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 P6G;P3m=6,&m PE37&PD2p=6,Wn&p_ pi7&7jC:,ߊXj\  P6G;XP&7nC:,'TXn4  pG;XW!@(#,^!h@\  P6G;hPH5!,~t,5\  P6G;,P{,W80,<W*f9 xr G;X5hC:,<Xh*f9 xr G;XX8wC;,WXw PE37XP D7zC;,XXz_ pi7XV"G($,hG PE37hP2a=5,/&a\  P6G;&P &2e=5,'&e4  pG;&P:% ,NKJ:\  P6G;JP0_=5,<8&_*f9 xr G;&Xa$G,',]G\  P6G;P:*,*\  P6G;PI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr2Z X4    OFederal Communications Commission`z(#nDA 971362   yxdddy [ #o\  PCߊXP# #&a\  P6G;/&P##Xj\  P6G;ߊXP#Before the [ FEDERAL COMMUNICATIONS COMMISSION  X'-Washington, D.C. 20554 \ Bp(#҇  X4In the Matter of hhCq)  Xv4` `  hhCq)  X_4Petition of James MoffathhCq)  XH4Seeking a Declaratory Ruling that hhCq)  X14a Zoning Ordinance of The Town hhCq)  X 4of Orchard Park, NY is PreemptedhhCq)  X 4Pursuant to Section 25.104 ofhhCq)  X 4Commission Rules hhCq)pp X 4` `    " 0*&&88 " Application file No. 154SATDRZ96H10*&&88$ Q&&88Hԯ X4Bp(#B(#0 REPORT AND ORDER ă  Xb4 Adopted: June 30, 1997 hhC  ppReleased: July 1, 1997 By the Chief, International Bureau:  X4  X' M:I. INTRODUCTION ă  X41.` ` In this Order, we consider the request of James Moffat to declare that a zoning  X4ordinance of the Town of Orchard Park, New Yorkmz# yO:'ԍPetition of James Moffat (Moffat) (File No. 154SATDRZ96).m ("Orchard Park" or "Town") is preempted by section 25.104 of the Commission's rules. The Commission has long recognized that state and local governments have a legitimate and important interest in managing land use in their communities and has repeatedly eschewed the role of national  Xe4zoning board.eXz# yOn' " ԍP#X\  P6G;sP#reemption of Local Zoning and Other Regulation of Receive-Only Satellite Earth Stations. FCC 86-28](1986 Order) at  23, 27 and 39. Indeed, the Commission seeks to balance local concerns with federal concerns  XN4and requires the exhaustion of local review before any federal intervention.WNz# yO!'ԍ47 C.F.R.  25.104(c) ("the rule").W Nevertheless, the Commission has a mandate to assure access by U.S. consumers to "a rapid, efficient, nationwide and worldwide wire and radio communications service with adequate facilities at" @0*&&88"  X4reasonable charges."Dz# yOy'ԍ47 U.S.C.  151.D Where local regulations are found to be unreasonable obstacles to such access, as in this case, we are required to act and protect this important federal interest.  X42.` ` On September 6, 1996, James Moffat filed a petition for a Declaratory Ruling that an Orchard Park zoning ordinance is preempted, pursuant to 47 C.F.R.  25.104. The  X4Town declined to reply to the petition. For the reasons discussed below, we find that section  Xv425.104 of the Commission's rulesGvXz# yO 'ԍ47 C.F.R.  25.104.G preempts Orchard Park ordinance, section 14421(B).!vz# yO 'ЍThe Ordinance reads as follows: Schedules of Height, Lot, Yard & Bulk Regulations  14421(B) Roofmounted antenna ("ordinance").  yO 'XX` ` (1)X Roofmounted antennas, including dish antennas or other devices for receiving, sending or relaying electronic signals, except as hereinafter provided, shall not project more than six (6) feet above the highest point of the building nor exceed ten (10) square feet of windresistance area.(# !  XH'? II. BACKGROUND \  X 43.` ` In July 1996, Mr. Moffat purchased a seven foot, six inch (7', 6") satellite antenna and had it professionally installed on the roof of his home. The petition states that the installer advised Mr. Moffat that, due to the location of trees on his property, as well as those on adjoining properties, the antenna needed to be installed on his roof or in his front yard in order to receive an adequate signal. Orchard Park's ordinance restricts roof mounted  X 4antennas to a height of no more than six (6) feet.: ` z# {O'ԍId.: Neither Mr. Moffat nor the installer applied for a permit for the antenna and, subsequently, Mr. Moffat was notified that his antenna installation was in violation of the Town Code. On August 20, 1996, a hearing for a variance took place before the Orchard Park Zoning Board of Appeals. Thereafter, Mr. Moffat's request for a variance was denied and he was ordered to remove the antenna from his roof.  X44.` ` Following the denial of the variance, Mr. Moffat filed the present petition. The petition was amended on April 30, 1997. In response to the amended petition, Orchard Park forwarded to the Commission a copy of its letter to Mr. Moffat and his representative, James  X4Culligan, z# yOd#'ЍMr. James Culligan is Mr. Moffat's neighbor and is acting on his behalf in this matter. stating that both men have declined the opportunity to pursue an appeal with the" 0*&&88"  X4New York State Supreme Court of the Township's denial of a variance. z# yOy'ЍLetter for Mr. James Culligan, from Joseph M. Campion Jr., Supervising Building Inspector, Town of Orchard Park (May 2, 1997). In addition, the Town has initiated an action in local court against Mr. Moffat to force him to remove his  X4antenna.  z# yO'ЍMoffat at 2. The Commission has not exercised exclusive jurisdiction in this area and the rule allows  yOk'parties to pursue remedies in court in lieu of Commission review. In re Preemption of Local Zoning Regulation  yO3'of Satellite Earth Stations, Report and Order, Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking, 11 F.C.C. Rcd 19276,  5658 (1996) (OTARD).  As stated above, the Town chose not to respond substantively to Mr. Moffat's petition.  X4  Xv'  III. POSITIONS OF THE PARTIES Đ\  XH45.` ` In his petition, Mr. Moffat asserts that the Zoning Board has based its decision to deny his variance on impermissible reasons, including the availability of cable  X 4television in his area.=  z# yO'ԍMoffat at 2.= He also states that there is no clearly defined health, safety, or aesthetic objective stated in the text of the ordinance, as required by 25.104, to maintain a  X 4restriction that impairs reception.: z# {O5'ԍId.:  X 46.` ` As stated above, Orchard Park offers no defense of its ordinance or rebuttal to the facts stated by Mr. Moffat in his petition. The only response filed by the Town is the previously mentioned letter relating to the judicial appeals process. Given the Town's failure to respond directly to the facts contained in the Moffat petition, the Commission will consider those facts uncontested by Orchard Park. The Town's position in this matter is, however, represented by a transcript of Mr. Moffat's variance hearing, which was entered in the record by the petitioner. While the transcript cannot substitute for a formal filing by the Town, it does give an indication of the Town's reasoning in the matter.  X47.` ` The transcript of the Zoning Board meeting lists the following six (6) reasons for denying Mr. Moffat's antenna installation:  X4XX` ` (1)X The applicant has a self created hardship in that a building permit was not sought for the construction of a nonconforming roof mounted antenna.(#  Xe4` ` (2)X There are several options available to the applicant for achieving a wide"e* 0*&&88q" range of programming for his personal recreation. Old Orchard Lane is serviced by Adelphia Cable. There are smaller dish reception systems available and [we] have had no indication that a ground mounted antenna could not be located on that property.(#  X4` ` (3)X This is a strictly personal hardship. The Board sympathizes with the disabilities of the petitioner but this cannot be the basis on which to grant a variance which must be related to the uniqueness of the land.(#  X_4` ` (4)X The variance sought is substantial in relationship to the requirements of the ordinance.(#  X14` ` (5) The opposition of the neighborhood is persuasive.(#`  X 4` ` (6) There will be a change in the character of the neighborhood.m  z# yO 'ԍZoning Board variance hearing transcript (Transcript) at 10.m(#`  X 'G IV. DISCUSSION Đ X 4\ Procedural Issues  X 48.` ` Mr. Moffat's petition raises both procedural and substantive issues. We will discuss the procedural issues first. Prior to March 1996, the Commission's policies required petitioners seeking declaratory relief to exhaust all local remedies, including all litigation  Xb4remedies, before coming here.mXbXz# yOk'ЍIn 1992, the U.S. Court of Appeals for the Second Circuit invalidated this policy holding that the Commission could not reverse federal court judgments. The Commission has revised its exhaustion policy in  yO'light of Town of Deerfield v. FCC, 992 F.2d 420 (2d Cir. 1993)(Deerfield).m In its March 1996 Order, the Commission revised its rule governing the preemption of local restrictions on the installation and use of satellite earth  X44station antennas.4xz# yO]' "c ԍPreemption of Local Zoning Regulation of Satellite Earth Stations, IB Docket No. 9559, Report and Order and further Notice of Proposed Rulemaking, 11 F.C.C. Rcd. 5809 (1996) (March Order). One of the changes to the rule was to modify the procedural threshold for Commission review. Currently, any person aggrieved by the application of a state or local  X4zoning regulation in violation of the rule may, after exhausting all nonfederal administrative  X4remedies, file a petition with the Commission requesting a declaration that the regulation in question is preempted.  X49.` ` The March Order defines exhaustion as, among other things, when "any  X4administrative appeal and variance process has been exhausted."Mz# yO"'ԍ47 C.F.R.  25.104(c)(1).M In this case, Mr. Moffat failed to apply for a permit before having his antenna installed. This failure was cited as one of the reasons for denying his variance and raises the question of whether he has exhausted available remedies. In the March Order, the Commission stated that "permitting processes" for"R` 0*&&88N"  X4antennas over one meter in size are permissible.Mz# yOy'ԍMarch Order at 41.M The Commission also stated that in order to balance the federal interest at stake with state and local government interests, it would entertain petitions for preemption only after a petitioner has exhausted his nonfederal  X4administrative remedies.MXz# yO'ԍ47 C.F.R.  25.104(c)(1).M At Mr. Moffat's variance hearing, the Town conceded that the failure to seek a permit in the first instance was likely inadvertent on the part of Mr. Moffat  X4and the installer.Az# yO& 'ԍTranscript at 6.A Under the procedures described in the record, Mr. Moffat would generally be required to complete two levels of nonfederal administrative review in Orchard Park before he could seek Commission review. However, because the Town allowed him to proceed to the second level of reviewa variance hearing an initial permit was not necessary in this case. Furthermore, because the Town does not argue that Mr. Moffat must meet the procedural threshold of making an initial application, it is illogical for the Town to base its subsequent denial of a variance on the lack of such an application.  X 4 10.` ` Another path to exhaustion of administrative remedies is when "a local  X 4authority has notified the petitioner of impending civil or criminal action."M xz# yO'ԍ47 C.F.R.  25.104(c)(4).M Because the Town has notified Mr. Moffat of impending court action, he may now assert that he has exhausted all nonfederal administrative remedies. The exhaustion requirement does not  Xy4include judicial appeals of administrative determinations.:yz# {O2'ԍId.: Therefore, Mr. Moffat need not pursue a judicial appeal in this matter and is entitled, under section 25.104, to Commission review of this petition. Consequently, because Mr. Moffat is petitioning the Commission from the denial of a variance as well as notification of impending civil action, and no further nonlitigation remedies remain, we find that his nonfederal administrative remedies are  X4exhausted.   X4The Rule  X4 11.` ` The Commission is charged with promulgating rules that, among other things,  X4promote the federal interest in ensuring easy access to satellite delivered services.Mz# yO"'ԍMarch Order at  1.M Section 25.104 provides the Commission with a mechanism to accomplish that task in a manner that avoids excessive federal involvement in local landuse issues. The rule states in pertinent"e* 0*&&88" part: ` ` (a) Any state or local zoning, landuse, building, or similar regulation that  V4materially limits transmission or reception by satellite earth station antennas,  V4or imposes more than minimal costs on users of such antennas is preempted unless the promulgating authority can demonstrate that such regulation is  X4reasonable, . . .[z# yO'ԍ47 C.F.R.  25.104(a) (emphasis added).[(#`  Xa4Materially Limits Reception  X34 12.` ` As noted above, section 25.104 provides that a local zoning restriction that "materially limits" reception by earth station antennas is preempted unless it is demonstrated  X 4to be reasonable.: Xz# {O'ԍId.: According to the record, Mr. Moffat's antenna was professionally installed on his roof after a determination that it was the "only location to adequately receive satellite  X 4broadcast signals."= z# yOr'ԍMoffat at 1.= The transcript provides that "[the Zoning Board had] no indication that a  X 4ground mounted antenna could not be located on that property."B zz# yO'ԍTranscript at 10.B However, by choosing not to participate in this proceeding, the Town leaves unchallenged Mr. Moffat's claim that alternative mounting of his antenna would materially limit his reception. In addition, the Commission has stated that it is the Town, not Mr. Moffat, that shoulders the burden of  Xd4demonstrating compliance with our rules.d z# yO'ЍNotice of Proposed Rulemaking In Re Preemption of Local Zoning Regulation of Satellite Earth Stations, 10 F.C.C. Rcd 6982 67 (1995). Because the Town does not counter Mr. Moffat's claims of impairment, we conclude that its restriction on his installation of a satellite antenna materially limits reception within the meaning of the rule.  X4Reasonableness  X4 13.` ` Section 25.104 does allow for zoning restrictions that may impair reception, if  X4they are reasonable.Ub z# yO!'ԍ47 C.F.R.  25.104(a)(1) and (2).U In order for a regulation to be reasonable, it must further a "clearly defined health, safety, or aesthetic objective" and not "unnecessarily burden[] the federal interest in ensuring access to satellite services and in promoting fair and effective competition" 0*&&88"  X4among competing communications service providers.":z# {Oy'ԍId.: In addition, section 25.104 requires that Orchard Park, as the promulgating authority, demonstrate that the ordinance at issue is  X4reasonable.IZz# yO'ԍ47 C.F.R. 25.104(a).I  X4 14.` ` Had the City responded to Mr. Moffat's petition, it might well have been able to shed light on the concerns which motivated the zoning restriction at issue. However, in view of the record before us, we conclude that Orchard Park has not demonstrated that its restriction is reasonable. The transcript indicates that neither health nor safety was articulated as a reason for the denial of Mr. Moffat's request to mount his antenna. Nor did the City attempt to justify its restriction in the regulation's text or in another publicly available  X 4document. z# {O'ЍSee OTARD, supra note 10, at 25 (allowing local authorities to define their regulatory objective in the ordinance's text, preamble, or legislative history, or in a document readily available to antenna users). While the Commission recognizes that aesthetics are a permissible regulatory  X 4objective,^  Dz# {O'ԍSee 1986 Order supra note 2 at  35.^ the City is obligated to clearly define those objectives. In this case, Orchard Park merely considered the opinions of Mr. Moffat's neighbors as to the antenna's impact on the  X 4"beauty of the neighborhood"! z# yO\'ЍThe Commission does not regard consideration of testimony by neighboring property owners to be reasonable in assessing an antenna application or variance request. Indeed, beginning with the original preemption Order in 1986 the record on federal preemption of local zoning restrictions is replete with examples of the added cost, delay and discriminatory effect of including the opinions of nonparties in antenna zoning determinations. In addition, the Commission, in the March 1996 Order, states that the contention that satellite antennas negatively impact property values in a community "is not supported by any facts." and used inexplicit and undefined aesthetic concepts such as "uniqueness of the land" and "a change in the character of the neighborhood" to deny the  X 4variance.T" N z# yO'ЍTranscript at 10. T These isolated statements, rendered verbally, do not allow us to evaluate the purpose behind the regulation.  Xb415.` ` In addition, by failing to respond to Mr. Moffat's petition, Orchard Park has abdicated its responsibility under section 25.104 to demonstrate that enforcement of its restriction does not unnecessarily burden the federal interests in ensuring access to satellite  X4services and in promoting fair and effective competition among competing service providers.M#z# yO#'ԍ47 C.F.R.  25.104(a)(2).M While the Commission is sensitive to local landuse concerns, it is not in a position to"n#0*&&88"  X4shoulder the responsibility given local governments under section 25.104.J$ z# yOy'ЍMoreover, the record indicates that Orchard Park would have had a difficult time making such a showing. In the transcript, the Zoning Board asserts that "there are several options available to the applicant for achieving a wide range of programming for his personal recreation" and cites the availability of cable and "smaller dish" systems as evidence and reason for denying the variance. This reasoning appears to burden "the federal interest . . . in promoting fair and effective competition among communications service providers." The Commission has stated in previous proceedings that it "will not permit a state to arbitrarily favor one particular communications service over another and local ordinances which engage in arbitrary discrimination will be  {O'preempted." See 1986 Order at  25. The Commission has also stated its belief that "[t]he existence of alternative communications media is not a sufficient justification for discriminatory local regulations . . . [and] has emphasized its policies to maximize consumer choices by developing a competitive marketplace for the provision of telecommunications goods and services." Because digital satellite systems, which use smaller (one meter or less) antennas, and CBand systems, whose antenna are six to seven feet in diameter, are different services, albeit both delivered via satellite, it would not comport with the Commission's competition policy to  {O 'restrict one service in lieu of the other. See also 47 C.F.R.  1.4000. By basing its denial of a variance, in part, on the availability of alternative video services, Orchard Park appears to have effectively burdened the federal interest in "promoting fair and effective competition among communications service providers."J  X4  X416.` ` We find, in this case, that the Town ordinance materially limits reception under section 25.104. We also find that the Town has failed to demonstrate that the ordinance is reasonable. Therefore, we find that section 25.104 of Commission rules preempts Orchard Park, New York ordinance 14421(B). Xv4 \  X_' %6V. ORDERING CLAUSES Đ\  X1417.` ` Accordingly, IT IS ORDERED, pursuant to authority delegated to the Chief, International Bureau (47 C.F.R. 0.261 a (15)) and section 25.104 of the Commission's rules, 47 C.F.R.  25.104, that the Petition for Declaratory Relief (154SATDRZ96) IS GRANTED.    ` `  hhCFEDERAL COMMUNICATIONS COMMISSION ` `  hhCPeter F. Cowhey ` `  hhCChief, International Bureau