C.F.R. » Title 47 » CHAPTER I—FEDERAL COMMUNICATIONS COMMISSION › SUBCHAPTER B—COMMON CARRIER SERVICES › PART 25—SATELLITE COMMUNICATIONS › Subpart A—General

47 C.F.R. § 25.104

Preemption of local zoning of earth stations

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(a) Any state or local zoning, land-use, building, or similar regulation that materially limits transmission or reception by satellite earth station antennas, or imposes more than minimal costs on users of such antennas, is preempted unless the promulgating authority can demonstrate that such regulation is reasonable, except that nonfederal regulation of radio frequency emissions is not preempted by this section. For purposes of this paragraph (a), reasonable means that the local regulation:

(1) Has a clearly defined health, safety, or aesthetic objective that is stated in the text of the regulation itself; and

(2) Furthers the stated health, safety or aesthetic objective without unnecessarily burdening the federal interests in ensuring access to satellite services and in promoting fair and effective competition among competing communications service providers.

(b)(1) Any state or local zoning, land-use, building, or similar regulation that affects the installation, maintenance, or use of a satellite earth station antenna that is two meters or less in diameter and is located or proposed to be located in any area where commercial or industrial uses are generally permitted by non-federal land-use regulation shall be presumed unreasonable and is therefore preempted subject to paragraph (b)(2) of this section. No civil, criminal, administrative, or other legal action of any kind shall be taken to enforce any regulation covered by this presumption unless the promulgating authority has obtained a waiver from the Commission pursuant to paragraph (e) of this section, or a final declaration from the Commission or a court of competent jurisdiction that the presumption has been rebutted pursuant to paragraph (b)(2) of this section.

(2) Any presumption arising from paragraph (b)(1) of this section may be rebutted upon a showing that the regulation in question:

(i) Is necessary to accomplish a clearly defined health or safety objective that is stated in the text of the regulation itself;

(ii) Is no more burdensome to satellite users than is necessary to achieve the health or safety objective; and

(iii) Is specifically applicable on its face to antennas of the class described in paragraph (b)(1) of this section.

(c) Any person aggrieved by the application or potential application of a state or local zoning or other regulation in violation of paragraph (a) of this section may, after exhausting all nonfederal administrative remedies, file a petition with the Commission requesting a declaration that the state or local regulation in question is preempted by this section. Nonfederal administrative remedies, which do not include judicial appeals of administrative determinations, shall be deemed exhausted when:

(1) The petitioner's application for a permit or other authorization required by the state or local authority has been denied and any administrative appeal and variance procedure has been exhausted;

(2) The petitioner's application for a permit or other authorization required by the state or local authority has been on file for ninety days without final action;

(3) The petitioner has received a permit or other authorization required by the state or local authority that is conditioned upon the petitioner's expenditure of a sum of money, including costs required to screen, pole-mount, or otherwise specially install the antenna, greater than the aggregate purchase or total lease cost of the equipment as normally installed; or

(4) A state or local authority has notified the petitioner of impending civil or criminal action in a court of law and there are no more nonfederal administrative steps to be taken.

(d) Procedures regarding filing of petitions requesting declaratory rulings and other related pleadings will be set forth in subsequent Public Notices. All allegations of fact contained in petitions and related pleadings must be supported by affidavit of a person or persons with personal knowledge thereof.

(e) Any state or local authority that wishes to maintain and enforce zoning or other regulations inconsistent with this section may apply to the Commission for a full or partial waiver of this section. Such waivers may be granted by the Commission in its sole discretion, upon a showing by the applicant that local concerns of a highly specialized or unusual nature create a necessity for regulation inconsistent with this section. No application for waiver shall be considered unless it specifically sets forth the particular regulation for which waiver is sought. Waivers granted in accordance with this section shall not apply to later-enacted or amended regulations by the local authority unless the Commission expressly orders otherwise.

(f) A satellite earth station antenna that is 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 is covered by the regulations in § 1.4000 of this chapter.

[61 FR 10898, Mar. 18, 1996, as amended at 61 FR 46562, Sept. 4, 1996] Effective Date Note:At 61 FR 46562, Sept. 4, 1996, § 25.104 was amended by revising paragraph (b)(1) and adding paragraph (f). These paragraphs contain information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget.
Notes of Decisions
Cited in 29 cases, 1986–2007 · leading case: Ronald Loschiavo & Donna Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir. 1994).
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Ronald Loschiavo & Donna Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir. 1994). · cites it 4× “They also claimed that the ordinance was preempted by a FCC regulation, 47 C.F.R. § 25.104 , which prohibits enforcement of local zoning ordinances that unduly interfere with the installation of individual satellite antennas, and asserted a private right of action under 42 U.”
Carino v. Town of Deerfield (Oneida Cnty., NY), 750 F. Supp. 1156 (N.D.N.Y. 1990). · cites it 5× “The Zoning Board refused to address Carino’s contention that the ordinance was preempted by the FCC regulation codified at 47 C.F.R. § 25.104 . 6 Id. at 57 . For those reasons, the Zoning Board denied Carino’s application for a variance.”
Johnson v. City of Pleasanton, 781 F. Supp. 632 (N.D. Cal. 1991). · cites it 11× “The Court also found that although the City’s ordinance had “a reasonable and clearly defined health, safety or aesthetic objective” for the distinction, see 47 C.F.R. § 25.104 (1990), the City had failed to meet its burden on summary judgment of contesting plaintiffs’ showing…”
Hunter v. City of Whittier, 209 Cal. App. 3d 588 (Cal. Ct. App. 1989). · cites it 2× “For themselves and on behalf of a class, they contended the ordinance is invalid under federal law, a 1986 regulation of the Federal *591 Communications Commission (hereinafter FCC) ( 47 C.F.R. § 25.104 ). The FCC order preempts all local regulation of satellite television…”
Vill. of Elm Grove v. Py, 724 F. Supp. 612 (E.D. Wis. 1989). · cites it 3× “Preemption Protter contends the pertinent Elm Grove zoning ordinance is preempted by 47 C.F.R. § 25.104 (1988) (FCC Regulation).”
Kessler v. Town of Niskayuna, 774 F. Supp. 711 (N.D.N.Y. 1991). · cites it 5× “5519-01, at ¶ 25 (codified at 47 C.F.R. § 25.104 (1990)) (“FCC report”).”
Johnson v. City of Detroit, 319 F. Supp. 2d 756 (E.D. Mich. 2004). “In response, the plaintiffs filed suit in federal district court, asserting, inter alia, a private right of action under § 1983 for violation of rights conferred on them by an FCC regulation, 47 C.F.R. § 25.104 . The Sixth Circuit concluded that federal regulations are “laws”…”
Wayne Johnson & Judie Johnson v. City of Pleasanton, Wayne Johnson & Judie Johnson v. City of Pleasanton, 982 F.2d 350 (9th Cir. 1992). “Federal Communications Act The district court examined the Ordinance in light of FCC regulation 47 C.F.R. § 25.104 , enacted pursuant to the FCA.”
Brantley Ex Rel. Brantley v. Indep. Sch. Dist. No. 625, 936 F. Supp. 649 (D. Minnesota 1996). “Kirk, 821 F.2d 980 (4th Cir.1987). In Smith v.”
Neufeld v. City of Baltimore, 863 F. Supp. 255 (D. Maryland 1994). · cites it 6× “Therefore, this ordinance was preempted by 47 C.F.R. § 25.104 , a regulation of the FCC.”
Ermler v. Town of Brookhaven, 780 F. Supp. 120 (E.D.N.Y 1992). · cites it 4× “Although the Town now concedes that its classification of the Ermlers’ satellite antenna as an “accessory structure” was preempted by 47 C.F.R. § 25.104 , it argues that this regulation does not create rights protectible by a § 1983 action.”
Esslinger v. Baltimore City, 622 A.2d 774 (Md. Ct. Spec. App. 1993). “Esslinger then appealed to the Circuit Court for Baltimore City where he claimed, inter alia, that the Zoning Board’s decision was not supported by substantial evidence and that the Zoning Ordinance, Article 30 of the Baltimore City Code, as it related to satellite dish antennas…”
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