**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the matter of                 | *  | WT Docket No. 99-217         |
|                                  | *) |                              |
| Promotion of Competitive         | ** |                              |
| Networks in Local                |    |                              |
| Telecommunications Markets       | *  |                              |
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| 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                         |    |                              |
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+----------------------------------+----+------------------------------+

**ORDER ON RECONSIDERATION**

**Adopted: February 26, 2004 Released: March 24, 2004**

By the Commission: Commissioner Martin issuing a statement.

# Introduction 

1.  In this Order on Reconsideration, we address four Petitions seeking
    Reconsideration and/or Clarification of the Commission's
    determination to extend to users of fixed-wireless
    telecommunications antennas the same protections previously
    available to customers of multi-channel video service.[^1]
    Specifically, we: (1) deny Real Access Alliance's Petition, which
    asserted that the Commission lacked the statutory jurisdiction to
    extend those protections, to the extent they applied to antennas on
    leased property; (2) grant the Wireless Communications Association
    International's Petition for Partial Reconsideration, and the
    Petition for Clarification and Partial Reconsideration of the
    Satellite Broadcasting and Communications Association and the
    Satellite Industry Association, Broadband and Internet Division,
    which requested that the Commission reconsider and clarify that the
    limitations of the "safety exception" to the OTARD (Over-the-Air
    Reception Devices) rule apply to any professional installation
    requirement; (3) we also grant SBCA/SIA's Petition for Clarification
    and Partial Reconsideration, which further requested that the
    Commission clarify that its radiofrequency emission safety standards
    preempt any non-federal third party from imposing different
    standards; and (4) grant Triton's Petition for Reconsideration and
    clarify that these protections do apply to customer-end antennas
    that function to relay service to other customers.

# BACKGROUND

2.  In 1996, certain protections, referred to as the OTARD rules,[^2]
    were enacted by the Commission in compliance with Section 207 of the
    Telecommunications Act of 1996, which directed the Commission,
    pursuant to the authority in Section 303 of the Communications Act
    of 1934 (47 U.S.C. § 303), to prohibit restrictions that "impair a
    viewers ability to receive video programming services through
    devices designed for over-the-air reception of television broadcast
    signals, multichannel multipoint distribution service, or direct
    broadcast satellite services."[^3] In the *OTARD First Report and
    Order*, the Commission prohibited actions by state and local
    governments, zoning boards, home owners associations, and other
    third parties ("non-federal third parties") that restricted the
    installation and use of antennas (under one meter in diameter) and
    related equipment by users on their own property.[^4] Subsequently,
    the Commission extended the same protections to antennas installed
    by renters in areas over which they exercise an exclusive leasehold
    interest.[^5]

3.  On October 25, 2000, the Commission released the Competitive
    Networks First Report and Order and Further Notice of Proposed
    Rulemaking.[^6] In the *Competitive Networks Order*, the Commission
    found that goals expressed by Congress in the Telecommunications Act
    would be frustrated if the OTARD protections were applied to video
    and not to telecommunications services. The Commission found that:
    "To the extent a restriction unreasonably limits a customer's
    ability to place antennas to receive telecommunications or other
    services, whether imposed by government, homeowners associations,
    building owners, or other third parties, that restriction impedes
    the development of advanced, competitive services."[^7] The
    Commission concluded therefore that "distinguishing in the
    protection afforded based on the service provided through an antenna
    produces irrational results"[^8] and amended section 1.4000 of its
    rules to include customer end antennas used for transmitting or
    receiving fixed wireless signals.[^9]

4.  In order to promote the availability of advanced telecommunications
    services to customers within multi-tenant environments (MTE) the
    Commission adopted several measures to remove obstacles to
    competitive access to this important portion of the
    telecommunications market. Specifically, the *Competitive Networks
    Order*: (1) prohibited carriers from entering into contracts that
    restrict or effectively restrict owners and managers of commercial
    MTEs from permitting access by competing carriers; (2) clarified
    rules governing control of in-building wiring; (3) concluded that
    the access mandated by Section 224 of the Communications Act (the
    "Pole Attachments Act")[^10] includes access to conduits or
    rights-of-way that are owned or controlled by a utility within MTEs;
    and (4) concluded that parties with a direct or indirect ownership
    or leasehold interest in property, including tenants in MTEs, should
    have the ability to place antennas one meter or less in diameter
    used to transmit and receive fixed wireless in addition to
    multi-channel video service in areas within their exclusive use or
    control, and prohibited most restrictions on parties' ability to do
    so. Each of the relevant petitions for reconsideration here focuses
    only on the fourth issue.

# Discussion

5.  [The Real Access Alliance Petition]{.underline}. The Real Access
    Alliance[^11] argues that the Commission "had no power to extend the
    original OTARD rule to leased property . . . consequently the
    amendment promulgated in the (*Competitive Networks)* order is also
    invalid, to the extent it applies to leased property."[^12] RAA
    contends that the Commission lacked the authority to extend the
    OTARD rules to leased property as it did in the *OTARD* *Second
    Report and Order,*[^13] and that any further extension predicated on
    that authority is similarly invalid. The RAA argues that because
    Section 207 does not expressly extend or grant the Commission any
    jurisdiction over building owners that did not previously exist, the
    Commission lacked the authority to affect the landlord-tenant
    relationship. RAA further argues that the Commission's reliance on
    "ancillary authority" fails because there is no reasonable nexus
    between the exercise of that authority and underlying statutory
    provisions.[^14]

6.  At the time RAA's petition was filed, a challenge to the *OTARD
    Second Report and Order* was pending in the D.C. Circuit. The
    litigation was commenced by BOMA, one of the RAA's constituent
    groups.[^15] RAA's petition before us incorporates by reference
    BOMA's brief in that case. On July 6, 2001, the U.S. Court of
    Appeals for the D.C. Circuit denied BOMA's challenge to the *OTARD
    Second Report and Order*, finding that it was clearly within the
    Commission's discretion to protect all viewers from restrictions on
    access to multi-channel video regardless of whether they own or
    rent.[^16]

7.  Specifically, the Court found that in granting the Commission the
    authority to "perform any and all acts, make such rules and
    regulations, and issue such orders . . . as may be necessary in the
    execution of its functions," Congress clearly intended the
    Commission to have jurisdiction over any party imposing restrictions
    that the Act sought to eliminate.[^17] The Court also found that the
    Commission was entitled to deference in the interpretation of a
    statutory provision that did not speak to the exact issue at
    hand.[^18] The Court looked to the authority conferred upon the
    Commission in the Communications Act of 1934, the Telecommunications
    Act of 1996, and the specific legislative history of Section 207.
    The Court found that the Commission acted reasonably in protecting
    customers who lease property in the *OTARD Second Report and Order*
    due to the broad authority granted to the Commission by Congress to
    "perform any and all acts, make such rules and regulations, and
    issue such orders . . . as may be necessary in the execution of its
    functions,"[^19] and the stated mandate to "make communications
    services available . . . to all the people of the United
    States."[^20] One of the principal goals of the 1996 Act was "to
    promote competition and reduce regulation in order to secure lower
    prices and higher quality services for American telecommunications
    consumers and encourage the rapid deployment of new
    telecommunications technologies."[^21] While Section 207 was
    specifically directed to multichannel video reception, the
    Commission relied upon the same underlying authority and policy in
    extending those protections to fixed wireless telecommunications
    services.[^22] Because the D.C. Circuit has held that the Commission
    has broad authority to regulate in this area, RAA's argument that
    the Commission lacks jurisdiction over leased property fails and the
    petition is therefore denied.

8.  In addition, to the extent that RAA argues that the Commission acted
    outside the scope of its authority in extending the protections of
    OTARD to fixed wireless services, we conclude that the Commission\'s
    provision of these important consumer protections to fixed wireless
    customers serves goals articulated by Congress in Sections 1, 706
    and Title II of the Communications Act. As such, the Commission's
    decision is within the ancillary authority delegated to the
    Commission by Congress in Sections 1, 4(i), 201(b) and 303(r) of the
    Act to make regulations necessary to carry out the Act's provisions.
    We concluded in the *Competitive Networks Order* that our extension
    of the OTARD protections furthers the express objectives of Section
    1 to "make available, so far as possible, to all people of the
    United States, . . . a rapid, efficient, Nation-wide, and
    world-wide, wire and radio communications service with adequate
    facilities at reasonable charges."[^23] The *Competitive Networks
    Order* also found that the extension of OTARD rules to fixed
    wireless facilities is consistent with Section 706 of the
    Telecommunications Act of 1996, which directed the Commission to
    "encourage the deployment on a reasonable and timely basis of
    advanced telecommunications capability to all Americans . . . by
    utilizing, in a manner consistent with the public interest,
    convenience, and necessity . . . measures that promote competition
    in the local telecommunications market, and other regulating methods
    that remove barriers to infrastructure investment."[^24] Further,
    the Commission determined in the *Competitive Networks Order* that
    its action was necessary to further the consumer protection goals of
    Sections 201(b), 202(a) and 205(a) of the Act, which ensure that the
    rates, terms and conditions for the provision of common carrier
    service are just, fair and reasonable, and that there is no unjust
    or unreasonable discrimination in the provision of such service.
    Given these clear Congressional goals, the Commission determined
    that it was appropriate to exercise its ancillary authority to
    extend OTARD protections to fixed wireless customers, and that it
    would be illogical for the Commission to protect one group of
    consumers (*i.e.*, multi-channel video) but deny such protections to
    another group of consumers (*i.e.*, fixed wireless) based solely on
    the nature of the equipment in use. We are not dissuaded from this
    conclusion by any of RAA\'s arguments.

9.  [Wireless Communications Association (WCA) and Satellite
    Broadcasting and Communications Association/Satellite Industry
    Association (SBCA/SIA) Petitions]{.underline}. WCA and SBCA/SIA seek
    reconsideration of the Commission's treatment of professional
    installation requirements for fixed-wireless and satellite
    transceivers under the "safety exception" to the OTARD rule.[^25]
    When the OTARD rule was promulgated, the Commission specifically
    excepted from the general prohibition any restrictions that are
    "necessary to accomplish a clearly defined, legitimate safety
    objective."[^26] The rule requires any such restrictions be
    non-discriminatory, in that they apply not only to antennas but also
    to other items of similar size and weight that could pose a similar
    potential safety risk. Allowable restrictions would also have to be
    explained in writing and made available to the user. In extending
    the OTARD rule to cover devices which transmit as well as receive,
    the Commission recommended in the *Competitive Networks Order* that
    such devices be professionally installed. It further stated that "to
    the extent that local governments, associations, and property owners
    elect to require professional installation for transmitting
    antennas, the usual prohibition of such requirements under the OTARD
    rules will not apply."[^27]

10. WCA contends that the above language is ambiguous and that, unless
    clarified, would allow third parties to require professional
    installation for all transmitting devices regardless of whether
    there is any legitimate safety interest concerning that particular
    device.[^28] WCA requests that the Commission clarify that
    professional installation requirements must meet the same criteria
    as other safety-related restrictions, *i.e.,* that they be narrowly
    tailored, clearly defined, with the justification available in
    writing to those users potentially affected. SBCA/SIA also requests
    that the Commission reconsider these aspects of the *Competitive
    Networks* Order that recommend professional installation or specific
    locations for antennas and allow local governments, property owners
    or homeowners associations to impose such a condition.[^29] SBCA/SIA
    also requests that the Commission clarify that issues of
    radiofrequency exposure (RFE) are properly decided by the FCC and
    that local standards relating to RFE are invalid insofar as they are
    inconsistent with the guidelines established by the Commission.

11. We agree with WCA and SBCA/SIA that professional installation
    requirements should meet the same criteria as other safety-related
    restrictions.[^30] With regard to RF safety, we stress here that
    Congress has long vested in the Commission exclusive jurisdiction
    over radio communications, and that includes preemption of local
    jurisdictions in matters concerning RF safety.[^31] The Commission
    has established guidelines for evaluating radiofrequency exposure
    limits, which apply to "all FCC-regulated transmitters."[^32] When
    professional installation is appropriate to ensure safety from RFE
    hazard, the FCC places such a restriction on the certification or
    blanket license pertinent to the subject equipment, and this
    requirement is included in the instructions and labeling for the
    device, as appropriate.[^33] When professional installation is
    required, non-federal third parties are free to ensure that such
    requirements are followed. Similarly, where installation
    instructions relating to placement, direction, and distance,
    inclusion of additional equipment or devices, or any other
    parameters are required by the Commission for purposes of RF
    safety,[^34] non-federal third parties are again free to ensure that
    any such requirements are followed. In the absence of FCC-mandated
    professional installation requirements, however, non-federal third
    parties may not impose such restrictions for reasons of RF safety.
    Professional installation or installation restrictions for other
    safety reasons can be required if the restricting entity meets the
    OTARD criteria for safety requirements.[^35] The Commission also
    retains the authority to impose professional-installation
    requirements for customer-premised satellite earth stations and
    other radio frequency devices when the Commission deems it required
    by interference considerations or for other reasons necessary to
    implement its rules.

12. As with other safety related restrictions, we believe that where a
    legitimate safety concern is present, and articulated in writing, a
    narrowly tailored professional installation requirement should be
    enforceable. We note that in order to be eligible for the
    protections of the OTARD rule, a device must be properly labeled to
    give notice of potential RF safety hazards, including minimum
    separation distances from users.[^36] We recommend that
    manufacturers and service providers provide users with adequate
    information accompanying antennas regarding proper installation,
    including admonitions to employ professional installers when
    necessary. Such information regarding emission levels and
    installation techniques, in conjunction with established FCC RF
    emission guidelines may be used by third parties in justifying any
    requirement for professional installation. As such, we grant WCA's
    petition, and grant in part SBCA/SIA's petition and clarify that
    safety-related restrictions, including professional installation
    requirements, are limited by the established parameters of the
    "safety exception" to the OTARD rule.[^37]

13. [Triton Network Systems Petition]{.underline}. Triton seeks
    reconsideration and clarification of the Commission's determination
    in the *Competitive Networks Order* that customer-end antennas used
    as hubs or relays are explicitly excluded from the protections of
    the OTARD rule. Triton deploys its networks using a
    "point-to-point-to-point" architecture in which each customer device
    also serves as a relay device.

14. In the *Competitive Networks Order*, the Commission determined that
    Section 332(c)(7) of the Telecommunications Act of 1996, which
    preserves local authority to regulate placement of personal wireless
    service facilities, does not apply to customer-end antennas. Section
    332(c)(7) was intended by Congress to protect the authority over
    zoning traditionally vested in local governments, so long as the
    exercise of that authority is non-discriminatory and does not
    effectively prohibit wireless service. However, local authority is
    limited to those facilities used for the *provision* of "personal
    wireless service." In the *Competitive Networks Order*, the
    Commission concluded that local authority pursuant to section
    332(c)(7) does not include customer-end equipment, noting that the
    legislative history of section 332(c)(7) refers to non-customer-end
    equipment such as "50 foot towers" as an example of "personal
    wireless service facilities."[^38]

15. In enacting Section 332(c)(7), Congress expressed a concern with
    preserving for local governments the important role of zoning
    authority so that visible and potentially obtrusive facilities, such
    as towers, were constructed and located in a manner consistent with
    the interests of the local community.[^39] It was also the stated
    goal of Congress that consumers have access to their choice of
    services.[^40] Congress, in the case of multi-channel video, chose
    to remove from the Commission the discretion to decide not to
    preempt local restrictions by mandating the enactment of the OTARD
    rules for those services. The Commission retained the discretion to
    take similar action *vis-a-vis* other services. Indeed, as was
    pointed out in the *Competitive Networks Order*, Sections 207 and
    332(c)(7) were enacted concurrently, leading the Commission to
    conclude that it was unlikely that Congress would either preserve or
    limit local authority over a device based simply on the service for
    which a customer was using it when elsewhere the Act sought to
    promote all forms of advanced services.

16. However, in making the determination in the *Competitive Networks
    Order* that the OTARD rules applied to customer-end antennas and not
    to hubs or relays, the Commission did not consider those network
    configurations and technologies in which customer-end equipment
    performs both functions. As demonstrated by the
    point-to-point-to-point architecture cited by Triton and the mesh
    architectures being actively developed and deployed, other types of
    deployment of advanced services may no longer rely on the
    traditional configurations addressed in the *Competitive Networks
    Order*. For the purposes of the OTARD protections, the equipment
    deployed in such networks shares the same physical characteristics
    of other customer-end equipment, distinguished only by the
    additional functionality of routing service to additional users. We
    do not believe that our rules should serve to disadvantage more
    efficient technologies.

17. In concluding that OTARD protections should extend to such
    customer-end equipment, we do not intend that carriers may simply
    locate their hub-sites on the premises of a customer in order to
    avoid compliance with a legitimate zoning regulation.[^41] Rather,
    in order to invoke the protections of the OTARD rule, the equipment
    *must be installed in order to serve the customer on such
    premises*,[^42] and it must comply with all of the limitations of
    the rule, such as the restriction in antenna size to one meter or
    less in diameter or diagonal measurement.[^43]

18. We also find support for this reconsideration in the very definition
    of "customer premises equipment" (CPE) established by Congress in
    the 1996 Act. CPE is defined as "equipment employed on the premises
    of a person (other than a carrier) to originate, route, or terminate
    telecommunications."[^44] By including the routing function in the
    definition of CPE, the Act clearly does not intend to limit CPE to
    that which is used solely to originate or terminate
    telecommunications. Therefore, we grant Triton's Petition for
    Reconsideration and apply our OTARD rules to cover any customer-end
    device that would have been covered by our rules were it not for the
    device's routing/relaying functionality.

# CONCLUSION

19. For the reasons listed above, we; (1) deny RAA's Petition for
    Reconsideration which had challenged the Commission's authority to
    extend the OTARD protections in the *Competitive Networks Order*; to
    the extent they applied to antennas on leased property; (2) grant
    WCA's Petition for Partial Reconsideration, and grant in part the
    Petition for Clarification and Partial Reconsideration of the
    SBCA/SIA, and clarify that the limitations of the "safety exception"
    to the OTARD rule apply to professional installation
    requirements; (3) grant the SBCA/SIA's Petition for Clarification
    and Partial Reconsideration, which further requested that the
    Commission clarify that its radiofrequency emission safety standards
    preempt any non-federal third party from imposing different
    standards; and (4) grant Triton's Petition for Reconsideration by
    clarifying that the protections of the OTARD rule apply to
    customer-end devices that incorporate relaying/routing functions to
    other customers.

# PROCEDURAL MATTERS

## Regulatory Flexibility Act

20. A Regulatory Flexibility Analysis[^45] is not required because this
    order does not promulgate or revise any rules.

## Authority

21. This action is taken pursuant to Sections 4(i), 303, and 405 of the
    Communications Act of 1934, as amended by the Telecommunications Act
    of 1996, 47 U.S.C. §§ 154(i), 303, and 405.

# ORDERING CLAUSES

22. Accordingly, IT IS ORDERED that the Petition for Reconsideration
    filed by Real Access Alliance, Inc., IS DENIED.

23. IT IS FURTHER ORDERED that the Petition for Partial Reconsideration
    filed by the Wireless Communications Association, Inc., IS GRANTED.

24. IT IS FURTHER ORDERED that the Petition for Clarification and
    Partial Reconsideration filed by the Satellite Broadcasting Industry
    Association and Satellite Industry Association, Broadband and
    Internet Division, IS GRANTED.

25. IT IS FURTHER ORDERED that the Petition for Reconsideration filed by
    Triton Network Systems, Inc., IS GRANTED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

**STATEMENT OF**

**COMMISSIONER KEVIN J . MARTIN**

> *Re: Re: 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,
> Order on Reconsideration, WT Docket No. 99-217*

I have reservations with the Commission's decision to extend our rules
for over-the-air reception devices (OTARD rules) to cover devices used
to receive services other than video programming. The statutory basis
for our OTARD rules applies explicitly to "restrictions that impair a
viewer's ability to receive video programming services through devices
designed for over-the-air reception of television broadcast signals,
multichannel multipoint distribution service, or direct broadcast
satellite services." 47 U.S.C. § 303 note (Telecommunications Act of
1996 Section 207). I appreciate the policy behind extending our rules to
telecommunications services. I am concerned with relying solely on our
ancillary authority to do so.

[^1]: Petitions for Reconsideration were filed by: The Real Access
    Alliance (RAA), Triton Network Systems, Inc. (Triton), Wireless
    Communications Association International, Inc. (WCA), and the
    Satellite Broadcasting Industry Association and Satellite Industry
    Association, Broadband and Internet Division (SBCA/SIA). In
    addition, the Commission received eight Oppositions to the filed
    petitions from various parties.

[^2]: 47 C.F.R. § 1.4000. Section 1.4000 prohibits restrictions that
    impair the installation, maintenance or use of: (1) any antenna
    designed to receive direct broadcast satellite service, or to
    receive or transmit fixed wireless signals via satellite and that is
    one meter or less in diameter or is located in Alaska; (2) any
    antenna designed to receive video programming services via
    multipoint distribution services, including multichannel multipoint
    distribution services, instructional television fixed services, and
    local multipoint distribution services, or to receive or transmit
    fixed wireless signals other than via satellite and that is one
    meter or less in diameter; (3) any antenna designed to receive
    television broadcast signals; or (4) any mast supporting an antenna
    described in the Section. For the purposes of Section 1.4000, a law,
    regulation, or restriction impairs installation, maintenance, or use
    of an antenna if it: unreasonably delays or prevents installation,
    maintenance, or use; unreasonably increases the cost of
    installation, maintenance, or use; or precludes reception of an
    acceptable quality signal. Section 1.4000 also sets forth principles
    governing fees or costs that may be imposed for placement of covered
    antennas and enforcement of covered regulations. Restrictions that
    would otherwise be forbidden are permitted if they are necessary for
    certain safety or historic preservation purposes, are no more
    burdensome than necessary to achieve their purpose, and meet certain
    other conditions set forth in the rule.

[^3]: Section 207 of the 1996 Act states that "\[w\]ithin 180 days after
    the date of enactment of this Act, the Commission shall, pursuant to
    Section 303 of the Communications Act of 1934, 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 television broadcast signals, multichannel
    multipoint distribution service, or direct broadcast satellite
    services." 47 U.S.C. § 303 note (1996 Act, Section 207).

[^4]: *See* Preemption of Local Zoning Regulation of Satellite Earth
    Stations, *Report and Order, Memorandum Opinion and Order in IB
    Docket No. 95-59*, and Implementation of Section 207 of the
    Telecommunications Act of 1996 and Restrictions on Over-the-Air
    Reception Devices: Television Broadcast Service and Multichannel
    Multipoint Distribution Service, *Further Notice of Proposed
    Rulemaking in CS Docket No. 96-83*, 11 FCC Rcd 19276 (1996) (*OTARD
    First Report and Order*).

[^5]: *See* Preemption of Local Zoning Regulation of Satellite Earth
    Stations, *Report and Order, Memorandum Opinion and Order in IB
    Docket No. 95-59*, and Implementation of Section 207 of the
    Telecommunications Act of 1996 and Restrictions on Over-the-Air
    Reception Devices: Television Broadcast Service and Multichannel
    Multipoint Distribution Service, Report and Order, CS Docket No.
    96-83, 13 FCC Rcd 23874 (1998) (*OTARD Second Report and Order*).

[^6]: Promotion of Competitive Networks in Local Telecommunications
    Markets, *First Report and Order in WT Docket No. 99-217, the Fifth
    Report and Order and Memorandum Opinion and Order in CC Docket No.
    96-98, and the Fourth Report and Order and Memorandum Opinion and
    Order in CC Docket No. 88-57*, 15 FCC Rcd. 22,983 (2000)
    (*Competitive Networks Order*).

[^7]: *Competitive Networks Order* at para. 97.

[^8]: *Id.* at para. 98.

[^9]: For the purposes of the OTARD rule, "fixed wireless signals" are
    any commercial non-broadcast communications signals transmitted via
    wireless technology to and/or from a fixed customer location. 47
    C.F.R. § 1.4000 (a)(2).

[^10]: 47 U.S.C. § 224.

[^11]: The Real Access Alliance is a consortium of real estate
    interests, including Building Owners and Managers Association
    International (BOMA), Institute of Real Estate Management,
    International Council of Shopping Centers, Manufactured Housing
    Institute, National Apartment Association, National Association of
    Home Builders, National Association of Industrial and Office
    Properties, National Association of Real Estate Investment Trusts,
    National Association of Realtors, National Multihousing Council, and
    the Real Estate Roundtable.

[^12]: Petition for Reconsideration of the Real Access Alliance, filed
    Feb. 12, 2001.

[^13]: *OTARD Second Report and Order*.

[^14]: RAA Petition at p. 14.

[^15]: Building Owners and Managers Association et al. v. FCC, No.
    99-1099, Brief for Petitioner BOMA.

[^16]: Building Owners and Managers Association et al. v. FCC, 254 F.3d
    89 (D.C. Cir. 2001).

[^17]: *Id.* (quoting *Office of Communication of the United Church of
    Christ v. F.C.C.,* 707 F.2d 1413, 1423 (D.C. Cir.1983) *(*quoting
    *National Broad. Co. v. United States,* 319 U.S. 190, 219 (1943)*)*

[^18]: *See Chevron U.S.A. Inc. v. Natural Resources Defense Council,
    Inc.,* 467 U.S. 837 (1984).

[^19]: 47 U.S.C. §§ 154(i), 303(r).

[^20]: 47 U.S.C. § 151.

[^21]: Telecommunications Act of 1996, Pub. L. No. 104-04, purpose
    statement, 110 Stat. 56, 56 (1996) (*1996 Act Preamble*).

[^22]: *See* *Competitive Networks Order* at para. 110.

[^23]: *Competitive Networks Order* at para. 102 (quoting 47 U.S.C. §
    151).

[^24]: *Id*. at para. 103 (quoting Pub. L. No. 104-104 § 706, 110 Stat.
    153 (reproduced in the notes under 47 U.S.C. § 157)).

[^25]: *Id. at* para. 117.

[^26]: *See* 47 C.F.R. § 1.4000(b)(1).

[^27]: *Competitive Networks Order* at para. 119.

[^28]: Petition for Partial Reconsideration, filed by WCA on Feb. 12,
    2001, at p. 4.

[^29]: Petition for Clarification and Partial Reconsideration of
    SBCA/SIA, filed Feb. 12, 2001, at 10-12.

[^30]: Clearly-defined, legitimate safety restrictions are permitted
    even if they impair installation, maintenance or use, provided they
    are necessary to protect safety and are no more burdensome than
    necessary to ensure safety. The safety reason for the restriction
    must be written in the text, preamble or legislative history of the
    restriction, or in a document that is readily available to antenna
    users, so that a person wanting to install an antenna knows what
    restrictions apply.

[^31]: *See e.g.* In the Matter of Petition for Declaratory Ruling filed
    by Cingular Wireless LLC that Provisions of the

    Anne Arundel County Zoning Ordinance are Preempted as Impermissible
    Regulation of Radio Frequency

    Interference Reserved Exclusively to the Federal Communications
    Commission, *Memorandum Opinion and Order,*

    2003 WL 2151783 (WTB/2003).

[^32]: *See* Office of Engineering and Technology, *Evaluating
    Compliance with FCC Guidelines for Human Exposure to Radiofrequency
    Electromagnetic* Fields (1997) ("OET Bulletin 65"). *See also* 47
    C.F.R. 15.247(b)(5). *See also* <http://www.fcc.gov/oet/rfsafety>.

[^33]: Of course, where the Commission requires professional
    installation, non-federal third parties are free to make explicit in
    their rules a reference to this requirement. *See, generally,* 47
    C.F.R. §§ 1.1307 (Table 1) and 1.1310.

[^34]: *Id.*

[^35]: *See* 47 C.F.R. § 1.4000(b),(c). *See also* paragraph 9, *supra*
    and *In the Matter of Victor Frankfurt*, 16 FCC Rcd 2875 (CSB 2001),
    affirmed on review, 18 FCC Rcd. 18,431 (2003) (Petition for
    Declaratory Ruling under 47 C.F.R. § 1.4000). *Legitimate* safety
    requirements may satisfy the exception.

[^36]: *See* 47 C.F.R. § 1.4000(c).

[^37]: Clearly-defined, legitimate safety restrictions are permitted
    even if they impair installation, maintenance or use provided they
    are necessary to protect safety and are no more burdensome than
    necessary to ensure safety. The safety reason for the restriction
    must be written in the text, preamble or legislative history of the
    restriction, or in a document that is readily available to antenna
    users, so that a person wanting to install an antenna knows what
    restrictions apply. *See* 47 C.F.R. § 1.4000(b). *See also
    Implementation of Section 207 of the Telecommunications Act of 1996,
    Restrictions on Over-the-Air Reception Devices*, Report and Order,
    11 FCC Rcd 19276 at ¶¶ 24, 25, and 37 (1996), *affirmed*, *Order on
    Reconsideration,* 13 FCC Rcd 18962 at ¶¶ 8, 15, 34-36.

[^38]: S. Conf. Rep. No. 104-230, 104^th^ Cong., 2d sess. at 91 (1996).

[^39]: *Id.*

[^40]: *See generally Telecommunications Act of 1996.*

[^41]: Because this rule applies *only* to customer-end equipment, the
    provider's backhaul and hub or relay equipment is not covered.

[^42]: Thus, the OTARD protections would apply to installations serving
    the premises customer that also relay signals to other customers,
    such as is typical in mesh networks, but would not apply to
    installations that are designed primarily for use as hubs for
    distribution of service.

[^43]: *See e.g.* 47 C.F.R. § 1.4000(a)(1)(ii)(B). *See also Competitive
    Networks Order* at ¶100 & note 258 (allowing safety permit
    requirements for masts extending more than 12 feet above the roof of
    a building).

[^44]: 47 U.S.C. § 153(14).

[^45]: *See* 5 U.S.C. § 604.