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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Petition of City of Rockford, Illinois ) ) For a Waiver of 47 C.F.R.  25.104 ) Application File No. Regarding Preemption of Local Regulation of ) 82-SAT-WAIVZ-97 Satellite Earth Stations ) ORDER Adopted: August 12, 1998 Released: August 12, 1998 By the Chief, International Bureau: I. INTRODUCTION 1. In this Memorandum Opinion and Order we grant the petition filed by the city of Rockford, Illinois ("Rockford" or "the City"). Rockford seeks to enforce restrictions on the installation of a ten foot in diameter satellite receive-only earth station antenna in an historic area of the City. We find that the local regulations in question are not preempted by section 25.104 of our rules and, therefore, no waiver is needed in order to enforce them. II. BACKGROUND 2. The Communications Act of 1934 mandates that the Commission ensure access by U.S. consumers to "a rapid, efficient, nation-wide and world-wide wire and radio communications service with adequate facilities at reasonable charges." Where local regulations are found to be undue obstacles to such access, the Commission is required to by the Communications Act to protect this important federal interest. 3. At the same time, the Commission has long recognized that state and local governments have a legitimate and important interest in managing land use in their communities. The Commission has two rules, 47 CFR  25.104 and 47 CFR  1.4000, that govern the installation and use of satellite antennas as well as specify when local zoning ordinances are preempted by federal rules. These rules seek to balance local concerns with federal concerns. Section 1.4000 governs over- the-air reception devices (OTARD), including satellite antennas one meter or less in diameter, and is not applicable to the current proceeding. Section 25.104 governs restrictions on the installation maintenance and use of satellite earth station antennas greater than one meter in diameter. 4. In its petition, Rockford states that it seeks permission to enforce its zoning and historic preservation ordinances in the Garfield Avenue Historic District ("Garfield Avenue" or "historic district"). The City's petition for waiver is opposed by Gregory P. Lewis. According to the record, Mr. Lewis owns a home at 605 Garfield Avenue in the historic district. In March 1996, Mr. Lewis purchased and installed a ten foot in diameter satellite antenna on the west side of his residence without approval from the City. The City contends that Mr. Lewis's satellite antenna violates a City zoning ordinance applicable to residential districts as well as the City ordinance governing areas designated as historic districts. Both ordinances apply to Mr. Lewis's property, the City claims. The City Ordinances 5. Rockford's residential zoning ordinance states that the "ordinance is adopted for the following purposes:" To protect the character, scale and the stability of the residential, business and manufacturing areas within the City of Rockford . . . protect against destruction of or encroachment upon areas which contribute to the character of the City . . . [and] to establish restrictions in order to attain these objectives. The relevant restrictions in this case provide that: No communication antenna support structure shall be erected, maintained or operated without first having approval for a building permit from the Zoning Officer [and] Ground-mounted satellite dish antennas shall not exceed fifteen (15) feet in height in any residential district. 6. In addition, Rockford maintains a historic preservation ordinance to regulate improvements made in designated historic districts. The purpose of the ordinance, which is stated both in a preamble and "purposes" section, is to: preserve areas, places, buildings . . . and other objects having special historical, community, or aesthetic interest or value. The ordinance also states, in pertinent part, that: No alternation, improvement or demolition shall be allowed within a designated historic district. . .unless a certificate of appropriateness has been issued by the historic preservation commission. 7. After Mr. Lewis installed his antenna, the Rockford Historic Preservation Commission ("Preservation Commission") informed him that a certificate of appropriateness should have been obtained. Mr. Lewis then applied for a certificate of appropriateness, but his application was denied because his satellite antenna exceeded the 15 foot height limit set forth in the City's residential zoning ordinance. The Preservation Commission directed Mr. Lewis to apply for a zoning variance with the City of Rockford Zoning Board of Appeals ("Zoning Board"). Mr. Lewis applied for a variance, but his request was denied, and the matter was scheduled for hearing with the Rockford Administrative Code Hearing Division. The hearing officer found that the Commission's rules preempted the city zoning ordinance for two reasons: first, because the "parties agreed that the local ordinances materially limited reception of satellite signals by Lewis' satellite dish," and second, because the ordinances' objectives are "stated in the preamble, but not in the text of the regulation. . ." 8. The City now seeks a waiver of section 25.104(a) of our rules in order to enforce the City of Rockford Zoning Ordinance sections 405.6(A), 405.6(A)(5)(c), and section 13 «-21 of the City of Rockford Historic Preservation Ordinance. The Commission Rule 9. Section 24.104(a) states, in pertinent part: 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. . . As noted above, section 25.104 allows authorities to enforce local zoning restrictions that impair reception or impose more than minimal costs on users, if the enforcing authority can demonstrate that they are reasonable. For the purposes of this rule, 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. The Waiver Standard 10. The rule also contains criteria for waiver of its requirements. The waiver standard for section 25.104 prescribes that: Any state or local authority that wishes to maintain and enforce zoning or other regulations inconsistent with [section 25.104] 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 are of a highly specialized or unusual nature. . . III. POSITIONS OF THE PARTIES 11. Rockford argues that Mr. Lewis is in violation of three city ordinances and requests the Commission to order Mr. Lewis to remove his antenna within seven days after the entry of our Order and prohibit the installation of any satellite antenna on the property that is visible from Garfield Avenue. The City also requests that Mr. Lewis replace his antenna with an 18 inch satellite antenna or cable television system in order to comply with city ordinances. The City argues that its ordinances are designed to "preserve a legitimate historic district" because Garfield Avenue has been designated as such by the City and "is eligible for listing on the National Register of Historic Places." The City states, further, that the preamble, purpose and intent sections of its ordinances have this "clearly defined aesthetic objective." 12. Mr. Lewis argues that his antenna installation is not in violation of any City ordinances governing the installation and use of satellite antennas. Mr. Lewis also challenges the City's enforcement of its regulations on constitutional grounds, stating first, that aesthetic purposes may not serve as the sole purpose for enforcing local ordinances against satellite antennas and second, that the First Amendment protects his right to receive satellite signals. Finally, Mr. Lewis contends that the City seeks to impose excessive costs upon him in order to limit his access to satellite signals. IV. DISCUSSION 13. Although Rockford requests a waiver pursuant to section 25.104(e), we find that the City's ordinances are reasonable as defined by section 25.104(a) and therefore, no waiver of section 25.104(a)(1) is necessary. The City's zoning ordinance and the historic preservation ordinance contain clearly defined aesthetic objectives as required by section 25.104(a) and operate to further those objectives without unnecessarily burdening the federal interest, as required by section 25.104(b). Rockford's aesthetic objectives are incorporated in the text of the regulations (albeit in a preamble or "purposes" section) and are readily available to antenna users. In addition, while the City's ordinances are designed to regulate the visual impact of antennas, they do not prohibit the installation or use of satellite antennas or operate in manner that would unnecessarily burdening the federal interest in ensuring access to satellite services and in promoting fair and effective competition among competing communications service providers. Therefore, Rockford has demonstrated that its ordinances meet both prongs of the Commission's standard for reasonableness pursuant to section 25.104(a) and are not preempted. Consequently, there is no need to grant a waiver of the rule. 14. The issue of whether Mr. Lewis's antenna, as installed, complies with city ordinances, is not appropriate for the Commission to decide. The City must determine compliance with its own regulations. Mr. Lewis also argues in his opposition that the City's ordinances affect his First, Fifth and Fourteenth Amendment rights. Although we see no constitutional impediment to granting the City's petition, Mr. Lewis is free to pursue his constitutional challenges in a court of competent jurisdiction. Our inquiry here relates solely to the determination of preemption under section 25.104 of the Commission's rules. 15. Mr. Lewis also contends that the City is not eligible for waiver because Garfield Avenue is not yet included on the National Register. Unlike section 1.4000, section 25.104 does not require that historic districts or buildings be included, or eligible for inclusion, on the National Register. 16. Finally, Mr. Lewis contends that allowing the City to enforce its ordinances will result in the imposition of "excessive costs" on him. Section 25.104(a) states that a restriction that "imposes more than minimal costs on users" is generally preempted. Moreover, our rule rejects conditioning a permit or authorization upon "expenditure of a sum of money . . . greater than the aggregate purchase or total lease cost of the equipment." However, Mr. Lewis refers only to the cost of his "legal battles" and has filed nothing in the record to support his claim that the City's ordinance will impose excessive costs as defined in the rule. Therefore, the City's ordinances are not preempted on those grounds. 17. We find that the City's objective to preserve the aesthetic, cultural and historical integrity of designated areas in Rockford is clearly defined and stated in the text of their regulations. We also find that the parameters of the City's restrictions further its aesthetic objective without unnecessarily burdening the federal interests in ensuring access to satellite services. Rockford's ordinances do not prohibit the installation or use of satellite antennas, and there is no evidence that the restrictions are applied to satellite technology in a discriminatory manner vis-a-vis competing technologies. Accordingly, sections 405.6(A) and 405.6(A)(5)(c) of the Rockford Zoning Ordinance and section 13 «-21 of the Rockford Historic Preservation ordinance are reasonable and, therefore, not preempted and may be enforced without a waiver of section 25.104. 18. We note that we have come to a different conclusion than the city hearing officer, who ruled that the local ordinances at issue did not meet the standard set out in section 25.104(a) of our rules because the aesthetic objective of the ordinances was set out in the preamble to the ordinances and not in the specific paragraph of the regulations that limits installation of antennas. We believe that the City hearing officer's reading of section 25.104(a) is too strict, although we note there is some ambiguity in our order implementing the rule. 19. When the Commission revised section 25.104 in March 1996, it stated that the requirement in section 25.104 that a local ordinance's "health, safety, or aesthetic objective [be] stated in the text of the regulation itself" serves to "assure that antenna users will be more likely to be aware of a specific regulation and that localities will more narrowly tailor their requirements." It is relevant to note that subsequent to the March Order, the Commission has clarified that inclusion of a regulation's safety objective in a preamble, legislative history or readily available document is sufficient to meet the requirement of section 1.4000, the counterpart to section 25.104, for antennas one meter or less in diameter, because such inclusion assures that antenna users are made aware of specific regulations. We subsequently found that 25.104 preempted an antenna ordinance in Orchard Park, New York and stated that an authority must "justify its restriction in the regulations's text or in another publicly available document " The Commission is also considering modifying the language of section 25.104 to clarify this issue in its reconsideration of the March Order. In Rockford's case, we find that the City has a legitimate aesthetic objective, the objective appears in the regulations, and Mr. Lewis was aware of the restriction's existence and its rationale. 20. Finally, we deny the City's request that we order Mr. Lewis to remove his antenna. It is the City's responsibility to enforce its ordinances. V. ORDERING CLAUSES 18. Accordingly, IT IS ORDERED, pursuant to authority delegated to the Chief, International Bureau, 47 C.F.R. section 0.261a(15), and section 25.104 of the Commission's rules, 47 C.F.R. section 25.104, that the Petition (82-SAT-WAIVZ-97) IS GRANTED in part and DENIED in part. 19. It is FURTHERED ORDERED that the petition to deny filed by Gregory Lewis IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Regina M. Keeney, Chief, International Bureau