Opposition Brief — City of Dearborn v. Loschiavo

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No. 94-1040

In The >

Supreme Court of the United States

October Term, 1994

— *

CITY OF DEARBORN,

Petitioner,

VS.

RONALD LOSCHIAVO and

DONNA LOSCHIAVO, his wife,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

BRIEF IN RESPONSE TO

PETITION FOR WRIT OF CERTIORARI

JoHN W. Grirren, Jr. (P14375)*

LisA SYMULA-NAHIKIAN (P41171)

Kristine L. Cook (P49748)

WILLIAMS, SCHAEFFER, Rusy &

Wituiams, P.C.

380 North Woodward Avenue,

Suite 300

Birmingham, Michigan 48009

(810) 642-0333

Counsel for Respondents

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

RESTATED QUESTIONS PRESENTED

WHETHER THE COURT OF APPEALS CONCLUSION

THAT A PRIVATE RIGHT OF ACTION EXISTS UNDER

42 U.S.C. §1983 TO ENFORCE RIGHTS UNDER FCC

REGULATION, 47 C.E.R. §25.104 CONFLICTS WITH THE

DECISION OF THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT IN JOHNSON vz.

CITY OF PLEASANTON, 982 F.2d 350 (9th Cir. 1992)?

II.

WHETHER THE COURT OF APPEALS CONCLUSION

THAT FCC REGULATION, 47 C.F.R. §25.104 CREATES

AN ENFORCEABLE RIGHT UNDER 42 U.S.C. §1983 IS

ERRONEOUS?

Il.

WHETHER THE COURT OF APPEALS ERRED IN STAT-

ING THAT REASONABLENESS IS EASILY SUSCEPT-

IBLE OF JUDICIAL EVALUATION AND WHETHER IT

MADE PROPER EVALUATION OF THE REASONABLE-

NESS OF DEARBORN’S ORDINANCE?

RESTATED QUESTIONS PRESENTED - Continued

IV.

WHETHER THE NINTH CIRCUIT’S ANALYSIS IN

HOWARD v. BURLINGAME, 937 F.2d 1376 (9th Cir. 1991)

OF THE FCC REGULATION APPLICABLE TO AMA-

TEUR RADIO ANTENNAS, APPLIES TO AND CON-

TROLS DISPOSITION OF RESPONDENTS’ 42 U.S.C.

§1983 CLAIMS FOR ENFORCEMENT OF THEIR RIGHTS

UNDER 47 C.F.R. §25.104 CONCERNING SATELLITE

RECEPTION ANTENNAS?

WHETHER THIS CASE IS A LAND USE DISPUTE

WHICH SHOULD BE LITIGATED IN THE STATE

COURT?

VI.

WHETHER THE DECISION OF THE COURT OF

APPEALS HAS RADICALLY ENLARGED THE SCOPE

OF 42 U.S.C. §1983?

}

iil

TABLE OF CONTENTS

Page

Restated Questions Presented.............-+.+0005: i

case hu te ese beeseehecewesens iii

iy a oc enews ee hae rer eeevees Vv

Opinions Below ... 2.2.0... cece ccc cee eee eeseeees: 1

PORT TTR PEEP ET ERECT E eee 1

Restated Federal and State Statutes Involved....... 1

Restated Statement of the Case................4... 1

Argument:

I. THE COURT OF APPEALS CONCLUSION

THAT A PRIVATE RIGHT OF ACTION

EXISTS UNDER 42 U.S.C. §1983 TO ENFORCE

RIGHTS UNDER FCC REGULATION, 47

C.F.R. §25.104 IS NOT IN CONFLICT WITH

THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIR-

CUIT IN JOHNSON v. CITY OF PLEASAN-

TON, 982 F.2d 350 (9th Cir. 1992) ........... 5

Il. THE COURT OF APPEALS CONCLUSION

THAT FCC REGULATION, 47 C.F.R. §25.104

CREATES AN ENFORCEABLE RIGHT

UNDER 42 U.S.C. §1983 IS NOT ERRONEOUS

III. THE COURT OF APPEALS DID NOT ERR IN

STATING THAT REASONABLENESS IS EAS-

ILY SUSCEPTIBLE OF JUDICIAL EVALUA-

TION AND IT MADE PROPER EVALUATION

OF THE REASONABLENESS OF DEAR-

ge eo ce 14

TABLE OF CONTENTS ~- Continued

Page

IV. THE NINTH CIRCUIT’S ANALYSIS IN HOW-

ARD v. BURLINGAME, 937 F.2d 1376 (9th Cir.

1991) OF THE FCC REGULATION APPLICA- |

BLE TO AMATEUR RADIO ANTENNAS,

DOES NOT APPLY TO OR CONTROL DISPO-

SITION OF RESPONDENTS 42 U.S.C. §1983

CLAIMS FOR ENFORCEMENT OF THEIR

RIGHTS UNDER 47 C.F.R. §25.104 CONCERN-

ING SATELLITE RECEPTION ANTENNAS... 19

V. THIS CASE IS NOT A LAND USE DISPUTE

WHICH SHOULD BE LITIGATED IN THE

POPU GEE, 56s Ki AA Resa eee ae ee eee 21

VI. THE DECISION OF THE COURT OF

APPEALS DOES NOT RADICALLY

ENLARGE THE SCOPE OF 42 U.S.C. 1983.. 26

Ce ee gle eg caus oe ee ce aie 29

| OTe Eee LOE eo eee eer eT Cee TT 1A

TABLE OF AUTHORITIES

Page

Cases

Alsar Technology, Inc. v. Zoning Board of Adjustment,

235 N.J. Super. 471, 563 A.2d 83 (N.J. Super. L.

Ss errr rrr rr rrr rrr ye rrr res rT a1, 17, 224

Cawley v. City of Port Jervis, 753 F. Supp. 128

(S.TO.N.Y.: FOGG ob he can ckesquneccseadaan 11, 17, 21, 22

City of New York v. FCC, 486 U.S. 57 (1988) ......... 22

Cort v. Ash, 422 U.S. 66 (1979) oc 6c cavcseresnanvaxens 7

Ermler v. Town of Brookhaven, 795 F. Supp. 85

(EDLY. 2998) occ ccavsasaccaapeniseses esage are 11

Golden State Transit Corp. v. Los Angeles, 493 U.S.

10D: (20D) oo cc knee ccaeaneesvhernderaseenien 22

Howard v. City of Burlingame, 937 F.2d 1376 (9th

Cie B1) . ok deneeganaes eee eee 19,20, Zl, 2

Johnson v. City of Pleasanton, 781 F. Supp. 632 (N.D.

Cal 1991) ccccevccccence seeyttee ti urea ay Pe ee

Johnson v. City of Pleasanton, 982 F.2d 350 (9th Cir.

NOPE is ccaceescnceiuss0adeeb ee edge eer ee 5, 6, 7

Kessler v. Town of Niskayuna, 774 F. Supp. 711

CNDDPLY, BOGE.» 5 csi cncdnc hades ate saeedenneere 17

Kessler v. Town of Niskayuna, case no. 91-CV-104;

91-CV-464 (N.D.N.Y. 12/26/91) «22. cccceccnccsens 12

Loschiavo, et al. v. City of Dearborn, 33 F.3d 548 (6th

Che BOD bccicnds5 teens teauncens ta staveeueene passim

Louisiana Public Service Service Comm'n v. FCC, 46

U.S. 355, 106 S. Ct. 1890, 90 L. Ed. 2d 369 (1986) .... 22

Maine v. Thiboutot, 448 U.S. 1 (1980) ................ 12

Parratt v. Taylor, 451 U.S. 527 (1981).............. 23, 24

TABLE OF AUTHORITIES - Continued

Page

Patsy v. Board of Regents, 457 U.S. 496 (1982)........ 21

Pennell v. City of San Jose, 485 U.S. 1 (1988) ......... 18

Studen v. Beebe, 588 F.2d 560 (1978) .............. 27, 28

Suter v. Artist M., 503 U.S. __, 112 S. Ct. 1360

CUPP nies Sed tw adesdoin vitesse ewelinersete 12, 13, 17

Van Meter v. Township of Maplewood, 696 F. Supp.

SE Mande BOE 0 006000 cho senesnan denen 11, 18, 22

Village of Elmgrove v. Fy, 724 F. Supp. 612 (E.D.

WOR Shs an bones es sccsdevsdanas sawpereeeee 11, 17

Wilder v. Virginia Hospital Association, 496 U.S. 498

i Ferrer rrr Ter rrr rrr rte. 7, 16, 27, 28, 29, 30

Wright v. Roanoke Development and Housing Author-

Be, 7S OB. GAD CR) 6s bs ccd en ctenses 7, 12, 13, 17

STATUTES AND REGULATIONS

OF Rs ots 0'000.450055900005 sae eee passim

Be es Re 45.080 445 no 0 Reed ae Chenoa 3

28 U.S.C. §1343(a)(3)......... ive dana Van ee aa 3

ee Ss M6 654 056.6 o00 008seineseeeenssasaes passim

OE TE. Ts 950 oases nae isis ese -11

OF Rs Sh 54 ter esnsasbeeece as sae nee oe

In the Matter of Preemption of Local Zoning or Other

Regulation of Receive-Only Satellite Earth Stations,

ee Be reer re er eee passim

OTHER AUTHORITY

Dearborn Zoning Ordinance, §501-e.......... i, 2, 8, 20

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITIONER’S REQUEST FOR A

WRIT OF CERTIORARI

OPINIONS BELOW

Respondents rely upon Petitioner’s Statement.

JURISDICTION

Respondents rely upon Petitioner’s Statement.

RESTATED FEDERAL AND

STATE STATUTES INVOLVED

This Petition involves 42 U.S.C. §1983, 42 U.S.C.

§1988, 47 U.S.C. §605 and 47 C.E.R. §25.104 which are

reproduced in Petitioner’s Appendix F. The Dearborn

Zoning Ordinance No. 81-33, §501-e is also involved and

reproduced in Petitioner’s Appendix F. Lastly, this Peti-

tion involves the FCC Report and Order, In the matter of

Preemption of Local Zoning or Other Regulation of Receive-

Only Satellite Earth Stations, 51 Fed. Reg. 5519 (1986).

(“Report and Order”) The Report and Order is repro-

duced in Respondents’ Appendix I.

Respondents exclude the Michigan Compiled Laws

cited by Petitioner for the reason that Petitioner has nei-

ther argued nor relied upon the applicability of the state

statutes to any issues which were summarily decided or

tried at the District Court level or reviewed on appeal by

the Sixth Circuit.

RESTATED STATEMENT OF THE CASE

On October 13, 1990, a satellite reception antenna

was erected in the rear yard of the Loschiavos’ home in

Dearborn, Michigan. The antenna is ten feet in diameter

and is mounted on a 20 foot mast. (J.A. 57-58) Three days

after the installation of the receive-only satellite antenna,

a notice of violation was issued to the Loschiavos by the

City for failing to comply with Dearborn Zoning Ordi-

nance No. 81-33, §501-e, et seq. (Loschiavo District Court

Opinion (3/17/92), Petitioner’s Appendix E-2) The ordi-

nance requires that anyone installing a receive-only satel-

lite dish antenna which exceeds three feet in diameter

must obtain approval from the Dearborn Zoning Board of

Appeals. The ordinance prohibits satellite reception

antennas in excess of eight feet in diameter and provides

that no part of the antenna may extend higher than

twelve feet above grade. The Ordinance does permit the

Zoning Board of Appeals to authorize additional uses if

they are “in harmony with the character of the district.”

No guidelines or parameters however are specified in the

Ordinance. (Petitioner’s Appendix F-21)

The Loschiavos applied to the Dearborn Zoning

Board of Appeals for a variance to exceed the size and

height limitations of the ordinance. Following a hearing

on November 28, 1990, the Loschiavos’ application was

denied and the Zoning Board of Appeals ordered the

removal of the antenna. (Loschiavo District Court Opinion

(3/17/92), Petitioner’s Appendix E-2)

Following the Dearborn Zoning Board’s denial of the

Loschiavos’ application for variance, a Complaint was

filed in the United States District Court for the Eastern

District of Michigan. The Complaint alleged violation of

the Loschiavos’ rights under the First and Fourteenth

Amendments, violation of their rights under 42 U.S.C.

§1983 and sought a declaratory judgment that the Dear-

born Zoning Ordinance was preempted by 47 C.F.R.

§25.104. The Ordinance was preempted because it differ-

entiated between satellite receive-oniy antennas and

TENET te er ames

sneer

other types of antennas, and did not redeem itself under

the two prong test set forth in the FCC Regulation. Such

test required that 1) the ordinance have a clearly defined

health, safety and aesthetic objective, and 2) that it does

not impose unreasonable limitations on, or prevent recep-

tion of, satellite delivered signals or impose costs on

users of such antennas that are excessive in light of the

purchase and installation cost of the equipment. 47 C.F.R.

§25.104. The relief sought by the Loschiavos included a

declaratory judgment that the Ordinance was preempted,

a permanent injunction, money damages, attorney fees

and other relief deemed appropriate by the Court.

The District Court had subject matter jurisdiction

over the Loschiavos’ claims pursuant to 28 U.S.C. §1331

as federal questions were raised under 47 U.S.C. §605 and

47 C.F.R. §25.104, as well as the First and Fourteenth

Amendment claims. With regard to the 42 U.S.C. §1983

claim, the District Court had subject matter jurisdiction

pursuant to 28 U.S.C. §1343(a)(3).

On January 9, 1992, the District Court conducted a

hearing on the parties’ Cross-Motions for Summary Judg-

ment. The District Court granted in part Dearborn’s

motion dismissing the First and Fourteenth Amendment

counts and the claim under 42 U.S.C. §1983. The Court

held there was no private right of action under the Civil

Rights Act for violation of the FCC satellite reception

antenna preemption regulation. (Petitioner’s Appendix

C-13, 14) The Loschiavos’ Motion for Summary Judgment

was denied and the matter preceded to trial on the pre-

emption issue in February, 1992.

The District after trial found in a Memorandum

Opinion and Judgment that the Ordinance was pre-

empted. The Court acknowledge the Ordinance had a

reasonable and clearly defined health, safety and aes-

thetic objective, but found that the Ordinance unreasona-

bly restricted satellite signal reception in violation of the

second prong of the FCC Regulation. The Court found the

Ordinance unreasonably restricted reception, in part,

because it did not contain any express provisions for

flexibility for property where the satellite sight lines are

blocked, as was the case with the Loschiavos. The District

Court then specifically held that the- provision allowing

additional uses which were “in harmony with the charac-

ter of the district” was inadequate because it balanced

aesthetic concerns with the right to reception. Such bal-

ancing of the FCC intent with aesthetic concerns could

not be performed as the Court was bound by the legisla-

tive intent of the FCC to forbid unreasonable restrictions

upon reception. (Petitioner’s Appendix E-5) A permanent

injunction against enforcement of the preemption Ordi-

nance was entered.

The Loschiavos appealed from the Summary Judg-

ment dismissal of their 42 U.S.C. §1983 claim. A Cross-

Appeal was filed by Dearborn on the preemption issue.

Fhe Sixth Circuit Court of Appeals reversed the Dis-

trict Court on the 42 U.S.C. §1983 claim, holding that such

a private right of action was available to the Loschiavos

under 42 U.S.C. §1983 to enforce their right to a satellite

reception antenna.

The Court of Appeals affirmed the injunctive relief

granted to the Loschiavos prohibiting enforcement of the

preempted Dearborn Ordinance. (Petitioner's Appendix

A-9)

Dearborn filed a Petition for Rehearing En Banc on

September 21, 1994. The Loschiavos were requested to file

a Response to the Petition. None of the active Judges of

the Sixth Circuit requested a poll on the suggestion for

Rehearing En Banc. The Petition was then referred to the

original hearing panel and was denied on November 22,

1994. (Petitioner’s Appendix B)

Dearborn filed its Petition for a Writ of Certiorari with

this Court on December 12, 1994.

ARGUMENT

THE COURT OF APPEALS CONCLUSION THAT A

PRIVATE RIGHT OF ACTION EXISTS UNDER 42

U.S.C. §1983 TO ENFORCE RIGHTS UNDER FCC REG-

ULATION, 47 C.FR. §25.104 IS NOT IN CONFLICT

WITH THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT IN

JOHNSON v. CITY OF PLEASANTON, 982 F.2d 350 (9th

Cir. 1992).

The District Court after a bench trial held that the

Dearborn Ordinance was preempted by 47 C.F.R. §25.104.

However, it had previously granted Dearborn’s Motion

for Summary Judgment dismissing the Loschiavos’ claim

under 42 U.S.C. §1983. The District Court followed the

Northern District of California decision in Johnson v. City

of Pleasanton, 781 F. Supp. 632 (N.D. Cal. 1991). The Court

of Appeals for the Sixth Circuit in the instant case after an

independent analysis of the 42 U.S.C. §1983 issue

reversed the District Court and held there is a private

right of action under 42 U.S.C. §1983 to enforce rights to

have a satellite reception antenna as set forth in 47 C.F.R.

§25.104.

Dearborn argues that the Sixth Circuit Opinion on

the 42 U.S.C. §1983 claim created a split of authority

between the Sixth Circuit and Ninth Circuit. Dearborn

contends the Northern District of California holding was

affirmed by the Ninth Circuit. Johnson v. City of Pleasan-

ton, 982 F.2d 350 (9th Cir. 1992). This assertion is untrue.

Analysis of the Johnson cases must begin with the

Northern District of California Opinion. The Northern

District of California granted the City of Pleasanton’s

Motion for Summary Judgment dismissing the Plaintiff’s

First and Fourteenth Amendment claims and the 42

U.S.C. §1983 claim. The Northern District of California

also granted the Johnson’s Cross-Motion for Summary

Judgment on the FCC preemption issue.

The case then proceeded to the Ninth Circuit Court

of Appeals where the preempted issue and the First and

Fourteenth Amendment issues were briefed by the par-

ties and decided by the Ninth Circuit. The 42 U.S.C. §1983

issue was neither briefed by the parties nor discussed or

decided by the Ninth Circuit. See Johnson v. City of Pleas-

anton, 982 F.2d 350 (9th Cir. 1992). The case was

remanded to the Northern District of California for trial

on the preemption issue. Upon this writer’s information

and belief, the matter was ultimately settled by the par-

ties and the action has been voluntarily dismissed. There

have been no further proceedings in Johnson involving

the 42 U.S.C. §1983 issue. Accordingly, there is no split of

authority between the Johnson Ninth Circuit Opinion and

the Loschiavo Sixth Circuit Opinion on the issue of

whether there is a private right of action to enforce rights

under 47 C.F.R. §25.104.

THE COURT OF APPEALS CONCLUSION THAT FCC

REGULATION, 47 C.ER. §25.104 CREATES AN ENFOR-

CEABLE RIGHT UNDER 42 U.S.C. §1983 IS NOT

ERRONEOUS.

Dearborn argues that no enforceable right exists

under 47 C.F.R. §25.104 for the Loschiavos to support a 42

U.S.C. §1983 action. The Loschiavos disagree. The proper

test under which to conduct the analysis required to

resolve the disagreement is found in Wilder v. Virginia

Hospital Association, 496 U.S. 498 (1990) as follows:

[1] Did congress intend that the subject provi-

sion benefit the Plaintiff;

[2] If so, does the provision create a binding

obligation on a governmental unit rather

than merely “congressional preference”;

and

[3] Is the interest asserted sufficiently clear

that it may be judicially enforced. (Quoting

Golden State Transit v. Los Angeles, 493 U.S.

103, 106 (1989)).

Wilder, 496 U.S. at 509.

The test set forth in Cort v. Ash, 422 U.S. 66 (1975)

mentioned by Dearborn in its Petition and reviewed by

the Johnson District Court was not the proper test for

review of a private right of action under 47 U.S.C. §605,

as the right asserted is an express right of private action.

Wilder, 496 U.S. at 508 clearly indicates that the Wilder test

is to be used in an instance of express rights while the

Cort test is appropriate only in implied rights of actions.

The Johnson District Court properly held that the key

in determining whether a statute or regulation creates

rights enforceable under 42 U.S.C. §1983 is the legislative

intent. Johnson, 781 F. Supp. at 644, citing Wright v.

Roanoke Development and Housing Authority, 479 U.S. 431

(1987). However, the Johnson District Court finding that

the Report and Order was a mere congressional prefer-

ence was erroneous and unsupported. Contrary to the

intentions of Dearborn and the Johnson District Court

Opinion, the Sixth Circuit Court of Appeals in the instant

action properly held:

[w]e also find there is sufficient mandatory lan-

guage in the FCC’s regulation to create a bind-

ing obligation on the City of Dearborn. In

unequivocal terms, Section 25.104 provides that

local regulations such as Dearborn Ordinance

No. 81-33, §501-e ‘are preempted’ if they unduly

limit satellite reception or impose excessive

costs on satellite antenna users.

Loschiavo v. City of Dearborn, 33 F.3d-548, 552 (6th Cir.

1994). (Petitioner's Appendix A-7)

The Sixth Circuit Court of Appeals also characterized

the language of §25.104 as “a clear command” and

“unambiguous in nature”. Loschiavo, 33 F.3d at 552. (Peti-

tioner’s Appendix A-7)

The Report and Order provides for a mandatory pre-

emption. The District Court in Johnson v. City of Pleasan-

ton, 781 F.Supp. 632 (N.D. Cal. 1991) fails to explain how

such a mandatory preemption could be considered a

“mere preference.” It is obvious from a reading of the

rule adopted that it is mandatory. The FCC in its Report

and Order states:

State and local zoning or other regulations that

differentiate between satellite receive-only

antennas and other types of antenna facilities are

preempted unless such regulations

(a) Have a reasonable and clearly defined

health, safety or aesthetic objective; and

(b) Do not operate to impose unreasonable

limitations on or prevent reception of satellite

delivered signals by receive-only antennas or to

impose costs on users of such antennas that are

excessive in light of the purchase and installa-

tion cost of the equipment. (Emphasis added)

Preemption of Local Zoning, 51 Fed. Reg. 5519, 5520,

{ 1 (1986). (Respondents’ Appendix 3A)

It is clear that if a local ordinance differentiates

between satellite reception antennas and other types of

antenna facilities, it is preempted, the burden then shifts

to the municipality to prove the ordinance has a reason-

able and clearly defined health, safety or aesthetic objec-

tive, and does not impose unreasonable limitations on

reception or unreasonable cost. In the meantime, the ordi-

nance, however, is mandatorily preempted.

The FCC in its Report and Order states:

Whether a judicial remedy might be available in

some cases and to those who can afford litiga-

tion is not determinative of our ability or of the

necessity to preempt state regulations when

they are obstructing federal objectives.

Preemption of Local Zoning, 51 Fed. Reg. at 5523, 29.

(Respondents’ Appendix 19A)

Furthermore, the FCC says:

Satellite antenna users who are dissatisfied with

the results of any local zoning decision can use the

standards adopted here in pursuing any legal

remedies they might have. In addition, we would

entertain requests for further action if it appears

that local authorities are generally failing to abide

by our standards. (Footnotes omitted)

Preemption of Local Zoning, 51 Fed. Reg. at 5524, ¥ 40.

(Respondents’ Appendix 26A-27A)

The FCC refers to its purpose as being a protection

for a right and for the furtherance of congressional pur-

pose. Paragraph 24 of the FCC Report and Order states:

As stated in our Notice, when ‘state regulation

stands as an obstacle to the accomplishment of a

congressional purpose,’ such regulation is sub-

ject to preemption. Our conclusion was that the

records showed local and state regulatory inter-

ference with the established federal objectives

and thus some of [sic] preemption was war-

ranted. (Footnotes omitted)

Preemption of Local Zoning, 51 Fed. Reg. at 5522, 4 24.

(Respondents’ Appendix 15A)

Further, the FCC Report and Order provides in part:

If individuals cannot use antennas to receive

satellite delivered signals because of discrimina-

tion or excessive state and local regulation, their

right of access as established by section 705 (sic)

[§605] to interstate communications delivered

by satellite will be useless. (Footnote omitted)

Id., at J 26. (Respondents’ Appendix 17A)

Dearborn argues that because the regulation provides

for municipalities to address health, safety and aesthetic

concerns, the mandatory preemption is somehow turned

into a mere preference. This is a mischaracterization of

what the Report and Order provides. It permits munici-

palities to address these concerns, however, where the

concerns result in regulations that unreasonably restrict

reception or impose excessive costs, they must give way.

The FCC clearly recognizes the distinct technologies asso-

ciated with satellite dishes in allowing communities cer-

tain limited flexibility with respect to their ordinances.

The Report and Order was designed to severely limit

local interference with the use of dishes and left only

narrow and limited regulatory power where local author-

ities have previously assumed complete and unfettered

power to prohibit satellite antenna installations.

These objectives and intent to create rights enforce-

able by homeowners are directly addressed in Paragraphs

33 and 34 of the Report and Order.

If a community chooses to enact an ordinance which

differentiates in its treatment of different type: of

antennas, it must bear a high burden. Our objective

is to insure that satellite receiving antennas are

not treated less favorably than other anteana

devices such as Amateur Radio antennas ind

Satellite Master Antenna Systems (SMATV’s.. A

a alas

community must demonstrate that its regulation

meets both paragraph (a) and (b) of our rule.

We have retained the use of health, safety and

aesthetic objectives but have merely required

these to be ‘reasonable’ and ‘clearly defined.’

These terms are readily susceptible to applica-

tion by local authorities and gives some flex-

ibility in the application of local regulations to

individual locations. To be more specific in a

general national policy statement would be

inadvisable. In addition, requiring local authorities

to justify a differentiation in treatment will help

insure that local zoning power is not used to restrict

unreasonably the installation of satellite receive-only

antennas. (Emphasis added) (Footnotes omitted)

Preemption of Local Zoning, 51 Fed. Reg. at 5523-5524,

F1 33 and 34. (Respondents’ Appendix 22A-23A)

As is clear from the foregoing references, the lan-

guage of the FCC Report and Order itself is the best

evidence that it is designed to create a federal right in

homeowners and not to just set forth a mere congres-

sional preference.

Numerous cases from jurisdictions nationwide where

» Satellite reception antenna ordinances have been pre-

empted have awarded Plaintiffs attorney fees pursuant to

42 U.S.C. §§1983 and 1988. These cases include Alsar

Technologies, Inc. v. Zoning Board of Adjustment, 235 N.J.

Super. 471, 563 A.2d 83 (N.J., Super. L 1989); Cawley v.

City of Port Jervis, 753 F. Supp. 128 (S.D.N.Y. 1990); Van

Meter v. Township of Maplewood, 696 F. Supp. 1024 (D.N,J.

1988); Village of Elmgrove v. Py, 724 F. Supp. 612 (E.D. Wis.

1989); and Ermler v. Town of Brookhaven, 795 F. Supp. 85

(E.D.N.Y. 1992). However, although these cases award

attorney fees, and thus presumptively find that a private

right of action exists, none of these cases analyze in depth

the applicability of 42 U.S.C. §1983 to Plaintiffs’ claim

that zoning ordinances violate and are therefore pre-

empted by the Report and Order.

Other than the cases cited above, the only two Opin-

ions that this writer has been able to find which have

ruled on and analyzed the applicability of 42-'U.S.C. §1983

to Plaintiffs’ claims are Johnson v, City of Pleasanton, 781 F.

Supp. 632 (N.D. Cal. 1991) and Kesster, et al. v. Town of

Niskayuna, case no. 91-CV-104; 91-CV-464 (N.D.N.Y.

12/26/91). Johnson, contrary to all of the prior cases cited

above held that there was no 42 U.S.C. §1983 cause of

action arising from a municipality violating the Preemp-

tion Order. Kessler, consistent with the prior Opinions

held that such a cause of action is permissible.

The Court of Appeals for the Sixth Circuit properly

stated the following regarding §1983 actions:

Section 1983 creates a cause of action against

any person who, under the color of state law,

abridges ‘rights, privileges, or immunities

secured by the Constitution and the laws’ ofthe

United States. 42 U.S.C. §1983. In Maine v.

Thiboutot, 448 U.S. 1, 6-8, 100 S. Ct. 2502,

2505-06, 64 L.Ed.2d 555 (1980), the Supreme

Court recognized that plaintiffs may use Section

1983 to enforce not only constitutional rights,

but also those rights defined by federal statutes.

As federal regulations have the force of law,

they likewise may create enforceable rights.

Wright, 479 U.S. at 431, 107 S. Ct. at 774. Section

1983 is not available, however, “to enforce a

violation of the federal statute ‘where Congress

has foreclosed such enforcement of the statute

in the enactment itself and where the statute did

not create enforceable rights, privileges, or

immunities within the meaning of §1983.’”

Suter v. Artist M., __ U.S. __, __, 112 S. Ct.

1360, 1366, 118 L.Ed.2d 1 (1992) (quoting Wright,

479 U.S. at 423, 107 S. Ct. at 770).

Loschiavo, 33 F.3d at 551. (Petitioner’s Appendix A-4)

Dearborn suggests that the Court of Appeals erred in

not applying Suter’s facts to the case at hand. Dearborn

claims that the unreasonable limitations at issue in the

FCC Report and Order can be likened to the reasonable

efforts at issue in Suter. Such is not the case as the

regulation at issue in Suter is very different from the

regulation involved in the instant action. This Court

determined that the ultimate inquiry in Suter was:

Did Congress in enacting the Adoption Act,

unambiguously confer upon the child benefici-

aries of the Act a right to enforce the require-

ment that the State make ‘reasonable efforts’ to

prevent a child from being removed from his

home, and once removed to reunify the child

with his family? We now turn to that inquiry.

Suter, 112 S. Ct. at 1367.

This Court determined that the Adoption Act at issue

did not provide a right enforceable by individuals.

Rather, the provisions which were mandatory as to the

states could be enforced only by the Secretary for Health

and Human Services. This determination was reached by

this Court after careful examination of the reasonable

efforts language in the context of the entire Act.

On the other hand, the FCC Report and Order at

issue mandatorily preempts an ordinance that differenti-

ates between satellite receive-only antennas and other

types of antennas. Furthermore, a private right of action

is expressly afforded to homeowners to enforce the rights

not to have their use of satellite antennas unduly

restricted. Report and Order, 51 Fed. Reg. at 5523, 5524. If

a municipality’s Ordinance is found to differentiate then

it is preempted. However, the Ordinance may be revived

if the City establishes that it meets both prongs of the two

prong test set forth in the Report and Order. To accom-

plish this, the municipality’s regulation must first have a

reasonable and clearly defined health, safety and aes-

thetic objective. Then the second prong prevents these

objectives from being met by imposing unreasonable

restrictions on reception or imposing unreasonable costs.

The two prong test does not affect the enforceability of

the federal right to receive satellite signals which is

expressly afforded to homeowners in the Report and

Order.

The Court of Appeals for the Sixth Circuit did not err

in its analysis of the availability of the private right of

action under 42 U.S.C. §1983 and the Loschiavo Opinion

from the Sixth Circuit does not conflict with this Court's

Opinion in Suter for the above stated reasons.

Il.

THE COURT OF APPEALS DID NOT ERR IN STATING

THAT REASONABLENESS IS EASILY SUSCEPTIBLE

OF JUDICIAL EVALUATION AND IT MADE PROPER

EVALUATION OF THE REASONABLENESS OF DEAR-

BORN’S ORDINANCE.

Petitioners argue that the Court of Appeals for the

Sixth Circuit should have evaluated the reasonableness of

Dearborn’s ordinance before holding it did operate to

impose unreasonable limitations on or prevent reception

of satellite delivered signals. The argument presented by

Petitioner evidences the fact that it does not understand

the operation of the FCC Preemption Report and Order.

The District Court in the instant action clearly under-

stood how the Report and Order is to be applied. The

Loschiavo District Court stated as follows:

As a threshold issue, then, the regulation will

pre-empt an ordinance only if it differentiates

between satellite receive-only antenna and other

types of antenna facilities. Once such differen-

tiation is shown, then the ordinance survives

only by meeting both prongs (a) and (b) above.

In denying defendant’s motion for summary

judgment on this issue, the Court found that the

threshold was met, making it necessary to con-

sider both parts of the test. The Court also

found that the ordinance has a reasonable and

clearly defined health, safety or aesthetic objec-

tive, sufficient to meet the first part of the test.

However, the Court found that a question of jact

remained as to whether the second prong was

met. The trial focused on this question.

(Petitioner’s Appendix E-3)

The Loschiavo District Court after discussing the spec-

ific testimony upon which its holding relied, stated as

follows:

Subsection (b) of the regulation can be broken

_ down into three parts: 1) an ordinance may not

impose unreasonable restrictions on reception;

2) an ordinance may not prevent reception; and

3) an ordinance may not impose excessive costs

upon users.

(Petitioner’s Appendix E-3-4)

The Loschiavo District Court then-set forth the testi-

mony upon which its holding relied and then stated as

follows:

Based upon this testimony, the Court finds that

the ordinance unreasonably restricts reception

in violation of the FCC regulation because it

contains no express provisions for variances for

dishes on property where satellite site lines are

blocked. The provision allowing additional uses

where they are ‘in harmony with the character

of the district’ is inadequate, because it balances

aesthetic concerns with the right to reception.

While the city’s aesthetic concerns are legitimate

and plaintiffs’ satellite dish definitely could be

considered aesthetically displeasing, this court

is bound by the legislative intent of the FCC to

forbid unreasonable restrictions on reception.

The court cannot balance this intent with aes-

thetic concerns. The regulation absolutely enti-

tles plaintiffs to be free of unreasonable

restrictions on reception. Although the ordi-

nance may be valid as to properties on the south

side of the city, where site lines to satellites are

direct, nowhere on plaintiffs’ property could

they erect a dish in compliance with the ordi-

nance and receive reasonable reception. There-

fore, the ordinance is pre-empted by the

regulation and is unenforceable, as applied to

this case and generally, unless the city makes

provisions to accommodate situations where

surrounding structures make it impossible to

erect a dish that complies with the ordinance

and receives reasonable reception.

(Petitioner's Appendix E-5)

The Court of Appeals for the Sixth Circuit affirmed

the reasonableness issues as addressed by the District

Court. As such, Dearborn’s contention that it “remains an

unanswered question of law whether Dearborn’s ordi-

nance violates this regulation” (Petition for Writ of Cer-

tiorari, at p. 11) was clearly decided by the District Court

and affirmed by the Court of Appeals.

The Court of Appeals for the Sixth Circuit made the

following findings with regard to the reasonableness

issue raised by the FCC Report and Order:

A regulation is not rendered impermissibly

vague simply because it calls for a judicial deter-

mination of ‘reasonableness.’ See Wilder, 496

U.S. at 520; 110 S. Ct. at 2523. (inquiry into

reasonableness of Medicaid reimbursement

rates is ‘well within the competence of the judi-

ciary’); Wright, 479 U.S. at 432, 107 S. Ct. at 774

(interpreting ‘reasonable’ utility allowance).

Instead, as the Supreme Court has recognized,

Courts are competent to interpret each statute or

regulation by its own terms, considering the

provision ‘in light of the entire legislative enact-

ment.’ Suter, _.-:* U.S. at __. & n. 8, 112 S. Ct. at

1367 & n. 8. Here, the legislative history of the

1984 Act makes clear that Congress amended

Section 605(b) of the Communications Act to

promote individual access to diverse satellite

programming. To further this goal, the FCC

adopted Section 25.104, which provides unam-

biguous notice to local governments that zoning

ordinances cannot frustrate the reception of sat-

ellite signals for home viewing. Given the

straightforward nature of this provision, partic-

ularly when considered in light of the purpose

of the 1984 Act, we are confident that the rea-

sonableness standard is readily susceptible of

judicial evaluation. See also Preemption of Local

Zoning, 51 Fed. Reg. at 5524 (FCC considers it

‘within the ability of the Court to make legal

determinations of reasonableness or excessive-

ness’)

Loschiavo, 33 F.3d at 552-553. (Pétitioner’s Appendix

A-8-9)

Certainly the Courts in other satellite reception

antenna cases have been able to address and decide the

reasonableness issue. See Village of Elm Grove v. Py, 724 F.

Supp. 612 (E.D. Wis. 1989); Alsar Technology v. Zoning

Board of Adjustment, 235 N.J. Super. 471, 563 A.2d 83 (N_J.

Super L. 1989); Cawley v. City of Port Jervis, 753 F. Supp.

128 (1990); Kessler v. Town of Niskayuna, 774 F. Supp. 711

(N.D.N.Y. 1991); and Van Meter v. Township of Maplewood,

696 F. Supp. 1024 (D.N.J. 1988).

Petitioner next suggests that the test for reasonable-

ness with regard to Dearborn’s Ordinance No. 81-33,

§501(e) should not be whether it is unreasonable for a

particular individual, but whether it is unreasonable gen-

erally. In support of this argument, Petitioner cites Pennell

v. City of San Jose, 485 U.S. 1 (1988). Initially, a Pennell type

test does not apply in the instant action, as the FCC

Report and Order itself provides each individual with the

unfettered right to receive satellite signals. This intent of

the FCC and the right thereby created could not possibly

function under the test which Petitioners claim Pennell

sets forth.

Furthermore, Pennell is inapplicable to the instant

action. Pennell examines a rent control ordinance under

the takings clause. The issue involved is a rent control

ordinance which allowed a reasonableness analysis with

regard to the hardship of the tenant. The argument was

that this reasonableness analysis amounted to a taking in

a case where rent determined under objective factors was

lowered after the reasonableness analysis. This Court in

Pennell held that the taking issue was premature. Pennell,

485 U.S. at 9. Furthermore, under the equal protection

and due process arguments presented, this Court exam-

ined those arguments in terms of “carefully considering

both the individual circumstances of the landlord and

tenant.” Pennell, 485 U.S. at 13-14. Pennell does not say

what Dearborn purports. There is no conflict between

Pennell and the Opinion of the Sixth Circuit Court of

Appeals in Loschiavo.

A close review of the District Court holding estab-

lishes that the Court did take both a specific view of the

Loschiavo situation and a global view of how the Ordi-

nance dealt with varying site line situations throughout

the City. The District Court noted: “[T]he Ordinance con-

tains no express provisions for variances where houses,

garages, trees, fences, etc. block the sight lines necessary |

for satellite transmission.” (Petitioner’s Appendix E-4)

In other words, the Ordinance was inflexible to the

needs of satellite signal reception and set forth no guide-

lines for the Zoning Board to allow height and location

variances from the literal terms of the Ordinance. For that

reason that the Dearborn Ordinance was unreasonable

generally and Petitioner’s argument is therefore without

merit.

IV.

THE NINTH CIRCUIT’S ANALYSIS IN HOWARD v.

BURLINGAME, 937 F.2d 1376 (9th Cir. 1991) OF THE

FCC REGULATION APPLICABLE TO AMATEUR

RADIO ANTENNAS, DOES NOT APPLY TO OR CON-

TROL DISPOSITION OF RESPONDENTS 42 U.S.C.

§1983 CLAIMS FOR ENFORCEMENT OF THEIR

RIGHTS UNDER 47 C.ER. §25.104 CONCERNING SAT-

ELLITE RECEPTION ANTENNAS.

Contrary to Dearborn’s contention, it is not foresee-

able that the decision in the Loschiavo case will impact

upon local regulation of amateur radio antennas. Ama-

teur radio antennas are dealt with by the FCC under a

separate federal regulation designated as PRB-1, which is

reproduced in Petitioner’s Appendix G.

In fact, the quote at PRB-1 at p. 12 of the Petition

evidences the fact that the preemption under PRB-1 is

limited and leaves total discretion to localities as opposed

to the mandatory preemption set forth under the Report

and Order dealing with satellite reception antennas.

Dearborn makes gratuitous statements regarding the

comparability of PRB-1 to 47 C.F.R. §25.104, stating that

there is “really no difference between the preemption set

forth in PRB-1 and the preemption set forth in 47 C.FR.

§25.104.” (Petitioner’s Writ of Certiorari at p. 13) A fair

reading of both regulations belies Dearborn’s interpreta-

tion. Dearborn relies on Howard v. City of Burlingame, 937

F.2d 1376 (9th Cir. 1991) as the cornerstone of its argu-

ment.

The Court of Appeals for the Sixth Circuit in the

instant case properly distinguished Howard v. City of Bur-

lingame as follows:

We also find that there is sufficient mandatory

language in the FCC’s regulation to create a

binding obligation on the City of Dearborn. In

unequivocal terms, Section 25.104 provides that

local regulations such as Dearborn Zoning Ordi-

nance No. 81-33, §501-e ‘are preempted’ if they

unduly limit satellite reception or impose exces-

sive costs on satellite antenna users. 47 C.F.R.

§25.104. While acknowledging that local govern-

ments have traditionally maintained a strong

interest in zoning matters, the regulation explic-

itly preempts all zoning ordinances that improp-

erly trammel on individual’s right to satellite

reception. Id.; compare Howard v. City of Bur-

lingame, 937 F.2d 1376, 1380 (9th Cir. 1991) (rec-

ognizing that FCC declaratory ruling PRB-1

refused to preempt local regulations, requiring

instead only a ‘reasonable accommodation’

between the antenna height desired by the ama-

teur radio operators and ‘the legitimate interests

of the local governments in regulating local zon-

ing matters’).

Loschiavo, 33 F.3d at 552. (Petitioner’s Appendix A-7)

Contrary to Dearborn’s contentions, the Court of

Appeals for the Ninth Circuit described the provisions of

PRB-1 as follows: “The language of PRB-1 itself confers

only in limited federal preemption, and promotes the

federal interest in amateur radio operations rather than

an individual operator’s right to erect the antenna of his

or her choice”. Howard, 937 F.2d at 1380. The Court in

Howard also noted the following: “The text of the Federal

Communications Act nowhere mentions any right to erect

antennas for ham radio transmissions, nor does it purport

to create binding obligations on local governments to

allow antennas of any particular height.” Heward, 937

F.2d at 1379.

Clearly, the Court of Appeals for the Sixth Circuit

properly distinguished Howard and PRB-1 on the basis

that they were not comparable to the mandatory preemp-

tion as set forth in 47 C.F.R. §25.104.

THIS CASE IS NOT A LAND USE DISPUTE WHICH

SHOULD BE LITIGATED IN THE STATE COURT.

Dearborn in its fourth argument suggests that this

case should not have been litigated in the Federal Courts.

This argument chooses to ignore that many cases regard-

ing this very same issue have been litigated in the Federal

Courts. Furthermore, they have been properly litigated in

the Federal Courts under federal question subject matter

jurisdiction. Plaintiffs are not required to exhaust other

remedies prior to bringing a cause of action under §1983.

Cawley v. City of Port Jervis, 753 F. Supp. 128, 131 (1990)

(Citing Patsy v. Board of Regents, 457 U.S. 496 (1982)). The

Cawley Court also states: “Any person whose rights under

FCC regulations have been denied by a local govern-

mental body has a cause of action under 42 U.S.C. §1983.”

Cawley, 753 F. Supp. at 130 (Citing Van Meter v. Township

of Maplewood, 696 F. Supp. 1024, 1027 (D.N.J. 1988); Alsar

Technologies, Inc. v. Zoning Board of Adjustment, 235 N.J.

Super. L. 471, 563 A.2d 83, 91 (1989); and Golden State

Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989)).

Furthermore, this Court has acknowledged the abil-

ity of Federal Government to preempt state laws in City of

New York v. FCC, 486 U.S. 57 (1988). This Court stated as

follows:

When the Federal Government Acts within the

authority it possesses under the Constitution, it

is empowered to pre-empt state laws to the

extent it is believed that such action is necessary

to achieve its purposes. The Supremacy Clause

of the Constitution gives force to federal action

of this kind by stating that the ‘Laws of the

United States which shall be in Pursuance’ of

the Constitution ‘shall be supreme Law of the

Land.’ U.S. Const., Art. IV, cl. 2. The phrase

‘Laws of the United States’ encompasses both

federal statutes themselves and federal regula-

tions that are properly adopted in accordance with

statutory authorization. For this reason, at the

same time that our decisions have established a

number of ways in which Congress can be

understood to have pre-empted state law, see

Louisiana Public Service Comm’n. v. FCC, 476 U.S.

355, 368-369 (1986), we have also recognized

that ‘a federal agency acting within the scope of

its congressionally delegated authority may pre-

empt state regulation’ and hence render unen-

forceable state or local laws that are otherwise

not inconsistent with federal law. Id. at 369.

(Emphasis added)

City of New York, 486 U.S. at 63-64.

After suggesting that this is not a proper issue to be

litigated in Federal Courts, Dearborn discusses the speci-

fic state remedy which it claims exists with regard to

appeals of decisions from local zoning boards in the State

of Michigan. It is noteworthy at the outset that this is

only the second time which Dearborn has raised this

argument. The first time was in its Petition for Rehearing

En Banc to the Court of Appeals for the Sixth Circuit.

These issues were not raised in its Motion for Summary

Disposition in the District Court, at trial or in post-trial

pleadings. Federal Court jurisdiction and exhaustion of

state law remedies was not raised in briefs filed in the

Sixth Circuit Court and was not discussed at oral argu-

ment. The issue therefore is not properly before this

Court.

Dearborn in its Petition for Writ of Certiorari blends

its argument regarding a specific state law remedy into

its discussion of Parratt v. Taylor, 451 U.S. 527 (1981).

Dearborn’s very broad conclusion after its limited anal-

ysis of Parratt is that Parratt effectively bars causes of

action under 42 U.S.C. §1983 where clear and comprehen-

sive state law remedies exist. A careful review of Parratt

establishes Dearborn’s argument to be flawed.

First, the factual scenario under which this Court

decided Parratt is far from similar to the instant action.

Parratt involved an inmate at a Nebraska penal and cor-

rectional complex who had ordered certain hobby mate-

rials with a value of $23.50. Due to the negligence of

employees at the prison, the hobby materials were lost.

The inmate brought suit in Federal Court under 42 U.S.C.

§1983 alleging jurisdiction under 28 U.S.C. §1343, which

contains no minimum dollar limitation. The inmate’s

claimed deprivation under 42 U.S.C. §1983 was a Four-

teenth Amendment claim for deprivation of property

without due process of law. Parratt, 451 U.S. at 529. In

order to determine whether there was a deprivation of a

constitutional right under §1983, this Court analyzed the

inmate’s Fourteenth Amendment due process claim. The

conclusion of this Court with regard to the Fourteenth

Amendment claim was as follows:

Application of the principles recited above to

this case leads us to conclude the respondent

has not alleged a violation of the Due Process

Clause of the Fourteenth Amendment. Although

he has been deprived of property under color of

state law, the deprivation did not occur as a

result of some established state procedure.

Indeed, the deprivation occurred as a result of

the unauthorized failure of agents of the State to

follow established procedure. There is no con-

tention that the procedures themselves are inad-

equate nor is there any contention that it was

practicable for the state to provide a predepriva-

tion hearing.

Parratt, 451 U.S. at 543.

Thus, the 42 U.S.C. §1983 claim failed because the

Court believed the inmate had not been deprived of any

rights, privileges or immunities secured by the constitu-

tion or laws of the United States, a requirement to sustain

a §1983 action. Dearborn’s argument collapses the hold-

ing in Parratt to conclude that because there was an

adequate state law remedy, the §1983 action was not

available. The adequate state law remedy to redress the

damages was part of the deprivation analysis under the

due process claim under the Fourteenth Amendment. It is

because there was no denial of due process that there was

no deprivation to sustain a 42 U.S.C. §1983 claim. As

such, Dearborn has erroneously suggested to this Court

that Parratt is controlling in the instant action.

Dearborn next suggests to this Court that the Court

of Appeals for the Sixth Circuit decision results in fore-

closure of any ability of a municipality to create an ordi-

nance with regard to satellite dish antennas. This is

simply not the case. Restrictions are permissible, they just

cannot unreasonably restrict or preclude reception, or

impose cost burdens that are excessive in light of the cost

of the installation itself. Within such limits, the munici-

pality’s health, safety and aesthetic concerns can and

should be addressed. However, there must be flexibility

on the part of the municipality. Blanket restrictions that

dishes may not exceed twelve feet in height above grade

are inflexible and unreasonable when reception would be

entirely blocked by trees or buildings if the dish cannot

be elevated above twelve feet. This is precisely what the

Report and Order seeks to stop. As the Loschiavo District

Court implied it is incumbent upon municipalities to

draft ordinances which contain express provisions and

guidelines for permissible alternatives for dishes on

property where satellite lines are blocked. (Petitioner’s

Appendix E-5)

Finally, Dearborn, on the one hand, argues that it

does not want to see a carte blanche for satellite antenna

users, which it claims the FCC declined to provide in 47

C.F.R. §25.104, and then uses in support of its contentions

statements taken out of context from Commissioner Mimi

Weyforth Dawson’s dissent in part from the Report and

Order. It is clear that Dearborn did not completely read

the dissent of Commissioner Dawson, as a complete read-

ing clearly shows that Commissioner Dawson favored

complete and total preemption of all local zoning ordi-

nances with regard to satellite dish antennas. The follow-

ing statements made by Commissioner Dawson in her

dissent evidence her opinion of this issue:

While I am sympathetic to localities’ traditional

role in use planning, this is not purely a local

issue. It involves the right of individuals, as

guaranteed by the First Amendment and the

Communications Act, to receive interstate com-

munications. As Senator Goldwater said in

introducing S.R. 35, ‘as a political conservative, I

believe that each State possesses broad authority

and responsibility on a wide range of subjects.

However, the basic question here is not Federal

preemption of local powers. It is whether cities

and counties can thwart a clear national policy

which has been repeatedly enunciated by the

Congress and the FCC to encourage the devel-

opment of new communications technologies

and services in the public interest.’ 31 Cong.

Rec. 5357 (January 3, 1985, statement of Sen.

Goldwater).

Preemption of Local Zoning, 51 Fed. Reg. at 5527. (Peti-

tioner’s Appendix F-14)

The Court of Appeals for the Sixth Circuit properly

considered all necessary prongs under the 42 U.S.C.

§1983 claim and properly reversed the District Court’s

findings with regard to same.

VI.

THE DECISION OF THE COURT OF APPEALS DOES

NOT RADICALLY ENLARGE THE SCOPE OF 42 U.S.C.

§1983.

Individuals have a cause of action under 42 U.S.C.

§1983 when the conduct complained of was committed by

a person acting under color of state law; and when the

conduct deprived a person of rights, privileges or immu-

nities secured by the constitution or the laws of the

United States. 42 U.S.C. §1983. The first element is not at

issue in this action. The second element is at the heart of

this case. The Court of Appeals for the Sixth Circuit

properly relied upon Wilder v. Virginia Hospital Associa-

tion, 496 U.S. 498 (1990) in its analysis of the Report and

Order under the §1983 test. The Wilder analysis has three

elements, to-wit:

(1) Did congress intend that the subject provi-

sion benefit the Plaintiff;

(2) If so, does the provision create a binding

obligation on the governmental unit rather

than merely “congressional preference”;

and

(3) Is the interest asserted sufficiently clear

that it may be judicially enforced. (Quoting

Golden State Transit Corp. v. Los Angeles, 493

U.S. 103, 106 (1989).

Wilder, 496 U.S. at 509.

The Report and Order was held to have created a

federal right under the Wilder test by the Court of

Appeals for the Sixth Circuit after full analysis of all three

prongs. Loschiavo, 33 F.3d at 552-553. Dearborn’s general

policy argument is not strong enough to overcome the

results reached under the Wilder test.

Dearborn also contends the Sixth Circuit’s decision

conflicts with other Sixth Circuit Opinions, including a

1978 case Studen v. Beebe, 588 F.2d 560 (6th Cir. 1978).

Unfortunately, Dearborn mischaracterizes the holding in

Studen. First, the factual basis for Studen involves a vil-

lage ordinance which rezoned substantial acreage from a

three-tiered zoning area into a single family residence

use. The claims made by the land owner under 42 U.S.C.

§1983 were based upon a denial of due process and equal

protection. The Sixth Circuit held in agreement with the

District Court that the land owner Appellants had failed

to establish denial of due process, and thus they failed to

establish a denial of a federal right, privilege or immu-

nity, and were therefore precluded from success on the

§1983 action. The Loschiavos agree with Studen in that

§1983 does not create a federal cause of action for every

wrong committed under the color of state law. Studen, 588

F.2d at 566. However, in the instant case there is a cause

of action under §1983 because all elements of the Wilder

test have been met.

Furthermore, Studen is not applicable to the instant

action, which is not a zoning dispute, but rather involves

attempted enforcement of an ordinance which is preempted

by the FCC because it differentiates between satellite recep-

tion antennas and other types of antennas, and does not

meet the second prong of the mandatory two prong test. The

federal right at issue here is the right to receive satellite

signal communications by individual citizens through the

use of satellite reception antennas. This right was introduced

by Congress in its amendment to 47 U.S.C. §605 and the

regulation thereafter adopted by the FCC to enforce the

statutorily created policies and rights.

The Studen decision can best be summed up by the

following:

Litigants cannot create federal jurisdiction by

filing an insubstantial action under the civil

right statutes. Burnett, supra, 565 F.2d at 400.

Only deprivations of rights, privileges, or

immunities secured by the Constitution and the

laws of the United States are actionable. Ohio

Inns, supra, 542 F.2d at 679.

The record in the present case reveals no depri-

vation of any rights, privileges or immunities

secured by the Constitution or any laws of the

United States.

Studen, 588 F.2d at 566.

The Sixth Circuit Court of Appeals proper analysis of

this issue led to a conclusion that there is a deprivation of

a right secured by the laws of the United States, and as

such a private right of action under 42 U.S.C. §1983

exists.

CONCLUSION

There is no conflict between the Sixth and Ninth

Circuits as the Ninth Circuit did not address whether a

private right of action under 42 U.S.C. §1983 exists to

enforce rights under 47 C.F.R. §25.104. This writer has

found no other circuit opinions discussing this issue.

Second, the Court of Appeals, after lengthy analysis

under the Wilder test determined that 47 C.F.R. §25.104

created an enforceable right under 42 U.S.C. §1983.

Third, the Court of Appeals properly evaluated the

reasonableness of the Dearborn Ordinance. It reviewed

the factual findings of the District Court finding no error

regarding the unreasonable limitations the Dearborn

Ordinance placed on reception.

Fourth, the Court of Appeals properly determined

that Howard v. City of Burlingame, 937 F.2d 1376 (9th Cir.

1991) dealing with FCC Regulation, PRB-1, was distin-

guishable and inapplicable to a 42 U.S.C. §1983 claim for

impairment of the rights conferred under 47 C.FR.

§25.104.

Fifth, the instant action involves mandatory federal

preemption under 47 C.F.R. §25.104 of state and local

laws which discriminate against satellite reception

antennas. This cause is within the jurisdiction of the

Federal Courts under federal question jurisdiction. Fur-

ther, available state law remedies need not be exhausted

before a claim under 42 U.S.C. §1983 can be brought for

deprivation of rights under 47 C.F.R. §25.104.

Lastly, the Court of Appeals did not radically enlarge

or depart from the intent of 42 U.S.C. §1983 as they

sustained the Loschiavos’ claim under §1983 only after

finding that all prongs of the Wilder test had been met.

For all of these reasons, it is requested that this

Honorable Court deny Dearborn’s Petition for Writ of

Certiorari.

Respectfully submitted,

WiiuiaMs, SCHAEFER, Rusy &

WituaMs, P.C.

JOHN W. Grirren, Jr. (P14375)*

LisA SyMULA-NAHIKIAN (P41171)

KrisTINE L. Cook (P49748)

Attorneys for Respondents

380 North Woodward Avenue,

Suite 300

Birmingham, Michigan 48009

(810) 642-0333

*Counsel of Record

Dated: January 9, 1995

No. 94-1040

In The

Supreme Court of the United States

October Term, 1994

OTE Tae ne ee

CITY OF DEARBORN,

Petitioner,

VS.

RONALD LOSCHIAVO and

DONNA LOSCHIAVO, his wife,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

APPENDIX TO BRIEF IN RESPONSE TO

PETITION FOR WRIT OF CERTIORARI

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 25

[CC Docket No. 85-87; FCC 86-28]

Common Carrier Services; Preemption of Local Zoning

and Other Regulation of Receive-only Satellite Earth

Stations

AGENCY: Federal Communications Commission.

ACTION: Report and Order.

SUMMARY: This action adopts a final rule stating Com-

mission policy with respect to federal preemption of local

regulation of satellite earth stations. This rule is necessary

to ensure that non-federal regulations do not interfere

unreasonably with the federal right to construct and use

antennas to receive satellite delivered signals. Under this

rule, non-federal regulations which differentiate in their

treatment of satellite earth stations are preempted unless

they have a valid health, safety or aesthetic objective and

do not impose unreasonable limitations on reception.

Regulation of transmitting antennas is similarly pre-

empted except that non-federal health and safety regula-

tion is not preempted.

EFFECTIVE DATE: March 14, 1986.

ADDRESS: Federal Communications

Commission, 1919 M Street, NW.,

Washington, DC 20554.

FOR FURTHER INFORMATION CONTRACT:

Rosalee C. Gorman, (202) 634-1781.

SUPPLEMENTARY INFORMATION:

List of Subjects in 47 CFR Part 25

Communications common carriers, communications

equipment, Radio, Satellites.

Report and Order

In the matter of Preemption of Local Zoning or other

Regulation of Receive-Only Satellite Earth Stations (CC

Docket No. 85-87).

Adopted: January 14, 1986.

Released: February 5, 1986.

By the Commission: Commissioner Dawson dissent-

ing and issuing a statement.

I. Introduction

1. On March 28, 1985 the Commission issued a

Notice of Proposed Rulemaking (Notice)! stating its initial

determination to adopt a rule preempting certain state

and local zoning or other regulations of satellite receive-

only antennas.? We have received extensive comments on

a wide variety of issues raised in connection with this

1 Preemption of Local Zoning Regulations of Receive-Only

Satellite Earth Stations, 50 FR 13966 (April 9, 1985).

2 This action was taken in response to a Petition for Declar-

atory Ruling filed by United Satellite Communications, Inc.

Because of the significant local interest in the issues involved

and due to the limited record compiled, especially with respect

to the views of local governments, we issued a Notice of Pro-

posed Rulemaking soliciting further comments.

proceeding and are now in a position to adopt a final

rule. The rule we are adopting is:

State and local zoning or other regulations that dif-

ferentiate between satellite receive-only antennas and

other types of antenna facilities are preempted unless

such regulations

(a) Have a reasonable and clearly defined health,

safety or aesthetic objective; and

(b) Do not operate to impose unreasonable limita-

tions on, or prevent, reception of satellite delivered sig-

nals by receive-only antennas or to impose costs on the

users of such antennas that are excessive in light of the

purchase and installation cost of the equipment.

Regulation of satellite transmitting antennas is pre-

empted in the same manner except that state and local

health and safety regulation is not preempted.

2. This rule differs from that originally proposed?

reflecting modifications made in response to the com-

ments submitted.4 Due to the large number of documents

3 The proposed rule read as follows: “State and local zoning

or other regulations that discriminate against satellite receive-

only antennas in favor of other communications facilities are

preempted unless they have a direct and tangible relationship to

reasonable, valid, demonstrable and clearly articulated health,

safety or aesthetic objectives and constitute the least restrictive

method available to accomplish such objectives.”

* Several parties have made specific alternative rule pro-

posals. Although none of these suggestions has been adopted in

full, aspects of these proposals have been adopted in full,

aspects of these proposals have been incorporated in our final

filed in this matter,5 we will not discuss each individually.

However, all parties’ suggestions have been fully consid-

ered.

3. In making our initial proposal, we determined

that we had the legal authority to preempt® and that a

limited preemption of state and local zoning regulation

was warranted.” The objective of the Notice was to solicit

comments on the implementation of such a preemption,

recognizing our obligation to ensure that federal commu-

nications policies are not frustrated while also acknowl-

edging the strong, non-federal interest in land use

regulation.

Il. Comments

A. Authority to Preempt

4. Commenters in agreement with our decision to

preempt analyzed precedent supporting such Commis-

sion action.? Preemption, according to proponents, is

action. See, e.g., Comments of RCA Communications, Inc.

(RCA), Hughes Communications, Inc. (Hughes), and Satellite

Television Industry Association, Inc. (Space).

5 Approximately 170 comments were filed in this proceed-

ing in addition to many informal letters indicating interest and

over 2000 postcards supporting preemption. A list of the com-

menters is attached as Appendix A.

6 Notice at paras. 9-21.

7 Id. at para. 30.

8 Id. at para. 17.

9 See e.g., Comments of Hughes, Space, Cable Com. Corp.

fully consistent with Commission policy, has been sus-

tained in court challenges,!° and is not limited to cases in

which discrimination is found.!!

5. Parties opposing preemption!? argued that the

federal interest in the availability of satellite-delivered

service is insufficient to rebut the presumption of validity

which attaches to local regulation of traditionally local

matters.!3 The League stated that municipal regulation

does not directly affect the availability of Commission

licensed satellites. Where alternative methods to receive

video entertainment programming exist, (i.e. cable televi-

sion, direct broadcase [sic] satellites, multipoint distribu-

tion systems), a federal preemption allowing the

unregulated proliferation of satellite antennas where no

fee is paid for programming will hurt these other services

by depriving them of revenue which will in turn hurt the

satellite industry by affecting its financial base.14 The

10 Comments of SPACE, Curtis Mathes Corp./Southern

Satellite Systems, Inc./Spectrodyne, Inc. (Curtis Mathes), RCA.

11 Comments of Brooks Satellite, Inc. at 4.

12 At the suggestion of the National League of Cities

(League), many cities stated objections to our proposed preemp-

tion. These were (1) the action is an improper federal inter-

ference in traditionally local matters; (2) the Commission does

not have authority to preempt under the Communications Act;

(3) local law provides adequate remedies; (4) preemption would

impose unreasonable administrative burdens on states and

localities. See, e.g., Comments of Manhattan Beach, Ca.

13 Space contends that this assertion is incorrect because

the lawfulness of preemption action depends upon the impact

local regulation has on federal objectives and not on the degree

of local interest. Space comments at 6.

14 League Comments at 5.

League argues that by eliminating local regulation the

Commission may harm rather than advance its federal

objective.

6. Section 705 of the Communications Act 47 U.S.C.

705, according to the League, creates only a limited “sanc-

tion” of reception of satellite delivered programming.

Brooks Satellite, Inc. (Brooks), in contrast, calls section

705 rights “unequivocal” and “fundamental.”!5 The

League would limit the application of a case relied upon

for preemption authority!® on the basis of the “unique

characteristics of MDS” where entry regulation was pre-

empted because a reduction of reception points in one

state placed a burden on interstate commerce.!7

7. The McLean Citizens Association (McLean Citi-

zens) stated that the cases relied on as precedent for

Commission preemption were inapplicable because they

involved state regulation of entry by new communica-

tions services. Comments filed by United States Satellite

Broadcasting Co., Inc. (USSB), although favoring preemp-

tion, cautioned that the Commission must take care to

respect the “legitimate land use concerns of state and

15 Comments of Brooks at 11.

16 In the Matter of Orth-O-Vision, Inc., 69 FCC 2d 657

(1978), aff'd sub nom. New York State Commission on Cable

Television v. FCC, 669 F.2d 58 (2d Cir. 1982) (Ortho-O-Vision).

The League does not comment on our order in Earth Satellite

Communications, Inc., 95 FCC 2d 1223 (1983), aff'd sub nom.

New York State Commission on Cable Television v. FCC, 749 F.

2d 804 (D.C. Cir. 1964) (Earth Satellite) which preempted state

regulation of SMATV systems where signals were delivered by

satellite.

17 League comments at para. 4.

local governments.” USSB agreed with McLean Citizens

that there is a distinction between federal preemption

authority exercised under the Interstate Commerce

Clause when the regulations are economic as opposed to

based on state police powers. It stated that the Commis-

sion should try to harmonize its rule with legitimate

zoning enactments!

8. The League also asserted that the record before

the Commission does not establish the existence of a

problem and that therefore Commission action is

unjustified.1° Other parties disagreed, offering examples

of ordinances which would violate the proposed preemp-

tion rule, detailing individual problems with restrictive

zoning, and citing cases in which a denial of an applica-

tion to install an antenna was sustained by court action,

thus preventing the reception of programming.2°

9. A final objection by the League is that the Com-

mission’s preemption will result in a significant amount

of litigation and necessitate review by either the Commis-

sion or the courts. Because the proposed rule’s standards

are vague, judicial review would result in inconsistencies

18 USSB cited Hybud Equipment Corp. v. Akron, 645 F.2d

1187, 1194 (6th Cir. 1961) in support of this proposition. The

constitutional basis of the Communications Act is the Interstate

Commerce Clause.

19 League Comments at 11 quoting Home Box Office, Inc. v.

FCC, 567 F.2d 9, 36 (D.C. Cir. 1977).

20 Space comments at 5-8; USSB Comments at 1-3. Other

parties’ comments described particular difficulties that individ-

ual companies have encountered. See, e.g., Comments of Atlan-

tic Satellite, Spectradyne, American Satellite, District Broadcast

Satellite Association, Curtis Mathes.

and agency review would impose extraordinary burdens

on the Commission and on local authorities. Space rep-

lied that the adoption of a national standard would

reduce litigation and encourage accommodation of dis-

putes between antenna users and communities.?!

B. Implementation of Rule

10. Most parties, whether in favor of, or opposed to,

preemption, offered suggestions with respect to the scope

of the specific rule to be adopted. Many believed that

requirements of the rule were vague and unclear and

stated that it did not offer sufficient guidance to local

communities? or would not be susceptible to application

in specific cases.?3

11. Some commenters suggested that the “discrimi-

nation” requirement be stricter and invalidate any regula-

tion that discriminates in effect as well as on its face.?4

Others asserted that the phrase “in favor of other commu-

”

nication facilities” be deleted because this created a

harder burden for those challenging local action.2> Sev-

eral parties suggested deleting the entire discrimination

21 Reply Comments of Space at 8-9.

22 Comments of American Planning Association (APA),

Mutual Broadcasting System, Inc.

23 Comments of National Satellite Cable Association and

Hughes.

24 Comments of USSB at 3.

25 Comments of Equatorial Communication Services [Equa-

torial] and Associated Press.

requirement, stating that the proper focus of preemption

should be on the effect of the local regulation on federal

objectives and not on differences in treatment.26

12. It was also urged by opponents that we delete

the “least restrictive means” test. They claimed that

requiring the least restrictive alternative would prevent

zoning for legitimate objectives such as historical preser-

vation.?” Space argued that the least restrictive means test

was consistent with first amendment requirements where

local regulations were restricting constitutionally pro-

tected communications.?8

13. Several cities and representative groups stated

that the proposed rule’s general exception for ordinances

enacted pursuant to police power objectives was duplica-

tive as general zoning law requires that regulations be

based on legitimate health, safety or, in some cases, aes-

thetic objectives.2? They asserted that such a rule was

thus unnecessary. Some preemption advocates also objec-

ted to this criterion because it would allow circumvention

of the discrimination requirement by creating multiple

26 Comments of Curtis Mathes, Cablecom and Hughes,

Contra, Comments of M/A Com and Equatorial urging that a

clear stand be taken against discrimination.

27 Comments of National Trust for Historic Preservation.

See also Comments of National Capital Planning Association.

28 Comments of Space at 12-15.

29 See Comments of APA. See also Reply Comments of Space

at 13. Comments of the National Capital Planning Commission

at 7 requested the inclusion of “security” as a criteria but did not

elaborate.

10A

loopholes.3° SPACE asked that any aesthetic zoning

power be limited to “bona fide historic districts” that also

restrict other “accoutrement or modern living.”3! Ameri-

can Satellite suggested that any health hazard relied upon

by local authorities be required to be documented.%?

14. Some commenters suggested preemption guide-

lines based on size and land use characteristics of the

proposed antenna site. For example, the International

Association of Satellite Users and Suppliers [I[ASUS] pro-

posed an absolute preemption for construction in indus-

trial, commercial and high density areas as well as for

antennas of less than 3.5 meters with a limited preemp-

tion allowing non-aesthetically based regulation of

antennas over 3.5 meters in low density single family

zones.*3

C. Alternative Approaches

15. The APA asserts that the Commission should

avoid the vagueness of the proposed rule by exercising

preemption on a case-by-case basis and only in those

30 Comments of International Association of Satellite Users

and Suppliers at 6.

31 Comments of Space at 17. Cable Com. Corp. at 7 sug-

gested eliminating aesthetics as an acceptable local objective.

32 Comments of American Satellite at 1.

33 See also Comments of M/A Com. Brooks, USSB, Sat Time

Inc., Direct Broadcast Satellite Association (DBSA) and National

Association of Broadcasters (NAB) with respect to suggested

size criteria. Cf. Comments of Contemporary Communications

Corp. which cautioned against emphasis on size or physical

characteristics of antennas.

11A

instances where one communications technology is

favored over another. Although acknowledging that the

Commission’s administrative burden might be increased

under this approach, the APA maintained that there

would only be a few cases of egregious discrimination

necessitating review.*4

16. Many parties supporting preemption action

urged that any final rules be extended to transmitting as

well as receiving antennas despite our tentative decision

to limit consideration to the latter.55 The rationale offered

for this suggestion is that many smaller transmitting

antennas are not visually or otherwise different from

receive-only facilities and thus should not be subject to

discriminatory local regulation.** These commenters [sic]

argue that the record established in this proceedings is

sufficient to justify Commission action with respect to

transmitting antennas.*” It was also suggested that the

34 Comments of APA at 9. Many cities agreed with APA’s

recommended approach. See e.g. Cincinnati, Ohio; Tuscaloosa,

Ala; Warwick, R.I. See also Comments of David Preece.

35 See e.g., Comments of Equatorial; Hughes; IASUS; RCA;

Public Broadcasting Service (PBS); Satellite Business Systems

(SBS); M/A Com; Atlantic Satellite; Sat Time, Inc. See also Com-

ments of Contemporary Communications Corp. which urged

extension to all telecommunications antennas.

36 Comments of PBS. See also Comments of RCA which

suggest a presumption against local regulation of antennas

under 2 meters in order to encourage construction of small

antenna business networks to operate in the 12/14 GHz fre-

quency bands.

37 See Reply Comments of PBS.

12A

Commission, by establishing the ANSI standards for reg-

ulation of radiation levels of transmitting equipment, has

already preempted local control for health objectives.**

17. Other parties asserted that because we had

stated a tentative conclusion to limit the rule under con-

sideration to receive-only antennas, a new rulemaking

might have to be established to consider preemption of

local regulation of transmit antennas.*?

18. Parties on both sides of the issue requested that

in addition to, or instead of, a general rule, we should

give examples of those ordinances or regulations that

would be acceptable under our preemption standards.*°

Space, however, cautioned that such an approach was

inadvisable because in limiting our rule with such exam-

ples, a wide variety of “local abuses” would not be prop-

erly addressed.*!

38 See Comments of Atlantic Satellite citing LIMA Partners

vs. Northvale, Docket No. L-17049-84 P.W. (Superior Court of

New Jersey, Law Division, Bergen County, May 10, 1985) where

a state court reached this conclusion.

39 See Comments of NAB, Atlantic Satellite has filed a peti-

tion requesting the establishment of a separate rulemaking to

consider preemption of local regulation of satellite transmitting

antennas. RM-5021.

40 See Comments of National Capital Planning Association

at 8; Curtis Mathes at 5.

41 Comments of Space at 13.

13A

D. Other Issues

19. The League suggested that our preemption

action would violate both the National Environmental

Policy Act (NEPA) and the Regulatory Flexibility Act.42

With respect to the former, it stated that under NEPA

standards, the Commission is obligated to consider the

authorization of an antenna over 30 feet in diameter or

those to be built in an historic or scenic area a major

action requiring an environmental impact statement.*?

The League contended that a similar approach is required

in adopting a final preemption rule. Space, however,

states that because the Commission is not authorizing

any construction here and because the receive-only

antennas under consideration are not required to be

licensed, there is no inconsistency with NEPA. In addi-

tion, receive-only antennas usually do not approach

thirty feet in height or diameter and therefore even if this

rulemaking were an NEPA defined “action,” no environ-

mental policies have been implicated.“

20. The League also asserts that the Notice did not

comply with the Regulatory Flexibility Act.45 According

to the League, we did not consider alternative approaches

42 42 U.S.C. 4321 et seq.; 5 U.S.C. 601 et seq.

43 Comments of League at 17.

#4 Reply Comments of Space.

45 Comments of League at 18. We are considering this issue

raised by the League’s comments despite the fact that it failed to

submit separate comments directed to our initial Regulatory

Flexibility Analysis as required by paragraph 34 of our Notice.

14A

such as exempting small cities from preemption or allow-

ing any compliance with our rules to be voluntary. Space

disagreed, asserting that any exemption for small juris-

dictions would circumvent Commission objectives in

proposing a uniform regulatory policy. In addition, the

rule would not impose any new record keeping or other

additional administrative filing requirements on small

cities, a determination which was made in our Initial

Regulatory Flexibility Statement.

21. The National Trust for Historic Preservation

(Trust) stated that the Commission illegally ignored the

provisions of the National Historic Preservation Act by

failing to consult with the Trust prior to enacting any

rule. In addition, the Trust asserted that because historic

preservation is also a federal objective, preemption is not

authorized.

22. Both the District of Columbia and the National

Capital Planning Association asserted that because zon-

ing regulation in the District is promulgated under fed-

eral auspices, the Commission cannot preempt these

regulations.

III. Discussion

A. Preemption

23. In our Notice we concluded that we had the

authority to preempt non-federal regulations which stood

as obstacles to the accomplishment of federal objectives.

We determined that the broad mandate of Section 1 of the

Communications Act, 47 U.S.C. 151, to make communica-

tions services available to all people of the United States

15A

and the numerous powers granted by Title III of the Act

with respect to the establishment of a unified communi-

cations system* establish the existence of a congressional

objective in this area. More specifically, the recent amend-

ment to the Communications Act, 47 U.S.C. 705, creates

certain rights to receive unscrambled and unmarketed

satellite signals.47 These statutory provisions establish a

federal interest in assuring that the right to construct and

use antennas to receive satellite delivered signals is not

unreasonably restricted by local regulation.

24. As stated in our Notice,4® when “state regulation

stands as an obstacle to the accomplishment of a congres-

sional purpose,” such regulation is subject preemption.*?

Our conclusion was that the record showed local and

state regulatory interference with established federal

objectives and thus some of [sic] preemption was war-

ranted.

46 Earth Satellite Communications, Inc., note 16. supra, cit-

ing General Telephone Co. of California v. FCC, 413 F.2d 390,

396, 401 (D.C. Cir. 1969).

47 The state court cases cited by the League at pp. 9-10 of its

comments for the proposition that the Communications Act

does not authorize preemption of zoning involve [sic] questions

with respect to height limitations on amateur radio facilities. In

this proceeding, we are not preempting reasonable, non-

discriminatory local restrictions. In addition these cases do not

involve section 705 rights.

48 Notice at para. 9.

49 Capital Cities Cable, Inc. v. Crisp, 104 S. Ct. 2694 (1984).

See also Michigan Canners and Freezers Association, Inc. v.

Agricultural Marketing and Bargaining Board, 104 S. Ct. 2518

(1984); Florida Avocado Growers v. Paul, 373 U.S. 132 (1963);

Hines v. Davidowitz, 312 U.S. 52 (1941).

16A

25. The comments submitted in this proceeding do

not support a contrary conclusion and thus our final rule

will implement a limited preemption. The arguments

offered by commenters opposed to preemption state that

a federal objective has not been established because other

means of obtaining video programming are available and

that a preemption in this proceeding would harm other

services. This position ignores the clear statement in our

Notice that we will not permit a state to arbitrarily favor

one particular communications service over another and

that local ordinances which engage in arbitrary discrimi-

nation will be preempted. The existence of alternative

communications media is not a sufficient justification for

discriminatory local regulations. In many cases, satellites

deliver a wider range of programming than that available

over other media such as cable television systems or

MDS. Thus, local regulation may deprive local residents

of access to the broader range of choices available to

antenna users in other parts of the country. In addition,

this Commission repeatedly has emphasized its policies

to maximize consumer choices by developing a competi-

tive marketplace for the provision of telecommunications

goods and services.°!

50 The League claims that cable television systems are the

primary method of delivering video programming and that

existence of a dual federal-local regulatory scheme for that ser-

vice precludes preemption action with respect to satellite

antennas.

51 See e.g., Policy and Rules Concerning rates for Competi-

tive Common Carrier Service and Facilities Authorizations

Therefore, 95 FCC 2d 554 (1983).

17A

26. If individuals cannot use antennas to receive

satellite delivered signals because of discrimination or

excessive state and local regulation, their right of access

as established by section 705 to interstate communica-

tions delivered by satellite will be useless.52 Whether the

use of satellite antennas will cause economic harm to

other communications industries is not a proper basis for

local regulations that effectively deny citizens direct

access to satellites. Such regulations would frustrate our

competitive regulatory policies which have been promul-

gated to provide for a variety of services by consumers. It

would be contrary to those policies to permit discrimina-

tory local regulation which reduces the range of choice.

27. The League and most commenting cities? have

emphasized the traditionally local nature of zoning regu-

lations. We recognized this concern in our Notice®4 and it

was this factor which resulted in our original conclusion

to propose a limited preemption. Despite this recognition,

it must be emphasized that the relative importance to

states or local jurisdictions of their own laws is not the

proper focus in a decision to preempt.5> The Supreme

Court has recently held that a local transit authority was

required to comply with the federal minimum wage and

52 See Notice at para. 10.

33 See, e.g., Comments of Mankato, Minn.; Aurora, Colo.;

Delaware County Planning Dept.

4 Notice at para. 15. See also Columbia Plaza Ltd. Partner-

ship v. Cowles, 403 F.Supp. 1337 (D. D.C. 1975).

55 Free v. Bland, 369 U.S. 663, 686 (1962). See also Fidelity

Federal Savings and Loan Assoc. v. De La Cuesta, 458 U.S. 141,

153 (1982).

18A

overtime requirements. The transit authority claimed it

was immune from federal regulation when operating in

areas of traditional local government functions. The court

held that. “a rule of state immunity from federal regula-

tion that turns on a judicial appraisal of whether a partic-

ular governmental function is ‘integral’ or ‘traditional’ ”

in that it cannot be argued that preemption is automat-

ically precluded merely because zoning has been called a

traditionally local matter.

28. Other parties have questioned our reliance on

prior Commission actions that have preempted state reg-

ulation of MDS: and SMATV systems*7 pointing out that

these cases involved non-federal economic regulations

and not those promulgated under states’ police powers

such as zoning.*® An analysis of cases cited which

address this issue, however, demonstrates that the ques-

tion of preemption authorized under the Interstate Com-

merce Clause is not dependent on whether the regulation

at issue is economic but on whether its effect on interstate

commerce is more than “incidental.”°? In this proceeding,

5¢ Garcia v. San Antonio Metropolitan Transit Authority,

105 S. Ct. 1005, 1016 (1985).

57 Orth-O-Vision, supra note 16; Earth Satellite, supra note

16. See Canton Township v. Brenner, No. 86 CT3551 (35th Dist.

Ct. Plymouth, Michigan September 26, 1985) at 10 where the

Court stated that the Commission in its Earth Satellite order has

already preempted local zoning regulation “to a significant

extent.”

58 Comments on McLean Citizens.

59 Hybud Equipment Corp. v. Akron, 654 F.2d 1187, 1194

(6th Cir. 1981) citing Hughes v. Oklahoma 441 U.S. 322 (1979).

19A

the communications delivered by satellite are unques-

tionably interstate in nature and, as we found in the

Notice, denial or reasonable access to antenna facilities

significantly, not incidentally, interferes with individual

rights to receive such communications.

29. An additional contention raised by commenters

opposed to preemption is that the existence of a problem

has not been sufficiently established to warrant action.

However, the volume of comments submitted which

detail significant problems with local zoning encountered

by antenna users leads to a contrary conclusion.®© In

addition, the existence of cases in which an antenna user

was able to obtain a favorable court result is insufficient

evidence upon which to base a conclusion that a rule is

unnecessary, especially when other cases to the contrary

some cases and to those who can afford litigation is not

determinative of our ability or of the necessity to preempt

state regulations when they are obstructing federal objec-

tives.

Baltimore, Md., and Gaithersburg, Md. See also note 20, supra.

61 For a favorable result, see Morgan v. Coral Gables,

#83-42783 C.S. 22 (Cir. Ct. Fla. June 18, 1984); Canton v. Brenner,

No. 85 CT 3551. For a contrary result, see Minars v. Rose,

#13686 /84. (Special Team, Nassau Co., NY, March 25, 1985);

Gouge v. Snellville, 287 S.E.2d 539 (Sup. Ct. Ga. 1982). See also

Reply Comments of Space at 7-8.

20A

B. Final Rule

30. Most commenters urged that we make adjust-

ments to our final rule that would clarify its requirements

and offer more effective guidance to local communities.®

In formulating the rule adopted here, we have taken into

consideration the criticism of our original proposal and to

the extent possible in a general policy statement, have

made our standard clearer and easier to apply to specific

situations.

31. We have retained the criterion that a preempt-

ible regulation must differentiate but have modified the

rule to apply only to antenna facilities. This change is

based on our conclusion that to require comparable treat-

ment for antennas and cable systems would be unwork-

able in light of their distinct technologies.® This action is

not a retreat from our condemnation of ordinances such

as that of Chicago which prompted the petition initiating

this rulemaking.** The Chicago ordinance imposed its

62 We adopt USSB’s suggestion that our preemption apply

to all non-federal action including ordinances, statutes and reg-

ulations. In addition, we have received comments filed by Max

Dean Parsons which urge extension of preemption to private

restrictions such as those found in deed convenants. This issue

was not raised in our Notice and raises some issues not pre-

sented in a consideration of local governmental action. We

decline to rule on it in this proceeding and deny the request.

63 See Comments of Hughes which indicate that construc-

tion approval requirements may differ for small satellite

antennas and inner-city cable construction.

64 See Notice at paras. 17-21. Any ordinance enacted solely

for the purpose of giving economic protection to a cable system

might be invalid under state law. See Comments of League at 12

21A

stringent procedural requirements only on applications

for satellite antennas and thus would differentiate in the

treatment of other antenna facilities. This ordinance

would be subject to preemption under our final rule

because it would not comply with paragraphs (a) and (b).

32. Non-federal regulations may impose, under our

adopted rule, reasonable requirements on all antennas as

long as these local standards are uniformly applied and

do not single out satellite receive-only facilities for differ-

ent treatment.® An ordinance attempting to regulate all

antennas by enacting restrictions on those of a certain

shape, for example a ban on all spherical antennas, would

differentiate between satellite antennas and other types

of facilities and therefore would be preempted under our

rule. Communities wishing to preserve their historic

character may limit the construction of “modern

accoutrements” provided that such limitations affect all

this rule we intend that it be a valid accommodation of

local interests as well as of two federal interests, namely

which cites 8 McQuillin. The Law of Municipal Corporation,

Sec. 25.61 at 161 (3d. ed. 1971) for the proposition that zoning

ordinances must be equal in operation and effect.

65 Some Commenters claim that the impact on interstate

commerce and not discriminatory treatment is the proper focus

of a preemption action. See, e.g., Comments of Curtis Mathes

and Hughes. It is precisely our concern that states are imper-

missibly burdening interstate satellite service that leads us to

issue this preemption.

66 See Comments of National Trust, National Capital Plan-

ning Association, Space.

22A

promoting interstate communications and historic preser-

vation.°7 Communities which are truly concerned with

preserving their unique historic character may do so if

they do not discriminate against satellite receive-only

antennas.

33. If a community chooses to enact an ordinance

which differentiates in its treatment of different types of

antennas, it must bear a high burden. Our objective is to

ensure that satellite receiving antennas are not treated

less favorably than other antenna devices such as Ama-

teur Radio antennas and Satellite Master Antenna Sys-

tems (SMATVs).°§ A community must demonstrate that

67 The National Trust states that sections 106 & 110 of the

National Historic Preservation Act, 16 U.S.C. 470 et seq., requires

us to consult with them prior to rulemaking. Even if the asser-

tion is correct, the National Trust had full opportunity to com-

ment and its comments have been considered in formulating the

final rule.

68 See, e.g., Federal Preemption of State and Local Regula-

tions Pertaining to Amateur Radio Facilities, 50 Fed. Reg. 38813

(September 25, 1985) where we stated: “State and local regula-

tions that operate to preclude amateur communications in their

communities are in direct conflict with federal objectives and

must be preempted.” See also Earth Satellite Communications,

Inc., supra note 16, where we stated: “we do not wish to pre-

clude a state or locality from exercising jurisdiction over certain

elements of an SMATV operation that properly may fall within

its authority, such as zoning or public safety and health, pro-

vided the regulation in question is not undertaken as a pretext

for the actual purpose of frustrating achievement of the preemi-

nent federal objective and so long as the nonfederal regulation

is applied in a nondiscriminatory manner. Local authority over

such concerns must be exercised so that a local jurisdiction in

fact does not inhibit or interfere with the delivery of interstate

signals through the exercise of its authority.”

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its regulation meets both paragraphs (a) and (b) of our

rule. With respect to paragraph (a), we agree with the

commenters who said that our original proposal should

be recast to reduce undefined and vague terms.®? The rule

has been revised in an effort to respond to that criticism,

but any general policy formulation will have aspects

subject to varying interpretations.

34. We have retained the use of health, safety and

aesthetic objectives”? but have merely required these to

be “reasonable” and “clearly defined.” These terms are

readily susceptible to application by local authorities and

give some flexibility in the application of local regula-

tions to individual locations.”1 To be more specific in a

general national policy statement would be inadvisable.72

In addition, requiring local authorities to justify a differ-

entiation in treatment will help ensure that local zoning

power is not used to restrict unreasonably the installation

of satellite receive-only antennas.

6? Such terms as “valid”, “clearly demonstrable” and

“direct and tangible relationship” were in this category. See

comments of National Satellite Cable Association.

70 We find that the National Capital Planning, Association’s

suggestion to include “security” as a criteria has no relevance to

the issues raised here as national security issues relating to

communications are subject to federal, not state, jurisdiction.

71 It was such flexibility that many cities insisted was nec-

essary if they were to exercise legitimate zoning powers. See

Comments of David J. Preese; League at 7.

72 For example, we cannot say that the requirements of 10

as opposed to 5 bushes of a certain kind or size for screening of

satellite antennas is unreasonable without becoming involved

as a national zoning arbitrator, a result we sought to avoid in

our Notice.

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35. Although many commenters have argued that

all aesthetic regulation should be preempted,7> or

severely restricted,”* under prevailing law, aesthetics are

permissible regulatory objectives. The preservation of

such community values has been sustained even in light

of first amendment challenges. Thus, any preemption

which failed to recognize this strong local interest would

not be sound.”>

36. In addition to defining the reasonable objective

of an ordinance which differentiates in its treatment of

antennas, a community is limited in the types of restric-

tions it can apply. It cannot unreasonably limit or prevent

reception by requiring, for example, that a receive-only

antenna be screened so that line of sight” is obscured.

Moreover, an ordinance which discriminates cannot

73 See Comments of Curtis Mathes.

74 See Comments of Space.

79 See Notice at n. 21 and cases cited there where we noted

the Supreme Court’s requirements of careful scrutiny of local

aesthetic regulations which involve first amendment considera-

tions. Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).

See also Canton v. Brenner, No. 85 CT 3551. L.I.M.A. Partners v.

Borough of Northvale, Doc. No. 17049-84(PW) (May 10, 1985).

Because we are relying on our statutory authority under the

Communications Act as a basis for preemption, we are not

reaching first amendment issue raised in connection with the

proceeding.

76 A receive-only antenna must have an unobstructed line

of sight to a satellite in order to receive signals. It has been

asserted by SPACE that cities, in enacting zoning ordinances,

were sometimes unaware of the technical requirements for

reception. Reply Comment at 4.

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impose size restrictions only on receive-only antennas

which would effectively preclude reception.77

37. As a further standard we are requiring that any

local restriction which fails to meet our discrimination

tests must not impose costs which are excessive in light of

the costs of the equipment. Again, in a general policy

statement, it is inadvisable to specify what “excessive”

would mean in a particular situation but we are confident

that local authorities who are familiar with local situa-

tions will be capable of making accurate distinctions.7§ If

antenna users are not satisfied with the results of local

determinations, it would be within the ability of a court

to make legal determinations of reasonableness or exces-

siveness.

38. The requirements of paragraph (b) are more

specific and more easily applied than our original “less

restrictive means” test. We agree with some commenters

that the proposed requirement would be difficult to apply

and might lead to unintended results.79

77 Under current technology, an antenna must be at least 8

to 12 feet in diameter to adequately receive video signals trans-

mitted by satellite. Space Reply Comments at 15 n. 7. Antenna

size for Direct Broadcasting Service reception can be much

smaller but that service has not as yet been instituted.

78 This is the type of flexibility that cities have said they

need to effectively enforce their zoning power. See Comments of

Midland, Mich.; Pinellas Park, Fla.; Carmel by the Sea, Ca.;

Connecticut Siting Council. Examples of excessive costs might

be high filing fees or unreasonable hearing requirements.

79 See, e.g., Comments of Trust at 2.

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C. Alternatives

39. It has been suggested that instead of adopting a

general policy statement, we should review specific zon-

ing cases to determine if preemption is warranted in

individual situations.8° We rejected this approach in our

Noiice and disagree with the APA and others that the

administrative burden created by case-by-case review

will be minimal. Initially, as we stated in the Notice, we

do not intend to operate as a national zoning board.

Those cities commenting have consistently indicated their

opposition to Commission involvement in local disputes

and such individual review will increase rather than

decrease a national presence. By issuing a rule, we expect

that local authorities will conform their regulations to our

standards and that they will make determinations which

are in the best interests of their communities that reflect

federal policy. Commission intervention in individual

cases as a general policy will not further this objective.

40. We also disagree with the suggestion that if we

impose a stringent threshold discrimination test, we need

not adopt a general rule and could minimize the extent of

Commission involvement in a policy which would

instead require case-by-case review.®! There has been

increased interest and publicity surrounding this issue

and we conclude that the large number of cases which

might be presented for individual review would place a

severe burden on our administrative process. Satellite

80 See para. 14 supra.

81 Our preemption is broader than that suggested by APA

by requiring that discriminatory ordinances be justified.

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antenna users who are dissatisfied with the results of any

local zoning decision can use the standards adopted here

in pursuing any legal remedies they might have.82 In

addition, we would entertain requests for further action if

it appears that local authorities are generally failing to

abide by our standards.®° Any party requesting Commis-

sion review of a controversy will be expected to show

that other remedies have been exhausted.

41. Many of the comments submitted urge us to

include transmitting antennas in our preemption. Trans-

mitting equipment, while visually similar to receive-only

earth stations, does raise regulatory issues with respect to

health and safety because of the emission of radio fre-

quency radiation (RF radiation). This Commission has

declined to preempt state or local RF radiation standards

but has reserved this issue if it is brought to our attention

that such standards are “adversely affecting a licensee’s

ability to engage in Commission authorized activities.” %4

On the record before us, it would be premature to pre-

empt health or safety standards, especially where our

Notice indicated that issues with respect to transmitting

equipment would be excluded.®

82 As Hughes observes “the preemption standard is

intended to be operational, and enforceable by private parties,

without further involvement of the agency.” Comments at 8.

83 See Comments of USSB.

84 Responsibility of the Federal Communications Commis-

sion to Consider Biological Effects of Radio Frequency Radia-

tion when Authorizing the Use of Radio-Frequency Devices,

FCC 85-90 (released March 14, 1985) at para. 43.

85 Notice at para. 27.

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42. However, we see no similar impediment to the

preemption of discriminatory, non-justified aesthetic reg-

ulation of transmitting antennas. There are no significant

differences in the visual appearance of transmit and

receive-only facilities and the same federal interest exists

with respect to local restriction of access to satellite ser-

vices. Thus, if a state or local regulation based on aes-

thetics differentiates between satellite transmitting

antennas and other types of antennas, it is preempted as

described in the rule adopted herein unless it has a

reasonable aesthetic purpose and does not operate to

unreasonably restrict or prevent transmission. At this

time, we are reserving the issue of preemption based on

the health and safety aspect of RF radiation for consider-

however, we are not preempting non-federal authority

distinctions based on land use criteria such as those des-

ignating certain areas for residential, commercial or other

uses.

43. We decline to attach a list of acceptable sample

zoning ordinances. As has been repeatedly stated here,

our preemption is intended to afford local communities

some flexibility. Sample laws would curtail this flexibility.

Moreover, a list of specific rules would be incomplete and

could lead to circumvention of our objectives.®7

86 The rulemaking requested in RM-5021 specifically

addresses this issue. See note 39, supra.

87 Comments of SPACE at 14.

D. Other Issues

44. We agree with Space that our rulemaking does

not violate either the National Environmental Policy Act

or the Regulatory Flexibility Act. We are not authorizing

the construction of any antenna facilities in this proceed-

ing but merely are stating guidelines for local authorities.

Thus, the NEPA regulations with respect to “major

actions” do not apply. Because we are adopting a policy

which will ultimately be reflected in individual local reg-

ulations including those based on aesthetics, we are tak-

ing no action in this proceeding which significantly

affects the “quality of the human environment.”88

45. In our Notice, pursuant to section 603 of the

Regulatory Flexibility Act, we stated that our rule would

have a beneficial effect on local governments by affording

guidance as to acceptable limits of governmental action.

We adhere to this conclusion in adopting a final rule. Our

objective in this proceeding is to avoid inconsistent local

regulations which unreasonably restrict interstate com-

munications. Any exemptions for small communities

such as suggested by the League would certainly frus-

trate this objective. Our policies must be applied by all

local jurisdictions and the commenters have not demon-

strated why smaller communities should not be subject to

our rule.

46. It has been argued by the District of Columbia

and by the National Capital Planning Association that

zoning ordinances in the District of Columbia cannot be

88 See 47 CFR 1.1301.

é. 5 ail

NT Ea RTT eR aS ee ay ETE I gn Me ee te ee eS ee Se See Ee Tee ee ee ee ee a ee

30A

preempted because they are promulgated under federal

~~~authority. However, it has been held that this factor is not

of decisional significance in a federal preemption

action.®? With respect to federally controlled locations, it

is presumed that federal authorities will follow the policy

adopted here.

IV. Conclusicn

47. Accordingly, pursuant to sections 151, 303, 403

and 705 of the Communications Act, it is ordered that

Part 25 of Chapter I of Title 47 of the Code of Federal

Regulations is amended as set forth in Appendix B, effec-

tive March 14, 1986.

48. Pursuant to the Regulatory Flexibility Act, 5

U.S.C. 604, we make the following determination. The

policy adopted herein is intended to preempt local regu-

lations which are interfering with the federal objective of

promoting interstate satellite delivered communications.

Local governments of all sizes would be affected by our

rule. In addition, small businesses selling receive-only

antennas would possibly be benefited by an enhanced

competitive market. The National League of Cities has

objected stating that we have not considered as an alter-

native the exemption of small governments from the

89 Columbia Plaza Limited Partnership v. Cowles, 403

F.Supp. 1337, 1341 n. 11 (Dist. Ct. D.C. 1975). In this case, the

court found that the fact that the District of Columbia’s rent

control program was established pursuant to a federal enabling

statute did not by itself indicate a congressional intent that the

area of regulation should not be preempted.

31A

rule’s operation. We conclude that any such exemption

would result in undesirable inconsistencies which might

impede the distribution of interstate communications.

There are no effective alternatives.

49. It is further ordered that the Secretary shall

cause this Report and Order to be published in the Fed-

eral Register.

50. It is further ordered that the Petition for Declar-

atory Ruling filed by United Satellite Communications,

Inc. is granted in part and denied in part as set forth

above.

51. It is further ordered that the proceedings in CC

Docket No. 85-87 are terminated.

Federal Communications Commission.

William J. Tricarico,

Secretary.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.