§  25.104   Preemption of local zoning of earth stations.

   (a) Any state or local zoning, land-use, building, or similar
   regulation that materially limits transmission or reception by
   satellite 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, except that
   nonfederal regulation of radio frequency emissions is not preempted by
   this section. For purposes of this paragraph (a), 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 communications service providers.

   (b)(1) Any state or local zoning, land-use, building, or similar
   regulation that affects the installation, maintenance, or use of a
   satellite earth station antenna that is two meters or less in diameter
   and is located or proposed to be located in any area where commercial
   or industrial uses are generally permitted by non-federal land-use
   regulation shall be presumed unreasonable and is therefore preempted
   subject to paragraph (b)(2) of this section. No civil, criminal,
   administrative, or other legal action of any kind shall be taken to
   enforce any regulation covered by this presumption unless the
   promulgating authority has obtained a waiver from the Commission
   pursuant to paragraph (e) of this section, or a final declaration from
   the Commission or a court of competent jurisdiction that the
   presumption has been rebutted pursuant to paragraph (b)(2) of this
   section.

   (2) Any presumption arising from paragraph (b)(1) of this section may
   be rebutted upon a showing that the regulation in question:

   (i) Is necessary to accomplish a clearly defined health or safety
   objective that is stated in the text of the regulation itself;

   (ii) Is no more burdensome to satellite users than is necessary to
   achieve the health or safety objective; and

   (iii) Is specifically applicable on its face to antennas of the class
   described in paragraph (b)(1) of this section.

   (c) 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:

   (1) The petitioner's application for a permit or other authorization
   required by the state or local authority has been denied and any
   administrative appeal and variance procedure has been exhausted;

   (2) The petitioner's application for a permit or other authorization
   required by the state or local authority has been on file for ninety
   days without final action;

   (3) The petitioner has received a permit or other authorization
   required by the state or local authority that is conditioned upon the
   petitioner's expenditure of a sum of money, including costs required to
   screen, pole-mount, or otherwise specially install the antenna, greater
   than the aggregate purchase or total lease cost of the equipment as
   normally installed; or

   (4) 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.

   (d) Procedures regarding filing of petitions requesting declaratory
   rulings and other related pleadings will be set forth in subsequent
   Public Notices. All allegations of fact contained in petitions and
   related pleadings must be supported by affidavit of a person or persons
   with personal knowledge thereof.

   (e) Any state or local authority that wishes to maintain and enforce
   zoning or other 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. No application for waiver shall be considered unless it
   specifically sets forth the particular regulation for which waiver is
   sought. Waivers granted in accordance with this section shall not apply
   to later-enacted or amended regulations by the local authority unless
   the Commission expressly orders otherwise.

   (f) A satellite earth station antenna that is 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
   is covered by the regulations in § 1.4000 of this chapter.

   [ 61 FR 10898 , Mar. 18, 1996, as amended at  61 FR 46562 , Sept. 4, 1996]

   Effective Date Note:   At  61 FR 46562 , Sept. 4, 1996, § 25.104 was
   amended by revising paragraph (b)(1) and adding paragraph (f). These
   paragraphs contain information collection and recordkeeping
   requirements and will not become effective until approval has been
   given by the Office of Management and Budget.