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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 St. Charles, MO ) Application File No. for a Waiver of 47 C.F.R. 25.104(b)(1) ) 46-WAIVZ-97 Regarding Preemption of Local ) Zoning Regulation of Satellite ) Earth Stations ) ORDER Adopted: August 12, 1998 Released: August 12, 1998 By the Chief, International Bureau I. INTRODUCTION 1. By this Order, we grant the request of the City of St. Charles, Missouri (St. Charles) for a waiver of the Commission's rules preempting certain local zoning restrictions on satellite earth stations less than two meters in diameter and located in commercial and industrial areas. The city has shown that local concerns of a highly specialized nature (in this case, the local government's interest in preserving a genuine historic district) justify the waiver. 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 pose undue obstacles to such access, the Commission is required 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. The Rule 4. When the Commission revised section 25.104 in March, 1996, it established, among other things, that "[a]ny 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. . ." The rule also provides, however, that local authorities may enforce otherwise preempted zoning ordinances upon receiving a full or partial waiver from the Commission. The Waiver Standard 5. The Commission retains discretion to grant petitions for waiver pursuant to section 25.104(e) of its rules upon a showing by the applicant that "local concerns of a highly specialized or unusual nature create a necessity for regulation inconsistent" with the rule. Applicants must also set forth the particular regulation for which the waiver is sought. According to its petition, St. Charles seeks a waiver of 25.104(b)(1) in order to enforce local restrictions on satellite earth station antennas in those areas of the city designated historic preservation districts. St. Charles asserts that this represents a local concern of a highly specialized nature. 6. St. Charles's request for a waiver is based on its claimed status as an historic district. According to the petition, the City of St. Charles, Missouri was founded in 1769 as Les Petite Cotes ("the Little Hills") by the French Canadian fur trader Louis Blanchette. The city was subsequently visited by the Lewis and Clark expedition and became the site of Missouri's first capitol. According to the city, more than one million visitors come to the area each year. 7. Based on its history, the city designated the southern portion of the St. Charles's Main Street ("South Main") and the northern portion of Main Street ("North Main") as local historic districts and established the Historic Landmarks Preservation and Architectural Review Board (Review Board) to review applications to alter the exterior appearance of any structure in the Historic Preservation District. The standards and guidelines for such applications are set forth in the city's regulations. In 1970, South Main was listed on the National Register of Historic Places. North Main was listed in 1996. The Local Ordinances 8. The Review Board design guidelines for South Main require that satellite dishes located in that area not be visible to the public. Satellite antennas in North Main may not be visible to the public from the Main Street side, but may be visible from the rear of the properties. 9. In addition to the Review Board guidelines, Section 156.065 of the St. Charles Code of Ordinances provides: [n]o person shall be permitted to build, erect, construct, alter, destroy or remove buildings or structures, or in any way change the outward appearance of any building or structure in the Historic Preservation District without having obtained written approval for doing so by the Landmark Preservation Board. Similarly, North Main is denominated as the Historic Downtown District and is governed by Section 156.067, which states: [t]he purpose of the HDD (Historic Downtown District) is to provide opportunity for a broad spectrum of uses designed to encourage development of the downtown area as a mixed use commercial, office and residential area, as well as provide regulations to preserve historic areas, buildings, monuments or features, from obviously incongruous development or uses of land. III. DISCUSSION 10. The Commission recognizes that there are important local and federal interests in preserving historical and cultural sites to ensure that their social, aesthetic, and educational benefits will be maintained and enriched for future generations of Americans. 11. Because section 25.104(b)(1) deems unreasonable any regulation that affects the installation, maintenance or use of satellite antennas two meters or less in diameter in areas where commercial or industrial uses are generally permitted, St. Charles must obtain a waiver pursuant to section 25.104(e) in order to enforce provisions of its local zoning ordinances that regulate the installation, maintenance or use of a satellite earth station antenna, two meters or less in diameter, in any portion of the city where commercial or industrial uses are generally permitted including the Historic Downtown District which the record states is designed to be "a mixed use commercial, office and residential area." 12. In the March Order we gave examples of "local concerns of a highly specialized or unusual nature" that would meet the standard for a full or partial waiver of section 25.104. Such concerns include "genuine historic districts, waterfront property, or environmentally sensitive areas." We find that St. Charles has met the criteria for waiver of section 25.104(b)(1) in this case because it has demonstrated that its ordinance will be enforced to protect a genuine historic district. The area affected is limited to the city's designated Historic Preservation District, and the city's rules and the Review Board guidelines appear to further the local government's specialized interest in preserving a genuine historic district. In addition, the city sets forth the specific regulation, sections 15.065 through 15.067 of the City's code of ordinances, for which it seeks a waiver per Commission rules. IV. CONCLUSION 13. For the above stated reasons, we find that the application of St. Charles to waive section 25.104 of the Commission's rules governing certain restrictions on satellite earth station antennas will serve the local government's interest in preserving a genuine historic district and meets the Commission's standard for waiver of this rule. V. ORDERING CLAUSE 14. Accordingly, IT IS ORDERED that the petition for waiver, File No. 46-SAT-WAIVZ- 97, is GRANTED. FEDERAL COMMUNICATIONS COMMISSION Regina M. Keeney Chief, International Bureau