******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word 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 the Matter of: ) ) Petitions for Reconsideration of the Second ) Report and Order ) ) Implementation of Section 207 of the ) CS Docket No. 96-83 Telecommunications Act of 1996 ) ) Restrictions on Over-the-Air Reception ) Devices: Television Broadcast Service, Direct ) Broadcast Satellite, and Multichannel ) Multipoint Distribution Service ) ORDER ON RECONSIDERATION Adopted: November 19, 1999 Released: November 24, 1999 By the Commission: 1. Before the Commission are three petitions seeking reconsideration of the Second Report and Order on Preemption of Local Zoning Regulation of Satellite Earth Stations and Restrictions on Over-the-Air Reception Devices ["OTARD"]: Television Broadcast, Direct Broadcast Satellite and Multichannel Multipoint Distribution Services ("Second Report and Order") filed by the Community Associations Institute ("CAI") (the "CAI Petition"); the Personal Communications Industry Association (PCIA), Teligent, Inc., Association for Local Telecommunications Services, WinStar Communications, Inc. ("WinStar"), and Nextlink Communications, Inc. (collectively, "PCIA Petition"); and by the Association for Maximum Service Television ("MSTV") and the National Association of Broadcasters ("NAB") (collectively, "NAB Petition"). 2. The CAI Petition asks the Commission to reconsider the decision to permit tenants who live in community associations to install individual antennas without the permission of the home or unit owner from whom they rent. CAI contends that the individual homeowner's assent is necessary to prevent damage to the property. The Satellite Broadcasting and Communications Association ("SBCA"), WinStar, and the United States Satellite Broadcasting Company, Inc. ("USSB") filed Oppositions to the CAI Petition, to which CAI responded. The Consumer Electronics Manufacturers Association ("CEMA") filed a motion to dismiss the CAI Petition on the grounds that it was filed prematurely. CEMA contends that CAI filed its petition five days before the Second Report and Order appeared in the Federal Register, which is outside the time period for filing petitions for reconsideration. CAI did not respond to CEMA's motion. 3. Reconsideration of Commission decisions is permitted by Section 405(a) of the Communications Act of 1934. Petitions for reconsideration in a rulemaking proceeding are governed by section 1.429 of the Commission's rules. We conclude that the CAI Petition for Reconsideration was prematurely filed, but we will consider the merits on our own motion. CAI argues that the Second Report and Order considers commercial landlords and does not address the problems faced by individual homeowners who offer one or a very few homes or units for lease. CAI states that community associations do not have direct authority over viewers who rent from an individual home or unit owner. CAI contends that if a tenant installs an antenna and in some manner violates an association's permissible antenna restrictions, the association can take action against the homeowner to enforce the restriction, and the homeowner would then be required to take some type of action against the tenant. CAI asserts that this chain of responsibility will prevent associations from protecting property from damage. CAI argues that "the only way for homeowners to prevent damage to their own property is through prior approval of tenants' antenna installations," and, without prior approval, the homeowner is "in the untenable position of being responsible for damage [to the association's common elements] caused by alterations that the homeowner could not control" because the Commission's rules prohibit prior approval of a tenant's antenna installation. CAI asserts, alternatively, that community associations can be financially harmed if a tenant's improper antenna installation damages the common elements and the homeowner escapes liability because he or she did not approve the installation. In opposition, SBCA states that CAI's arguments were addressed in the Second Report and Order where the Commission considered the issue of damage and concluded that restrictions barring damage are likely to be reasonable restrictions that property owners and community associations can enact to prevent the type of harm feared by CAI. 4. CAI's argument does not justify excluding from the protection of the OTARD rule viewers who rent from an owner of one or a few houses or units in a community association. CAI does not justify this distinction either in the statute or as a matter of policy. We therefore deny CAI's petition for reconsideration. The fundamental argument raised in the CAI Petition relates to the threat of property damage arising in connection with the antenna installation, which was discussed at length in the Second Report and Order. The issue of prior approval by the property owner was also amply considered and decided in the Order on Reconsideration of the (First) Report and Order in the Over-the-Air Reception Devices Rule. CAI asks the Commission to create a special exception to the rule to allow property owners who rent out "one or a small number" of units or houses -- rather than an entire building -- to require prior approval of antenna installations. We do not believe there is sufficient justification for such an exception. A homeowner/lessor's responsibility for his or her tenant's noncompliance with an antenna restriction does not differ from the homeowner/lessor's responsibility for noncompliance with any other association restriction. When an individual homeowner offers property for rent, there is always a responsibility to assure that the tenant obeys the valid regulations of the association. Where an association has a permissible antenna restriction, a tenant should comply, just as a resident-owner should comply. Accountability for a tenant's violation of an antenna restriction is no different from the case of a tenant's violation of some other restriction. To the extent CAI expresses legitimate concern for preventing property damage, the Commission addressed this concern by recognizing in the Second Report and Order the likely reasonableness of restrictions barring structural damage. 5. The PCIA Petition seeks reconsideration of the Commission's legal conclusions in the Second Report and Order that prohibiting antenna restrictions in common or restricted access areas is beyond the authority granted to the Commission by Section 207 of the Telecommunications Act because Section 207 authorizes neither the imposition of affirmative duties on property owners nor the compensation mechanism necessary to avoid a potentially unconstitutional taking of private property. The PCIA Petitioners disagree with the Commission's analysis of the cases cited in the Second Report and Order, but they do not offer evidence or arguments that were not thoroughly considered and discussed in the Commission's order. In a footnote, the PCIA petitioners argue for a Commission requirement that building owners provide "nondiscriminatory access" to all providers when one provider is already present. We have requested comment on the potential imposition of a nondiscriminatory access requirement on multiple unit premises in another proceeding, and nothing in this order on reconsideration is intended to consider or prejudge questions, including questions of statutory and constitutional authority, raised therein. 6. Similarly, the NAB Petition reasserts arguments made in the comments filed and considered by the Commission in the rulemaking proceeding. The NAB petition reiterates its position that the Commission should interpret Section 207 to apply to antennas installed on common and restricted access property and that such an interpretation is consistent with the statute and does not constitute a "taking" of private property. The NAB disagrees with the Commission decision interpreting Section 207 but does not offer new arguments or evidence. 7. After careful consideration of the pleadings filed in this proceeding, we find that the parties have presented no new arguments or facts that cause us to change our prior determination. Reconsideration is warranted only if the petitioner cites material error of fact or law or presents new or previously unknown facts and circumstances which raise substantial or material questions of fact that were not considered and that otherwise warrant Commission review of its prior action. The Commission is not required to reconsider arguments that have already been considered. We therefore deny the petitions for reconsideration and affirm the Second Report and Order adopted by the Commission in the above-captioned matter. 8. Accordingly, IT IS ORDERED, that the petitions for reconsideration filed by the Community Associations Institute; by the Personal Communications Industry Association, Teligent, Inc., the Association for Local Telecommunications Services, Winstar Communications, Inc., and Nextlink Communications, Inc.; and by the Association for Maximum Service Television and the National Association of Broadcasters ARE DENIED. 9. This action is taken pursuant to statutory authority found in Sections 1, 4(i), 5(c), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 155(c), and 405. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary