Town of Deerfield v. Federal Communications Commission

992 F.2d 420
CourtCourt of Appeals for the Second Circuit
DecidedApril 27, 1993
DocketNo. 350, Docket 92-4081
StatusPublished
Cited by5 cases

This text of 992 F.2d 420 (Town of Deerfield v. Federal Communications Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Deerfield v. Federal Communications Commission, 992 F.2d 420 (2d Cir. 1993).

Opinion

KEARSE, Circuit Judge:

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 Deer-field ordinance, and (2) that even if principles [423]*423of collateral estoppel did not apply, the FCC’s ruling was arbitrary and capricious.

For the reasons below, we grant the petition for review and reverse the order of the FCC.

I.BACKGROUND

The events and the procedural history of this matter do not appear to be in dispute.

A. The FCC Regulation and the Deerfield Zoning Ordinance

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-l or R-2 District no dish or tower type antennae shall be erected on any lot less than one-half 00 acre.
b. No dish or tower type antennae shall be located in a front yard or corner lot fronting on more than one street.
e. No dish or tower type antennae shall be erected on any lot without the issuance of a building permit by the enforcement offieer(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 fine 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.
[424]*4242. 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, shortwave 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.

Id. § 3.

B. Carino’s Satellite Dish and His First Request for FCC Support

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.

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Bluebook (online)
992 F.2d 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-deerfield-v-federal-communications-commission-ca2-1993.