******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 re ) ) Jordan E. Lourie ) CSR 5185-O ) ) Petition for Declaratory Ruling ) Under 47 C.F.R.  1.4000 ) MEMORANDUM OPINION AND ORDER Adopted: June 16, 1998 Released: June 18, 1998 By the Acting Chief, Cable Services Bureau: Introduction 1. Petitioner Jordan E. Lourie ("Lourie") filed a Petition for Declaratory Ruling ("Petition") seeking a determination that Article VII, Section 9 of the Declaration of Covenants, Conditions and Restrictions of Roxbury Run Corporation ("Roxbury Restrictions") applicable in Roxbury Run Village located in Delaware County New York, is prohibited by 47 C.F.R.  1.4000, the Commission's Over-the- Air Reception Devices Rule ("Rule"). RR Village Association, Inc. ("Association") filed a response to the petition, and Lourie filed a reply. For the reasons discussed below, we find that the Roxbury Restrictions are prohibited and unenforceable to the extent that they impair the installation, maintenance, or use of over-the-air video programming reception antennas as proposed by Lourie. Background 2. On August 5, 1996, the Commission adopted the Rule, which prohibits governmental and private restrictions that impair the ability of antenna users to install, maintain, or use over-the-air reception devices. The Rule implemented Section 207 of the Telecommunications Act of 1996 (the "Act"), which requires the Commission to "promulgate regulations to prohibit restrictions that impair a viewer's ability to receive video programming services through devices designed for over-the-air reception of . . . direct broadcast satellite services. . . ." The Congressional directive to the Commission promotes one of the primary objectives of the Communications Act of 1934: "to make available, so far as possible, to all the people of the United States . . . a rapid, efficient, nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges. . . ." 3. The Rule applies to antennas designed to receive direct broadcast satellite ("DBS") services that are one meter or less in diameter; antennas designed to receive video programming services through multipoint distribution services, including multichannel multipoint distribution services, instructional television fixed services, and local multipoint distribution services that are one meter or less in diameter or diagonal measurement; and antennas designed to receive television broadcast signals "on property within the exclusive use or control of an antenna user where the user has a direct or indirect ownership interest in the property" upon which the antenna is to be located. The Rule provides that a restriction impairs installation, maintenance, or use of a protected antenna if it: (1) unreasonably delays or prevents installation, maintenance, or use; (2) unreasonably increases the cost of installation, maintenance, or use; or (3) precludes reception of an acceptable quality signal. There are exceptions to the Rule for valid safety or historic preservation restrictions, which must be as narrowly tailored as possible, impose as little burden as possible, and apply in a nondiscriminatory manner throughout the regulated area. 4. The Rule provides that parties who are affected by antenna restrictions may petition the Commission to determine if the restrictions are permissible or prohibited by the Rule. The Rule places the burden of demonstrating that a challenged restriction complies with the Rule on the party seeking to impose the restriction. Allegations of Fact And Argument 5. The Roxbury Restrictions provide: "No exterior television or radio antenna of any sort shall be placed, allowed or maintained upon any portion of the improvements to be placed upon the property, nor upon any structure situated upon the property." Lourie states that he owns a home in Roxbury Run Village which is subject to the Roxbury Restrictions. Lourie further states that the Roxbury Restrictions prohibit an owner from installing an exterior antenna on portions of the dwelling units which the Association is obligated to maintain. Since the Association is obligated to maintain the entire exterior of any dwelling unit, Lourie contends that any installation of any antenna would be prohibited. Lourie contends further that a notice to the Association of his intention to install an antenna resulted in a letter informing him that homeowners are prohibited by the Roxbury Restrictions from installing an exterior antenna on portions of their units which the Association is obligated to maintain, including on the chimney surface where Lourie proposes to install an 18" antenna. Lourie later received notice that the Association had adopted a resolution imposing a fine of $25 per day for the installation of any exterior appliance. After a meeting for the purpose of resolving the matter had been arranged, the Association informed Lourie that the issue of satellite antennas had been placed on the upcoming annual membership meeting for the purpose of ascertaining the will of the membership concerning the matter, and that any meeting with Lourie must wait until after the membership meeting. 6. Lourie argues that the Association's referral of the antenna matter to its membership for a vote vitiated any claim that an antenna installation subject to the Roxbury Restrictions created a safety hazard. Lourie also provided an affidavit of the person who would install the antenna if permitted to do so, who stated that the antenna presented no safety concerns and could be removed easily during any needed maintenance or painting by the removal of four attaching screws and one wire connector. Lourie takes the position that he should not be required to shoulder the burden of proving his right to install the antenna. 7. The Association concedes that Lourie is the owner of a townhouse in Roxbury Run Village. However, the Association contends that Article VI of the Roxbury Restrictions imposes on it the responsibility for repair, replacement and maintenance of exterior building surfaces and that Article IX, Section 4 grants the Association an easement to enter any dwelling unit for inspections, maintenance and repairs. The Association contends further that owners are prohibited by Article VII, Section 7 of the Roxbury Restrictions from using any of the property outside the exterior of the building lines, except that owners may use roadways, parking areas, and common areas in the manner allowed by the Association's rules. The Association contends it has consistently prohibited using exterior wall surfaces for any purpose, including attaching fixtures of any kind, and expresses a concern for being held responsible if any object attached to a wall surface should fall or blow off and injure someone. 8. The Association contends that the chimney surface area, where Lourie proposes to install an antenna, is not within Lourie's exclusive use or control. Instead, the Association asserts that, under the above mentioned provisions of the Roxbury Restrictions, the chimney surface area is area which the Association controls and for which it holds responsibility for repair, replacement and maintenance. The Association argues therefore that the chimney surface area is not property covered by 47 C.F.R.  1.4000. In this connection, the Association points out that the Commission declined to adopt a rule regarding the application of Section 207 to situations in which the viewer does not have exclusive use or control and a direct or indirect ownership interest in the property where the antenna is to be installed, used, and maintained, and held such situations over for consideration in further rulemaking proceedings. See Report and Order, at  59 and 66. Finally, the Association notes that Lourie has proposed locating the antenna only on the chimney surface area, and that it has neither considered nor rejected any other location. The Association also argues that the instant installation may be distinguished from that considered in In re Victor Frankfurt, 12 FCC Rcd 17631 (CSB 1997) by virtue of its responsibility for repair, replacement and maintenance of the surface on which the antenna would be installed. Discussion and Analysis 9. The record shows that Lourie is an owner of a townhouse in Roxbury Run Village and that he proposes to install an exterior over-the-air video programming reception antenna on the chimney of his townhouse. The Association has notified Lourie that the Roxbury Restrictions prohibit him from making the antenna installation, and they threaten to fine him $25 per day if the installation is made. Under the Rule, the Association, as the restricting entity, has the burden to show that its restrictions do not impair the installation, maintenance, or use of over-the-air reception antennas or that its restrictions qualify for either the safety or historic preservation exceptions to the Rule. We find that the Association has not met its burden. 10. We reject the Association's argument that the Rule does not apply in this instance because the Association has responsibility for repairs, replacements and maintenance of the exterior of Lourie's townhouse and of the chimney surface where the antenna would be mounted. The fact that the Association has responsibility for the repairs, replacements and maintenance of the exterior of Lourie's townhouse where the antenna would be mounted is not controlling in the circumstance presented here. Lourie is the owner with exclusive use of the townhouse, including its chimney. As the exclusive user of the chimney, Lourie's use of his dish clearly falls within the ambit of the Rule. In this regard, the Association also argues that Lourie no more uses his chimney than an "insect sunning itself " on it. We reject this assertion. One need not physically occupy something to use it. The determination of exclusive use is not dependant on actual use. In any event, Lourie uses his chimney to form the outer surface of his flue. However, because the Association has responsibility for the chimney's maintenance, it can require Lourie to remove the dish temporarily if necessary to perform normal maintenance. Furthermore, we do not believe it inappropriate for the Association to take reasonable steps to protect itself from liability stemming from the installation of the subject antenna, provided that indemnification is not used as an equivalent for prior approval. 11. We also reject the Association's argument that the instant installation may be distinguished from that considered in In re Victor Frankfurt, 12 FCC Rcd 17631 (CSB 1997). The Association's obligation to repair and maintain the chimney detracts in no way from Lourie's exclusive use of the chimney any more than was the case of the balcony considered in Victor Frankfurt. Furthermore, contrary to the Association's assertions, the townhouse which Lourie owns does not present one of the situations reserved for further rulemaking. The situations which the Commission reserved for consideration in further rulemaking involved the placement of antennas on common areas or rental properties. Lourie's chimney in not a common area nor is Lourie's townhouse a rental property. 12. The Association's written restrictions, and the implementation thereof with respect to Lourie, create an outright prohibition of antennas covered by the Rule. By definition, restrictions and implementation such as present here impair the installation, maintenance, or use of covered antennas. Furthermore, there is nothing in the record to show that the prohibition is necessary for valid safety or historic preservation reasons. Accordingly, we find that the Roxbury Restrictions and the preclusion of Lourie's proposed antenna are prohibited by the Rule. Ordering Clauses 13. Accordingly, IT IS ORDERED, pursuant to Section 1.4000(d) of the Over-the-Air Reception 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 Article VII, Section 9 of the Declaration of Covenants, Conditions and Restrictions of Roxbury Run Corporation of the RR Village Association, Inc. is hereby prohibited and unenforceable to the extent that it impairs the installation, maintenance, or use of over-the-air reception antennas protected by 47 C.F.R.  1.4000 as discussed herein. 14. This action is taken by the Acting Chief, Cable Services Bureau, pursuant to authority delegated by Section 0.321 of the Commission's rules. 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION John E. Logan Acting Chief, Cable Services Bureau