Court Backs Renters in DBS Fight

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Washington -- A federal appeals court here ruled Friday that property renters
have a right to install direct-broadcast satellite dishes in locations under
their control even if prohibited by landlords in lease agreements.

The case, handed down by a panel of 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 that sought to control whether renters could use the balconies and patios
they lease as the installation sites for DBS dishes.

In 1996, Congress ordered the FCC to draft rules that would eliminate
restrictions on the installation of DBS dishes. The agency first moved against
zoning and homeowner restrictions, then took on restrictions imposed on renters
by landlords.

A group of landlords, including the Building Owners and Managers Association
International (BOMA), claimed that 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 the 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 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 ambit of the words
'restrictions' and 'viewer.'

'Congress demonstrated no intent to qualify the terms `viewer' and
`restrictions.' 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.'
Instead, she said, a renter had an agreement to occupy space over which the
landlord had ceded control, and the FCC had authority from Congress 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.

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

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