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 Federal  Communications  Commission  DA  00-  927 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of: 
 Bell  Atlantic  Video 
 Services  Company 


 Petition  for  Declaratory  Ruling 
 Pursuant  to  47  C.  F.  R.    1.4000 


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 CSR  5398-  0 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  April  24,  2000  Released:  April  26,  2000 
 By  the  Chief,  Cable  Services  Bureau: 
 I.  INTRODUCTION 
 1.  Bell  Atlantic  Video  Services  Company  (  Bell  Atlantic)  filed  a  Petition  for  Declaratory 
 Ruling  (  Petition)  seeking  a  determination  that  The  Meadow  Community  Service  Associations  (  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 
 Commissions  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  MCSAs  restrictions  contravene  the  Rule  and  are 
 prohibited  and  unenforceable. 


 II.  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 


 1  The  Rule  provides  that  parties  may  petition  the  Commission  for  a  declaratory  ruling  under  Section  1.  2  of  the 
 Commissions  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). 
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 requires  the  Commission  to  promulgate  regulations  to  prohibit  restrictions  that  impair  a  viewers  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 


 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). 
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 III.  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  MCSAs  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  MCSAs  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 


 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  Atlantics  prospective  clients 
 at  The  Meadow  from  installing,  maintaining,  and  using  television  antennas  and  satellite  reception  devices 
 on  their  respective  properties.  Bell  Atlantic  contends  that  MCSAs  restrictions  prohibit  visible  outdoor 
 antennas,  require  homeowners  at  The  Meadow  to  obtain  prior  approval  from  the  Association  before 


 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. 
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 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  MCSAs  actions 
 contravene  Congressional  policy  to  promote  competitive  choice  in  video  services,  and  negatively  affect  the 
 choices  that  Bell  Atlantics  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 
 Atlantics  video  service,  but  because  of  MCSAs  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.  Broadshaws  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.  Bradshaws  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  Associations  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 


 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. 
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 by  February  28,  1999,  MCSA  would  take  further  action.  22  Bell  Atlantic  objects  to  MCSAs  interference 
 with  Ms.  Bradshaws  right  to  install  the  dish  where  she  needed  to  place  it.  23 


 9.  Bell  Atlantic  asks  the  Commission  to  issue  an  order  preempting  MCSAs  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  MCSAs  restrictions  is  to  impair  a 
 viewers  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  MCSAs  regulations  in  question  are  invalid,  unenforceable,  and  do  not  fall  under  either  the 
 safety  or  historic  exceptions.  25 


 IV.  DISCUSSION 
 A.  Prior  Approval  of  Antennas 
 10.  MCSAs  Standing  Resolution  requires  prospective  users  of  TV  antennas  and  satellite 
 reception  dishes  at  The  Meadows  to  obtain  prior  approval  from  MCSAs  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  MCSAs 
 Section  9(  o)  prior  approval  requirement.  Although  the  Commission  has  preserved  a  restricting  entitys 
 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  MCSAs  prior  approval 
 requirement  impermissible  under  the  Rule.  28 


 B.  Size  and  Height  Restrictions 
 11.  MCSAs  restrictions  prohibit  the  installation  of  satellite  dishes  24    39.  37  inches  in 
 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. 
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 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,  MCSAs  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  homeowners  front  yard;  2)  do  not  project 
 above  the  roof  ridge  line;  and  3)  are  pole-  mounted  in  a  homeowners  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.  Bradshaws  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. 


 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). 
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 V.  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  Commissions  rules,  47  C.  F.  R.   
 1.  2,  that  Article  VII,  Section  9(  o)  of  MCSAs  protective  covenants  and  MCSA/  EPCOMs  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  Commissions  rules.  35 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Deborah  Lathen 
 Chief,  Cable  Services  Bureau 


 35  47  C.  F.  R.    0.321. 
7