**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No.                     |
|                                  | * | SAT-DRZ-19991216-00124       |
| Petition of Atlantic Satellite   | ) |                              |
| Corporation, Inc. Seeking a      | * |                              |
| Declaratory Ruling that a Zoning | * |                              |
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| Ordinance of the Town of         | * |                              |
| Orangetown, New York is          | * |                              |
| Preempted Pursuant to Section    | ) |                              |
| 25.104 of the Commission Rules.  | * |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** September 1, 2000 **Released:** September 5, 2000

By the Chief, International Bureau:

1\. By this Order we grant a petition filed by Atlantic Satellite
Communications, Inc. ("ASCI") requesting us to preempt the zoning
restrictions of the Town of Orangetown, New York ("Orangetown") pursuant
to Section 25.104 of the Commission's Rules.[^1] The Orangetown Zoning
Board of Appeals ("Zoning Board") denied ASCI's request to replace and
relocate an antenna on its commercial property, and to construct a new
antenna that exceeds Orangetown's size limitations for satellite earth
station antennas.[^2] We find that the Zoning Board's application of the
ordinance in this case obstructs the federal interest in ensuring easy
access to satellite delivered services. Consequently, we preempt Section
8.14 of the Town Code of Orangetown to the extent that it applies to
ASCI's application.

BACKGROUND

2\. The Commission is charged with promulgating rules that, among other
things, promote the federal interest in ensuring easy access to
satellite-delivered services.[^3] Section 25.104(a) of the Commission's
rules, which applies to satellite earth station antennas with a diameter
greater than two meters, states that that any local zoning regulation
that materially limits transmission or reception by earth station
antennas, or imposes more than minimal costs on users of such antennas
is preempted unless the promulgating authority can demonstrate that such
regulation is reasonable.[^4] ASCI contends that Orangetown's zoning
restrictions are unreasonable under this rule and should be preempted.
Orangetown disagrees.

3\. ASCI owns and operates broadcast-quality antennas used to provide
national and international broadcast services to the public through
programming providers. ASCI also uses its antennas to receive unedited
news footage which is then transmitted, via fiber optic cable, to news
services. The news service edits the footage for broadcast and returns
this footage to ASCI for satellite transmission to their affiliates.[^5]
Viewer programming includes news, ethnic broadcasting, children's
programming, and national and local sporting events. For its operation,
ASCI leases six acres of property in an area zoned light industrial
business.[^6] ASCI operates three antennas on this site. ASCI states
that it needs to replace the existing antenna and adding the new antenna
to serve a growing public interest and demand for programming.[^7]

4\. Section 8.14 of the Orangetown Zoning Code governs the placement and
number of satellite antennas located in the Town. The rules limit the
size of earth station antennas to a dimension of twelve feet high, wide
and deep. It also limits the maximum number of satellites to one per
lot.[^8]

5\. In January 1999, ASCI appeared before the Orangetown Planning Board
seeking a permit to (1) replace an existing antenna of 5 meters with an
antenna of 7 meters and relocate the antenna to another area of ASCI's
property and (2) construct a new antenna measuring 31 feet high, 42 feet
wide and 16 feet deep. These modifications would increase the total
number of satellites on the property to four.[^9] In February 1999, the
Planning Board granted preliminary approval of ASCI's request. The
Planning Board determined that ASCI's request would not have a
significant impact on the environment, nor would it have an impact on
the aesthetics, agricultural or cultural resources of the neighborhood.
The Planning Board also stated that the proposed action is consistent
with Orangetown's master plan and would have no "adverse economic or
social impact upon \[Orangetown\] or its business or residences."[^10]

6\. ASCI's proposal was then referred to Orangetown's Zoning Board for a
variance of the ordinance.[^11] In July 1999, the Zoning Board denied
ASCI's request. The Board's grounds for denial included: that the
requested variance would produce an undesirable change in the character
of the neighborhood; that ASCI failed to demonstrate that the signals
from existing facilities were not satisfactory and that ASCI does not
assert that it cannot retain existing customers; and that ASCI had not
committed that it would not make further requests to increase the size
of the antennas.[^12]

7\. In its petition, ASCI asserts that the local zoning regulation is
not reasonable as defined by Section 25.104.[^13] The preamble to the
ordinance states that the purpose of the zoning limitation is "to
further the health, safety and welfare of the citizens of the Town of
Orangetown." ASCI asserts, however, that the ordinance does not explain
how the zoning limitations on satellite antennas serve any of these
health and safety objectives.[^14] ASCI further states that the
ordinance sets rigid and arbitrary limitations on the size and the
location of antennas and, as a result, the regulation has impaired its
ability to compete and remain economically viable in the community.[^15]

8\. Orangetown responds that Section 8.14 is not preempted because the
ordinance explicitly states an aesthetic objective and this information
is readily available to antenna users. Additionally, Orangetown asserts
that the ordinance is in accordance with Section 25.104 in that it is
reasonable, does not materially limit satellite transmission and
reception, nor harms ASCI's ability to compete in the marketplace.
According to Orangetown, the aesthetic purpose in limiting antenna size
is appropriate because the bulk and visual impact of the antennas lower
property values.[^16] Orangetown further states that legal precedent has
consistently recognized that aesthetics are valid subjects for zoning
ordinances and land use administration.[^17] Finally, Orangetown argues
that any adverse ruling by this Commission would impair its ability to
adopt aesthetic regulations in the future.[^18]

DISCUSSION

9\. Section 25.104(a) of the Commission's rules preempts local zoning
regulations that "materially limit" access to earth stations with
diameters larger than two meters unless the promulgating authority can
demonstrate the regulation is "reasonable."[^19] Consequently, the
Commission must first decide whether the ordinance materially limits
reception or transmission. If so, Orangetown bears the burden of proving
that the limitations are reasonable.[^20] The local regulation may not
unnecessarily burden federal interests.[^21]

10\. The federal interest here is to ensure that users have access to
satellite signals, and to promote fair and effective competition among
communications service providers. ASCI states that due to increased
competition and changing technologies, it needs to construct and operate
a new antenna to meet accepted broadcast quality standards, and remain
economically viable in the market. ASCI informed the Zoning Board that
its clients had requested an antenna of the size proposed to combat
atmospheric conditions that significantly impair reception and
quality.[^22] ASCI also states that it needs the additional antenna to
serve new customers. Due to its current limited capacity, ASCI states it
has had to turn down requests for services from three major networks and
has lost the opportunity to secure new clients. In support of this
assertion, ASCI submitted copies of Requests for Proposals from several
major networks and its responses stating it could not accommodate their
satellite communication link requests due to technical limitations.
[^23] ASCI states that without the new antenna it will lose revenue,
both from new contracts and existing clients who take their business to
competitors able to provide improved services.[^24]

11\. Orangetown counters that ASCI has not demonstrated that the
existing antennas cannot transmit quality signals to satellites.[^25]
Orangetown also states that ASCI's claim of a growing public demand is
nebulous and its assertion that it would lose money is vague. In
addition, Orangetown claims that ASCI has not referenced any competitors
that have benefited from ASCI's lack of capacity.[^26]

12\. We find that the Orangetown ordinance materially limits ASCI's
ability to provide existing customers with improved services and
prohibits ASCI from gaining new customers. Contrary to Orangetown's
claims, ASCI has demonstrated that increased competition and changing
technology necessitate its relocating an antenna and constructing the
proposed additional antenna on its site. ASCI's proposal seeks to
utilize developments in the satellite earth station industry and to
serve the growing public demand with the latest technological advances.
Simply maintaining its current technical capabilities with its existing
satellites will not allow ASCI to remain competitive. As a result, the
application of the ordinance discriminates against satellite technology
vis-à-vis competing technologies. Accordingly, we find that the
Orangetown ordinance materially limits the reception and transmission of
earth station antennas.

13\. Next, we must determine whether Orangetown has met its burden of
demonstrating that the limitation is reasonable. For purposes of this
rule, "reasonable" means that the local regulation: (1) has a clearly
defined health, safety, or aesthetic objective that is stated in the
text of the regulation itself; and (2) furthers the stated health,
safety or aesthetic objective without unnecessarily burdening the
federal interests in ensuring access to satellite services and in
promoting fair and effective competition among competing communications
service providers." [^27] Orangetown did not rely on health or safety
reasons for denying ASCI's request. Rather, it offered several aesthetic
grounds for denying ASCI's proposal.[^28] While the Commission
recognizes that aesthetics are a permissible regulatory objective,
Orangetown is obligated to define those objectives. In this case, the
ordinance states that the controls contribute to a "good appearance" of
the town and stabilize property values.[^29] Orangetown states that
ASCI's proposal to add an "extremely large" commercial satellite antenna
would negatively impact property values nearby because of adverse
aesthetics.[^30] We note, however, that ASCI's facility is located on a
six-acre lot in an area zoned for light industrial use.[^31] The record
shows that this site consists of the earth station antennas and a
primary building.[^32] The dishes are located to the south of the
building, which borders another area zoned as light industrial. There
are other commercial buildings and a railroad track on the lot's western
and eastern sides respectively. Finally, the primary building and trees
screen the view of the antennas to the residential neighborhood to the
north.[^33] Thus, Orangetown has failed to demonstrate that application
of the ordinance in this case furthers an aesthetic objective.

14\. Further, although the ordinance refers to property values as a
reason to impose controls, Orangetown has failed to provide any factual
support for its assertion that granting the variance will have a
negative impact on nearby residential property. The Commission does not
regard testimony by non- party, neighboring property owners to be
reasonable in assessing an antenna application or variance request.[^34]
In addition, Orangetown's suggestion that ASCI consider alternative
sites does not sustain its burden to show the ordinance is reasonable.
The property is zoned for commercial use, and Orangetown does not oppose
ASCI's use of the property for signal reception and transmission for
business purposes.

15\. The Orangetown ordinance may not burden the federal interest in
promoting fair and effective competition in a variety of communications
services, including satellite services. We find that Orangetown's
ordinance, as applied to ASCI's request precludes ASCI's ability to meet
its business demands and compete with emerging technologies thereby
burdening the federal interest in ensuring access to satellite services.

CONCLUSION

16\. Based on the foregoing, we find that Section 8.14 of the Orangetown
Code materially limits reception and transmission under Section 25.104
of the Commission's rules, and that Orangetown has failed to demonstrate
the ordinance is reasonable. It has not shown that the ordinance
furthers aesthetic objectives given that ASCI's lot and surrounding
areas are zoned light industrial and that the view of the proposed new
antenna will largely be shielded from view by residences in the area.
Nonetheless, even assuming the ordinance furthers some aesthetic
objective, Orangetown has not shown that the ordinance does not
unnecessarily burden the federal interest in ensuring access to
satellite services. Therefore, we preempt the Orangetown ordinance as it
applies to ASCI's application.

ORDERING CLAUSE

17\. Accordingly, IT IS ORDERED, pursuant to 47 C.F.R. § 0.261 and §
25.104, that the Petition for Declaratory Relief filed by Atlantic
Satellite Corporation, Inc. IS GRANTED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Donald Abelson
>
> Chief, International Bureau

[^1]: Petition for Declaratory Ruling, fled by Atlantic Satellite
    Communications, Inc. on December 16, 1999, File No.
    SAT-DRZ-19991216-00124 ("*ASCI Petition*").

[^2]: Town of Orangetown Code Book ("Orangetown Code") Chapter 43, §
    8.14.

[^3]: *See* Preemption of Local Zoning regulation of Satellite Earth
    Stations, IB Docket No. 95-59, *Report and Order and Further Notice
    of Proposed Rulemaking*, ("*Preemption Order*") 11 FCC Rcd. 5809,
    5809 (1996).

[^4]: 47 C.F.R. § 25.104(a).

[^5]: Orangetown Response to Petition for Declaratory Ruling, Exh. B at
    13 ("*Orangetown Reponse*").

[^6]: *ASCI Petition* at 2.

[^7]: *ASCI Petition* at 2.

[^8]: Orangetown Code, Section 8.14 (D)(2) and (G)(8).

[^9]: ASCI's three existing satellite antennas were in place before the
    Ordinance went into effect and thus the Ordinance provides that they
    are "legal non-conforming structure\[s\]." Orangetown Code, Section
    8.14(K).

[^10]: *ASCI Petition*, Exhibit B at 2.

[^11]: Although the Planning Board may grant permit approval, the Zoning
    Board has exclusive jurisdiction to grant variance requests.
    *Orangetown Response* at 12.

[^12]: *ASCI Petition*, Exh C.

[^13]: *ASCI Petition* at 9.

[^14]: *ASCI Petition* at 6.

[^15]: *Id*. at 7.

[^16]: *Orangetown Response* at 5.

[^17]: *Id*. at 5-9.

[^18]: *Id*. at 16.

[^19]: 47 C.F.R. § 25.104.

[^20]: The record indicates that ASCI has "exhausted all non-federal
    administrative remedies" as required for Commission review. In
    addition, prior to filing its request for a Declaratory Ruling, ASCI
    filed a Petition with the Supreme Court of N.Y. appealing the zoning
    restriction imposed by Orangetown. This action has been stayed
    pending the Commission's resolution of this action*. See Atlantic
    Satellite Communications, Inc. v. John Duffy et* *al*., Index No.
    5951/99, Supreme Court, State of New York, Trial/Special Term Part,
    Rockland County.

[^21]: *Preemption Order*, 11 FCC Rcd at 5818.

[^22]: *Orangetown Response*, Exhibit B at 18.

[^23]: Atlantic Satellite Communications, Inc., Reply to Response to
    Petition for Declaratory Ruling, ("*ASCI Reply*") filed July 12,
    2000, at 6 and Exh. C and D.

[^24]: Atlantic Satellite Communications, Inc., Supplement to Petition
    for Declaratory Ruling filed July 10, 2000. This supplement was
    filed pursuant to a staff request. *See* Letter to Jason S. Roberts,
    Esq., Counsel for ASCI from Rosalee Chiara, Deputy Branch Chief,
    Satellite Policy Branch, dated June 23, 2000.

[^25]: *Orangetown Response*, at 11.

[^26]: Town of Orangetown Response to ASCI Supplement, p. 2. *See*
    Letter to Magalie Roman Salas, Secretary FCC, from James K. Riley,
    Orangetown Town Attorney, dated July 26, 2000. ("*Orangetown
    Response to Supplement*").

[^27]: 47 C.F.R. § 25.104(a)(1) and (2).

[^28]: *ASCI Petition*, Exh. C at 2.

[^29]: Orangetown Code, Section 8.14(A).

[^30]: *Orangetown Response,* at 5.

[^31]: *ASCI Reply*, at 4.

[^32]: *Id*.

[^33]: *Id.*

[^34]: Petition of Willie and Chun Ok Brown seeking a Declaratory Ruling
    that a Zoning Ordinance of Burlington, NJ is Preempted Pursuant to
    Section 25.104, *Report and Order*, 12 FCC Rcd 9626, 9628 n. 10. The
    majority of public testimony contained unsupported assertions
    regarding *safety* concerns from electromagnetic radiation emitted
    by satellite antennas. Nonetheless, the record indicates that
    Orangetown's action was based on aesthetic grounds and not safety
    concerns. *Orangetown Response*, Exh. B at 51-57.