Daily Development for Monday, October 25, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

SERVITUDES; RESTRICTIVE COVENANTS; TELEVISION RECEIVERS: FCC ruling bars association from requiring prior review of plans for television receivers on separate property of owner in restricted subdivision; architectural requriements in CC&R's are preempted by federal law.

In the matter of Holliday, CSR53990, DA 99-2132 (10/8/99)

The opinion in this case is bad enough, but the facts make it horrific. A lot owner in a restricted single family subdivision constructed five masts approximately 30 feet in height in the back yard. These masts were approximately the same height as the house. There was another ten foot masts. On these masts, homeowner installed five television antennas and three satellite dish receivers. The antennas provide reception for ten television sets, nine video cassette recorders and seven satellite receivers. [The agency does not record the number of recliner/sofas with built in beer coolers.]

The lot owners erected their antenna array without asking prior consent through the Association's architectural review process.

The Association initiated a state court action to enforce the architectural control covenant in its declaration. The covenant reads as follows: "No building, fence, walls or other structure shall be erected, placed or altered on any building lot in this Subdivision until the building plans, specifications and plot plan showing the location of such structures have been approved as to the conformity and harmony of external design with existing structures herein and as to the building with respect to the topography and finished ground elevations by an Architectural and Environmental Control Eommittee. The lot owners sought a preemptive order of the FCC barring the state court action and finding that their antenna array was lawful.

The FCC Rule in question, 47 D.F.R. Sec. 1.4000(a) is described in the FCC opinion as applying to satellite dishes that are less than one meter in diameter; antennass designed to receive video programming services through multipoint distributions services, including multichannel multipoint distributions services, instructional television fixed services, and local multimpoint distribution services that are one meter or less in diameter or diagonal measurement,; and antennas designed to received television broadcast signals.

For the rule to apply, the antenna must be located on property within the exclusive use or control of the user where the user has a direct or indirect ownership or leasehold interest in the property.

The rule prohibits a restriction that impairs installation, maintenance or use of a protected antenna. The restriction does so if it: (1) unreasonably delays or prevents installation, maintenance, or use; (2) unreasonably increases the cost of installation, maintenance or use; or (3) precludes reception of an acceptable quality signal. Exceptions to this prohibition are available for reasons of safety or historic preservation, but provisions implementing these concerns must be as narrowly tailored as possible, impose as little burden as possible, and apply in a nondiscriminatory manner throughout the regulated area.

The lot owners argued simply that there was no safety or historical preservation justification for the restriction of its antennas, and that therefore, to the extent that the architectural rule applied to antennas, it was invalid.

The Association argued, first, that the FCC rule was phrased in terms of protection of a single antenna. It argued that the Rule simply did not apply to protect multiple antennas in a single location, and that therefore it was free to regulate here. It then went on to argue that it had valid safety concerns in regulating antennas, but, at least according to the FCC, the Association mixed valid and invalid justifications for its actions when it also claims that the regulations were necessary to maintain the aesthetic character of the neighborhood.

The FCC held that its rule did apply to multiple antennas. It noted that the Association indicated in argument that, if asked, it would have prohibited these antennas because they were inconsistent with the general unwritten policy of the association of authorizing only one outside dish and one antenna per household extending up to twelve feet above the roof line (attic mounted antenna and dishes were permitted).

The FCC administrative judge here held that the prior authorization requireemnt is prohibited unless it is justified by legitimate safety or historic preservations considerations. The judge pointed out that safety consideration may be used to justify prior regulation only if the restriction "clearly defines[s] the safety objective in either (1) the text,preamble or legislative history of the restriction or (2) a separate document readily available to antenna users." The Association had provided no such justification for its safety concerns to those regulated by its rule, and therefore, ipso facto, the rule could not validly be applied to satellite installations. This would be true, apparently, even if in fact the installation was unsafe.

The court went on to find that the unwritten policies of the Association would have been invalid even if the Association had been given the opportunity to apply them. The blanket restriction on television antennas that rise more than 12 feet above the roof line does not obviously serve a safety concern, and is not narrowly tailored to promote any legitimate safety considerations.

The restriction on the number of antennas also was per se unreasonable, since it might be necessary to achieve reasonable reception to use more than one dish, given the various satellite providers offering services in the area.

The court allows for the possibility that an association can impose regulations where antennas are not necessary to provide "the video programming available for reception in the viewer's viewing area." But the record did not contain any evidence to demonstrate that the antennas here were not necessary to carry out that function, and apprently, in the view of the court, the Association has the burden of proof on this issue.

Comment 1: Apparently in an attempt to get a narrowly focussed opinion, dealing with the question of multiple antennas the Association appears to have given up a lot of argument. The result is a sweeping opinion that will be a deterrent to other associations seeking to regulate antennas. This unfortunate result perhaps is not well justified, since there is virtually no discussion of what constitutes "reasonable reception" or "unreasonable interference" with such reception.

Comment 2: It is surprising, nevertheless, that the Association, and not the lot owner, appears to have been allocated the burden of proof on the question of whether its proposed antenna array is necessary to achieve the result of receiving all channels generally available in the receiving area. The court strikes down the Association's regulation because it apparently is based upon aesthetic, rather than safety concerns. But it neglects to note that the Association would have been perfectly within its right to regulate the antenna so long as its regulation did not unreasonably interfere with reception.

Comment 3: In short, shouldn't it have been the responsibility of the lot owner, at the Association level, to establish that its forest of antennas was necessary to achieve the reception goals? The FCC should have gotten involved only after the Association had reached a conclusion based upon the evidence adduced at its hearing, that its regulations should permit these antenna in light of the FCC rule. It was never given an opportunity to do this.

The opinion is just in time for Halloween. It is designed to frighten associations, through distortion and illusion, the regulation of television antennas. The FCC staff is waving the FCC regulation in the air, but preventing us from looking at it very carefully. Whatever the values promoted by the FCC regulation, the total destruction of the contractual responsibilities of the lot owner here was not justified by the federal regulation nor by the need to protect those values. A far better balance could be struck.

Comment 4: Recall the early days of the Telecommunications Act preemption of local zoning of telecommunications towers. At first, any attempted zoning was struck down. More recently, as has been reported on these pages, federal courts are recognizing that a process can be developed that will insure that local interests receive adequate attention when balanced against the need for protection of telecommunications goals. Let's hope that the FCC gets educated here as well, either through subsequent administrative cases or some good appeals to federal courts that puts a lock on these bureacrats' bag of tricks.

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