Regulatory Review: Local Restrictions On Earth Stations

by Gerry Oberst

Some countries ban satellite dishes in an effort to restrict broadcasts from outside their borders, whether for religious, political or purely monopolistic reasons. Even in developed countries, where millions of antennas are installed, barriers to antenna placement remain at the local level. Sometimes these regulatory roadblocks are based on aesthetic or zoning conditions; but, in some cases, more mercenary reasons come up, such as a desire to protect the local cable network or capture high fees.

No matter why these hurdles are constructed, the result is the loss of potential satellite customers or the unnecessarily high cost of satellite service. Regulators on both sides of the Atlantic are seeking to minimize these barriers and thwart misguided local efforts to stymie the growth of satellite facilities.

Under the 1996 Telecoms Act, the FCC has the authority to prohibit restrictions that unreasonably impair the installation, maintenance or use of antennas less than one meter in diameter used to receive video programming. The FCC issued a new fact sheet in February this year that describes the rules in great detail.

The FCC rules apply broadly to state or local laws, including zoning, land-use or building restrictions. They also apply to private restrictions, such as homeowners’ association rules, condominiums or lease restrictions.

The reach of these rules has steadily expanded since they first went into effect in October 1996. By early 1999, the FCC had extended this oversight to rental property where the renter has an exclusive use area, such as a balcony or patio. And in October 2000, the FCC further extended the rules to customer transmit antennas as well.

The FCC does not want to become a national zoning authority under these rules. It has, however, become embroiled in several controversies where consumers or satellite dish dealers have sued their local authorities for excessive antenna restrictions. The ingenuity of local zoning authorities and the ill-defined reasons they give for antenna barriers inevitably bring the FCC into ticklish local issues, with which the agency would prefer not to deal.

Naturally, the FCC does not bar cities from implementing legitimate safety restrictions or those designed to preserve historic properties–as long as the restriction is no more burdensome than necessary to accomplish the safety or preservation purpose. Moreover, to avoid transmit radiation exposure, the FCC said that local communities could require professional installation of any transmitting antennas, although such a rule could not be applied to receive-only dishes.

Now the Commission of the European Union also is seeking to limit the overreach of local or national restrictions on satellite dishes. In late 2000 and early 2001, the Commission has been working on a paper that would set forth its views on how the European Union Treaty restricts the ability of European governments to restrict the installation and use of receive-only antennas.

The Commission says it is responding to “hundreds” of complaints, letters and e-mails from consumers who want satellite services that are blocked by the local or national regulations. The Commission already threatened certain Belgian cities with court action over the high fees those communities were forcing satellite consumers to pay, in a transparent effort to protect the local cable monopolies. (Many of these cable networks were, coincidentally, owned by the communities, which gave them an obvious incentive to extort high antenna fees.) Belgium was forced to eliminate these fee barriers, but a variety of other restrictions remain in many EU countries.

The Commission says it seeks to protect the free movement of satellite and other services across national borders. Often European citizens who have moved from their native country want to receive national programming, and the only way to do so is via satellite. Thus, protecting their ability to rely on receive-only antennas has an important cultural and cross-border element.

Unlike the FCC rules, based on binding national law, the European Commission paper will offer a non-binding view of how it believes European law should be interpreted. Nevertheless, the Commission hopes this interpretation can be used by consumers in their local courts and will help some of the restrictions wither away.

Unlike the FCC rules, the European Commission is looking exclusively at receive-only antennas, and is not ready to take the next step in dealing with consumer transmit antennas. The Commission says there are complicated political and technical reasons to shy away from rules for transmit antennas. But if the European Union is interested in reaping the full benefits of the information society and allowing consumers a full range of choices, it seems high time that satellite networks–including both receive and transmit earth stations–are not restricted by excessive local or national rules.

Gerry Oberst is a partner in the Brussels office of the Hogan & Hartson law firm. His email address is [email protected].