*Pages 1--6 from  Microsoft Word - 9960.doc*
 Federal  Communications  Commission  DA  00-  2023 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Petition  of  Atlantic  Satellite  Corporation,  Inc. 
 Seeking  a  Declaratory  Ruling  that  a  Zoning 
 Ordinance  of  the  Town  of  Orangetown,  New  York 
 is  Preempted  Pursuant  to  Section  25.104  of  the 
 Commission  Rules. 


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 File  No.  SAT-  DRZ-  19991216-  00124 


 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  Commissions  Rules.  1  The  Orangetown  Zoning  Board 
 of  Appeals  (  Zoning  Board)  denied  ASCIs  request  to  replace  and  relocate  an  antenna  on  its  commercial 
 property,  and  to  construct  a  new  antenna  that  exceeds  Orangetowns  size  limitations  for  satellite  earth 
 station  antennas.  2  We  find  that  the  Zoning  Boards  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  ASCIs  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 
 Commissions  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 
 Orangetowns  zoning  restrictions  are  unreasonable  under  this  rule  and  should  be  preempted.  Orangetown 
 disagrees. 


 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). 
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 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,  childrens  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  ASCIs  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  ASCIs  request.  The  Planning  Board 
 determined  that  ASCIs  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  Orangetowns  master  plan  and  would  have  no 
 adverse  economic  or  social  impact  upon  [Orangetown]  or  its  business  or  residences.  10 


 6.  ASCIs  proposal  was  then  referred  to  Orangetowns  Zoning  Board  for  a  variance  of  the 
 ordinance.  11  In  July  1999,  the  Zoning  Board  denied  ASCIs  request.  The  Boards  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 


 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  ASCIs  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. 
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 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  ASCIs  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  Commissions  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 


 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  Commissions  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. 
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 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  ASCIs  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  ASCIs  lack  of  capacity.  26 


 12.  We  find  that  the  Orangetown  ordinance  materially  limits  ASCIs  ability  to  provide  existing 
 customers  with  improved  services  and  prohibits  ASCI  from  gaining  new  customers.  Contrary  to 
 Orangetowns  claims,  ASCI  has  demonstrated  that  increased  competition  and  changing  technology 
 necessitate  its  relocating  an  antenna  and  constructing  the  proposed  additional  antenna  on  its  site.  ASCIs 
 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-  -  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 


 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). 
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 communications  service  providers.  27  Orangetown  did  not  rely  on  health  or  safety  reasons  for  denying 
 ASCIs  request.  Rather,  it  offered  several  aesthetic  grounds  for  denying  ASCIs  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  ASCIs  proposal  to  add 
 an  extremely  large  commercial  satellite  antenna  would  negatively  impact  property  values  nearby  because 
 of  adverse  aesthetics.  30  We  note,  however,  that  ASCIs  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  lots  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,  Orangetowns  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 
 ASCIs  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 
 Orangetowns  ordinance,  as  applied  to  ASCIs  request  precludes  ASCIs  ability  to  meet  its  business 
 demands  and  compete  with  emerging  technologies  thereby  burdening  the  federal  interest  in  ensuring  access 
 to  satellite  services. 


 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  Orangetowns  action  was  based  on  aesthetic 
 grounds  and  not  safety  concerns.  Orangetown  Response,  Exh.  B  at  51-  57. 
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 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  Commissions  rules,  and  that  Orangetown 
 has  failed  to  demonstrate  the  ordinance  is  reasonable.  It  has  not  shown  that  the  ordinance  furthers  aesthetic 
 objectives  given  that  ASCIs  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  ASCIs  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 
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