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MacDonaldR) R)  S-R)hCSR 4922O Petition for Declaratory RulingR) Under 47 C.F.R.  1.4000R) T  S -  MEMORANDUM OPINION AND ORDER TP  S -X` hp x (#%'0*,.8135@8:-ԍHerein "Petitioner's Reply" and "SBCA Reply", respectively.  See supra note 13.~ Petitioner asserts  xthat the South Carolina Department of Archives and History says the site number provided by Savannah,  S - x38MC284, is not on the National Registry and historic designation has not been pursued.   yO- xԍPetitioner's Reply at 2, quoting an electronic mail message from Nancy Brock of the South Carolina Institute of Archaeology and Anthropology. SBCA states  xthat Savannah Lakes Village is neither listed nor eligible to be listed on the National Register of Historic  S -Places. !" h  yO- x,ԍSBCA reports contacting the National Register of Historic Places, the South Carolina Department of Archives  xand History, and the South Carolina State Historic Preservation Officer and finding no listing for Savannah Lakes  xVillage. SBCA Reply at note 8. SBCA contends that Savannah has merely alleged it is close to an area eligible  {O-for historic designation rather than in the historic area. Id. at 2.   S0- ` x18.` ` Petitioner further argues that the site mentioned by Savannah is actually on property jutting  S- xinto Thurmond Lake and is owned and controlled by USACE.z"R  yO-ԍPetitioner's Reply at 2 quoting Allen Dean of the Clarks Hill, SC office of USACE.z Petitioner also disputes Savannah's  S- xycontention that the majority of PaleoIndian sites are on the lakeshore.B# yOb!-ԍPetitioner's Reply at 34.B Petitioner agrees with Savannah  x[that all of the shoreline is USACE property and contends that, therefore, no one may install anything on  x.the lakefront without express permission from USACE, which requires setbacks ranging from a few feet"r#0*%%ZZ"  S-to several hundred feet inland.6$Z {Oh- xiԍId. Petitioner concludes that it is unlikely anyone would install an antenna on the lakeshore since USACE's  xpermission would be required and, moreover, the reception would be better from the roof of a house than from the shoreline.6  S- ` x19.` ` SBCA argues that Savannah's antenna regulations neither describe the alleged historic  S- x>preservation concern nor cite it as a justification for the restrictions imposed on antennas.% {O- xYԍSBCA Reply at 3. See also Petitioner's Reply at 5 ("the Commission should note that the [permit] application makes no mention of health or historic factors . . ."). Further,  xzSBCA asserts that Savannah's response to the Petition fails to explain whether similar restrictions are  S8- ximposed on similar appurtenances, as required by the Rule.[&8D yO -ԍSBCA Reply at 3 citing 47 C.F.R.  1.4000(b)(2).[ Likewise, Petitioner contends that Savannah  S- xhas not explained how installation of an antenna at a homesite affects a PaleoIndian site miles away.]'Z yO- xԍPetitioner's Reply at 4. Petitioner quotes South Carolina archaeologist Wayne Neighbors, who said,"I don't  xJthink putting a post in the ground outside you[r] home to receive better TV reception has anything at all to do with  {O-Paleoindians." Id. at 2.]  xPetitioner notes also that Savannah refers to "government agreements" in general but does not provide  S-particular cites or provisions.(Z  yOV-  ,ԍPetitioner's Reply at 4 ("the [Savannah] failed to cite by content, let alone title, date, or signatories, even one   of those `sensitive agreements'."). Petitioner also observes that Savannah's concern that many residents are unaware  {O-of these "government agreements" is attributable to Savannah's failure to inform homeowners about them. Id.ĸ  Sp- ` x20.` ` SBCA also argues that the Savannah restrictions should be preempted because the  xrequirements for permit and prior approval impose unreasonable delay; the requirements for screening and  xcamouflage impose unreasonable cost; and the threatened loss of community privileges is unreasonable  S -in light of the cost of the antenna equipment and its visual impact.:)  yO-ԍSBCA Reply at 12.:  S - IV.xDiscussion  SX- ` x21.` ` The issues presented for determination are whether Savannah's antenna regulation is  xnecessary to preserve an historic district and thus permissible under the Rule; and if so, whether the  xregulation is no more burdensome than necessary; or, if not necessary for historic preservation, whether the Savannah antenna regulation impairs installation, maintenance or use of antennas covered by the Rule.  S-x A.` ` Historic Preservation Exemption  S@- ` x22.` ` The Rule provides that a restriction that otherwise would be prohibited is permissible if  x"it is necessary to preserve an historic district listed or eligible for listing in the National Register of")0*%%ZZS"  xyHistoric Places . . . and imposes no greater restrictions on antennas covered by this rule than are imposed  xlon the installation, maintenance or use of other modern appurtenances, devices or fixtures that are  S- xcomparable in size, weight, and appearance to these antennas."D* yO-ԍ47 C.F.R.  1.4000(b)(2).D For the reasons discussed below, we find  x]inadequate evidence to conclude that Savannah Lakes Village is, or is eligible to be, in the National  xyRegister of Historic Places ("National Register"). Furthermore, neither Savannah's antenna regulation nor  xyits response to the Petition offers a sufficient connection between the restrictions it imposes on antennas and its concerns about preserving a PaleoIndian site.  S- ` x23.` ` The Rule places the burden of proof in these proceedings on the entity seeking to enforce  S- xa restriction.g+X {O -ԍ47 C.F.R.  1.4000(e) and Report and Order at  54.g Savannah asserts that there is "a late PaleoIndian archeological site in the area of  Sp- xSavannah Lakes Village."?,p yO -ԍSavannah Response at 1.? Savannah provides a site number, 38MC284, and claims that this site is  xeligible to be included in the National Register of Historic Places but provides no documentation in  xsupport of this assertion. Petitioner and SBCA state that, after consulting with local archaeological  xexperts, this site is not in the National Register and does not include Savannah Lakes Villages, and that  xSavannah Lakes Village is neither in, nor eligible for inclusion in, the National Register. Petitioner also  xreports that the PaleoIndian site in the area is on land belonging to and controlled by the USACE and,  xtherefore, not at issue in this proceeding. In the absence of proof of listing or eligibility for listing, and  xin light of the contrary information offered by Petitioner and SBCA, we conclude that this is not an historic district as defined in the Rule.  S-x B. ` ` Savannah Regulations  S- ` `x24.` ` Having determined that the Savannah antenna regulations are not exempt from the Rule  xfor reasons of historic preservation, we now examine whether the regulations impair installation,  x=maintenance or use of antennas covered by the Rule. For the reasons discussed below, we conclude that  xthe Savannah antenna regulations violate the Rule because the permit requirement unreasonably delays  x[installation and imposes unreasonable costs. We note that although Savannah's regulations make passing  xreference to "safety," neither the regulations nor Savannah's response articulates a safety objective  xachievement of which necessitates the restrictions imposed. Savannah's defense of its regulations relies  Sx- xsolely on the exception to the Rule for historic preservation, which we have rejected, above. Both the  x>regulations and the response acknowledge that Savannah's goal in imposing the antenna regulations is  xprotecting "agreements with our neighbors and . . . property values and aesthetics." In addition, to the  x=extent the Savannah antenna regulations prohibit installation of TVBS antennas larger than one meter "in  S- xdiameter,"M-Xzz yO"-  hԍPetitioner's "verbatim copy" of the Savannah Regulations reads: "Satellite Antennas, OfftheAir TV Antennas   xand MDS Antennas of one (1) meter (or less) in diameter shall be allowed . . ." Petition at 2. However, the copy   ;of the permit application submitted by Savannah reads: "Satellite Antennas of one meter (or less) diameter, Offthe"$,0*%%$"   Air TV Antennas and Multipoint Distribution Service (MDS) Antennas shall be allowed . . ." Savannah Response   at Appendix P. To the extent Petitioner's recitation is or was accurate, the regulation appears to allow only antennas   Yone meter or less in diameter. We agree with Petitioner that Savannah's regulation is preempted by the Rule insofar   as it prohibits installation of any of the antennas covered by the Rule. We also agree with Petitioner that "diameter"   is not a relevant or appropriate measurement for TVBS antennas. Similarly, "diameter" is not always appropriate   -for MDS, MMDS, or LMDS antennas, which are often a parabolic shape or a straight, branchlike device similar  {O@-to a TVBS antenna. See Report and Order at n. 82.M they are preempted because the Rule protects all TVBS antennas without a per se limitation" -0*%%ZZ."  S- xon the size or shape..^  {O- xJԍSee Report and Order at  40 ("we decline to limit the size or shape of [TVBS] antennas covered by our rule.")  {Ot - xAs a safety measure, the Report and Order allows permits for installations of antennas and masts that reach more  {O> -than 12 feet above the roofline. Id.ă We find that the screening and camouflaging requirements would comply with the  S- xRule insofar as they are limited by definition to those requirements which are "reasonable"'/0  yO - xԍSection iv. of the Savannah regulations refers to "building codes, screening, unobtrusive placement, painting,  {Op -camouflage or other reasonable measures to ensure safety and minimize visual effect." Supra,  6.' provided  xLSavannah specifies that its use of that term has the same meaning as the Rule. In addition, the regulation  x>also imposes placement preferences which allow for exceptions only if the signal would be impaired, ignoring the other types of impairment prohibited by the Rule; i.e. unreasonable delay and expense.  S-x` ` 1. Permit Requirement  S-  S- ` x25.` ` We agree with Petitioner that Savannah's requirement for a permit prior to installation  xviolates the Rule by imposing unreasonable delay and expense. Savannah requires potential antenna users  xyto complete an application for a permit, pay a $5.00 permit fee, attach a plot plan showing the proposed  xlocation and size of the antenna, and provide a certificate from the dealer or installer if the antenna will  S -be visible from the street or the golf course.0  yOJ-ԍPetition at 23. Savannah provided a copy of the following restriction with its response: X"Satellite Antennas/Offthe Air TV Antennas/Multipoint Distribution Service (MDS) Antennas.   (#2XSatellite Antennas of one meter (or less) diameter, Offthe Air TV Antennas and Multipoint  (#ADistribution Service (MDS) Antennas shall be allowed on private property with issuance of an  (#ACC [Architectural Control Committee] approval. Installation of antennas must adhere to  (#compliance with building codes, screening, unobtrusive placement, painting, camouflage or other  (#reasonable measures to ensure safety and minimize the visual effect on the community.  yO- (#  Installation preference is rear yards not visible from streets and ground mounted rather than   (#"pole mounted as long as it would not impair signal reception. Signal reception locations certified   (#by a dealer/installer in writing must accompany applications for an ACC permit to install a satellite   (#antenna/off the air TV antenna/MDS antenna if the installation location is going to be visible from the street or public amenity (golf course)." (emphasis in original)  Savannah Response at Appendix P.  S - ` x26.` ` One of the purposes of the Rule is to prohibit restrictions that unreasonably delay or  xprevent antenna installation, maintenance, or use. The Rule is intended to promote one of the primary" B00*%%ZZ\ "  xobjectives of the 1996 Act, which is to make communication services readily available to the public at  S- xa reasonable expense.1  yO@-  ԍIn the preamble to the Act, Congress clearly enunciates its goals: "AN ACT To promote competition and reduce   regulation in order to secure lower prices and higher quality services for American telecommunications consumers   ,and encourage the rapid deployment of new telecommunications technologies." Telecommunications Act of 1996, Pub. L. No. 104104, 110 Stat. 56 (1996). In our Report and Order, we stated that procedural requirements might act as a  xbarrier between the new technology and the potential consumer because of the administrative delay and  xthe myriad regulatory obstacles that the potential antenna user must hurdle before being able to utilize the  Sb- xynew technology.s2b {O -ԍReport and Order  17; 47 C.F.R.  1.4000(a).s We specifically concluded that requirements for approval by community associations  x.might prove to be a disincentive for potential antenna users, effectively "preventing" access to the video  S-programming signals that Congress sought to protect under Section 207 of the 1996 Act.t3\B {O - xԍReport and Order  17. Keeping in line with the Congressional mandate, we concluded that the Rule would  xpreempt procedural requirements, when they work this kind of disincentive, unless they are necessary for purposes  {O-of safety or historic preservation. Id.t  S- ` x27.` ` Savannah's permit requirement compels all potential antenna users to prepare and submit  xa plot plan and to wait an unspecified time while the Architectural Control Committee reviews the permit  xapplication. Savannah requires a $5.00 fee, which, while a relatively small amount, is an unreasonable  xexpense because it is an unwarranted charge. Savannah also requires a certificate from the dealer or  xinstaller certifying that installation in a location other than that preferred by Savannah ("nonpreferred  xylocation") is necessary to avoid impaired reception. Although Savannah's preference for ground mounted  xinstallation in a rear yard not visible from the street may be a permissible preference, Savannah may not  ximplement its preference by delaying installation while it determines whether to grant a permit. These  xapproval procedures are timeconsuming and likely to deter potential antenna users. We conclude that they impose unreasonable delay in violation of the Rule.  S - ` x28.` ` In addition, Savannah's certification requirement applies to antenna users who install the  xantenna themselves, as well as to those who hire an installer. This requirement compels users to hire an  xinstaller for the purpose of certifying that the installation in a nonpreferred location is necessary. We find  xthat requiring an antenna user to hire an installer solely to provide a certificate is an unreasonable expense  Sj-that violates the Rule.4jf  yOp-  ԍAn antenna user who installs an antenna in a nonpreferred location must have a legitimate reason for doing   so. An association may ask the user to justify installation in a nonpreferred location, but the requirement of such   a justification may not operate to delay or prevent the installation, and it may not impose an unreasonable cost. For   antenna users who hire an installer, Savannah's requirement for a certificate from the installer is reasonable, but   Savannah should have allowed antenna users who install the antenna themselves another option for justifying installation in a nonpreferred location.  S- ` Ax29.` ` Similarly, Savannah's regulation lists only one exception to its placement preferences; that  xLis, if the preferred placement impairs signal reception. However, under the Rule there are two additional" 40*%%ZZ"  xtypes of impairment, i.e. delay and cost, that must also be accepted as valid justifications for placing an antenna other than where the association prefers.  S- ` x30.` ` Where prospective antenna users cannot receive acceptable signals in the locations  xpreferred by a community association, they have the same rights under the Rule to place their antennas  xin alternative locations as other users have to place their antennas in preferred locations that is, an  xzabsolute right of placement absent safety or historic considerations. In the case of the former class of  xusers, alternative locations become per se approved locations. Requirements such as prior demonstrations  xof unacceptable signals are as unreasonable in the case of users who cannot otherwise receive acceptable  xsignals as prior approval procedures for preferred locations are with respect to prospective antenna users  x/who can receive acceptable signals at such locations. The 1996 Act and the Rule require homeowner  xassociations to enforce preferred placement provisions through methods that do not delay or hinder those  xywho have a right to site their antennas at alternative locations. Therefore, the regulation's prior approval requirements cannot stand.  S -  S -x` ` 2. Screening and Camouflaging Requirements  SX- ` $x31.` ` Savannah's antenna regulation requires screening and camouflaging, which may impose  S0- xunreasonable expense in some circumstances.50 {O- xԍFor example, expensive landscaping may impose unreasonable expense while inexpensive paint may not. See  {Ob-Report & Order at  19. Petitioner and others assert that this requirement, on its  xyface, violates the Rule because screening and camouflaging may interfere with reception and impose costs  S- xthat are disproportionate in light of the visual impact of the antenna.u6$ {O-ԍSee Petition at 56; Pacific Bell Comments at 67; and SBCA Reply at 2.u While we agree that such  x?requirements can be unreasonable, the Savannah regulation purportedly requires only "reasonable  S- xmeasures."}7 {O-ԍSavannah Response at Appendix P. See also Petition at 2 and supra n. 47.} There is no assertion in the record that Savannah's implementation or enforcement of this  x]requirement, thus far, has imposed unreasonable expense or delay or precluded acceptable quality  xreception. However, petitioner alleges that the screening and camouflaging requirements could add  xunreasonable cost or delay installation. We conclude that Savannah must specifically state that by  x"reasonable" it means those requirements that do not impose unreasonable expense or delay or preclude reception of an acceptable quality signal.  Sx-x` ` 3. Loss of Community Privileges pp  S(- ` x32.` ` Petitioner alleges that Savannah has threatened to punish homeowners who violate the  xantenna regulations by revoking unspecified privileges and prohibiting access to certain facilities in the  S- x>community.8H {O#- xԍPetition at 3 and 6. See also BellSouth Comments at 4, Pacific Bell Comments at 4, and SBCA Reply Comments at 2. Savannah did not respond to this allegation.9  yO-  wԍThe antenna regulations on the application form provided by Savannah with its response to the Petition makes   no mention of this punishment. Savannah Response at Appendix P. However, Savannah did not dispute this   allegation nor deny that it would revoke the community privileges of a homeowner who violated the antenna regulations. In proceedings concerning petitions for" 90*%%ZZ."  xdeclaratory ruling under the Rule, the burden of demonstrating that a restriction complies with the Rule  S- xis on the entity seeking to impose the restriction.A: yO(-ԍ47 C.F.R.  1.4000(e).A Savannah has offered no explanation or justification  S- xfor this penalty, and we believe that penalties of this sort are likely to deter installation.;@ {O - xYԍSee In re Star Lambert and SBCA, CSR4913O, Memorandum Opinion and Order (DA 971554, released July 22, 1997). Therefore, in the absence of any justification offered by the association, we cannot uphold this penalty.  S8- V.xConclusion  S- ` x 33.` ` We conclude, based on the record, that Savannah Lakes Village is not an historic district  xzas defined in the Rule, and the Savannah antenna regulations are not exempt from the Rule for reasons  xof historic preservation. We find that the prior approval requirement in Savannah's antenna regulation  xzviolates the Rule because it is likely to delay unreasonably the installation of antennas covered by the  xRule. Moreover, the antenna regulation fails to provide adequately for exceptions to its placement  xpreference and screening/camouflaging requirements if installation as required would impair installation, maintenance or use of the antenna.  S -  S - ` Px!34.` ` For the aforementioned reasons, we find that those provisions of the Savannah regulations pertaining to installation of antennas that conflict with the Rule are hereby preempted.  SX-  S0-VI.xOrdering Clauses  S-  S-  zx"35. Accordingly, IT IS ORDERED , pursuant to Section 1.4000(d) of the OvertheAir Reception  x\Devices Rule, 47 C.F.R.  1.4000(d), and Section 1.2 of the Commission's rules, 47 C.F.R.  1.2, that  S- xthe Petition for Declaratory Ruling filed by Michael J. MacDonald on January 15, 1997, is GRANTED  xwith respect to preemption of Savannah Lakes Village Property Owners Association's antenna regulations,  S@-as discussed herein.  S-  !x#36. This action is taken by the Chief, Cable Services Bureau, pursuant to authority delegated by Section 0.321 of the Commission's rules. 47 C.F.R.  0.321. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hh x` `  hhMeredith J. Jones x` `  hhChief, Cable Services Bureau" ;0*%%ZZ"Ԍ