§  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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