WPCK^ 2B-J Z CourierCourierTimes New RomanTimes New Roman Bold@HP LaserJet 4_230_1HPLAS4.PRS 4d  @8;\oe@236FUK"|dCourierTimes New Roman^!)22SN!!!28!2222222222888,\HCCH=8HH!'H=YHH8HC8=HH^HH=!!/2!,2,2,!222N2222!'22H22,006!!!d!!!!!!!!!!2H,H,H,H,H,YCC,=,=,=,=,!!!!H2H2H2H2H2H2H2H2H2H2H,H2H2H2H2H282H,H,C,C,C,C,H2=,=,=,=,H2H2H2H2H2H2H2!2!2!!!2'!H2==!=!=!=H2H2H2H2H2YHC!C!C!8'8'8'8'=!=!=!H2H2H2H2^HH2=,=,N#-2!,22222KK2LL2K,,2d!!22b88d!,d_t887788c<I\\>>>\g0>03\\\\\\\\\\33gggQyyrg>Frgygrr>3>T\>Q\Q\Q>\\33\3\\\\>F3\\\\QX%Xc>0cT>>>0>>>>>>>>\3QQQQQwyQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\\c\c\>3>\>>>\gcc\r3rIr>r>r3\l\\\\y>y>y>gFgFgFgcrMr3rT\\\\\\crQrQrQ\r>\gFr>\t0\\=!=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBT\>Q\\\\\3;\7;\7>>QQ\??n\\pBnnBmgg>Q\7"yyyy\njc\gnn\2(K v pMk"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\pBnnBsgg>\\7"yyyy\nlc\gnn\a8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  2TkZvjta5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  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A. a.(1)(a) i) a)Documentg2A& e$8%%PleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:~F?~Gfootnote tex#<'p #FxX  Pg9CXP#header=Ax 4 <D  #FxX  Pg9CXP# reference>;#FxX  Pg9CXP#itemizeX1?&V 8F ` hp xr#FxX  Pg9CXP#2#O@iHA^*JBOKKLheader2@I ` hp x`    #FxX  Pg9CXP# heading 3AF` hp x #FxX  Pg9CXP# footer!B!!#d\  PCP#"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd~2XKUOLQLSL9V"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd%7777777777>>>1eOIIOC=OO%+OCbOO=OI=COOhOOC%%47%17171%777V7777%+77O77155<%%%n%%%%%%%%%%7O1O1O1O1O1bII1C1C1C1C1%%%%O7O7O7O7O7O7O7O7O7O7O1O7O7O7O7O7=7O1O1I1I1I1I1O7C1C1C1C1O7O7O7O7O7O7O7%7%7%%%7+%O7CC%C%C%CO7O7O7O7O7bOI%I%I%=+=+=+=+C%C%C%O7O7O7O7hOO7C1C1N'27%177777"SS7!TT7S!117n%%77l==n%1ni!t>><<>>mBBs,>[N6-msTN[TTTH_<1CP { yO -ԍXxComments of the National League of Cities (July 12, 1993), at 2.(#y The City of St. Louis states that adequate  S-procedures exist on the local level.i?{ yO8 -ԍXxComments of City of St. Louis (August 13, 1993).(#i In a letter reflecting continuing discussions among the interested parties, satellite representatives indicated that after their meetings with local government  S-representatives, the latter group acknowledged the necessity for review procedures.L@@{ yOx-ԍXxLetter at 2. (#L  SH -x&39.` ` SBCA and Hughes both request specific procedures to remedy the problems they perceive with the current policy. SBCA requests, among other things, that the Commission (a) institute a rulemaking proceeding to amend sections 1.91 and 1.92 of the Commission's rules to eliminate trialtype evidentiary hearings in cease and desist proceedings involving the preemption rule; (b) expedite review of preemption cases by imposing a relatively short deadlines on virtually each intermediate step in the highly structured process; (c) require all trialtype hearings to be conducted in Washington on an expedited basis; (d) prohibit time extensions; and (e) clearly place the burden of proof in a showcause hearing on the local authority.  S-x'40.` ` Hughes suggests a similarly detailed approach. Hughes proposes that the Commission receive and act on petitions that implicate the preemption rule, which petitions are to be no more then ten pages and must show service upon the local jurisdiction along with a statement of Commission procedures. The local jurisdiction would have fifteen days to respond to the petition and to certify that it is familiar with Commission rules. If the local jurisdiction did not respond within fifteen days, the Commission would issue a "summary form" declaring the ordinance preempted. If the jurisdiction filed a statement materially disputing the allegations, the petitioner could request that the Commission resolve the dispute by conference. Otherwise, the local jurisdiction would have ten days in which to answer the petition and the Commission would have ninety days in which to announce a decision.  SP-B.xProposed Modification and Clarification of the Rule  S-x(41.` ` In resolving the issues before us, we are faced with a conflict between two very important principles of government. On the one hand, we are responsible for promoting the federal  S-interest in nationwide communications systems,VA{ yO &-ԍXxSee 47 U.S.C.  151.(#V including access to satellitedelivered  S-communications where appropriate.VB` { yO(-ԍXxSee 47 U.S.C.  705.(#V In pursuit of this federal interest, we have stated many times the strong federal interest in ensuring that users have reasonable access to satellite signals. Such is our"` B,_*_*" mandate from Congress, and when nonfederal regulation "stands as an obstacle to the accomplishment  S-of a congressional purpose," such regulation is subject to preemption.C{ yO@-ЍXxCapital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699 (1984) (quoting Hines v. Davidowitz, 312 U.S. 52  yO-(1941)). See also Michigan Canners and Freezers Ass'n, Inc. v. Agricultural Marketing and Bargaining Bd., 467 U.S. 461 (1984); Florida Avocado Growers v. Paul, 373 U.S. 132 (1963); In re Preemption of Local Zoning or Other Regulation of ReceiveOnly Satellite Earth Stations, 51 Fed. Reg. 5519 (Feb. 14, 1986) at  23.(# On the other hand, we must, to the maximum extent possible, respect principles of federalism. Those principles are particularly weighty in this case because the nonfederal regulations in question are not overt attempts to assert control over interstate communications; they are local landuse restrictions that lie at the core of state and local police powers. x  S-x)42.` ` We cannot ignore our responsibility to protect and promote the strong federal interest in widespread access to satellite communications. Our existing preemption rule is directed toward  S-protecting this interest. The Second Circuit's decision in Deerfield makes it clear that the Commission will have little or no opportunity to interpret and enforce this existing rule unless our exhaustion requirement is modified, and we therefore propose to do so. However, the one point on which virtually all commenters agree is that the Commission cannot and should not become a national board of zoning appeals a position with which we strongly concur. If the Commission is to interpret and enforce its preemption rule in specific zoning disputes, it is absolutely essential that the rule be drafted in such a way that an interpretation in one case can set useful precedent for later cases. Casebycase determinations of reasonableness, with each case dependent almost entirely upon its own facts, will be unmanageable for the Commission. Nor can we imagine a more intrusive form of preemption, since overly factspecific rulings would leave local governments with little ability to discharge their obligation to comply with federal law in the first instance.  S-x*43.` ` In addition, the evidence compiled in this record indicates that local zoning restrictions have inhibited access to satellite services for a substantial number of users, widely dispersed throughout the country. The obstacles faced by these users appear to have hampered the development of existing satellite services and impeded the growth of related industries such as programming and antenna manufacturing. Moreover, the record suggests that local restrictions currently in force are likely to have a similar effect on new satellite services as they are developed. We see no evidence that the petitioners and commenters have exaggerated the extent of the difficulties. It appears that adjustments to our preemption rule are necessary to minimize the inhibitory effect of state and local zoning regulations and to advance the important federal interest in the widest practicable access to satellite signals. x  S-x+44.` ` Accordingly, after considering the strong interests on both sides of this issue, we  S-propose to modify the preemption rule in the following ways. First, we propose procedures by which the Commission will review zoning disputes after exhaustion of only the local administrative remedies,  S-not "all legal remedies." Second, we propose substantial revisions in our basic preemption standard, designed to provide greater certainty without abandoning the fundamental test of reasonableness.  S8-Third, we propose an explicit procedure by which cities can request waivers of the entire preemption rule. We also announce our willingness to entertain, on an interim basis, petitions for declaratory relief in particular cases under our existing rule.  S"-x,45.` ` In formulating our proposals, we have attempted to address the problems we perceive in the least restrictive or intrusive way possible. The changes we propose are intended to modify our"p#xC,_*_*$" preemption rule in such a way as to minimize costs on local governments and on antenna users and to accommodate the legitimate interests of both. By providing greater certainty in our reasonableness test, we hope that localities will be better able to enact and enforce zoning policies that accommodate federal interests while preserving local autonomy. Our goals are to promote healthy competition and to facilitate access to satellitedelivered services. We request comment, particularly from local governments, on whether there are any less restrictive alternative solutions that would accomplish these goals. `(#(#X  S-x-46.` ` To codify these proposed changes, we propose to modify section 25.104 to read as follows: Xx(#  SH -Xx(a)` ` Any state or local landuse, building, or similar regulation that substantially limits reception by receiveonly antennas, or imposes substantial costs on users of such antennas, is preempted unless the promulgating authority can demonstrate that such regulation is reasonable in relation to:(#  S -XxX` ` (1)X a clearly defined and expressly stated health, safety, or aesthetic objective; and  SX-XxX` ` (2)X the federal interest in fair and effective competition among competing communications service providers.  S-Xx(b)` ` Any regulation covered by paragraph (a) of this section shall be presumed unreasonable if it affects the installation, maintenance, or use of:(#  S-x` ` (1) a satellite receiveonly antenna that is two meters or less in diameter, in any area where commercial or industrial uses are generally permitted by local landuse regulation; or(#  S-x` ` (2) a satellite receiveonly antenna that is one meter or less in diameter in any area.(#  S-Xx(c)` ` Any presumption arising from paragraph (b) of this section may be rebutted upon a showing that the regulation in question(#  SP-XxX` ` (1)X is necessary to accomplish a clearly defined and expressly stated health or safety objective;(#  S-XxX` ` (2)X is no more burdensome to satellite users than is necessary to achieve the health or safety objective; and (#  S-XxX` ` (3)X is specifically applicable to antennas of the class mentioned in paragraph (b).(#  S`-Xx(d)` ` Regulation of satellite transmitting antennas is preempted to the same extent as provided in paragraph (a) of this rule, except that state and local health and safety regulations relating to radio frequency radiation of transmitting antennas are not preempted by this rule.(#  S!-Xx(e)` ` Any person aggrieved by the application or potential application of a state or local zoning or other regulation in violation of paragraph (a) of this section may, after exhausting all nonfederal administrative remedies, file a petition with the Commission requesting a declaration that the state or local regulation in question is preempted by this section. Nonfederal administrative remedies, which do not include judicial appeals of administrative determinations, shall be deemed exhausted when(#  S&-XxX` ` (1)X the petitioner's application for a permit or other authorization required by the state or local authority has been denied and any administrative appeal has been exhausted;  SX)-XxX` ` (2)X the petitioner's application for a permit or other authorization required"X)C,_*_*+" by the state or local authority has been pending with that authority for ninety days;  S-XxX` ` (3)X the petitioner has been informed that a permit or other authorization required by the state or local authority will be conditioned upon the petitioner's expenditure of an amount greater than the aggregate purchase and installation costs of the antenna; or  S-XxX` ` (4)X a state or local authority has notified the petitioner of impending civil or criminal action in a court of law and there are no more nonfederal administrative steps to be taken.  Sp-Xx(f)` ` Any state or local authority that wishes to maintain and enforce regulations inconsistent with this section may apply to the Commission for a full or partial waiver of this section. Such waivers may be granted by the Commission in its sole discretion, upon a showing by the applicant that local concerns of a highly specialized or unusual nature create a necessity for regulation inconsistent with this section. All waiver applications shall include the particular regulation for which waiver is sought. Waivers granted according to this rule shall not apply to laterenacted or amended regulations by the local authority unless the Commission expressly orders otherwise.Juu;(#ƃ We believe this expanded preemption of unreasonable local regulations is necessary to promote greater access to satellitebased communications technologies nationwide, on terms of full and fair competition with other communications services, while minimizing the Commission's involvement in local affairs. In addition, we believe the proposed changes in Commission policy will promote the growth of the satellite industry.  S-x.47.` ` In proposing to modify section 25.104, we stress our desire to receive comments from representatives of all the affected parties users, service providers, equipment manufacturers and installers, and municipal governments in order to create a record that is as complete as possible. We also request comments on the likely practical effects of the proposed rule changes. We now turn to an explanation of the specific changes we are proposing. `  S(-1.xProcedures for Commission Review  S-x/48.` ` When we adopted our 1986 preemption rule, we expressed concern about the burden`  S-that individual review of cases would place on Commission resources.cD{ yO-ЍXxPreemption Order,  40.(#c This concern is still valid. The Commission's responsibilities have substantially increased since 1986 given the advent of new  S`-technologies and regulatory responsibilities. Nonetheless, the Deerfield decision leads us to revisit our  S8-1986 exhaustion requirement. Under Deerfield we must intervene before a federal court (and perhaps a state court) has ruled, or not intervene at all. We believe the latter option would be inconsistent with  S -our broad statutory responsibility "to make available, so far as possible, to all the people of the United States a rapid, efficient, Nationwide, and worldwide wire and radio communication service with  S"-adequate facilities at reasonable charges."LE"X{ yO&-ԍXx47 U.S.C.  151.(#L In addition, we are concerned that the potential expense of our 1986 exhaustion requirement may have had a "chilling effect" on private vindication of the rights of both residential and commercial antenna users. Based on these considerations, we tentatively conclude that users should have the option of seeking Commission involvement." %E,_*_*&"Ԍ S-ԙx049.` ` The procedures we propose are intended to provide a forum for relatively prompt and relatively inexpensive resolution of satelliteantenna zoning disputes, keeping in mind the danger of overloading the Commission's staff and resources. Under our proposed rule, we would continue to  S-require exhaustion of nonfederal administrative remedies, and we hope that our proposed rule (and the rulings in which we shall interpret it) will be sufficient to resolve the vast majority of zoning disputes at the local level. The requisite exhaustion is defined, however, in such a way that property owners will not be trapped in endless rounds of hearings and applications at the local level, effectively depriving them of speedy federal review. Although our proposed rule states that local remedies will be deemed exhausted if a petitioner's application has been pending for ninety days, we specifically seek comment on whether this time period is appropriate, given the nature of local zoning administration. A different period may more accurately reflect the amount of time required for local review of zoning applications.  S -x150.` ` The potential burden on Commission resources, together with some uncertainty about the volume of complaints that can be expected, lead us tentatively to reject the elaborate administrative review procedures suggested by the petitioners and some commenters. Instead, we propose a very simple procedure, set forth in subparagraph (e) of the proposed rule, that gives antenna users and municipalities every opportunity to be heard. The Commission will then act promptly and with enough clarity to minimize the need for Commission review of other cases as time goes on. We seek comments on the anticipated operation of this approach.  S-2.xRevision of the Reasonableness Test  Sh-x251.` ` Paragraph (a) of our proposed rule states a test of reasonableness for all receiveonly  S@-satellite antennas. Although we have retained the reasonableness approach rather than a per se preemption, our proposed formulation of this test includes significant revisions.  S-xa.` ` "Differentiation" and InterService Competitiveness  Sx-x352.` ` Section 25.104, as currently written, contains a threshold "differentiation" requirement that limits federal preemption to ordinances that "differentiate between satellite receiveonly antennas  S(-and other types of antenna facilities."OF({ yO-ԍXx47 C.F.R.  25.104.(#O When we adopted this threshold requirement, we stated: XxX` `  Nonfederal regulations may impose, under our adopted rule, reasonable requirements on all antennas as long as these local standards are uniformly applied and do not single out satellite receiveonly facilities for different treatment. . . . Communities wishing to preserve their historic character may limit the construction of "modern accoutrements" provided that such limitations affect all fixed external antennas in the same manner. In adopting this rule we intend that it be a valid accommodation of local interests as well as of two federal interests, namely promoting interstate communications and historic preservation. Communities which are truly concerned with preserving their unique historic character may do so if they do not discriminate  S %-against satellite receiveonly antennas.YG %X{ yO)-ԍXxPreemption Order,  32.(#Y x` " %G,_*_*&"Ԍ S-ԙx453.` ` As pointed out by several commenters, this threshold differentiation requirement  S-appears to have caused unintended results.dH{ yO@-ԍXxSee Petition at 26, Comments of ASTA.(#d In Deerfield, for example, the state court upheld a complete prohibition on satellite dishes for lots smaller than onehalf acre, on the ground that the  S-prohibition also applied to one other type of antenna.dIX{ yO-ԍXxSee Deerfield, 992 F.2d at 425.(#d The differentiation requirement also tends to obscure the full scope of the federal interest in this area. While we were rightly concerned in our  S8-Preemption Order with equal treatment for competing modes of communication, the current threshold  S-differentiation requirement implicitly suggests that the federal interest begins and ends with equal treatment. This is not the case.  S-x554.` ` We therefore propose to remove the threshold differentiation requirement from section 25.104. We believe the concerns about local character and historical preservation that we expressed in  SH -our Preemption Order can be better accommodated by the proposed waiver provision we discuss below. We continue to be very concerned about equal treatment for competing communications technologies, but we believe we can better advance this competitive concern by adding subparagraph (a)(2), which explicitly and more narrowly focuses on competitiveness across technologies.  S -xb.` ` Cost and Reception Issues  S0-x655.` ` We also propose to clarify the way our rule deals with ordinances and conditions that increase cost to the user or diminish reception. The current rule, for example, preempts any ordinance that "impose[s] costs on users . . . that are excessive in light of the purchase and installation cost of the equipment." In our discussions with representatives of local government, some have argued that if this approach is used, falling equipment costs threaten to rule out even those regulatory conditions that are absolutely necessary to ensure that antennas are safely installed. We can also take notice of the fact that at least one service provider, Prime Star, is beginning to offer directtohome video on a  S-subscription basis without requiring subscribers to buy any equipment at all, a situation that seems not to have been contemplated by the existing rule.  S-x756.` ` Similarly, the current rule provides that an ordinance will be preempted if it "unreasonably limit[s] reception by receiveonly antennas." American Satellite Television Alliance urges us to replace this "unreasonable limitation" standard with a rule preempting any regulation that  S(-"operate[s] to prevent reception of satellite delivered signals by receiveonly antennas."aJ({ yO-ԍXxComments of ASTA (July 12, 1993), at 18.(#a ASTA argues that the "unreasonable limitation" standard necessarily requires decisionmakers (courts or the Commission) to make judgments about content as a means of determining, for example, whether it is reasonable to impose a physical screening requirement that prevents reception of one satellite channel,  S-e.g. HBO, as long as the antennauser can receive another channel, e.g. the Disney Channel.  S8-x857.` ` In addition, we note that the existing rule appears to require three separate determinations of "reasonableness": one about the stated local objective; another about the extent of any limitation on reception; and yet another about any costs imposed on users. While any application of our rule must be sensitive to a wide variety of competing concerns, the analytical complexity of the current formulation seems to obscure the central point, which is that any significant burden on a citizen's access to satellite communications must be justified by a local policy that can"p#xJ,_*_*%" overcome the federal interests in access and competition.  S-x958.` ` We therefore propose to reformulate the reasonableness test to eliminate any "balancing" as to issues of cost and reception. Under our proposed paragraph (a), the reasonableness  S`-test only applies to ordinances that substantially limit reception, or impose substantial costs on users. This is more than a semantic change. In this context at least, "substantial" is by no means equivalent to "enough to be unreasonable." Instead, it is a rather low threshold, indicating only that a federal interest has been burdened in a way that is not insignificant, and which therefore calls for justification.  S-x:59.` ` We believe this reformulation would also ameliorate ASTA's constitutional concerns about contentbased regulation, by treating the amount of satellite programming one receives as a threshold issue and keeping the real focus on the reasonableness of the balance struck between the competing local and federal interests. We welcome comments on whether some other formulation of the test in section 25.104(c) would provide greater guidance without imposing excessive rigidity.  S -xc.` ` Presumptions of Unreasonableness  SX-x;60.` ` Two DBS providers urge us to preempt per se all local regulation of receiveonlyKXX{ yO-ЍXxSatellite transmitting antennas would receive the same degree of federal protection, except that health and safety regulations related to radio frequency radiation would not be preempted. See proposed section 25.104(d).(#  S0-antennas one meter or less in diameter.L0{ yO-ЍXxDirecTv and USSB proposed preempting all regulation of antennas twentyfour inches or smaller. We are proposing to preempt regulation of antennas one meter or smaller to include not only DBS antennas, but the antennas of similar services. Although they are somewhat larger than DBS antennas at this time, we believe these other antennas are sufficiently similar to DBS antennas in that they will usually have little or no visual impact.(# Similarly, Hughes suggests that we preempt per se all local regulation of antennas up to two meters in diameter in commercial or industrial areas. We do not  S-propose to adopt either of these per se preemptions at this time.  S-x<61.` ` There are two basic arguments in favor of a per se approach to smaller antennas. First, the interests of municipalities in regulating such antennas should be diminished, since these antennas do not appear to raise the aesthetic concerns that have prompted many communities to restrict installation of larger antennas. Second, most of these antennas can be installed quickly and inexpensively some by the consumer without assistance making any permit process particularly burdensome and unnecessary in relation to other equipment and installation costs.  Sx-x=62.` ` In addition, a standard based on underlying landuse designations gives appropriate weight to local autonomy by allowing local authorities greater latitude to restrict satellite installations  S(-in areas that are otherwise highly restricted (e.g., residential areas), but less latitude in areas that are  S-otherwise less restricted (namely, areas in which commercial or industrial activity is permitted). Thus,  S-the per se preemption advocated by Hughes would be limited to areas in which the community has already exercised its police powers and has expressly decided to tolerate the negative visual impact that normally comes with commercial or industrial activity. When mounted on the ground, a twometer antenna will be no more unsightly than many dumpsters or signs found in such areas. When roofmounted, antennas of this size will be unseen by most people, and should in any event create no more visual blight than a common commercial rooftop air conditioner. " L,_*_*e""Ԍ S-x>63.` ` However, local government representatives strenuously object to any type of per se preemption. They point out that aesthetic equivalence between small satellite dishes and other structures does not mean that there are no nonaesthetic reasons, such as health and safety, for treating  S-satellite antennas differently. They argue that a per se approach to preemption would eliminate any opportunity for consideration of these local justifications, amounting to a federal usurpation of their prerogative to balance the competing interests in the first instance. In addition, local authorities contend that the record does not contain sufficient evidence of actual interference with the installation, use, or maintenance of VSAT or DBS antennas.  S-x?64.` ` We decline to propose a per se approach at this time. Instead, we propose a presumption of unreasonableness for the situations cited by the DBS and VSAT industries. Under our proposed paragraph (b), any ordinance that substantially increases the cost or substantially limits the reception of an antenna smaller than one meter would be subject to the basic reasonableness test, but would be presumed unreasonable. The same would be true of any ordinance that substantially increases the cost or substantially limits the reception of an antenna smaller than two meters in a commercial or industrial area. Both of the presumptions we propose would be rebuttable upon a showing by the local authority that the restriction in question is (1) necessary to accomplish a local health or safety objective; (2) no more burdensome than necessary to achieve that objective; and (3) specifically applicable to the class of antennas subject to the presumption. The first two of these "rebuttal criteria" guarantee that important local interests in health and safety can be accommodated despite the diminished aesthetic impact of smaller dishes. The third rebuttal criterion recognizes that many local ordinances do not yet distinguish among types or sizes of satellite antennas, and that a  S-local judgment that does recognize a possible distinction but expressly balances the competing policies  Sh-for the precise type of antenna in question is entitled to greater federal deference than a sweeping restriction on a larger class of antennas.  S-x@65.` ` We tentatively prefer the approach proposed here to a per se approach for two primary reasons. First, the use of rebuttable presumptions affords local authorities an opportunity to articulate  S-the policies they are pursuing, while a per se approach essentially assumes that these local interests are of no more than secondary importance. Even though we are proposing a "waiver" provision that could  SP-permit local government to vindicate their regulations even under a per se approach, the waiver provision would require an application from the local authority, citing "local concerns of a highly specialized or unusual nature." By contrast, the presumptions we propose could be rebutted in the context of any particular case. Second, the presumption approach is a more incremental solution to the problems cited in the record. The importance and centrality of the local interests that would be  S-subordinated by a per se approach lead us to embrace this more moderate alternative at this time, even though we thereby risk the possibility that further Commission action will be required in the future.  S -xA66.` ` In making this proposal, we recognize that no DBS satellites had been launched and no service was being provided when the Commission issued its public notice calling for comments on the Hughes and SBCA petitions. Thus, the record does not contain evidence of specific cases in which zoning regulations have impeded the installation of these smaller antennas. However, the record does indicate that many of the ordinances restricting residential installation would, on their face, apply  SH$-to DBS antennas.&M H${ yO&-ЍXxFor example, the ordinance at issue in Deerfield prohibited the installation of any "dish" antenna on a lot less than onehalf acre in size. Similarly, other ordinances cited by commenters require neighborhood consent, screening, permit fees, or engineering drawings for all dish antennas, regardless of size. In addition, some ordinances requiring setbacks or prohibiting roof mounting do not take into")L,_*_*5)" account the size of the dish.(#& We are concerned that as DBS service and other directtohome video services"H$XM,_*_*%" begin to expand, local zoning regulations may inhibit access in a way similar to that described in this record for Cband antennas. We ask for specific comments on whether this concern is valid. We also seek comment, particularly from local governments, about whether the presumption for "areas where commercial or industrial uses are generally permitted" is framed narrowly enough to accommodate "spot zoning" for isolated commercial uses in otherwise residential areas.  S-xd.` ` Other Revisions of the Reasonableness Test  S-xB67.` ` In addition to the changes proposed above, we propose two more modest revisions to the reasonableness test. First, the proposed rule states explicitly that the burden of demonstrating that a regulation complies with section 25.104 is on the governmental entity that promulgates the regulation. We believe this allocation of the burden is required where a federally sanctioned interest in receiving satellite communications has been burdened in some substantial way. Second, the proposed rule now includes a requirement that any nonfederal objective offered to save a regulation from preemption must be expressly stated in the regulation itself. One court has interpreted the  S -existing rule as requiring such an express statement,N X{ yO-ЍXxCawley v. City of Port Jervis, 753 F. Supp. at 132. See also Hunter v. City of Whittier, 257 Cal. Rptr. 559 (Cal. App. 1989).(# and we believe it will facilitate a more sensitive review of local ordinances by the Commission. Third, paragraph (a) now refers expressly to the federal interest in ensuring that nonfederal regulations do not adversely affect efficient competition among alternative communications technologies by creating unwarranted constraints on user preference. We seek comment on the anticipated effects of these proposed revisions.  S-3`.xWaivers  Sh-xC68.` ` Subparagraph (f) of our proposed rule provides, for the first time, an explicit means by which` communities can ask the Commission to waive section 25.104 entirely or in part, in recognition  S-of local interests.O{ yOh-ЍXxPreviously, any request for a waiver of our preemption rule could only have been made under our general waiver provision, 47 C.F.R.  1.3.(# We believe such waivers must be available in order to prevent our proposed rules from intruding on local autonomy any more than is necessary to protect the federal interest. We expect the waiver process to promote both federal and nonfederal interests, by allowing us to accommodate compelling local interests, for example, those related to historic districts, where they arise without in any way relaxing the rules that must apply in the vast majority of cases.  S(-4.xPetitions for Declaratory Ruling  S-xD69.` ` Both petitioners request declaratory orders and assert that a rulemaking is not  S-necessary. However, the language of the current rule simply will not bear the per se "interpretations" both petitioners request. The primary obstacle is the threshold "differentiation requirement" in the current rule, which only permits preemption of ordinances that treat satellite antennas differently from other antennas. Because of this differentiation requirement, the current rule clearly would not preempt an ordinance stating, for example, that no home or place of business may affix any outdoor antenna of any kind. To "interpret" the rule otherwise would do violence to the distinction between creating and interpreting a rule."!O,_*_*F#"Ԍ S-ԙxE70.` ` In addition, even without the difficulty presented by the differentiation requirement, the current rule is clearly phrased in terms of the reasonableness of the local regulation. To interpret  S-this rule as a per se preemption of restrictions on any particular class of antennas would suggest that  S-local interests could never be significant enough to permit any regulation of certain antenna types. As we have indicated, this would be unduly dismissive of the strong local interest in appropriate landuse regulation. The rule change we propose, unlike an "interpretation" of the existing rule, sets forth a more nuanced approach based on rebuttable presumptions, and adds an explicit "waiver" procedure that covers unusual cases. Proceeding by rulemaking also permits us to solicit further comments from representatives of local governments, and to focus those comments on our specific proposal. Given our respect for the principles of federalism, we believe this notice and comment procedure is of great import.  S -xF71.` ` Although we believe these considerations require a rulemaking rather than declaratory relief, we nonetheless agree with the petitioners' concerns that immediate relief should be available in particular cases. Thus, we will entertain petitions for declaratory relief under the current rule in  S -particular cases on an interim basis, until the completion of this rulemaking.P { yO-ЍXxThis action is consistent with our statement in the Preemption Order that the Commission would  yO-entertain requests for further action if it appeared warranted. Preemption Order at  40.(# Petitioners for such  S -relief must show that they have exhausted local administrative remedies.hQ { yO@-ԍXxSee e.g., proposed  25.104 (e).(#h This modification of our current exhaustion requirement is necessary for the Commission to discharge its responsibilities in light  S0-of the Second Circuit's Deerfield decision.ZR0{ yO-ԍXxSee generally Part III.B.5.(#Z This action will provide an opportunity for immediate relief to satelliteantenna users that can demonstrate that they are facing unreasonably restrictive local zoning practices.  S-5.xMiscellaneous Matters  S@-xG72.` ` SBCA and other commenters urge us to state specifically that antenna users have a federally protected right of access to satellitedelivered programming subject to limitations imposed by  S-federal law.SX@{ yO-ЍXxSBCA Petition 1015. See also comments of ASTA. Another 1991 commenter, Michael Couzens, quotes legislative history of section 705, 47 U.S.C. 605, in support of his argument that Congress  yO`-intended to establish a right of reception. See also reply comments of EDS Video Services at 6.(#ƌ ASTA cites an opinion from the U.S. District Court for the Northern District of California holding the Commission's rule did not create a federal right that could be enforced by an  S-action under 42 U.S.C.  1983.|T` { yO"-ЍXxJohnson v. Pleasanton, 781 F. Supp. 632 (N.D. Cal. 1991).(#| Related to this is the question of whether attorneys' fees can be recovered by a victorious plaintiff under 42 U.S.C.  1988. Some commenters assert that the ability to  SP-sue for attorneys fees is crucial to private enforcement of the Commission's preemption rule.UP { yO%-ЍXxSee Comments of ASTA (July 9, 1993), at 15; Comments of Michael Couzens (July 12, 1991), at 4.(#ƨ  S-xH73.` ` We are not persuaded that it is appropriate for the Commission to say anything more than it has said in the past on this issue. We have referred many times to various federal "rights"  S-protected under section 25.014. In the Preemption Order, we declared that, based on sections 151 and" U,_*_*<" 705 of the Communications Act, there is "a federal interest in assuring that the right to construct and  S-use antennas to receive satellite delivered signals is not unreasonably restricted by local regulation."cV{ yO@-ЍXxPreemption Order,  23.(#c  S-In the Deerfield order, we reaffirmed our position that the rule is "based on the concern that excessive local regulation would unduly interfere with the federally guaranteed right of earth station antenna  S`-users to receive certain satellite signals for private home viewing."dW`X{ yOX-ЍXx7 FCC Rcd at 2172,  2.(#d In addition, we have always contemplated that our rule would enable satelliteantenna users to "use the standards adopted here in  S-pursuing any legal remedies they might have."X{ yO -ЍXxPreemption Order,  40. Section 1983 has been used as a jurisdictional basis for lawsuits brought by earth station owners to challenge local zoning laws.(# The interpretation of  1983 and 1988 is better left to the federal judiciary.  S-xI74.` ` The National Association of Broadcasters (NAB) has requested that the Commission consider expanding the scope of its preemption to reach all communications facilities including  SH -broadcasting antennas. IYH @ yO(-ԍXxComments of NAB.(#I The NAB asserts that by imposing restrictions, nonfederal authorities are, in effect, "unlicensing" FCC licensed facilities. NAB provides details of difficulties that broadcasters have encountered in building antenna facilities and expresses concern that new technologies such as Advanced Television (ATV) and terrestrial digital audio broadcasting (DAB) may be difficult to implement if providers cannot put up new antennas. The Association for Maximum Service Television, Inc. ("MSTV") expresses similar concerns and states that because of changes in the relationship between cable systems and broadcast stations resulting from the 1992 Cable Act, the Commission can no longer rely on the assumption of universal cable carriage of broadcast signals. According to MSTV, many people have removed their antennas because they subscribe to cable and if local zoning restrictions inhibit new antenna installations, homes may not be capable of receiving broadcast programming not carried by cable. The American Radio Relay League also requests that the  S-Commission clarify its amateur radio policies.Z{ yO-ЍXxComments of ARRL. See Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, 50 Fed. Reg. 38813 (September 25, 1985) (PRB 1).(# "h( Z,_*_*"  S-xJ75.` ` We decline to expand the scope of this proceeding to include preemption of local  S-regulation of all antennas.[ { yO@-ЍXxThe Commission reached the same conclusion when it denied NAB's Petition for Partial Reconsideration in 1987. The Commission is considering the matter of RF radiation hazard in the context of another proceeding, Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, ET Docket No. 9362. (# The focus of this proceeding is satellite earth stations and is based on a record detailing problems with satellite antennas. Expansion to other types of facilities would be inappropriate. However, we note this should not be construed as approval of unreasonable local regulation of nonsatellite antenna facilities. The Commission is committed to assist in the expansion of telecommunications in general. Local regulation that needlessly inhibits such expansion is contrary to our goals and policies.  S-xK76.` ` We also decline, as we did when we adopted the original satelliteantenna preemption rule, to enumerate specific types of ordinances that would violate the rule. As pointed out by ASTA, any list could not include all possible preemptable regulations and therefore could lead to  SH -circumvention of our policies.T\H { yO-ԍXxComments of ASTA at n. 10. (#T  S -xL77.` ` Finally, we call attention to two possible avenues for voluntary, cooperative approaches to the problems in this record, which satellite antenna interests and local governments can implement independently of the outcome of this proceeding. First, we support suggestions by municipal representatives that educational efforts could eliminate some problems that antenna users are experiencing with local zoning boards. While we sympathize with the difficulty of pursuing policy changes simultaneously in 10,000 different local jurisdictions, informational campaigns undertaken jointly by satellite service providers and associations representing local governments may be effective in reducing the number of zoning disputes to more manageable proportions than the record before us indicates. Second, a group called the Building Officials & Code Administrators International, Inc.  S-(BOCA)]]X@{ yOp-ЍXxLetter from Building Officials and Code Administrators International, February 21, 1995, where the organization is described as "a private notforprofit association of code officials, designers, manufacturers, and others interested in regulating building construction efficiently."(#] suggests that the process to change model building codes that are often adopted by local jurisdictions could be used to resolve problems with antenna regulations. BOCA proposes that its process be used as an alternative to federal preemption. Because the model code process is not mandatory and would not apply to all jurisdictions, we do not believe that it can replace our preemption policies. Nonetheless, a model code would certainly be helpful, providing more certainty for users and promoting cooperation and communication among all those involved. We welcome suggestions of other approaches which, either alone or in conjunction with our proposed rule changes, could be effective in resolving many disputes before they come to our attention.  S(- IV. CONCLUSION ă  S-xM78.` ` Based on the record compiled here, we tentatively conclude that we must modify the  S-exhaustion requirement we included in our 1986 Preemption Order. Under the Second Circuit's  S-Deerfield decision, our current policy would prevent us from discharging our duty to interpret and enforce our preemption rule. We further conclude tentatively that, given the change we must make to our exhaustion policy, we must modify section 25.104 of our rules to provide greater clarity for users, local governments, and all those who must construe that rule and our interpretations of it. In addition," ` ],_*_*!" we hope the proposed modifications of our preemption rule will address the evidence in this record that local landuse, building, and similar regulations have impeded users' access to satellite communications and inhibited the development of satellitebased technologies. We believe that these proposals will promote greater access to these important services and will also promote economic growth and efficiency by providing for quick and costeffective antenna installation without unreasonable local barriers. We also believe that our proposals are crafted in such as way as to minimize federal interference with local autonomy. We solicit comments from all interested parties, including service providers, equipment manufacturers, consumers, programmers, landuse managers, and other representatives of local governments. A full and complete record in this matter will ensure that our final rule takes into consideration the views of all these persons.  SH - V. PROCEDURAL MATTERS ă  S -xN79.` ` This is a nonrestricted notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as  S -provided in Commission rules. See generally 47 C.F.R.  1.1202, 1.1203, and 1.1206(a).  SX-xO80.` ` As required by Section 603 of the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the expected impact on small entities of the proposals suggested in this document. The IRFA is set forth in Appendix III. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines as comments on the rest of the Notice, but they must have a separate and distinct heading designating them as responses to the Initial Regulatory Flexibility Analysis. x  S@-xP81.` ` Pursuant to applicable procedures set forth in sections 1.415 and 1.419 of the Commission's Rules, 47 C.F.R.  1.415 and 1.419, interested parties may file comments on or before July 14, 1995 and reply comments on or before August 15, 1995. To file formally in this proceeding, you must file an original and five copies of all comments, reply comments, and supporting comments. If you want each Commissioner to receive a personal copy of your comments, you must file an original plus nine copies. You should send comments and reply comments to Office of the Secretary, Federal Communications Commission, Washington, D.C. 20554. Comments and reply comments will be available for public inspection during regular business hours in the Dockets Reference Room of the Federal Communications Commission, 1919 M Street, N.W., Washington, D.C. 20554. For further information contact Rosalee Chiara at (202) 7390730.  S- wVI. ORDERING CLAUSES ă  S8-xQ82.` ` Accordingly, IT IS ORDERED that, pursuant to sections 1, 4(i), 4(j) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 154(j), and 303(r) NOTICE IS HEREBY GIVEN of the proposed amendments to section 25.104 of the Commission's Rules, 47 C.F.R.  25.104, in accordance with the proposals in this Notice of Proposed Rulemaking, and that COMMENT IS SOUGHT regarding such proposals.  SH$-xR83.` ` IT IS FURTHER ORDERED that the petitions for declaratory relief filed by SBCA and Hughes are DENIED. "&],_*_*n("  S-xS84.` ` IT IS FURTHER ORDERED that the Secretary shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with paragraph 603(a) of the Regulatory  S-Flexibility Act, Pub. L. No. 96354, 94 Stat. 1164, 5 U.S.C.  601 et seq (1981). X` up X***6FEDERAL COMMUNICATIONS COMMISSION **6William F. Caton **6Acting Secretary "H ],_*_* "  X-Բ   HH #n*f9 xC XX## Xj\  P6G;XP#`V(# Appendix I  X-YLIST OF COMMENTERS ă  X- Comments: 1991   American Home Satellite Association Associated Communications Earth Terminal TV Ltd. General Instrument Corporation Hughes Network Systems Michael Couzens National Association of Broadcasters Satellite Dealers Association of Michigan Satellite Dealers' Coalition Tandy Corporation United States Satellite Broadcasting Co., Inc. Video Services Corporation and Atlantic Satellite Communications  Xy-   Reply Comments: 1991  Xb-   American Satellite Television Alliance EDS Video Services Hughes Communications Galaxy, Inc. Orange County Broadcasting Corporation Tandy Corporation  X-   Comments: July 12, 1993   Abbott, Robert J. (City of Cape Canaveral) American Radio Relay League, Inc. American Satellite Television Alliance Association for Maximum Service Television EDS Corporation GE American Communications, Inc. GTE Spacenet Corporation Home Box Office Hughes Network Systems, Inc. Melville Corporation National League of Cities National Association of Broadcasters Northwest Municipal Cable Council (on behalf of 7 cities and villages) Satellite Broadcasting and Communications Association of America Schlumberger Technology Corporation Target Stores John C. Thomas The TJX Companies, Inc. Toys "R" Us W. James MacNaughton, Esq. Walgreens ")]---HHn("  X-   Reply Comments: August 16, 1993   Association for Maximum Service Television City of St. Louis DirecTv, Inc. Home Box Office Hughes Network Systems, Inc. National Association of Broadcasters Satellite Broadcasting and Communications Association of America United States Satellite Broadcasting Company, Inc. Motion to Accept Supplemental Reply Comments and Supplemental Reply Comments Hughes Network Systems, Inc. (August 31, 1993)  X -   Letters filed in support (various dates):  X -   Alfred Ricks, Jr. Building Officials & Code Administrators International, Inc. Camco Cable Service Chris TV Chrysler Corporation Circuit City Stores, Inc. City of Livonia (MI) City of St. Louis (MO) (additional letter) Congressman Billy Tauzin County Council of Baltimore County (MD) CPI Datanet Edward D. Jones & Co. FootAction U.S.A. ICN/Datalinc, LTD. Kohl's Department Stores Melville Corporation Midwest Star Satellite TV Montgomery Ward & Co. Pathmark Stores, Inc. Piedmont Triad Council of Governments Prince George's County Government, Office of Citizen and Consumer Affairs Service Merchandise ShopKo Stores, Inc. Southern California Chapter of NATOA Thomson Consumer Electronics Toyota Motor Sales, U.S.A., Inc. Wincom Systems  X:&-   Other Documents:    United States Court of Appeals for the Second Circuit Town of Deerfield, NY v. FCC, Decision"(]-`+`+HH'"   X*X` hp x (#%'0*,.8135@8: