an order preempting
    MCSA's restrictions because they are invalid, unenforceable and do
    not fall under either of the two exceptions to the Rule. Bell
    Atlantic argues that the restrictions are neither "necessary to
    accomplish a clearly defined, legitimate safety objective" nor
    intended to protect a historic area. DIRECTV, Inc. ("DIRECTV") filed
    comments supporting the Petition. DIRECTV argues that the sole
    purpose of MCSA's restrictions is to impair a viewer's ability to
    install, maintain or use a satellite dish, and to deter viewers
    "from choosing an alternative to cable service that would require
    installation of an antenna or satellite dish."[^24] DIRECTV contends
    that MCSA's regulations in question are invalid, unenforceable, and
    do not fall under either the safety or historic exceptions.[^25]

# discussion

**A. Prior Approval of Antennas**

10. MCSA's Standing Resolution requires prospective users of "TV
    antennas and satellite reception dishes" at The Meadows to obtain
    prior approval from MCSA's EPCOM. A prior approval process is
    impermissible unless it is necessary for bona fide safety or
    historic preservation considerations.[^26] In the instant case, the
    record reveals neither a safety nor historic preservation
    justification for MCSA's Section 9(o) prior approval requirement.
    Although the Commission has preserved a restricting entity's right
    to consider aesthetic factors when promulgating antenna placement
    restrictions, aesthetic factors standing alone may not justify a
    prior approval process.[^27] Accordingly, we find MCSA's prior
    approval requirement impermissible under the Rule.[^28]

```{=html}
<!-- -->
```
B.  **Size and Height Restrictions**

```{=html}
<!-- -->
```
11. MCSA's restrictions prohibit the installation of satellite dishes 24
    -- 39.37 inches in diameter as well as outside television aerial
    antennas ("TVBS antennas") projecting over the "roof ridge line."
    The satellite dish restriction violates the Rule because the Rule
    specifically allows the installation of satellite dishes of up to
    one meter (39.37 inches) in diameter or diagonal measurement.
    Concerning the size of TVBS antennas, the Rule does not limit the
    size of a TVBS antenna that a user may install. [^29] Therefore,
    MCSA's restrictions effectively prohibit the installation of
    antennas that are protected by Section 1.4000.[^30]

12. The MCSA/EPCOM size and height restrictions include certain
    placement preferences that allow the installation of antennas
    that: 1) are not visible from the homeowner's front yard; 2) do not
    project "above the roof ridge line;" and 3) are pole-mounted in a
    homeowner's rear yard, "rear corner or rear wall surface of any
    home," and do not exceed 72 inches from the ground up.[^31] Those
    preferences would be in compliance with the Rule if they did not
    "unreasonably delay installation, add unreasonably to the cost of
    installation, maintenance or use \[of an antenna\], or impair the
    reception of an acceptable quality signal."[^32] In the instant
    case, however, the MCSA/EPCOM placement preferences delay the
    installation, maintenance and use of the satellite dish-TVBS antenna
    combination that Ms. Bradshaw needs to receive the alternative video
    programming Bell Atlantic provides, add to Mrs. Bradshaw's
    installation expenses, and impair signal reception. These
    restrictions violate the Rule because if a user deviates from the
    placement preferences, the user must comply with a prior approval
    process, which, as discussed above, is impermissible under the Rule.
    Furthermore, the requirement that antennas and dishes not be visible
    from the front yard and the height restrictions contravene the Rule
    by establishing a *per se* bar to antennas that extend over the roof
    line and those installed in the rear yards that exceed the 72-inch
    height limitation.[^33] Finally, the burden of demonstrating that
    its placement restrictions do not impair the installation,
    maintenance or use of the antennas lies with MCSA.[^34] MCSA has not
    responded to the instant Petition and has provided no evidence to
    meet this burden. For all the foregoing reasons, we find that the
    MCSA restrictions are preempted by the Rule.

# ordering clauses 

13. Accordingly, **IT IS ORDERED**, pursuant to Section 1.4000(d) of the
    Over-the-Air Reception Devices Rule, 47 C.F.R. § 1.4000(d), and
    Section 1.2 of the Commission's rules, 47 C.F.R. § 1.2, that Article
    VII, Section 9(o) of MCSA's protective covenants and MCSA/EPCOM's
    Standing Resolution and restrictions are hereby prohibited and
    unenforceable, as discussed herein.

14. This action is taken by the Chief, Cable Services Bureau, pursuant
    to authority delegated by Section 0.321 of the Commission's
    rules.[^35]

    FEDERAL COMMUNICATIONS COMMISSION

    Deborah Lathen

    Chief, Cable Services Bureau

[^1]: The Rule provides that parties may petition the Commission for a
    declaratory ruling under Section 1.2 of the Commission's rules to
    determine whether a particular restriction is permissible or
    prohibited under the Rule. 47 C.F.R. § 1.4000(d).

[^2]: *See Preemption of Local Zoning Regulation of Satellite Earth
    Stations and 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 (*Report and Order*"), 11 FCC Rcd 19276
    (1996) (consolidated), *on reconsideration*, CS Docket No. 96-83, 13
    FCC Rcd 18962 (1998) ("*Order on Reconsideration*"), Second Report
    and Order, CS Docket No. 96-83, 13 FCC Rdc 23874 (1998) ("*Second
    Report and Order*"). The Rule became effective on October 14, 1996.
    Public Notice DA 96-1755 (Oct. 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]: 47 C.F.R. § 1.4000(a).

[^6]: *Id*.

[^7]: 47 C.F.R. § 1.4000(a)(2)

[^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]: According to Bell Atlantic, it "provides consumers a new,
    competitive choice in multi-channel video programming . . . that
    includes programming packages of DirecTV, Inc. and United States
    Satellite Broadcasting Company, Inc., *and* the installation and
    maintenance of antennas and other equipment designed to receive
    *both* the satellite-delivered programming *and*, off-air via
    antenna, locally available television broadcast channels." (Emphasis
    in original). Petition at 2-3.

[^12]: *Id*. at 4 and Attachment C at 15.

[^13]: Petition at 4-5 and Attachments C and D.

[^14]: Petition at 5-9.

[^15]: *Id*. at 5.

[^16]: *Id*. at 10. Bell Atlantic points out that MCSA neither explains
    the approval process nor specifies the length of time required to
    obtain such approval. *Id*., note 23.

[^17]: Bell Atlantic notes that the two reception devices can be
    installed as a single unit to minimize its obtrusiveness. Petition
    at 3.

[^18]: Bell Atlantic notes that the preferred locations include the rear
    roof, rear wall, rear corner, or backyard. The last three locations
    are subject to a six-foot height limitation. *Id*. 9-10.

[^19]: 12 FCC Rdc 10455, 10466-67 ( Cab. Serv. Bur. 1997). In *Star
    Lambert*, Petitioner points out, the "required approval for the
    installation of antennas in excess of *14 foot* was held to be
    arbitrary *and* an 'unacceptable impairment' absent a clearly stated
    *and* defined safety objective." (Emphasis in original). Petition at
    9.

[^20]: 13 FCC Rcd 4844 ( Cab. Serv. Bur. 1997). In *MacDonald*
    ("*MacDonald*"), the Commission reiterated that placement
    preferences are enforceable where they do not impair the
    installation, maintenance or use of antennas covered by the Rule.

[^21]: Petition at 6 and Exhibit G.

[^22]: *Id*.

[^23]: Citing *MacDonald*, 13 FCC Rcd at 4854 (1997).

[^24]: DIRECTV Comments at 4-5.

[^25]: *Id*.

[^26]: For a detailed analysis of prior approval, *see Star Lambert*, 12
    FCC Rcd at 10466-10467 (1997); *Order on Reconsideration*, 13 FCC
    Rcd at 18980-18981.

[^27]: *Report and Order* at 19288.

[^28]: In the *Report and Order*, the Commission stated that procedural
    requirements might act as a barrier between new technology and the
    potential consumer because of the administrative delay and the
    myriad regulatory obstacles that the potential consumer must hurdle
    before being able to utilize the new technology. The Commission
    specifically concluded that requirements for approval by community
    associations might prove to be a disincentive for potential antenna
    users, effectively "preventing" access to the video programming
    signals that Congress sought to protect under Section 207 of the
    1996 Act. *Id*. at 19286-19287.

[^29]: In the *Report and Order*, the Commission declined to limit the
    size or shape of TVBS antennas that a user may install. *Report and
    Order* at 19301.

[^30]: 47 C.F.R. § 1.4000(a).

[^31]: *See* Standing Resolution quoted above.

[^32]: *Star Lambert* at 10466; *See Report and Order* at 19286-19287.

[^33]: *Order on Reconsideration*, 13 FCC Rcd at 18980 ("\[i\]f 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 uneforceable any restriction that
    establishes specific height limits.").

[^34]: 47 C.F.R. § 1.4000(f).

[^35]: 47 C.F.R. § 0.321.