§ 1.4000   Restrictions impairing reception of television broadcast signals,
direct broadcast satellite services or multichannel multipoint distribution
services.

   (a)(1) Any restriction, including but not limited to any state or local law
   or regulation, including zoning, land-use, or building regulations, or any
   private  covenant,  contract  provision,  lease provision, homeowners'
   association rule or similar restriction, on property within the exclusive
   use or control of the antenna user where the user has a direct or indirect
   ownership  or  leasehold  interest  in  the  property that impairs the
   installation, maintenance, or use of:

   (i) An antenna that is:

   (A)  Used  to  receive  direct  broadcast satellite service, including
   direct-to-home satellite service, or to receive or transmit fixed wireless
   signals via satellite, and

   (B) One meter or less in diameter or is located in Alaska;

   (ii) An antenna that is:

   (A) Used to receive video programming services via multipoint distribution
   services,  including  multichannel  multipoint  distribution services,
   instructional television fixed services, and local multipoint distribution
   services, or to receive or transmit fixed wireless signals other than via
   satellite, and

   (B) That is one meter or less in diameter or diagonal measurement;

   (iii) An antenna that is used to receive television broadcast signals; or

   (iv)  A  mast supporting an antenna described in paragraphs (a)(1)(i),
   (a)(1)(ii), or (a)(1)(iii) of this section; is prohibited to the extent it
   so impairs, subject to paragraph (b) of this section.

   (2)  For  purposes of this section, “fixed wireless signals” means any
   commercial non-broadcast communications signals transmitted via wireless
   technology to and/or from a fixed customer location. Fixed wireless signals
   do not include, among other things, AM radio, FM radio, amateur (“HAM”)
   radio, Citizen's Band (CB) radio, and Digital Audio Radio Service (DARS)
   signals.

   (3) For purposes of this section, a law, regulation, or restriction impairs
   installation, maintenance, or use of an antenna if it:

   (i) Unreasonably delays or prevents installation, maintenance, or use;

   (ii) Unreasonably increases the cost of installation, maintenance, or use;
   or

   (iii) Precludes reception or transmission of an acceptable quality signal.

   (4)  Any  fee  or cost imposed on a user by a rule, law, regulation or
   restriction must be reasonable in light of the cost of the equipment or
   services  and  the rule, law, regulation or restriction's treatment of
   comparable devices. No civil, criminal, administrative, or other legal
   action of any kind shall be taken to enforce any restriction or regulation
   prohibited by this section except pursuant to paragraph (d) or (e) of this
   section. In addition, except with respect to restrictions pertaining to
   safety and historic preservation as described in paragraph (b) of this
   section, if a proceeding is initiated pursuant to paragraph (d) or (e) of
   this section, the entity seeking to enforce the antenna restrictions in
   question must suspend all enforcement efforts pending completion of review.
   No attorney's fees shall be collected or assessed and no fine or other
   penalties shall accrue against an antenna user while a proceeding is pending
   to determine the validity of any restriction. If a ruling is issued adverse
   to a user, the user shall be granted at least a 21-day grace period in which
   to comply with the adverse ruling; and neither a fine nor a penalty may be
   collected from the user if the user complies with the adverse ruling during
   this grace period, unless the proponent of the restriction demonstrates, in
   the same proceeding which resulted in the adverse ruling, that the user's
   claim in the proceeding was frivolous.

   (b) Any restriction otherwise prohibited by paragraph (a) of this section is
   permitted if:

   (1) It is necessary to accomplish a clearly defined, legitimate safety
   objective  that is either stated in the text, preamble, or legislative
   history of the restriction or described as applying to that restriction in a
   document that is readily available to antenna users, and would be applied to
   the  extent  practicable  in  a  non-discriminatory  manner  to  other
   appurtenances, devices, or fixtures that are comparable in size and weight
   and pose a similar or greater safety risk as these antennas and to which
   local regulation would normally apply; or

   (2) It is necessary to preserve a prehistoric or historic district, site,
   building, structure or object included in, or eligible for inclusion on, the
   National Register of Historic Places, as set forth in the National Historic
   Preservation Act of 1966, as amended, 16 U.S.C. 470, and imposes no greater
   restrictions  on antennas covered by this rule than are imposed on the
   installation, maintenance, or use of other modern appurtenances, devices, or
   fixtures  that are comparable in size, weight, and appearance to these
   antennas; and

   (3) It is no more burdensome to affected antenna users than is necessary to
   achieve the objectives described in paragraphs (b)(1) or (b)(2) of this
   section.

   (c)  In the case of an antenna that is used to transmit fixed wireless
   signals, the provisions of this section shall apply only if a label is
   affixed to the antenna that:

   (1) Provides adequate notice regarding potential radiofrequency safety
   hazards, e.g., information regarding the safe minimum separation distance
   required between users and transceiver antennas; and

   (2) References the applicable FCC-adopted limits for radiofrequency exposure
   specified in § 1.1310 of this chapter.

   (d) Local governments or associations may apply to the Commission for a
   waiver of this section under § 1.3 of this chapter. Waiver requests must
   comply with the procedures in paragraphs (f) and (h) of this section and
   will be put on public notice. The Commission may grant a waiver upon a
   showing  by the applicant of local concerns of a highly specialized or
   unusual  nature.  No petition for waiver shall be considered unless it
   specifies the restriction at issue. Waivers granted in accordance with this
   section shall not apply to restrictions amended or enacted after the waiver
   is granted. Any responsive pleadings must be served on all parties and filed
   within 30 days after release of a public notice that such petition has been
   filed. Any replies must be filed within 15 days thereafter.

   (e) Parties may petition the Commission for a declaratory ruling under § 1.2
   of this chapter, or a court of competent jurisdiction, to determine whether
   a particular restriction is permissible or prohibited under this section.
   Petitions to the Commission must comply with the procedures in paragraphs
   (f) and (h) of this section and will be put on public notice. Any responsive
   pleadings in a Commission proceeding must be served on all parties and filed
   within 30 days after release of a public notice that such petition has been
   filed. Any replies in a Commission proceeding must be served on all parties
   and filed within 15 days thereafter.

   (f) Copies of petitions for declaratory rulings and waivers must be served
   on interested parties, including parties against whom the petitioner seeks
   to enforce the restriction or parties whose restrictions the petitioner
   seeks to prohibit. A certificate of service stating on whom the petition was
   served  must  be filed with the petition. In addition, in a Commission
   proceeding brought by an association or a local government, constructive
   notice of the proceeding must be given to members of the association or to
   the  citizens  under  the  local government's jurisdiction. In a court
   proceeding brought by an association, an association must give constructive
   notice  of the proceeding to its members. Where constructive notice is
   required, the petitioner or plaintiff must file with the Commission or the
   court overseeing the proceeding a copy of the constructive notice with a
   statement explaining where the notice was placed and why such placement was
   reasonable.

   (g) In any proceeding regarding the scope or interpretation of any provision
   of this section, the burden of demonstrating that a particular governmental
   or nongovernmental restriction complies with this section and does not
   impair  the  installation,  maintenance,  or  use  of devices used for
   over-the-air reception of video programming services or devices used to
   receive or transmit fixed wireless signals shall be on the party that seeks
   to impose or maintain the restriction.

   (h) All allegations of fact contained in petitions and related pleadings
   before the Commission must be supported by affidavit of a person or persons
   with actual knowledge thereof. An original and two copies of all petitions
   and pleadings should be addressed to the Secretary, Federal Communications
   Commission,  445  12th Street, SW, Washington, DC 20554. Copies of the
   petitions and related pleadings will be available for public inspection in
   the Reference Information Center, Consumer and Governmental Affairs Bureau,
   Federal Communications Commission, 445 12th Street, SW, Washington, DC
   20554. Copies will be available for purchase from the Commission's contract
   copy center, and the Commission decisions will be available on the Internet.

   [ 66 FR 2333 , Jan. 11, 2001, as amended at  67 FR 13224 , Mar. 21, 2002]

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Subparts T-U [Reserved]

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Subpart V—Implementation of Section 706 of the Telecommunications Act of 1996;
Commission Collection of Advanced Telecommunications Capability Data

   Source:  65 FR 19684 , Apr. 12, 2000;  65 FR 24654 , Apr. 27, 2000, unless
   otherwise noted.

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