While the rhetoric in Washington may be about turning authority over to state and local governments, the feds seem to be unable and unwilling to give up their prerogatives.
The Federal Communications Commission (FCC) on March 17 issued a new rule which would preempt most local zoning authority over satellite dishes. This rulemaking began during consideration of the new telecommunications law, was temporarily suspended, and with passage of the legislation, was finalized.
The rule becomes effective April 17, and petitions for reconsideration of the satellite zoning preemption order (FCC 96-78 in Docket 95-79) are due at the FCC by April 17. They should be addressed to Office of the Secretary, FCC, Washington, DC 20554 and raise questions as to how the preemption is structured.
The FCC claims it took this action because of evidence that some local jurisdictions were inhibiting the growth of satellite services by enforcing overly restrictive zoning laws and because the new telecommunications bill directs the FCC to preempt state and local restrictions that impair reception by antennas used in direct home-to-video services such as Direct Broadcast Satellite services.
The rule creates two categories of satellite dish antennas for the purpose of preemption. The first category applies to dishes over one meter in residential areas and over two meters in commercial and residential areas . Zoning ordinances regulating these dishes would be preempted unless a local government could demonstrate that the regulating is reasonable —meaning it includes a clearly defined health, safety, or aesthetic objective. Note, this may mean that counties will need to amend existing ordinances to explicitly state those objectives. Any person who feels that a local government is not carrying out this federal rule may, after exhausting all non federal administrative remedies, take his or her case to the FCC.
The second category applies to dishes of one meter or less in residential areas and two meters or less in commercial and industrial zones. Any zoning regulations applying to dishes in these areas are presumed unreasonable and are preempted.
A local government or individual may petition the FCC to retain the ordinance on the basis that the zoning regulation in question is necessary to accomplish a health or safety (but not aesthetic) objective. While petitioning the FCC, a county could not enforce that zoning regulation.
Finally, any local government that wants to enforce a zoning regulation for satellite dishes which is inconsistent with the new FCC rule may petition the FCC for a waiver. To obtain a waiver, a strong case would have to be made that the situation was highly specialized or unusual. The FCC uses an architecturally historic area as an example.
It should also be noted that local government would have the option of going to state or federal court rather than the FCC for relief from the restrictions on the smaller dishes.
For a copy of the FCC regulation, please contact Bob Fogel at NACo, 202/942-4217.