27 Can Zoning Ordinances or Homeowner Associations prevent me fromInstalling a TVRO System?
Description
This article is from the TeleVision Receive Only Satellite-TV FAQ, by TVRO Hobbyists drlev@hotmail.com with numerous contributions by others.
27 Can Zoning Ordinances or Homeowner Associations prevent me fromInstalling a TVRO System?
Whoa, Nellie! We'll tackle each part of this question separately as
they require different answers. A zoning ordinance involves decisions
made by local governments that includes, among other things, what
types of structures can be placed on property of a particular zoning
(commercial, residential, industrial; etc.). In the United States, the
issue of the legality of a local government preventing the use of TVRO
equipment, particularly large satellite dishes, was first addressed
with the Federal Communications Commission's 1986 Preemption Order (51
Fed. Reg. 5519) issued on Feb. 14, 1986. In *extremely* simplified
terms, the order states that local governments' zoning ordinances
CANNOT unreasonably discriminate against the installation of satellite
dishes. This FCC regulation has been further revisited with FCC IB
Docket No. 95-180 and more recently with the Report And Order Further
Notice Of Proposed Rulemaking (FCC IB Docket No. 96-78), adopted
Feb. 29, 1996. Here is some sample text from the original 1986
Preemption Order (via FCC IB Docket No. 96-78):
The broad mandate of Section 1 of the Communications Act, 47 U.S.C. §
151, to make communications services available to all people of the
United States and the numerous powers granted by Title III of the Act
with respect to the establishment of a unified communications system
establish the existence of a congressional objective in this area.
More specifically, the recent amendment to the Communications Act, 47
U.S.C. § 705, creates certain rights to receive unscrambled and
unmarketed satellite signals. These statutory provisions establish a
federal interest in assuring that the right to construct and use
antennas to receive satellite delivered signals is not unreasonably
restricted by local regulation.4
Here's some more of the text:
State and local zoning or other regulations that differentiate between
satellite receive-only antennas and other types of antenna facilities
are preempted unless such regulations
a) have a reasonable and clearly defined health, safety or
aesthetic objective; and
b) do not operate to impose unreasonable limitations on, or
prevent, reception of
satellite delivered signals by receive-only antennas or to
impose costs on
users of such antennas that are excessive in light of the
purchase and
installation cost of the equipment.
Regulation of satellite transmitting antennas is preempted in the same
manner except that state and local health and safety regulation is not
preempted.7
Subsequent text:
Satellite antenna users who are dissatisfied with the results of any
local zoning decision can use the standard adopted here in pursuing
any legal remedies they might have. In addition, we would entertain
requests for further action if it appears that local authorities are
generally failing to abide by our standards. Any party requesting
Commission review of a controversy will be expected to show that other
remedies have been exhausted.
Essentially, if a local government wants to impose strict guidelines
in terms of TVRO systems and zoning ordinances, the TVRO system owner
has every right to challenge the ordinance based on these FCC
guidelines; more than likely, the local government would not win any
legal case regarding a U.S. citizen's right to own a TVRO system.
Now on to the second part of the question. Dealing with homeowner
associations and strict covenants is a different matter
entirely. Until very recently, the big dish satellite system owner had
little or no legal recourse in terms of dealing with strict homeowner
association contracts; it was felt that, by being part of a homeowners
association, you were dealing with a private contract and agreement
and that by agreeing to sign the contract, you acknowledged the terms
of the agreement, and if the agreement was very strict about satellite
dish ownership, well, that was too bad. You could take it or leave it.
This is no longer entirely true. The Telecommunications Act of 1996
made sweeping
revisions to the original Communications Act of 1934, in effect modernizing it. Section
207 of the Telecommunications Act of 1996 eases some of the absolute power of
restrictive covenants and homeowner associations over television reception equipment
ownership and placement. Here is the entire text:
SEC. 207. RESTRICTIONS ON OVER-THE-AIR RECEPTION DEVICES.
Within 180 days after the date of enactment of this Act, the
Commission shall, pursuant to section 303 of the Communications Act
of 1934, 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 television
broadcast signals, multichannel multipoint distribution service, or
direct broadcast satellite services.
Unfortunately, this does little for TVRO system owners. Not having
strong political lobbying backing it such as the broadcast industry
and the cable TV industry, there is no TVRO-specific language in
Section 207. Furthermore, in more recent clarification of the
Telecommunications Act of 1996, the FCC's Report and Order, Memorandum
Opinion and Order, and Further Notice of Proposed Rulemaking (August
5, 1996) clearly states that Section 207 does NOT include larger
C-Band satellite dishes. So for TVRO dish owners, only Ku-Band dishes
"...that [are] designed to receive direct broadcast satellite service,
including direct-to-home satellite services, that is one meter or less
in diameter or is located in Alaska..." are protected under federal
regulations. (Note that one meter is about 39 inches.) Here is the
entire excerpt of the specfic Report and Order in regards to C-Band
satellite dishes:
29. Several commenters and petitioners suggest that the statute
also applies to
classes of services related to TVBS, MMDS and DBS, and that our rule
should
include these related services. These commenters and petitioners
contend that the
terms "MMDS" and "DBS" should be interpreted broadly because
Congress intended
Section 207 to promote competition among video programming services
by
prohibiting restrictions that impair reception of all forms of video
programming. For
example, some commenters note that MMDS is really a form of
multipoint distribution
service (MDS), which is a general category of services using the
same type of
receiving antennas at different frequencies, and recommend that our
rule preempt
restrictions on the reception of any form of MDS, including MMDS,
instructional
television fixed service (ITFS), and local multipoint distribution
service (LMDS).
Other commenters and petitioners suggest that "DBS" also refers to a
broad category
of technologies. They recommend that we expand our definition of
DBS to include
other forms of satellite services including very small aperture
terminals (VSAT) that
transmit information, and medium-power Ku-band DTH satellite
services. According
to one commenter, the legislative history indicates that Congress
intended Section 207
to apply to most reception of wireless video programming except
systems using large
antennas.
30. We believe that by directing the Commission to prohibit
restrictions that impair
viewers' ability to receive over-the-air signals from TVBS, MMDS
and DBS services,
Congress did not mean to exclude closely-related services such as
MDS, ITFS, and
LMDS. All of these services -- MDS, ITFS, and LMDS -- are similar
from a
technological and functional standpoint in that point-to-multipoint
subscription video
distribution service can be provided over each of them. We note
that MMDS is the
product of MDS technology, the first multipoint distribution
service established by the
Commission, and that ITFS is a service whose frequencies are
available for
transmission of MMDS. LMDS is a service that has been authorized
to provide
services comparable to MMDS as well as other types of services.
The origins of all
of these services can be traced to MDS. Thus, all of these related
services should be
treated the same for purposes of Section 207, and are properly
included in the scope
of Section 207's provision. We also determine, however, that VSAT,
a commercial
satellite service that may use satellite antennas less than one
meter in diameter, is not
within the purview of the statute because it is not used to provide
over-the-air video
programming.
31. We also believe that the statute can be construed to include
medium-power
satellite services using antennas of one meter or less that are
used to receive
over-the-air video programming, even though such services may not
be technically
defined as DBS elsewhere in the Commission's rules. Therefore, for
purposes of
implementing Section 207, we affirm our conclusion that DBS
includes both
high-power and medium-power satellite services using reception
devices of one
meter or less in diameter.
32. Because of the unique and peculiar characteristics
applicable to reception of such
services outside the continental United States, it is necessary to
provide an exception
for Alaska to the general size guidelines in our rule. In contrast
with those portions of
the continental United States (as well as Hawaii) that are at lower
latitudes, DBS
reception in Alaska requires larger antennas than those used in the
lower part of the
United States. The installation, maintenance, and use of these
larger antennas in
Alaska will be covered by the rules we adopt in this Report and
Order, and
governmental and nongovernmental restrictions impairing the
installation, maintenance
and use of these devices will be prohibited, even when the devices
exceed one meter
in diameter or diagonal measurement. This exception is limited,
however, to antennas
used to receive DBS service as defined by our rule, and will not
apply to antennas that
receive signals in the C-band. These larger antennas are subject
to the more general
satellite antenna preemption in Section 25.104 of our rules. Our
decision to protect
larger DBS antennas in Alaska than in the rest of the country is
consistent with
Commission policy to ensure that DBS is available to residents
across the United States.
As DBS service providers design their systems to comply with the
Commission's
requirement to serve Alaska, it may be possible to use smaller
antennas that are closer
to the size used in other parts of the country, and the need for
this exemption may be
obviated.
Here is the source website of this text excerpt:
http://www.fcc.gov/Bureaus/Cable/Orders/1996_TXT/fcc96328.txt
Continue to:
My Books
