APPEALS COURT UPHOLDS FCC ON OVER-THE-AIR TV RECEPTION RULES
In decisive victory for satellite TV industry, U.S. Appeals Court, D.C., Fri. ruled in favor of FCC regulations that allow renters to install DBS dishes and other types of TV antennas despite property owner opposition. Panel of 3 judges roundly rejected petitions by building owners, building managers, homeowner groups and real estate trade associations that challenged federal rules as unconstitutional and exceeding Commission’s authority. Judges also rejected petitioners’ claims that agency “acted capriciously and arbitrarily” in extending its original rules on over-the-air reception devices (OTARD) to renters in 1998 action. Although FCC’s statutory authority is, “of course, subject to limitations,” court ruled, “an OTARD rule that safeguards all viewers’ access to these services clearly falls within this limitation” in light of “Congress’s explicit (and exclusive) grant of jurisdiction to the Commission over direct-to-home satellite services and its broad responsibility to make communications services available to all individuals.”
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Writing for court, Judge Judith Rogers said OTARD rules, which were prompted by Sec. 207 of Telecom Act, fit within “very broad mandate” that Congress intended when it passed Act. Citing legislative history of section, Rogers said consistent and plausible reading of House Committee report on provision “would indicate Congress’s intent to invalidate various types of private contracts under state law, such as homeowners’ association contracts and lease agreements, that might interfere with a viewer’s ability to receive certain types of satellite broadcasting signals.” She dismissed comparisons with other real estate-related cases where FCC’s authority was overturned by courts.
“In contrast to those cases, however, the issue here is not the extent to which a ruling by the Commission affects areas that are tangential to the Commission’s jurisdiction, such as the height and location of a building,” Rogers wrote. “Congress has expressly vested the Commission with exclusive jurisdiction and authority to ensure that all viewers may access direct-to-home satellite services. Where the Commission has been instructed by Congress to prohibit restrictions on the provision of a regulated means of communication, it may assert jurisdiction over a party that directly furnishes those restrictions, and, in so doing, the Commission may alter property rights created under state law.”
Court took pains to refute petitioners’ arguments that OTARD rules constituted illegal property “taking” under 5th Amendment. Rogers distinguished case from 1982 Loretto v. Teleprompter Manhattan CATV Corp. ruling in which U.S. Supreme Court invalidated N.Y. statute authorizing cable company to place its equipment in private property owner’s building without just compensation. “Unlike the building owner in Loretto, whose premises were occupied without her consent, the landlord subject to the amended OTARD rule has ceded control of his or her property to a tenant with whom the landlord has a contractual relationship,” Rogers wrote. “Thus, no ’third party’ stranger to the property is involved.”
In concurring opinion, Judge Raymond Randolph argued that “taking” clause didn’t prohibit federal govt. from taking private property. Citing appeals court’s decision in 1993 case, Randolph said clause “requires only that the government accomplish the taking in a particular way, namely, by paying for the property.” He invited legal challenges to court’s ruling in 1994 Bell Atlantic case, where court overturned FCC order requiring ILECs to provide CLECs with physical colocation in former’s central offices. Randolph said he disagreed with “taking” rationale behind Bell Atlantic decision and contended that it was based on “misreading” of Supreme Court’s opinion in earlier case.