§ 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.

   return arrow Back to Top