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Landlords Fight Dish Placement Rules

10/29/2000 7:00 PM Eastern

Washington-Thousands of home satellite-dish owners who live in rental units could lose service if real-estate interests prevail in overturning federal rules designed to curb landlords' control over the use of exterior railings and balconies.

Two years ago, the Federal Communications Commission adopted rules that empowered renters to install 1-meter satellite dishes to outdoor fixtures for their exclusive use, even if lease terms prevented them from doing so.

Acting under a new Congressional mandate, the FCC said the rules were needed to ensure that private contracts did not impede competition between cable operators and satellite carriers in the multitenant units millions of consumers call home.

But landlords, now in court after a two-year procedural delay, claim that the FCC overreached and invaded their property rights. The building owners fear the unregulated placement of dishes could lead to a reduction in aesthetic value.

An array of building owners, led by the Washington-based Building Owners and Managers Association International (BOMA), have challenged the FCC's rules in the U.S. Court of Appeals for the District of Columbia Circuit. The case won't be decided until next summer.

"Common sense tells us that people prefer to live and work in attractive buildings in attractive settings," BOMA said in a 42-page brief filed Oct. 16. "Therefore, if tenants are permitted to install antennas on every balcony or porch, the value of such buildings can be expected to decrease."

The cable industry is keeping out of the case. But the outcome could affect how cable and DBS providers compete for a lucrative segment of the population. And with satellite carriers now able to provide local-TV signals, the battle between cable and satellite is fiercer than ever.

About 30 million Americans live in apartment buildings. Because of their high subscriber concentration, multiple-dwelling units are the most economical areas for cable operators to serve. Building owners prefer cable, and often sign exclusive deals with operators because the wiring is hidden from view.

Despite the building owners' concerns, the FCC's rules effectively protect only a subset of that 30-million-subscriber base.

HITS A MINORITY

First, it is unclear how many of those consumers are renters, rather than owners. Second, according to apartment-industry figures, only 3 percent of rental units have balconies. Thirdly, the 3 percent of units with balconies need a clear southwest view to receive a satellite signal.

Finally, FCC rules do not allow renters to install a dish in a common area, such as a roof, pool patio or party area.

Gerry Lederer, BOMA's vice president of government and industry affairs, said the FCC rules at best help out "1 to 2 percent of all apartment dwellers." He said the numbers confirm that BOMA is more concerned about safeguarding property rights than reaping financial rewards from exclusive contracts.

Lederer called claims that BOMA's real agenda was to remain the gatekeeper over video providers in buildings "specious and.grasping at straws."

The FCC moved into the picture after the Telecommunications Act of 1996. In that landmark law, Congress authorized the agency to adopt rules to "prohibit restrictions that impair a viewer's ability to receive video programming" with a DBS dish.

In its first set of rules, released in 1996, the FCC generally voided local zoning laws, restrictive covenants and homeowners' association rules that barred or complicated placement of DBS dishes.

At that time, the FCC promised to assess whether renters deserved the same protections. The agency moved to do just that two years later, banning a landlord from ordering the removal of a dish prior to obtaining a favorable ruling from the FCC.

The only concessions the agency made on dish installations were questions that involved safety or protection of communities seeking to preserve their status as federally designated historic districts.

The FCC also indicated that it would not stop a city or landlord from requiring a DBS dish to be painted to better blend in with the landscape.

BOMA contends that Congress did not intend for intend for the FCC to pre-empt non-governmental restrictions or void dish-placement prohibitions in millions of leases.

By allowing renters to install dishes without permission from the landlord, the FCC, in effect, took private property without compensation-an action banned by the Fifth Amendment.

"Consequently, property owners can do nothing to prevent the appearance of their buildings from being marred by unsightly antennas," BOMA's brief said.

The FCC's decision on DBS dishes was akin to it saying that landlords could not prevent renters from hanging laundry on a balcony, installing a washing machine or having live-in pets, BOMA added.

The FCC addressed the property-rights issue in its rules. The agency said that a taking did not occur, because landlords surrendered many rights to renters in signing lease agreements. Clamping a dish to balcony railing was no different from installing a TV in the bedroom, the FCC said.

The case took on broader dimensions three weeks ago, when the FCC extended its DBS rules to antennas capable of receiving wireless communications services, including voice and data.

Lederer said BOMA is equally troubled by the new rules. But the group's litigation strategy remains a work in progress. BOMA, he said, fears an appeal of the new rules now could slow down court consideration of the 1998 regulations.

"It's a tactical decision we have to make," Lederer said.

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