Court Hears Dish-Placement Arguments

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Landlords had their say in federal court Monday in a bid to overturn federal
rules designed to protect the rights of apartment dwellers that want to install
satellite dishes on balconies and railings they don't own.

A panel of the U.S. Court of Appeals for the District of Columbia Circuit
heard oral arguments for about 50 minutes on a range of legal questions,
including whether the Federal Communications Commission had authority to
promulgate the rules and whether the rules themselves took private property
without just compensation in violation of the Fifth Amendment.

The case, which won't be decided for several months, went to court after the
FCC said in 1998 that renters could install direct-broadcast satellite dishes on
porches, balconies and railings under their exclusive control even if prohibited
by lease terms.

'There is nothing in the [communications] act that says they can regulate the
landlord-tenant relationship,' attorney Matt Ames told the three-judge
panel.

Ames represented the Building Owners and Managers Association International
(BOMA), a large landlord organization. He added that the rules covered all
rental properties -- homes, apartment buildings, offices and shopping malls.

But the judges -- A. Raymond Randolph, Merrick B. Garland Judith W. Rodgers
-- didn't seem impressed with that argument after noting that the
Telecommunications Act of 1996 ordered the FCC to draft rules to 'prohibit
restrictions' that impair viewers' ability to receive DBS programming.

Ames told the court building owners not only had concerns about their
property rights, but also about safety and aesthetics.

He told the court about one tenant who had drilled a DBS dish into a wood
plank and stuck it out a window ungrounded. That, he said, could have blown up
the TV set if the dish had been struck by lightning. 'If they permitted that,
they should be overturned,' Garland responded.

But Garland turned the issue around by asking whether a landlord's property
rights outweighed the benefits of a law, for example, which allowed a tenant to
install a smoke detector or a fire extinguisher.

Did a landlord's rights regarding DBS dishes, he added, go so far as to allow
a building owner to ban children from a rental property? 'Why is a child
different from a satellite dish?' Garland asked.

On the takings issue, judges questioned whether the FCC's rules violated the
Fifth Amendment because the issue of compensation could be resolved if landlords
charged tenants fees to install and maintain DBS dishes.

At one point, Randolph said he was unclear how to resolve the takings issue
due to conflicting decisions by the U.S. Supreme Court. 'I must admit a lot of
the lines the Supreme Court has drawn are difficult to reconcile,' he added.

FCC attorney Gregory M. Christopher told the court the landlords would have
had a stronger case against the agency if the FCC had ruled that DBS companies
such as DirecTV Inc. and EchoStar Communications Corp. had the right to mount
dishes on rental properties.

Christopher waned that if the court held that the rules were a taking, it
could lead to 'a raid on the public fisc.'

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