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r.v.s.tvro FAQ - Part 7/10

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Archive-name: Satellite-TV/TVRO/part7
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PART SEVEN - Can Zoning Ordinances or Homeowner Associations prevent me
from Installing a TVRO System?

Whoa, Nellie! We'll tackle each part of this question separately as they require
different answers. A zoning ordinance involves decisions made by local governments
that includes, among other things, what types of structures can be placed on property
of a particular zoning (commercial, residential, industrial; etc.). In the United States, the
issue of the legality of a local government preventing the use of  TVRO equipment,
particularly large satellite dishes, was first addressed with the Federal Communications
Commission's 1986 Preemption Order (51 Fed. Reg. 5519) issued on Feb. 14, 1986.
In *extremely* simplified terms, the order states that local governments' zoning
ordinances CANNOT unreasonably discriminate against the installation of satellite
dishes. This FCC regulation has been further revisited with FCC IB Docket No.
95-180 and more recently with the Report And Order Further Notice Of
Proposed Rulemaking (FCC IB Docket No. 96-78), adopted Feb. 29, 1996. Here is
some sample text from the original 1986 Preemption Order (via FCC IB Docket No.
96-78):

The broad mandate of Section 1 of the Communications Act, 47 U.S.C.  151, to
make communications services available to all people of the United States and the
numerous powers  granted by Title III of the Act with respect to the establishment of a
unified communications system   establish the existence of a congressional objective in
this area.  More specifically, the recent  amendment to the Communications Act, 47
U.S.C.  705, creates certain rights to receive unscrambled  and unmarketed satellite
signals.  These statutory provisions establish a federal interest in assuring that  the right
to construct and use antennas to receive satellite delivered signals is not unreasonably
restricted by local regulation.4

Here's some more of the text:

State and local zoning or other regulations that differentiate between satellite
receive-only antennas and other types of  antenna facilities are preempted unless such
regulations

      a)   have a reasonable and clearly defined health, safety or aesthetic objective; and

       b) do not operate to impose unreasonable limitations on, or prevent, reception of
            satellite delivered   signals by receive-only antennas or to impose costs on
            users of such antennas that are excessive in   light of the purchase and
            installation cost of the equipment.

Regulation of satellite transmitting antennas is preempted in the same manner except
that state and   local health and safety regulation is not preempted.7

Subsequent text:

Satellite antenna users who are dissatisfied with the results of any local zoning decision
can use the  standard adopted here in pursuing any legal remedies they might have.  In
addition, we would entertain requests for further action if it appears that local authorities
are generally failing to abide by our  standards.  Any party requesting Commission
review of a controversy will be expected to show that other remedies have been
exhausted.

Essentially, if a local government wants to impose strict guidelines in terms of TVRO
systems and  zoning ordinances, the TVRO system owner has every right to challenge
the ordinance based on these FCC guidelines; more than likely, the local government
would not win any legal case regarding a U.S. citizen's right to own a TVRO system.

Now on to the second part of the question. Dealing with homeowner associations and
strict covenants is a different matter entirely. Until very recently, the big dish satellite
system owner had little or no legal recourse in terms of dealing with strict homeowner
association contracts; it was felt that, by being part of a homeowners association, you
were dealing with a private contract and agreement and that by agreeing to sign the
contract, you acknowledged the terms of the agreement, and if the agreement was very
strict about satellite dish ownership, well, that was too bad. You could take it or leave
it.

This is no longer entirely true. The Telecommunications Act of 1996 made sweeping
revisions to the original Communications Act of 1934, in effect modernizing it. Section
207 of the Telecommunications Act of 1996 eases some of the absolute power of
restrictive covenants and homeowner associations over television reception equipment
ownership and placement. Here is the entire text:

  SEC. 207. RESTRICTIONS ON OVER-THE-AIR RECEPTION DEVICES.
         Within 180 days after the date of enactment of this Act, the
          Commission shall, pursuant to section 303 of the Communications Act
          of 1934, promulgate regulations to prohibit restrictions that
          impair a viewer's ability to receive video programming services
          through devices designed for over-the-air reception of television
          broadcast signals, multichannel multipoint distribution service, or
          direct broadcast satellite services.

Unfortunately, this does little for TVRO system owners. Not having strong political
lobbying backing it such as the broadcast industry and the cable TV industry, there is
no TVRO-specific language in Section 207. Furthermore, in more recent clarification
of the Telecommunications Act of 1996, the FCC's Report and Order, Memorandum
Opinion and Order, and Further Notice of Proposed Rulemaking  (August 5, 1996)
clearly states that Section 207 does NOT include larger C-Band satellite dishes. So for
TVRO dish owners, only Ku-Band dishes "...that [are] designed to receive direct
broadcast satellite service, including direct-to-home satellite services, that is one meter
or less in diameter or is located in Alaska..." are protected under federal regulations.
(Note that one meter is about 39 inches.) Here is the entire excerpt of the specfic
Report and Order in regards to C-Band satellite dishes:

     29.  Several commenters and petitioners suggest that the statute also applies to
  classes   of services related to TVBS, MMDS and DBS, and that our rule should
  include these related   services.  These commenters and petitioners contend that the
  terms "MMDS" and "DBS" should be interpreted broadly because Congress intended
  Section 207 to promote competition   among video programming services by
  prohibiting restrictions that impair reception of all   forms of video programming.  For
  example, some commenters note that MMDS is really a   form of multipoint distribution
  service (MDS), which is a general category of services using   the same type of
  receiving antennas at different frequencies, and recommend that our rule   preempt
  restrictions on the reception of any form of MDS, including MMDS, instructional
  television fixed service (ITFS), and local multipoint distribution service (LMDS).
  Other   commenters and petitioners suggest that "DBS" also refers to a broad category
  of   technologies.  They recommend that we expand our definition of DBS to include
  other forms   of satellite services including very small aperture terminals (VSAT) that
  transmit   information, and medium-power Ku-band DTH satellite services.  According
  to one commenter, the legislative history indicates that Congress intended Section 207
  to apply to   most reception of wireless video programming except systems using large
  antennas.

     30.  We believe that by directing the Commission to prohibit restrictions that impair
   viewers' ability to receive over-the-air signals from TVBS, MMDS and DBS services,
   Congress did not mean to exclude closely-related services such as MDS, ITFS, and
   LMDS. All of these services -- MDS, ITFS, and LMDS -- are similar from a
   technological and functional standpoint in that point-to-multipoint subscription video
   distribution service can be provided over each of them.  We note that MMDS is the
   product of MDS technology, the   first multipoint distribution service established by the
   Commission, and that ITFS is a service   whose frequencies are available for
   transmission of MMDS.  LMDS is a service that has been   authorized to provide
   services comparable to MMDS as well as other types of services.  The   origins of all
   of these services can be traced to MDS.  Thus, all of these related services should be
   treated the same for purposes of Section 207, and are properly included in the scope
   of Section 207's provision.  We also determine, however, that VSAT, a commercial
   satellite service that may use satellite antennas less than one meter in diameter, is not
   within the purview of the statute because it is not used to provide over-the-air video
   programming.

     31.  We also believe that the statute can be construed to include medium-power
   satellite services using antennas of one meter or less that are used to receive
   over-the-air video programming, even though such services may not be technically
   defined as DBS elsewhere in the Commission's rules.  Therefore, for purposes of
   implementing Section 207,   we affirm our conclusion that DBS includes both
   high-power and medium-power satellite   services using reception devices of one
   meter or less in diameter.

     32.  Because of the unique and peculiar characteristics applicable to reception of such
   services outside the continental United States, it is necessary to provide an exception
   for Alaska to the general size guidelines in our rule.  In contrast with those portions of
   the  continental United States (as well as Hawaii) that are at lower latitudes, DBS
   reception in Alaska requires larger antennas than those used in the lower part of the
   United States.  The  installation, maintenance, and use of these larger antennas in
   Alaska will be covered by the  rules we adopt in this Report and Order, and
   governmental and nongovernmental restrictions  impairing the installation, maintenance
   and use of these devices will be prohibited, even when the devices exceed one meter
   in diameter or diagonal measurement.  This exception is limited, however, to antennas
   used to receive DBS service as defined by our rule, and will not apply to antennas that
   receive signals in the C-band.  These larger antennas are subject to the more general
   satellite antenna preemption in Section 25.104 of our rules.  Our decision to protect
   larger DBS antennas in Alaska than in the rest of the country is consistent with
   Commission policy to ensure that DBS is available to residents across the United States.
   As  DBS service providers design their systems to comply with the Commission's
   requirement to  serve Alaska, it may be possible to use smaller antennas that are closer
   to the size used in  other parts of the country, and the need for this exemption may be
   obviated.

Here is the source website of this text excerpt:

 http://www.fcc.gov/Bureaus/Cable/Orders/1996_TXT/fcc96328.txt




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