Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of: )              | * | CSR 6245-O                   |
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| Michael and Alexandra Pinter ) ) | * |                              |
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| Petition for Declaratory Ruling  | ) |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: August 30, 2004** **Released: September 1, 2004**

By the Deputy Chief, Media Bureau:

**I. Introduction**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level71. Petitioners Michael and Alexandra Pinter
(\"Petitioners\") filed a Petition for Declaratory Ruling (\"Petition\")
seeking a determination that the antenna restrictions of the Second Bear
Creek Homeowners Association in Boulder, Colorado ("Association") are
prohibited by the Commission\'s Over-the-Air Reception Devices Rule, 47
C.F.R. § 1.4000 (\"Rule\").[^1] The Association filed a response to the
Petition and the Community Associations Institute, the National Multi
Housing Council, and the National Apartment Association ("CAI") filed a
joint response. The Petitioners filed a reply as did the Satellite
Broadcasting and Communications Association ("SBCA"). In addition,
Sat-Com HookUp, LLC, submitted a letter in response to the Petition and
eight homeowners in Second Bear Creek submitted letters in support of
the Petitioners.[^2] For the reasons discussed below, we grant
Petitioners' request in part and deny it in part.

**II. Background**

2\. 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[^3] was adopted by the Commission to
implement Section 207 of the Telecommunications Act of 1996 (the
\"Act\").[^4] This provision was intended to advance 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. . . .\"[^5]

3\. The Rule applies to antennas that are one meter or less in diameter
and are designed to receive or transmit direct broadcast satellite
services; antennas that are one meter or less in diagonal measurement
and are designed to receive or transmit video programming services
through multipoint distribution services, including multichannel
multipoint distribution services, instructional television fixed
services, and local multipoint distribution services; and antennas
designed to receive television broadcast signals.[^6] 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 or leasehold interest in the property\" upon which
the antenna is located.[^7] 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.[^8] There are
exceptions to the Rule for restrictions necessary to address valid and
clearly articulated safety or historic preservation issues, provided
such restrictions are as narrowly tailored as possible, impose as little
burden as possible, and apply in a nondiscriminatory manner throughout
the regulated area.[^9]

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.[^10] The Rule
places the burden of demonstrating that a challenged restriction
complies with the Rule on the party seeking to impose the
restriction.[^11] In addition, no attorney's fees, fines, or other
penalties shall accrue against an antenna user while a proceeding to
determine validity of a restriction is pending.[^12]

**II. Discussion**

5\. In the instant case, the Association, in 1997, adopted a DBS antenna
policy for the townhome community[^13] of Second Bear Creek that reads,
in pertinent part, as follows:

> Location: Antennas shall be installed only on individually-owned
> property as described on the recorded deed and site plan.
>
> Antennas shall not encroach upon Common areas or any other owner's
> property.
>
> Antennas shall be located in a place shielded from view from the
> street/ driveway and other homes to the maximum extent possible.
>
> The preferred location is to place the antenna directly under the roof
> edge on a front or back wall.
>
> Roof mounting of antennas is discouraged due to environmental (wind,
> snow, and ice) conditions
>
> Note: 1. Nothing in this policy requires a DBS antenna installation in
> a location where an acceptable quality signal cannot be received.
>
> Notification Process
>
> Any owner desiring to install an (sic) a DBS antenna shall prepare a
> plan addressing the items in this policy and submit it to the
> Association's Architectural Committee.
>
> Note: If the installation conforms to the items defined in this
> policy, the installation may begin immediately.
>
> Policy Enforcement
>
> The Association reserves the right to inspect all antenna
> installations and to be shown copies of City of Boulder building code
> inspection compliance documentation, when required.
>
> If any aspect of this policy is violated, the Association shall
> require the immediate correction of the situation. ... If legal action
> is necessary, the Association shall be entitled to reasonable attorney
> fees, costs, and expenses incurred in the enforcement of this
> policy.[^14]

6\. The Petitioners state that in June 2002 they decided to install two
satellite antennas, one to receive domestic programming and the other
for international programming. They notified the Association of their
intent to install,[^15] and proceeded with installation in a non
preferred location because the installer determined that the preferred
location would not receive an acceptable quality signal.[^16] One
antenna was installed on the roof step between Petitioners' and their
neighbor's house (east facing antenna) and the other antenna was
installed on the fascia board near the roof on petitioners' property
(south facing antenna).[^17] After considerable discussion, debate, and
correspondence, the Petitioners received a letter from the Association's
attorneys stating that they had violated the Association's antenna
policy and asking them to move one of the antennas (south facing) to a
preferred location that would accommodate reception. The letter stated
that the other antenna (east facing) could remain where it was installed
because that was the only place where it could receive an acceptable
signal The letter indicated that the Association's preferred location
for both antennas was the roof step near the east facing antenna.[^18]

7\. Although Petitioners state that they were willing to relocate the
antenna as requested,[^19] it was determined that the location for both
antennas preferred by the Association was at the site of the east facing
antenna and not on Petitioners' property.[^20] Petitioners offered to
move the east facing antenna from their neighbor's property, as well as
the other antenna, to another location acceptable to the
Association.[^21] The move was eventually accomplished on March 12,
2003. Both antennas are now installed on the Petitioners' roof.[^22] On
April 24, 2003, Petitioners were notified that they had been charged
\$1876.60 for legal fees to "bring both DBS antenna installations into
compliance with the Association's Direct Broadcast Satellite Antenna
Policy".[^23]

[East Facing Antenna]{.underline}

8\. With respect to the antenna referred to by the parties as the "east
facing antenna", we find that this installation is not covered by our
rule because it was not installed on Petitioners' exclusive use area or
property.[^24] The rule applies to installations where the antenna user
has a "direct or indirect ownership or leasehold interest in the
property" and the property is within the user's exclusive use or
control.[^25] Although we therefore take no position on actions taken or
fees incurred by the Association in connection with this installation,
it appears that the dispute between the parties was not about the
placement of this antenna. The Association's objections which gave rise
to attorney's fees were primarily, if not totally, directed to the south
facing antenna which was in a location covered by our rule, as discussed
below.

[South Facing Antenna]{.underline}

9\. The second antenna was installed on property owned by the
Petitioners and within their exclusive use or control.[^26] We therefore
find that this antenna installation is covered by our rule and that any
restriction imposed by the Association may not impair its installation,
maintenance or use.[^27] For purposes of our rule, restrictions impair
if they unreasonably delay or prevent installation, maintenance or use,
unreasonably increase the cost of installation, maintenance or use or
preclude reception or transmission of an acceptable quality signal.[^28]

10\. We find that the Association's antenna policy ("policy") on its
face and as applied to the Petitioners' "south facing antenna" violates
the Rule. Among other provisions, the Association's antenna policy
contains a "notification" requirement. Although a notification process
is not per se invalid under our rule, in this case the Association
attempted to use the process as an impermissible prior approval
requirement.[^29] The policy on the one hand requires submitting a plan
to the Association's Architectural Committee while stating that if the
installation conforms to the "items defined in this policy",
installation may begin immediately. The policy further describes
locations where antennas may be installed, giving as the preferred
location, the area directly under the roof edge on a front or back wall.
The policy also states that roof mounting is discouraged. As a note to
this section, the policy states that nothing in its restrictions
requires an antenna installation in a location where an acceptable
quality signal cannot be received.

11\. Here, Petitioners arranged for installation of the antenna and were
told by the installer that, with respect to the "south facing antenna",
an acceptable signal could not be received in the Association's
preferred location.[^30] The antenna was therefore installed in an
alternate location, as permitted by the Association's policy, but not on
the roof as this was specifically discouraged by that same policy. At
this point, the burden shifted to the Association to show that the
antenna could be placed in a preferred location and still receive an
acceptable signal.[^31] In fact, the Association did not meet this
burden and expended significant time and expense in negotiating with
Petitioners to move the antenna to an area not on his property.[^32]
When this solution proved unsuccessful, the Association ultimately chose
a location on the Petitioners' roof that was specified as a non
preferred location in the Association's policy.[^33] It thus appears
that the Association's guidelines were ineffectual in this situation and
that the only way the Petitioners could comply with the policy was to
seek prior approval for their installation. This conclusion is supported
by a statement in a letter from the Association to homeowners that
"...it is important for members to involve the HOA's Architectural
Committee in the antenna location process" to avoid future
conflict.[^34] We find that this aspect of the policy operates as an
unreasonable delay and is thus invalid. Similarly, any attorney's fees
incurred in connection with identifying a location acceptable to the
Association for this antenna and fees incurred in it relocation
unreasonably increased the cost of installation and may not be charged
to the Petitioners. The Association's reliance on the Commission's rule
to support its ability to impose attorney's fees in this instance is
misplaced.[^35] The rule addresses fees imposed more than 21 days after
a ruling adverse to a petitioner is released.[^36] Here we find that the
Association's antenna policy on its face and as applied to Petitioners'
south facing antenna is invalid. We also disagree with the Association
that the prohibition on unreasonable costs does not apply to attorney's
fees imposed "post installation".[^37] Such a result would unfairly
expose antenna users to expenses associated with invalid restrictions
that could not be enforced initially. We note that the record shows that
Petitioners expressed their willingness to move the antennas and
therefore it might not have been necessary for the Association to incur
legal fees in connection with this move.[^38]

[Procedural Issue]{.underline}

12\. CAI urges us to deny the petition on the ground that it is not
supported by affidavit.[^39] SBCA, on the other hand, argues that
denying the petition on this basis would be patently unfair, especially
because the Petitioners prepared the petition without assistance of an
attorney. SBCA suggests that if an affidavit is necessary, the
Commission should direct Petitioners to supplement the record by filing
one.[^40] Petitioners, in their Response to the Association's filing,
submitted a sworn affidavit attesting to the accuracy of the information
in the Petition, the Response, and the related attachments. We find that
this affidavit comports with our rule and we decline to deny the
Petition on this procedural ground.[^41]

[Notice]{.underline}

13\. CAI claims that the Petition and the public notice thereof does not
give adequate notice of what aspects of the Association's antenna policy
it was challenging, other than the assessment of attorney's fees.[^42]
We find this argument without merit. There is no question that the
Commission's Public Notice accurately identified the Petition and
directed interested parties to comment on the issues raised by
Petitioners. In their petition, the petitioners specifically challenge
sections of the Association's Antenna Policy regarding prior approval,
the requirement of a 30 day waiting period, and the requirement for a
site survey.[^43] The record also shows that the Association knew that
several aspects of its antenna policy were inconsistent with Commission
rules and policies.[^44] The Association discussed its policy with
Commission staff and has committed to revise its policy after the
instant order is released.[^45] Among the problematic items noted by the
Association is the fact that the policy appears to require prior
approval, requires professional installation, and limits the number of
antennas permitted.[^46] We expect the Association to honor its
commitment to address these aspects of its policy as they do not comport
with our rule. The cases cited by CAI do not support its argument that
there was insufficient notice. The Commission's public notice and the
Petition provide adequate notice of the issues in this case.

**III. Ordering Clauses**

14\. 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 with
respect to the antenna originally installed on Petitioner's neighbor's
property, (east facing) the Petition is **DENIED.** With respect to the
antenna originally installed in the Petitioner's exclusive use area
(south facing), the Petition is **GRANTED**.

15\. This action is taken by the Deputy Chief, Media Bureau, pursuant to
authority delegated by Section 0.283, 47 C.F.R. §0.283, of the
Commission\'s rules.

FEDERAL COMMUNICATIONS COMISSION

William H. Johnson

Deputy Chief, Media Bureau

[^1]: Section 1.4000(d) 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]: ^?^ The following individuals submitted letters in support or the
    Petitioners: Alice Lecinski (1/25/04); Eleanor Nay-Chiles (1/25/04);
    Wallace P. Dunlap (1/29/04); Beverley Broom (1/30/2004); Ruth
    Bittinger (1/31/04); Daniel Buck (1/31/04); Brandon Parkes (2/9/04);
    Neala Koth (2/12/04).

[^3]: *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*, 13 FCC Rcd. 18962
    (1998) (\"*Order on Reconsideration*\"), Second Report and Order, 13
    FCC Rcd. 23874 (1998) (\"*Second Report and Order*\"). The Rule
    became effective on October 14, 1996. Public Notice DA 96-1755 (Oct.
    23, 1996).

[^4]: Section 207 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\" certain enumerated services. *Telecommunications Act
    of 1996*, Pub. L. No. 104-104, § 207, 110 Stat. 56, 114 (1996).

[^5]: ^?^Communications Act of 1934, § 1 as amended, 47 U.S.C. § 151.

[^6]: 47 C.F.R. § 1.4000(a). In October, 2000, the Commission amended
    the Rule to apply also to antennas that are used to receive and
    transmit non-video signals. *Promotion of Competitive Networks in
    Local Telecommunications Markets*, *Wireless Communications
    Association International, Inc. Petition for Rulemaking to Amend
    Section 1.4000 of the Commission's Rules to Preempt Restrictions on
    Subscriber Premises Reception or Transmission Antennas Designed to
    Provide Fixed Wireless Services*, First Report and Order and Further
    Notice of Proposed Rulemaking, 15 FCC Rcd 22983 (2000).

[^7]: 47 C.F.R. § 1.4000(a).

[^8]: *Id.*

[^9]: ^?^47 C.F.R. § 1.4000(b).

[^10]: 47 C.F.R. § 1.4000(d).

[^11]: 47 C.F.R. § 1.4000(e).

[^12]: 47 C.F.R. § 1.4000(a)(4).

[^13]: Ownership documents show that the homeowners in this community
    own the building and the land on which it is built. *See* Deed dated
    March 15, 1974 attached as an exhibit to the Petition.

[^14]: Association's DBS Antenna Policy.

[^15]: *See* June 25, 2002 document attached to the Petition.

[^16]: *See* Letter from Sat-Com HookUp, LLC (6/24/02).

[^17]: Association Response at 5.

[^18]: Letter from Wells, Love & Scoby, LLC, counsel for the Association
    (Attorneys) (12/2/02). *See also* Letter from the antenna installer,
    Jersey Hamersley, (10/12/03).

[^19]: Letter from Petitioners to Attorneys (12/10/02) stating they were
    willing to remove or relocate the antenna but needed direction as to
    its placement given that the location chosen by the Association was
    on their neighbor's property.

[^20]: *See* Letter from Attorneys to Petitioners (12/19/02) stating
    that an Association representative will contact Petitioners'
    neighbor for permission to install the antenna on the roof riser;
    letter from Attorneys to Dale T. Colclasure discussing the
    Association's request that Mr. Colclasure permit relocation of
    Petitioners' antenna to Mr. Colclasure's property; letter from Dale
    T. Colclasure to Attorneys (1/27/03) refusing permission to relocate
    Petitioners' antenna to his property; letter to Association
    President from Petitioners (1/27/03) indicating that they would not
    install their antenna on their neighbor's roof.

[^21]: Letter to Kitty Ferguson from Petitioners (1/27/03).

[^22]: Association Response at 5.

[^23]: Letter to Petitioners from Association President (4/24/03).

[^24]: *See* Association Response at 5. The Petitioners do not concede
    that this area is their neighbor's property but they acknowledge
    that the Association believes this. Petitioners Reply at 2.

[^25]: *See* 47 C.F.R. §1.4000(a)(1).

[^26]: *See* Deed, attached as an exhibit to Petition. The Association
    acknowledges this in its Response at 5. CAI is therefore incorrect
    that the second antenna was on common property or on Petitioners'
    neighbor's property. See CAI Response at 4-6.

[^27]: 47 C.F.R. §1.4000(a)(1).

[^28]: 47 C.F.R. §1.4000(a)(3).

[^29]: *See Report & Order, supra* note 2 at 19286-7; *see also* Philip
    Wojekewicz, DA 03-2971, MB2003) at par. 13 which states "\[I\]f a
    notification process is implemented so as to delay installation in
    any way, we will consider it to be a prior approval requirement and
    impermissible under the Rule."

[^30]: Sat Com letter, January 20, 2004.

[^31]: Lubliner, DA 97-2188 (CSB1997) at para 18.

[^32]: *See* Letter from Attorneys to Dale Colclasure (1/17/03) urging
    him to allow installation of both of Petitioners' antennas on his
    property.

[^33]: Association Response at 6; Antenna Policy at 6.

[^34]: 12/20/02 letter from Association to members. *See also* CAI
    Response at 3-4 stating that this situation resulted from the
    Bureau's ban on prior approval requirements and supporting the
    Association's position that its policy required review and approval
    of installations. We note that the prohibition of prior approval
    requirements not related to safety or historic preservation is well
    established by Commission, not Bureau precedent. *Report and Order*,
    *supra* note 2 at 19286-7; *Order on Reconsideration*, *supra* note
    2 at 18981.

[^35]: Association's Response at 10.

[^36]: *See* 47 C.F.R. §1.4000(a)(4) which gives a petitioner 21 days to
    comply with a restriction deemed valid by the Commission unless the
    petition is deemed frivolous. *See also* James Sadler, DA 98-1284
    (CSB 1998).

[^37]: *See* Association's Response at 13.

[^38]: *See* SBCA Reply at note 15.

[^39]: *See* 47 C.F.R. §1.4000(h). CAI Response at 11.

[^40]: SBCA Reply at note 27.

[^41]: *See Star Lambert*, 12 FCC Rcd 10455, 10463-4 (CSB 1997).

[^42]: CAI Response at 9.

[^43]: Petition at 2.

[^44]: Letter from Board President, Kathryn Ferguson, to Petitioners
    (5/12/03); Association Response at 4.

[^45]: Association Response at 4.

[^46]: *Id.*