Sec. 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

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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 Sec. 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, Sec. 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.

Secs. 25.105-25.108  [Reserved]