TO:
Honorable Mayor and Members of the City Council
THROUGH:
David N. Carmany, City Manager
FROM:
Quinn Barrow, City Attorney
Kerry Dienelt, City Attorney’s Office
SUBJECT:Title
Report on Abandoned Satellite Dishes.
RECEIVE AND FILE
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Recommended Action
RECOMMENDATION:
Staff recommends that the City Council receive and file this report.
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FISCAL IMPLICATIONS:
There are no fiscal implications associated with this action.
BACKGROUND:
The City’s Strategic Plan contemplates a report to the City Council on removal of abandoned utility wires and satellite dishes. The City Attorney’s Office has researched the City’s authority to regulate the installation and removal of satellite dishes. This report is presented for Council and public information.
The Telecommunications Act of 1996 (“the Act”) significantly limits local authority to regulate satellite dishes and other antennas (collectively “antennas”). However, cities may enforce restrictions provided those regulations do not impair the installation, maintenance or use of specific types of antennas. The Act provides some limited local control based upon safety restrictions or to preserve historic sites, buildings and districts.
Specifically as to a city’s ability to remove antennas, the FCC has not yet decided whether cities may require the removal of antennas that are no longer in service. However, we will continue to monitor two pending matters in other states that may provide guidance on this subject.
DISCUSSION:
In enacting the Act, Congress intended to make available “a rapid, efficient, nation-wide and world-wide wire and radio communication service with adequate facilities at reasonable charges…” The Act requires the Federal Communications Commission (“FCC”) 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 certain enumerated services.
The FCC has adopted the Over-the-Air Reception Devices Rule (the “Rule”) to implement the Act. The Rule applies to antennas (including direct-to-home satellite dishes) that are less than one meter (39.37 inches) in diameter, TV antennas, and wireless cable antennas. The Rule prohibits any local regulation that “impairs the installation, maintenance, or use” of antennas used to receive video programming or fixed wireless signals. More specifically, the Rule prohibits local restrictions that (1) unreasonably delay or prevent installation, maintenance, or use; (2) unreasonably increase the cost of installation, maintenance, or use; or (3) preclude reception of an acceptable quality signal.
Regulations For Safety and Historic Preservation
Only two types of regulations are exempt from the Rule’s preemptive effect: safety regulations and regulations protecting historic sites, buildings, structures, and districts. Thus, regulations with purely aesthetic objectives are not enforceable. Further, even safety regulations must be necessary to accomplish a “clearly defined safety objective” stated in the text, preamble, or legislative history of the restriction. Safety-based regulations must apply, to the extent practicable, to other devices and fixtures that are comparable in size, height, and appearance (such as air conditioning equipment). Assuming safety regulations satisfy these threshold requirements, such restrictions are permitted even if they impair installation, maintenance, or use because they are necessary to protect public safety. Such regulations may not be more burdensome to users of the antennas than is necessary to achieve the safety or historic preservation objectives.
Permissible safety regulations include restrictions requiring antennas to meet minimum wind load requirements, restrictions imposing minimum distances between antennas and high voltage electrical lines, restrictions on installation of antennas that will block site lines at intersections, restrictions on installations that would block fire exits, limited restrictions on height, and setback requirements.
Height Limitations
In one instance, the FCC overturned a homeowner association’s unwritten policy prohibiting the installation of television antennas extending more than 12 feet above the roofline. The FCC reasoned that the policy was preempted because it established an absolute bar to antennas over 12 feet without articulating legitimate safety concerns and tailoring the restriction to be no more burdensome than necessary to achieve a legitimate safety purpose.
However, the FCC has opined that antenna height and installation restrictions set forth in the Building Officials and Code Administrators International, Inc. Code (“BOCA Code”) provide a good model of “safety-related” restrictions and can serve as the basis for requiring a permit before installation of the antenna. In its guide to assist local authorities in implementing the Rule, the FCC has stated that “[m]asts higher than 12 feet above the roofline may be subject to local permitting requirements for safety purposes.”
Thus, limitations on the height of antennas, or the masts that support antennas, are permissible under the Rule, provided the restrictions do not act as an absolute bar to installation and leave room for exceptions to ensure an acceptable quality signal.
Regulations Impairing Reception
Local regulations that, as applied, preclude the reception of an acceptable quality signal will be deemed to “impair” access to services. Requiring antennas to be placed where they are visually unobtrusive is permissible provided the restrictions do not prevent reception of an acceptable quality signal or impose unreasonable expense or delay.
If a local entity seeks to enforce regulations restricting the placement of antennas, it bears the burden of establishing that its restrictions do not impair the installation, maintenance, or use of over-the-air reception devices. Strict placement requirements are not enforceable under the Rule, but the FCC has opined that a prioritized list of placement preferences are permissible if they do not unreasonably delay installation, add unreasonably to the cost of installation, or preclude the reception of an acceptable quality signal.
Screening or Painting
Local regulations requiring an antenna to be “screened” or painted a certain color are permissible, so long as the screening requirements do not interfere with the antenna’s ability to receive an acceptable quality signal and the costs of complying with these restrictions are not unreasonable in light of the cost of the equipment or services and the visual impact of the antenna. For example, an ordinance cannot require a minimally intrusive antenna to be hidden by exorbitantly priced materials or landscaping. On the other hand, a requirement to paint an antenna in a fashion that will not interfere with reception or void manufacturers’ warranties in order to ensure that it blends into the background against which it is mounted would likely be acceptable. In determining the reasonableness of a requirement, the courts will take the local entity’s regulation of similarly visible devices into consideration. If costs are imposed to screen other similar devices in the neighborhood (e.g. air conditioning units, trash receptacles, etc.), similar requirements imposed on antennas to reduce visual impacts may be reasonable under the Rule even though they may increase the costs of installation, maintenance or use.
Numerical Limits
The FCC also has interpreted the Rule as preempting local regulations that place an absolute limit on the number of antennas on a particular property.
Removal of Antennas No Longer in Service
The City has received complaints about unsightly, rusting dishes. At least two cases are pending in which satellite television companies have contested local ordinances requiring the removal of antennas no longer in use.
The companies argue that a regulation requiring that dishes be removed when they are “no longer in service” violates the Rule because it “unreasonably delays” and “increases the cost of installation and use of antennas.” The companies argue that such a requirement creates delays in service because the companies often engage in “soft disconnects, in which service is temporarily suspended when customers fail to pay promptly…” Requiring removal, they argue, would prevent them from re-initiating service once the customer has begun to pay for service again. The companies also argue that a removal requirement will impair their ability to “maintain” the satellite antennas.
In addition to these arguments, the companies point to the following enforcement questions: When is a satellite dish “no longer in service”? Who would be responsible for removing the antenna or satellite dish, the property owner or the satellite television provider?
As of April 26, 2013, the FCC still had not ruled on this issue.
CONCLUSION:
The Telecommunications Act of 1996 significantly limits local authority to regulate satellite dishes and other antennas. However, cities may enforce restrictions provided those regulations do not impair the installation, maintenance or use of specific types of antennas. In addition, the Act provides some limited local control based upon safety restrictions or to preserve historic buildings, sites, and districts.
Staff recommends that the City Council receive and file this report.