# Opposition Brief — City of Dearborn v. Loschiavo

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0969%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1150

## Text

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

o

BRIEF IN RESPONSE TO
PETITION FOR WRIT OF CERTIORARI

i

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

I.

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?

V.

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?

i
:
:
}

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

iV

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

Vi

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

1

2

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

3

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

4

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

ee

a

5

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
I.

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

6

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

7

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:

8

[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)

9

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)

10

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

1]

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

12

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.

es

13

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

14

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:

15

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

16

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

17

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

ow

18

(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

19

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.

20

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)

21

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.

V.

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.”

22

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.

23

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

24

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.

25

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:

26

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

27

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

28

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.

29

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.

30

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

*

1A

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.

2A

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.

3A

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

4A

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.

SA

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.

6A

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.

7A

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.

8A

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.

9A

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’ ”
is unworkable.°© The same principle applies in this case
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
exist.©1 Whether a judicial remedy might be available in
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.

© See e.g., Comments of Space discussing ordinances of
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
fixed external antennas in the same manner.© In adopting
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.”

23A

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.

24A

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.

25A

a

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.

26A

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.

27A

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.

28A

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-
ation in a separate proceeding.®© In taking this action,
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0969%3A4. Public record. Not legal advice.