Rulings in support of Consumer Broadband delivery
About the author
Cherry Capital Connection provides managed broadband solutions such as high speed internet access, other internet based services and high capacity transport; solutions commonly referred to as “Last Mile Deployment”. We opened our doors in 2000 and began offering unique fiber and high capacity wireless to the community, focusing on residential and small business customers. Our current deployment model has been shaped by the increasing demand for internet and related services in rural Northern Michigan. Cherry Capital Connection is the sole provider that consistently delivers the freedom, choice and opportunity in the most rural of markets. We bridge the “Digital Divide”.
Our managing partner, Timothy Maylone, is the Michigan Director of the organization Wireless Internet Service Association (WISPA). This is an organization that is focused on the emerging WISP industry. As director of WISPA-MI, Tim has been appointed to the Michigan Public Service Commission Coalition Broadband Committee (MPSC-CBC) which has been charged with finding ways to bring high speed internet access to more of Michigan’s rural citizens. The MPSC-CBC along with the MPSC is a participating organization for the Connect-MI effort.
Cherry Capital Connection network covers a multiple county area (12) and provides services to over 5,000 clients. These services include fixed point wireless, mobile WIFI (145 points of access throughout our service region), wireless point to point between buildings, high speed fiber (Metro-E) and hotel guest access using our hospitality package. With twelve years of experience we are considered a leader in our industry.
As a WISP we are required to file with the FCC twice a year our 477 data and with the state of Michigan our mapping data.
The FCC is the Federal Communications Commission. OTARD are the rules that govern Over The Airwave Radio Distribution.
These are the rules that apply to all radio transmissions. The rule changes adopted starting in 1999 began to address the new radio transmission method commonly referred to as WIFI. There were three distinct characteristics that the FCC identified for this type of transmission / reception.
1. The installation must be in control of the land owner directly or indirectly.
2. The equipment being installed must be essentially the same as the equipment used to deliver the service
3. That telecommunications services must be delivered. (IE: Broadband)
These ruling clearly separated the cell phone delivery from the WISP delivery. The OTARD rules provide consumers with the ability to install a tower to receive two-way telecommunications services (2001). In 2003 and 2004 these rules were expanded to encourage the use of these towers as a repeater. A complete list of all OTARD rules can be found on the web site fcc.org.
The FCC has consistently ruled that under OTARD local zoning can only restrict tower installation for safety or historical reasons. We acknowledge that this does create a conflict between the FCC that is encouraging broadband delivery and the local zoning (MTA) to limit tower construction.
The OTARD rules are part of the telecommunication act of 1996 and were amended to include fixed wireless in 2000 and 2001. Additional amendments have been made in 2004 and 2006. Often townships mistakenly site rules that allow townships to prohibit towers that are not owned or under control of the consumer located on the consumer property, do not utilize essentially the same equipment as needed to bring service to the consumer and do not provide the property owner (consumer) with service.
We encourage discussion on these points between local providers, consumers and local zoning / planners. This single issue accounts for the majority reason that High Speed Internet access is not easily and radially available to all consumers.
Language from various FCC rulings that consistently site points 2 through 6
2. The Commission’s OTARD rules prohibit restrictions on property that impair the use of certain antennas. For the OTARD rules to apply, the antenna must be installed “on property within the exclusive use or control of an antenna user where the user has a direct or indirect ownership or leasehold interest in the property” upon which the antenna is located. 3 Restrictions prohibited by the OTARD rules include lease provisions as well as restrictions imposed by state or local laws or regulations, private covenants, contract provisions, or homeowner’s association rules. Restrictions are prohibited by the OTARD rules if they unreasonably delay or prevent the installation, maintenance, or use of the antenna; unreasonably increase the cost of installation, maintenance or use of the antenna; or preclude the reception of an acceptable quality signal via the antenna .5 No distinctions are made in the OTARD rules based upon the setting (e.g., residential vs. commercial). There are exceptions in the OTARD rules for restrictions necessary to address valid and clearly articulated safety or historic preservation objectives, provided such restrictions are narrowly tailored, impose as little burden as possible, and apply in a nondiscriminatory manner.6
3. The Commission adopted the OTARD rules in 1996 in response to Section 207 of the 1996 Telecommunications Act (1996 Act), which required the Commission to promulgate rules that “prohibit restrictions that impair a viewer’s ability to receive video programming services” via antennas.7 This provision was part of the 1996 Act, which had as its overarching goals promoting competition in telecommunications, increasing consumer choice, and encouraging the rapid deployment of new technologies. In 1998, the Commission modified the OTARD rules to extend their applicability to rental property.8 In 2001, the Court of Appeals for the D.C. Circuit upheld the Commission’s statutory authority and discretion to extend OTARD protections to rental environments and to preempt any contractual provisions to the contrary.9
4. The OTARD rules, as originally adopted, applied only to antennas used to receive video signals. However, the OTARD rules were modified in 2000 by the Commission’s Competitive Networks proceeding to apply to customer-end antennas serving customers on the premises that transmit and/or receive fixed wireless signals.10 Fixed wireless signals are defined to be “any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location.”11 Under the current rules, only a relatively few types of signals (such as amateur, AM and FM broadcast, and Citizens Band radio) are enumerated as being excluded from protection.12
5. When it extended the OTARD rules to apply to fixed wireless signals, the Commission concluded that distinguishing the protection afforded to the use of antennas based solely on the nature of services provided through an antenna produces “irrational” results.13 For example, the Commission cited a scenario in which a consumer who desires to receive only Internet service via an antenna would be forced to receive both Internet service and video programming to be protected by the prior OTARD rules, which would distort the competitive market. Thus, the Commission concluded that OTARD should not distinguish among services based on their nature (e.g., voice, video, data) or among antennas based on their function (i.e., transmit or receive, or both).14 Furthermore, the Commission found that applying a blanket rule against most restrictions on the placement of such antennas at a customer’s site is consistent with the broad pro-competitive goals of the 1996 Act and the specific pro-competitive goals of the limitations on state and local regulation set forth in Section 332(c)(7) of the Communications Act.15 In particular, the Commission reasoned that, although it was preempting most state and local regulation on customer-end antennas, state and local regulation regarding the placement, construction and modification of “hub” antennas, which are used to transmit and/or receive signals from multiple customer locations and are not commonly located inside a customer premises, would continue to be governed under Section 332(c)(7).16
6. In a 2004 Order on Reconsideration, the Commission specified that the OTARD rules apply to ‘customer-end’ antennas that also relay or route signals to other customers, so long as they are used by the owner (e.g., the ‘tenant’) primarily to provide service at the same location.17 The Commission observed in the Competitive Networks Order on Reconsideration that the equipment deployed in these networks share the same physical characteristics as other customer-end equipment, and that the only difference was the additional functionality of routing service to additional users. The Commission concluded that the OTARD protections also extend to such technologies when they otherwise meet the requirements of the rules. The Commission explained that the OTARD rules should not disadvantage more efficient technologies where each customer device also serves as a relay device, such as in point-to-point-to-point or mesh topologies.
References from FCC documents
5 47 C.F.R. § 1.4000(a)(3).
6 47 C.F.R. § 1.4000(b).
7 Telecommunications Act of 1996, Pub.L. No. 104-104, § 207, 110 Stat. 56 (1996); 47 C.F.R. § 1.4000; Preemption of Local Zoning Regulation of Satellite Earth Stations; Implementation of Section 207 of the Telecommunications Act of 1996; and Restrictions on Over-the-Air Reception Devices: Television Broadcast Service and Multichannel Multipoint Distribution Service, Report and Order, Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking, CS Docket No. 96-83, 11 FCC Rcd 19276 (1996).
8 Implementation of Section 207 of the Telecommunications Act of 1996 and Restrictions on Over-the-Air Reception Devices: Television Broadcast Service and Multichannel Multipoint Distribution Service, Second Report and Order, CS Docket No. 96-83, 13 FCC Rcd 23874, 23880-91 ¶¶ 12-32 (1998).
9 Blg. Owners & Managers Ass’n Int’l v. FCC, 254 F.3d 89, 93-96 (D.C. Cir. 2001).
10 See 47 C.F.R. § 1.4000 (a)(1)(ii)(A); Promotion of Competitive Networks in Local Telecommunications Markets, First Report and Order and Further Notice of Proposed Rulemaking, Fifth Report and Order and Memorandum Opinion and Order, Fourth Report and Order and Memorandum Opinion and Order, WT Docket No. 99-217, 15 FCC Rcd 22983, 23027-28 ¶¶ 97-100 (2000) (Competitive Networks Report and Order). Because Section 207 of the 1996 Act is written in the context of video programming services, the Commission concluded that a number of other substantive statutory provisions — specifically Sections 1, 201(b), 202(a), 205(a), and 303(r) of the Communications Act, as well as the Preamble to and Section 706 of the 1996 Act — embodied goals that would be furthered by application of the OTARD rules to antennas that transmit and/or receive fixed wireless signals. Id., 15 FCC Rcd at 23028-35 ¶¶ 101-116.
11 47 C.F.R. § 1.4000 (a)(2).
12 Id.; see also Competitive Networks Report and Order, 15 FCC Rcd at 23027 ¶ 97 n.251 (noting that amateur radio antenna placement is addressed by other rules, but not otherwise discussing the exclusion of these specific types of signals).
Following are some key paragraphs from the FCC OTARD Q & A with highlights.
Q: What types of restrictions are prohibited?
A: The rule prohibits restrictions that impair a person’s ability to install, maintain, or use an antenna covered by the rule. The rule applies to state or local laws or regulations, including zoning, land-use or building regulations, private covenants, homeowners’ association rules, condominium or cooperative association restrictions, lease restrictions, or similar restrictions on property within the exclusive use or control of the antenna user where the user has an ownership or leasehold interest in the property. A restriction impairs if it: (1) unreasonably delays or prevents use of; (2) unreasonably increases the cost of; or (3) precludes a person from receiving or transmitting an acceptable quality signal from an antenna covered under the rule. The rule does not prohibit legitimate safety restrictions or restrictions designed to preserve designated or eligible historic or prehistoric properties, provided the restriction is no more burdensome than necessary to accomplish the safety or preservation purpose.
Q: What types of restrictions unreasonably delay or prevent viewers from using an antenna? Can an antenna user be required to obtain prior approval before installing his antenna?
A: A local restriction that prohibits all antennas would prevent viewers from receiving signals, and is prohibited by the Commission’s rule. Procedural requirements can also unreasonably delay installation, maintenance or use of an antenna covered by this rule. For example, local regulations that require a person to obtain a permit or approval prior to installation create unreasonable delay and are generally prohibited. Permits or prior approval necessary to serve a legitimate safety or historic preservation purpose may be permissible. Although a simple notification process might be permissible, such a process cannot be used as a prior approval requirement and may not delay or increase the cost of installation.
Q: What types of antennas are covered by the rule?
A: The rule applies to the following types of antennas:
(1) A “dish” antenna that is one meter (39.37″) or less in diameter (or any size dish if located in Alaska) and is designed to receive direct broadcast satellite service, including direct-to-home satellite service, or to receive or transmit fixed wireless signals via satellite.
(2) An antenna that is one meter or less in diameter or diagonal measurement and is designed to receive video programming services via broadband radio service (wireless cable) or to receive or transmit fixed wireless signals other than via satellite.
(3) An antenna that is designed to receive local television broadcast signals. Masts higher than 12 feet above the roofline may be subject to local permitting requirements.
In addition, antennas covered by the rule may be mounted on “masts” to reach the height needed to receive or transmit an acceptable quality signal (e.g. maintain line-of-sight contact with the transmitter or view the satellite). Masts higher than 12 feet above the roofline may be subject to local permitting requirements for safety purposes.
Q: What are “fixed wireless signals”?
A: “Fixed wireless signals” are any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location. Examples include wireless signals used to provide telephone service or high-speed Internet access to a fixed location. This definition does not include, among other things, AM/FM radio, amateur (“HAM”) radio (but see 47 C.F.R. §97.15), Citizens Band (“CB”) radio, and Digital Audio Radio Services (“DARS”) signals.
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