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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 re ) ) Application for Review of ) CSR 4915-O Declaratory Ruling Issued by the Chief,) Cable Services Bureau, In re Jay Lubliner) and Deborah Galvin, Potomac, Maryland) MEMORANDUM OPINION AND ORDER Adopted: August 18, 1998 Released: August 21, 1998 By the Commission: I. Introduction 1. Potomac Ridge Homeowners Association, Inc. ("Petitioner" or "Potomac Ridge"), filed an Application for Review of In re Jay Lubliner and Deborah Galvin, in which the Chief, Cable Services Bureau ("Bureau"), held that Petitioner had failed to satisfy its burden of demonstrating that its covenants, conditions, and restrictions do not conflict with the standards set forth in the Commission's Over-the-Air Reception Devices Rule (the "Rule"). Jay Lubliner and Deborah Galvin ("Lubliner") installed an outdoor television antenna on the roof of their single family home located in the Potomac Ridge subdivision in Montgomery County, Maryland. Potomac Ridge's covenants preclude the use of any type of outdoor antenna. Lubliner had sought permission from Potomac Ridge to install an outdoor antenna because he alleged that the aluminum siding on his house prevented him from receiving acceptable quality signals with an indoor antenna in the attic. Potomac Ridge refused to allow Lubliner to install an outdoor antenna. Lubliner then filed a petition for declaratory ruling maintaining that Potomac Ridge's covenants barring his use of an outdoor antenna violated the Commission's Rule. Under the Rule, Potomac Ridge has the burden of proof to establish that its prohibition of outdoor antennas does not preclude Lubliner's reception of an acceptable quality signal. The Bureau decision concluded that Potomac Ridge failed to carry its burden of proof in this regard. Potomac Ridge's arguments do not persuade us to overturn the Bureau decision. For the reasons discussed below, we deny the Application for Review. II. Background 2. Section 207 of the Telecommunications Act of 1996 (the "1996 Act") provides: "the Commission shall, pursuant to Section 303 of the Communications Act, 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 television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite services." The Commission's implementing Rule applies to restrictions on property within the exclusive use or control of an antenna user who has a direct or indirect ownership interest in the property. Paragraph (a) of the Rule provides that a restriction impairs installation, maintenance, or use of a protected antenna if it: (1) unreasonably delays or prevents installation, maintenance, or use; (2) unreasonably increases the cost of installation, maintenance, or use; or (3) precludes reception of an acceptable quality signal. The only exceptions to the Rule are restrictions that are necessitated by safety or historic preservation concerns, and these restrictions must be as narrowly tailored as possible, impose as little burden as possible, and apply in a nondiscriminatory manner throughout the regulated area. The Rule affords parties who are affected by antenna restrictions the opportunity to petition the Commission to determine whether the restrictions are permissible or prohibited by the Rule, and places the burden of demonstrating that the challenged restrictions comply with the Rule on the party seeking to impose the restrictions. 3. To determine whether Petitioner's prohibition of externally mounted antennas conflicted with the Rule, the Bureau considered the threshold issue of whether Lubliner was able to receive acceptable quality local television broadcast signals from within his house through the use of an internally mounted television broadcast antenna. As the party seeking to enforce the prohibition of externally mounted antennas, Petitioner had the burden of proving that its prohibition did not conflict with the Rule. In defense of its prohibition of externally mounted antennas, Petitioner submitted television broadcast signal strength tests that were conducted inside and outside other Potomac Ridge properties, and argued based on these studies that Lubliner could receive acceptable quality television broadcast signals from within his house. The Bureau found that Potomac Ridge had not met its burden because the test results were unreliable. The Bureau noted that Petitioner did not use the proper unit of measurement for measuring the quality of television broadcast signals; presented several readings without any unit of measurement; did not note whether the testing equipment was positioned to receive the strongest signals possible; and did not measure signal strength from within Lubliner's attic, the location in which Petitioner claimed Lubliner could receive acceptable quality local television broadcast signals. III. Standard of Review 4. Applications for Review must specify with particularity the factor or factors that warrant Commission consideration from among the following questions: (1) is the action taken pursuant to delegated authority in conflict with statute, regulation, case precedent, or established Commission policy; (2) does the action involve a question of law or policy that has not previously been resolved by the Commission; (3) does the action involve application of a precedent or policy that should be overturned or revised; (4) was there an erroneous finding as to an important or material question of fact, or (5) did prejudicial procedural error occur. We will not grant an application for review if it relies on questions of fact or law upon which the designated authority has been afforded no opportunity to pass. IV. Arguments Presented 5. Potomac Ridge asserts that its application for review is warranted, based upon factors 4 and 3, above, because the Bureau made an erroneous finding as to an important question of fact and/or applied precedent or policy which should be revised. Petitioner advances four main arguments in support of its Application for Review: (A) the Bureau erred with respect to the unit of measurement used; (B) the Bureau erred in finding the test results unreliable because they were not labeled with a unit of measurement; (C) the Bureau erred by not using the test results for comparison purposes and by using the wrong signal quality standard; and (D) the Bureau erred by not specifically requesting and mandating test results from within Lubliner's house. Lubliner did not file a response to the Application for Review. V. Discussion 6. Petitioner's principal contention is that the Bureau erred in refusing to accept the signal strength measurements offered by Potomac Ridge in defense of its antenna restriction. For the reasons discussed below, we find that Petitioner has provided no reason why the Commission should overturn the Bureau's conclusion. A. Did the Bureau err with respect to the unit of measurement used? 7. Potomac Ridge responded to the Lubliner petition by submitting television signal strength measurements from the inside and outside of five houses located nearby Lubliner's house attempting to show that Lubliner could receive acceptable quality reception inside his attic. In the Order, the Bureau concluded that Potomac Ridge had not carried its burden of proving that its prohibition of exterior antennas did not impair reception. The Bureau noted that one of several indicia of the unreliability of Potomac Ridge's signal measurements was the unit of measurement used by Potomac Ridge's testing firm. Specifically, the Bureau found that Potomac Ridge's use of "decibel" (dB) in the proffered signal strength measurements appeared to be incorrect. The Bureau's Order referenced comments that explained that measurements expressed in dB are incorrect for the purpose of determining signal quality because they lack the necessary point of reference. The Bureau noted that the measurements, to be useable, should have been expressed in decibels relative to one milliwatt ("dBm"). 8. Petitioner argues that its use of decibels as the unit of measurement for its signal strength test was not improper because the Commission used dB as a unit of measurement in the 1980 Staff Report on Comparability for UHF Television ("1980 Staff Report"). Petitioner further argues that even if dB were the wrong unit of measurement, the Bureau still could have used the results from tests in neighbors' houses to determine that Lubliner was able to receive acceptable quality local television broadcast signals from within his attic. 9. We agree with the Bureau that Petitioner's use of dB, without a reference point, is insufficient in the present context because one cannot determine whether the measured signal is of sufficient strength to provide acceptable quality reception without reference to an objective standard for signal strength. There are many different scales that can be used in measuring signal strengths, and each has its own reference point. The signal measurements submitted by Potomac Ridge do not provide a scale (such as "relative to one milliwatt"), and we cannot reliably guess which scale or reference point Potomac Ridge may have had in mind. We note that Potomac Ridge has still not clarified which scale it intended to use. 10. Petitioner's reference to the 1980 Staff Report, which used dB to measure "gain," is misplaced. "Gain" is a positive or negative numerical value that is added to a particular input signal level to describe the change in magnitude that occurs to a received signal as it passes through the receiving equipment. "dB" is the unit of measurement used to express gain. The 1980 Staff Report used dB to explain the effect a receiving system would have on a hypothetical signal strength. In this case, Potomac Ridge failed to provide the strength of the signal entering the antenna system. We note, furthermore, that Potomac Ridge does not claim that its test results measured "gain," as was measured in the 1980 Staff Report. B. Did the Bureau err in finding unlabelled test results unreliable? 11. In its Declaratory Ruling, the Bureau noted that the absence of units of measure from several test readings was only one of many deficiencies in the data presented by Potomac Ridge. Petitioner asserts that the Bureau's reliance on the absence of units of measure from many of the test results was not well-founded and establishes a policy that should be reversed or modified. Petitioner contends that the Bureau could have referred to the "affidavit" of the field testing company, Action Antenna Earth Satellite Corporation ("Action Antenna"), to determine the unit of measurement. 12. Even if the Bureau had assumed, based on Action Antenna's letter, that the unmarked readings were intended to be expressed in decibels, they would remain unusable for the reason described above: there was no reference point to give meaning to the readings. We also note that the reference to "flux" in some of the readings is not a meaningful term and was not defined in Action Antenna's cover letter. Use of this undefined term is another example of the problems with the test results offered by Petitioner. In addition to failing to explain its use of the term flux and why dB appears along with some measurements and not others, Petitioner also does not explain why some channels appear to have more than one reading. For example, the reading for channel 9 in the attic of House 1 is: "+18 2db," but there is no explanation for how to interpret "+18" and "2db." Another example of the unreliability of the test results is the unexplained absence of a reading for channel 50 (a local television broadcast station) from the second floor of House 6. Petitioner does not explain what conclusion we can draw from the lack of any reading for channel 50 in House 6, as compared with a zero ("0") for channel 50 in the attic of House 3, or the "-10 4 db" for the same channel in the attic of House 2. 13. We agree with the Bureau's overall conclusion that the test results were unreliable and not usable to demonstrate whether Potomac Ridge's antenna restriction impairs Lubliner's television reception. Moreover, if the test results show anything, they demonstrate that several of Lubliner's neighbors appear to be unable to receive at least one local television broadcast signal (channel 50) using antennas installed inside their homes. C. Did the Bureau err by not using the test results for comparison purposes and by using the wrong signal quality standard? 14. As noted, the Bureau found that Petitioner's test results did not support Petitioner's contention that its antenna restrictions do not impair reception of acceptable quality signals. Petitioner argues that the Bureau failed to accord the test results their proper weight and appears to suggest that the Bureau erroneously used a "best possible signal" standard. Petitioner contends that the Bureau should have used Potomac Ridge's "uncontradicted" test results for purposes of comparison between Lubliner's house and his neighbors' houses. Petitioner asserts that these "uncontroverted" test results indicate that Lubliner's neighbors could receive acceptable quality local television broadcast signals from within their houses, and if they could, presumably so could Lubliner. Petitioner also appears to challenge the Bureau's concern that the testing antenna be oriented to receive the best possible signal and responds to the Bureau's concern by asserting that Action Antenna used a "typical antenna," which would fit in an open unobstructed area in an attic. 15. The test results are not properly characterized as either "uncontradicted" or "uncontroverted." In reply to Potomac Ridge's response to the Petition, Lubliner submitted a videotape allegedly representing the poor quality reception he would receive without a rooftop antenna. More significantly, Petitioner provides us with no basis for concluding that if Lubliner's neighbors could receive acceptable quality local television broadcast signals, then Lubliner would be able to do the same. First, even if we could rely on the Action Antenna test results, these tests indicate that not all of Lubliner's neighbors could receive acceptable quality signals for all local television broadcast stations using an indoor antenna. For instance, as related, the signal for channel 50 was not readable from the attic of 13800 Mustang Hill Lane, and no reading for that channel was provided from a second floor room of 13830 Mustang Hill Lane. Second, Potomac Ridge provided no proof of the validity of ascribing the signal measurements taken from Lubliner's neighbors' homes to the signal quality expected to be found in Lubliner's home. It is not enough to assert, without explanation or justification, that homes in proximity to Lubliner's are equivalent to Lubliner's in terms of signal reception. This is particularly true in light of Lubliner's assertion that the aluminum siding on his home seriously impairs signal reception from an antenna installed inside. We note that Potomac Ridge has not refuted Lubliner's assertion as to the aluminum construction of his home or its interference with signal reception, nor did Potomac Ridge contend that the homes used in Action Antenna's test also had aluminum siding. 16. As to the issue of the signal quality standard used by the Bureau, it appears that Petitioner has misunderstood the Bureau's efforts to explain one of the many reasons why the Potomac Ridge signal measurements were unreliable. In its declaratory ruling, the Bureau stated that it was "unclear whether Potomac Ridge correctly oriented or positioned the equipment used to gather the data or whether it was positioned to receive the strongest signal possible. . . ." Petitioner argues that it located its testing antenna in an unobstructed open area inside the tested houses, and that as long as an acceptable quality signal could be received, whether a stronger or weaker signal could be picked up from another part of the attic is irrelevant because the Rule refers to an "acceptable quality" signal. We find that the Bureau applied the correct reception standard, an acceptable quality signal. Petitioner took the Bureau's reference to the best or strongest signal out of context and mischaracterized the Bureau's statement. The Bureau's reference, in context, was to an aspect of the standard methodology for signal strength measurement, which requires that the test antenna be oriented so that it is most likely to be able to measure the signal at its best available strength. The reference to the orientation of the testing antenna relates to the testing procedures for obtaining the most accurate measurement of a signal, not to whether Lubliner could receive anything other than "acceptable quality" signals, which is the standard set forth in the Rule. The Bureau's reference to the "strongest signal possible" was offered as another example of the many technical deficiencies in Potomac Ridge's signal study because it was unclear whether Action Antenna had correctly positioned its equipment, which is fundamental to determining whether the test results are reliable. The absence of information about how the study was conducted and lack of assurance that good engineering practices were followed are additional failings that prevented the Bureau from determining the validity of the results. Nevertheless, our decision here rests on Petitioner's failure to show that Lubliner could receive an acceptable quality signal, not on the orientation of the antenna used in the test. D. Did the Bureau err with respect to Petitioner's failure to take measurements from inside of Lubliner's house? 17. Finally, Petitioner argues that it was "prejudicial and fundamentally erroneous" for the Bureau to hold that Potomac Ridge should have measured signal quality from Lubliner's home without first requesting that Potomac Ridge provide such measurements and then mandating that Lubliner provide access to his home to Potomac Ridge. Petitioner alleges that the Bureau's finding constitutes application of a new or existing policy or precedent that should be overturned or revised. Petitioner does not address why it did not attempt to measure signal quality from Lubliner's home prior to the Bureau's ruling, but states that three weeks after the Bureau issued its declaratory ruling, Petitioner requested Lubliner to provide access to his house for purposes of conducting signal strength tests, and Lubliner did not respond to the request. 18. Although it may not be necessary to conduct signal strength tests from within the house in question in every case, in this instance, Lubliner specifically alleged that signal reception from an antenna inside his home would be seriously attenuated by the aluminum siding on the exterior. The Rule places the burden of demonstrating that an antenna restriction does not preclude reception of an acceptable quality signal on the entity seeking to enforce the restriction. There may be any number of ways to demonstrate that a restriction does not impair, and we do not believe that it is either appropriate or necessary for the Bureau to mandate how a restricting entity should defend an antenna restriction. Potomac Ridge opted not to seek access to the Lubliner home as part of its defense of its antenna restriction, and did not indicate in its test report whether the homes where the tests were conducted also had aluminum siding. Potomac Ridge did not meet its burden. If, in the course of preparing its response to the Lubliner petition, Potomac Ridge had requested access to Lubliner's house for the purpose of performing reasonable signal quality tests and Lubliner had refused access, then Petitioner might have had a basis for a persuasive argument that it was prevented from effectively demonstrating that its restriction does not preclude reception of an acceptable quality signal. VI. Ordering Clauses 19. For the foregoing reasons, we hereby ORDER that the Potomac Ridge Homeowners Association, Inc.'s Application for Review IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary