San Diego Estate Planning Lawyer Blog
San Diego, California is a very technologically advanced area. There are, in San Diego, may satellites for televisions. In 1996, the Federal Communications Commission (FCC) issued a rule that prohibited certain restrictions on the use of antennas designed to receive direct broadcast satellite service or television broadcast signals. Two years later the FCC expanded the rule to cover lease provisions where the antenna user was the tenant. Associations representing owners and managers of real estate unsuccessfully challenged the expanded rule in federal court.
The argument that the FCC had overstepped the bounds of the authority given to it by Congress failed. Congress has granted the FCC very broad regulatory authority so that it can keep pace with rapidly evolving technologies. As for “direct-to-home” satellite services, in particular, the FCC has exclusive regulatory jurisdiction, and has been charged by Congress to issue regulations to prohibit restrictions that impede viewers from using necessary devices.
In the view of the federal court, it was only a small and appropriate step for the FCC to extend its original authority over local or state land-use restrictions, restrictive covenants, and homeowner association rules to cover provisions in a lease. Given its mandate from Congress to prohibit restrictions on the provision of a regulated means of communication, the FCC can exercise its jurisdiction over a landlord who creates such a restriction even though, in so doing, the FCC alters property rights created under state law.
The FCC’s preemptive power over satellite dishes does not leave landlords with no say in the matter whatsoever. First, since the FCC rule only applies to property within the exclusive use or control of the antenna user, a tenant does not have the unfettered right to put equipment on outside walls, rooftops, and other such areas where he may have access but not possession and exclusive control. Second, the rule itself states that a restriction “impairs” installation, maintenance, or use of an antenna if it “unreasonably” delays or prevents such use, “unreasonably” increases the cost of such use, or prevents reception of an acceptable quality signal. Thus, reasonable measures by landlords have their place. Finally, restrictions that would otherwise be prohibited are permitted where they accomplish a safety objective without singling out antennas, or they are necessary to preserve certain historic properties.
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