Court Backs Renters in Satellite-Dish Case

Washington— A federal appeals court here has ruled that property renters have a right to install direct-broadcast satellite dishes in locations under their control, even if such action is prohibited by a lease agreement with the landlord.

The July 6 verdict — handed down by a panel from the U.S. Court of Appeals for the District of Columbia Circuit — was a victory for the Federal Communications Commission, DirecTV Inc. and EchoStar Communications Corp. over real-estate owners who sought to control renters' ability to use their balconies and patios as dish-installation sites.

"The FCC clearly acted in the public interest and within its authority when it extended [dish] rules to apply to renters," said James Ashurst, spokesman for the Satellite Broadcasting & Communications Association, the DBS trade lobby. "We are very pleased with the court's decision to protect current and future satellite subscribers."

In 1996, Congress ordered the FCC to draft rules that would eliminate restrictions on DBS dish installation. The agency moved first against zoning and homeowner restrictions, and then took on landlord-imposed limits on renters.

A group of landlords, including the Building Owners and Managers Association International (BOMA), claimed the FCC did not have the authority to void lease agreements regulating DBS-dish placements. The building owners also said the commission's protections for renters ran afoul of Fifth Amendment prohibition of the taking of private property for public use without just compensation. The court, however, rejected both arguments.

In an opinion written by Circuit Judge Judith W. Rogers, the court said Congress authorized the FCC to ban "restrictions that impair a viewer's ability to receive" DBS programming. Rogers added that the commission did not abuse its authority by including both owners and renters within the scope of the words "restrictions" and "viewer."

"Congress demonstrated no intent to qualify the terms 'viewer' and 'restrictions,' " Rogers wrote. "It did not specify which types of 'viewers' were covered, nor which types of 'restrictions' were permissible.

"Had Congress intended to qualify those terms, it clearly would have done so," Rogers said, adding that the intent of the law was to give the FCC "a very broad mandate."

On the taking-of-property issue, Rogers said the landlords failed to demonstrate that a renter was an "interloper with a government license." Rather, she said, a renter has an agreement to occupy space over which the landlord had yielded control, and the FCC had Congressional authority to alter the terms of the lease agreement.

"Having ceded such possession of the property to a tenant, a landlord thereby submits to the [FCC's] rightful regulation of a term of that occupation," Rogers said.

The FCC's power to void a DBS lease restriction without violating the Fifth Amendment was akin to government regulations that impose rent controls on landlords or require them "to accept tenants [they do] not like," Rogers added.

BOMA and its lawyers were still studying the case and could not comment on further appeals.

Landlords, including BOMA, are gearing up to challenge new FCC rules that extended the scope of the dish rules to include reception devices capable of two-way telecommunications.

Matt Ames, who represented BOMA in the loss to the FCC, said his client might have a better chance in overturning the new rules by relying on Rogers' emphasis that the 1996 law protected "viewers." Consumers of telecommunications service were unlikely to be deemed as viewers in that context, said Ames.

The FCC rules upheld by the court apply to dishes one meter in diameter or smaller and cover individuals who rent single-family homes, manufactured homes or apartments. Protected locations include railings, balconies and terraces, as well as patios, yards, and gardens within the tenant's leasehold.

But the rules do not permit renters to install a dish in common areas or restricted areas, such as party and pool areas or exercise rooms. The FCC also carved out exemptions that allow restrictions on dish placement in historic areas.

In the past, apartment landlords have said they opposed the FCC rules because they wanted to protect the aesthetics of their property, not because they wanted to deny their tenants access to DBS programming.

BOMA said the U.S. has about 30 million apartment dwellers and only 3 percent of apartment units had balconies — the most likely site for a DBS installation. Moreover, anyone with a balcony would need a southwest line-of-sight to pick up a DBS signal, a requirement that further reduces the number of apartment dwellers that would benefit from the agency's rules, BOMA said.