Town of Deerfield, N.Y. v. F.C.C.
| Decision Date | 27 April 1993 |
| Docket Number | D,No. 350,350 |
| Parties | TOWN OF DEERFIELD, NEW YORK, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Joseph A. Carino, United States Satellite Broadcasting Company, Inc., Satellite Broadcasting & Communications Association of America, Hughes Network Systems, Inc., Intervenors. ocket 92-4081. |
| Court | U.S. Court of Appeals — Second Circuit |
Thomas P. Hughes, Utica, NY (Rossi, Murnane, Balzano & Hughes, on the brief), for petitioner.
John E. Ingle, Deputy Associate Gen. Counsel, F.C.C., Washington, DC (Robert L. Pettit, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, James M. Carr, Counsel, Charles A. James, Acting Asst. Atty. Gen., Robert B. Nicholson, Marion L. Jetton, U.S. Dept. of Justice, on the brief), for respondents.
W. James MacNaughton, Woodbridge, NJ, for intervenor Joseph A. Carino.
Marvin Rosenberg, Washington, DC (Mania Baghdadi, Fletcher, Heald & Hildreth, of counsel), for intervenor U.S. Satellite Broadcasting Co., Inc.
Diane S. Killory, Washington, DC (Mary K. O'Connell, Morrison & Foerster, of counsel), for intervenor Satellite Broadcasting and Communications Ass'n of America.
F. Thomas Tuttle, Washington, DC (Blumenfeld & Cohen, of counsel), for intervenor Hughes Network Systems, Inc.
Before: KEARSE, MINER, and MAHONEY, Circuit Judges.
This controversy, which centers on the installation by intervenor Joseph A. Carino of a satellite-dish antenna in his backyard in the Town of Deerfield, New York ("Deerfield"), in violation of a Deerfield zoning ordinance, returns to this Court following a sequence of state-court, federal-court, and administrative-agency adjudications. Petitioner Deerfield seeks review of an order of respondent Federal Communications Commission ("FCC" or "Commission") holding, at the behest of Carino, that the Deerfield ordinance was preempted by a regulation of the FCC. See In re Preemption of Satellite Antenna Zoning Ordinance of Town of Deerfield, New York, 7 F.C.C.R. 2172 (1992). In support of its petition for review, Deerfield contends principally (1) that because courts of competent jurisdiction had ruled in cases brought by Carino that the FCC regulation did not preempt Deerfield's ordinance, principles of collateral estoppel barred the FCC from ruling that its regulation did preempt the Deerfield ordinance, and (2) that even if principles For the reasons below, we grant the petition for review and reverse the order of the FCC.
of collateral estoppel did not apply, the FCC's ruling was arbitrary and capricious.
The events and the procedural history of this matter do not appear to be in dispute.
In February 1986, partly in response to fears in the broadcast communications industry that local zoning ordinances might interfere with the installation of satellite antennas by individuals and thus frustrate the federal goal of expanding satellite-delivered services, see In re Preemption of Local Zoning Regulations of Receive-Only Satellite Earth Stations, 100 F.C.C.2d 846, 856 (1985), the FCC promulgated a regulation that stated as follows:
Preemption of local zoning of earth stations.
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 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 preempted in the same manner except that state and local health and safety regulation is not preempted.
Preemption of Local Zoning or Other Regulation of Receive-Only Satellite Earth Stations, 51 Fed.Reg. 5519, 5526 (1986) (codified at 47 C.F.R. § 25.104 (1992) ("1986 Regulation" or " § 25.104")).
In adopting § 25.104, however, the FCC had no desire to become, in effect, "a national zoning board," and it sought to avoid the administrative burden of having to review a large number of cases individually. It therefore suggested that individual satellite-antenna users who believed that local zoning ordinances conflicted with the 1986 Regulation should simply invoke § 25.104 "in pursuing any legal remedies they might have" against such an ordinance. The Commission stated that it "would entertain requests for further action if it appears that local authorities are generally failing to abide by our standards"; but it stated that "[a]ny party requesting Commission review of a controversy will be expected to show that other remedies have been exhausted." 1986 Regulation at 5524.
In April 1986, Deerfield adopted a zoning ordinance prohibiting, inter alia, the installation of satellite-dish antennas on residential lots of less than one-half acre. That ordinance provided, in pertinent part, as follows:
B. DISH OR TOWER TYPE ANTENNAE:
General Regulations:
a. In R-1 or R-2 District no dish or tower type antennae shall be erected on any lot less than one-half ( 1/2) acre.
b. No dish or tower type antennae shall be located in a front yard or corner lot fronting on more than one street.
c. No dish or tower type antennae shall be erected on any lot without the issuance of a building permit by the enforcement officer(s) and subject to the following so as to be cosmetically acceptable for all adjoining landowners:
1. All towers and antennae shall have setbacks from any lot line equal to or greater than the height of the proposed structure, but in any case not less than thirty (30) feet.
2. Only one such structure shall exist at any one time on any lot or parcel.
3. The applicant shall present documentation of the possession of any required federal or state license.
4. The owner of such a structure shall assume complete liability in case of personal or property damage.
d. Dish Type--special regulations:
1. No part twelve (12) feet above ground level.
2. Projected area:
Solid type--51 square feet
Mesh type--80 square feet
....
Deerfield Zoning Ordinance § 17(B) (eff. April 14, 1986) ("Zoning Ordinance" or "Ordinance"). The Ordinance further defined a tower-type antenna as "[a] structure weighing more than one hundred (100) pounds utilized to transmit and/or receive electromagnetic waves (i.e. radio, television, short-wave signals)," and described a dish antenna as a device that
[c]onsists of three main components--the antennae [sic] itself, often called a dish; a low-noise amplifier (LNA); and a receiver. The antennae [sic] and LNA are generally located outdoors and are connected by coaxial cable to the receiver, which is usually placed indoors.
Carino lived in Deerfield on a lot that was smaller than one-half acre. Sometime between April 1986 and February 1987, he installed a satellite-dish antenna in his backyard. In February 1987, a Deerfield building inspector served on Carino a criminal-court summons for violation of the Zoning Ordinance. The criminal proceeding was held in abeyance while Carino attempted to obtain, first, a building permit and, later, a variance.
Carino's application for a building permit was quickly denied. His application for a variance resulted in hearings before the Deerfield Zoning Board of Appeals ("Zoning Board" or "Board") in March and April 1987. Carino appeared at the hearings and presented a petition signed by most of his neighbors in support of his application. None of his neighbors appeared in opposition. The Board denied the application on the grounds that Carino had failed to obtain the building permit required by the Ordinance prior to installing his antenna and had failed to show a hardship sufficient to justify issuing a variance. Carino argued that the Zoning Ordinance was preempted by the FCC's § 25.104, but the Zoning Board declined to address that contention.
In the meantime, Carino had written the FCC asking for "HELP." He explained:
The local town Zoning Ordinance Says that to have a Satellite Dish installed on ones [sic] own property You Must Have a lot size of at least 1/2 acre.
Our lot is a little smaller and we might have to take our Satellite Dish out. The town has been giving us a hard time. I've been to court once already and have to go again in the near future.
PLEASE HELP. ANY INFORMATION YOU CAN GIVE ME WILL BE GREATLY APPRECIATED.
Thank you for any help you can give me.
(Letter dated February 28, 1987, from Joseph A. Carino to FCC Chief of Satellite Radio Branch.) In response, Carino received a letter setting forth the text of § 25.104 along with the following explanation:
Individuals who are dissatisfied with the actions taken by local zoning authorities can use the Commission's rule to pursue legal remedies on a local level. Unfortunately, we do not have sufficient resources to offer legal opinions with respect to individual problems or to intervene in local disputes. We therefore suggest that you consult with a private attorney in your area if you wish to assert any rights based on the Commission's rule.
Further Commission consideration of local zoning disputes is not contemplated at this time. Individual petitions may be considered at a later date. It appears that communities are generally failing to abide by our standards. Requests for relief under the Commission's rule must demonstrate that all other remedies including legal action with the assistance of private counsel have been pursued and exhausted. In addressing a petition for reconsideration, the Commission emphasized that communities must comply with the regulation or...
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