Goto Section: 25.103 | 25.105 | Table of Contents
FCC 25.104
Revised as of October 2, 2015
Goto Year:2014 |
2016
§ 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.
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Goto Section: 25.103 | 25.105
Goto Year: 2014 |
2016
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