WASHINGTON, DC - The National Multi Housing Council (NMHC) and National Apartment Association (NAA) and a coalition of real estate organizations filed testimony yesterday (Oct. 16, 2000) in a lawsuit seeking to have a satellite dish regulation (Order 98-273) issued by the Federal Communications Commission (FCC) overturned by the U.S. Court of Appeals for the District of Columbia.

At issue is an FCC regulation addressing allowable restrictions on over-the-air reception devices that took effect on January 22, 1999. Despite prior FCC rulings that required tenants/residents of leased property to obtain an owner's consent before installing such devices, the FCC's 98-273 Order granted apartment residents the right to install an individual satellite dish one meter or less or antenna on their balconies or patios without the approval of the building owner/manager.

In testimony filed with the court on October 16, 2000, NMHC/NAA argue that:

1. The FCC lacks the authority to require building owners to allow tenants to install satellites and antenna. The Commission only has jurisdiction over "communications" and "persons....engaged in communications." The courts have repeatedly held that the FCC has no authority over the real estate industry or property owners generally.

2. The FCC Order authorizes a tenant to install physical facilities -- antennas and cables -- without the owner's permission which violates the Takings Clause of the Fifth Amendment. The FCC has incorrectly interpreted the 1996 Communications Act; the plain language of Section 207 of the Act shows that Congress did not expressly authorize a taking of any property. Beyond the constitutional issues, the FCC's Order also constitutes a regulatory taking by reducing the value of leased property.

3. The justification for the satellite rule was illogical and contrary to law, and the Commission's order is therefore arbitrary and capricious and in violation of the Administrative Procedures Act.

NMHC/NAA Vice President Jim Arbury stated that "the FCC not only overstepped its authority, but it also ignored basic safety guidelines. There are numerous safety concerns that have arisen because of the FCC's Order. The Commission's continued refusal to consider the legitimate safety and aesthetic concerns voiced by the real estate industry is unreasonable and should be overturned by the court."

Joining NMHC/NAA in the brief were the: American Seniors Housing Association; Building Owners and Managers Association International; Institute of Real Estate Management; National Association of Home Builders; National Association of Realtors; and Real Estate Roundtable.

The appeal (Case No. 99-1009) was first filed by the real estate coalition on December 23, 1998. A ruling on the case is not expected for several months.

Published: October 17, 2000

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