The Hottest Dish in Real Estate

“[T]he Commission shall … promulgate regulations to prohibit restrictions that impair a viewer's ability to receive video programming services through devices designed for over-the-air reception of television broadcast signals, multi-channel multi-point distributions service, or direct broadcast satellite services.”

The various multiple tenant environments that exist in urban areas were an objective of the Act, and discussed in In the Matter of Promotion of Competitive Networks and Local Telecommunications Markets, WT Docket No. 99-217 (2000), where the Federal Communications Commission (FTC) stated:

“In this item, we further our ongoing efforts under the Telecommunications Act of 1996 to foster competition in local communications markets by implementing measures to ensure that competing telecommunications providers are able to provide services to customers and multiple tenant environments (MTEs).”

Following the Congressional mandate, the FCC issued a rule prohibiting restrictions of certain over-the-air reception devices (OTARD). That rule invalidated restrictions by states or municipalities, as well as any private covenants of homeowners' associations or similar restrictions, on any user who has a direct or indirect ownership interest in the property, provided, of course, such restriction impaired the installation, maintenance or use of the OTARD device. Some 2 years later in 1998, the FCC extended the prohibition to give protections to tenants who did not have an ownership interest.

National Issues

Several trade associations representing real estate owners and property managers contended that the FCC's rule exceeded its statutory authority when it was extended to leased property and that the rule violated the Takings Clause of the Fifth Amendment. The court in Building Owners and Managers v. Federal Communications Commission, 254 F.3d 89, 349 U.S. App. D.C. 12 (2001) found these claims, as well as others, unpersuasive. As to the claim that the FCC exceeded its statutory authority, the court found that Congress had given the FCC a broad mandate. As a result, the court deferred to the Commission's interpretation of its statutory authority. 254 F.3d at 96.

The Fifth Amendment takings claims of the various real estate groups did not fare much better. The Building Owners court confronted the Supreme Court's invalidation, in Loretto v. Teleprompt of Manhattan CATV Corp., 458 US 419 (1982), of a New York State statute authorizing a cable television company to place cable equipment onto a private owner's building. The crucial factor against the takings claim, and the application of Loretto, was “consent to the occupation of the property.” When it came to rules regarding satellite dishes, a landlord had ceded control of portions of her property to a tenant with whom the landlord had a contractual relationship.

The New York Experience

While the FCC rule survived a gauntlet of Supreme Court decisions and the Fifth Amendment, in New York the rule may meet even more motivated foes. As may be the case in other urban areas, New York City presents at least two complicating factors. First, there is a scarcity of outdoor space, and under the current technology, the antenna must have a clear view to the southwest. This, of course, drastically reduces the viewing population.

Second, due to various types of rent regulation, in particular Rent Stabilization and Rent Control, the incentive for a landlord to get vacancies is enormous. In short, if the tenant puts up a dish the chances of the landlord suing are uncomfortably high.

The issues of the size of the dish, safety, and the application of historic district exceptions are rather mundane when compared with the disputes that may be arising over where the dish can be attached. It is fairly plain that if a tenant, co-op unit owner, or condominium owner have outdoor space, they may put the dish there, or even on a railing to a balcony. Matter of Implementation of Section 107 of the Telecommunications Act of 1996, 1998 WL 801763 (F.C.C.), 13 F.C.C.R. 23,890, 13 FCC Rcd. 23,874 (1998), 23,890. More important to millions of New Yorkers is the scope of their rights if they do not have outdoor space. One case currently on appeal is addressing that issue.

In 2682 Kingsbridge Associates v. Martinez, (Bronx Civil Court 2003, Index # 76024/02) a rent-stabilized tenant attached a satellite dish to his window guard. The landlord sued to evict, claiming, incorrectly, that the dish was drilled into the exterior wall. Drilling into an exterior wall would without doubt be prohibited both by the tenant's lease, and the FCC rule. Nonetheless, the court considered whether attaching to the window guard would be allowed. The court held that it would not, and found that the guard was not within the exclusive “use or control” of the tenant as the regulation required.

No explanation was offered as to who else had use of the window guard, any more than anyone else had use of the tenant's oven. No cases directly on point were cited by counsel for either side. Cases involving aerials and antennas were put forth by the landlord where they prohibited antennas from being attached outside of a tenant's apartment. However, the tenants argued that these examples were not applicable because they did not address the issues of areas of exclusive use, and of course did not have the 1996 Telecommunications Act and the regulations to face. The tenant submitted a case defining the tenant's possessory rights in the window area of an apartment. In RuthAnne Corp. v. Adler, 197 Misc. 30, the court held that a tenant: “must be deemed to have a possessory right in every part of the window, throughout its length, and depth: from its inner perimeter to its outer perimeter and all that lies between. This possessory right is not at the whim of or mere license of the landlord. It is an in separate part of the original demise under the lease, even though not specifically mentioned.” 197 Misc. at 31.

Since the window guard in Martinez's case was entirely within this three-dimensional box area of the window, it was within the tenant's exclusive use. And since the lease only prohibited affixing an antenna to the exterior wall, it also supported the tenant's position at the window guard was within an area of his exclusive use.

Another placement of the satellite dish was also addressed in Martinez, supra (and is also being addressed on appeal), which is attaching the dish to the windowsill that is inside the window, so that while the dish is outside the window in part, there is no attachment completely outside the window. The added argument for the tenant is that the dish is attached inside the tenant's apartment to an area that he undisputedly has exclusive use.

The landlord in Martinez did not raise any safety or historical district issues. As is often presumed in these cases, there is an issue of the incentives to obtain a vacancy and increase the rent significantly. Moreover, a landlord may restrict a tenant's installation of an individual antenna when it is “based on the availability of a central or common antenna” 13 FCCR CD at 23 890. Thus, if a landlord sincerely has arguments over safety or aesthetics, a central dish can be put on the roof.

Conclusion

As TV has changed the American city, perhaps one American city will change how people are able to receive it. The New York real estate market of course affects how people live. Now it will affect what they can watch.

Darryl Vernon practices law in Manhattan with the firm of Vernon & Ginsburg, LLP. The firm is representing the tenant in 2682 Kingsbridge Associates v. Martinez.

“Television has changed the American city from top to bottom. In the days of Lucy and Ricky, antennas covered apartment rooftops. Then came the cable lines buried under the streets or snaking along utility poles. Now, a device once identified with the countryside is showing up in urban landscapes: the satellite dish.” ' Selingo, Jeffrey: To Landlords' Vexation, Cities Embrace the Dish, The New York Times, September 12, 2002, G5.

Last year, according to industry groups and analysts, roughly 18% of the nation's 17.7 million small-dish owners lived in urban areas, and the numbers are soaring. Many viewers believe that the quality of satellite reception, including the channels offered, is far superior to cable. And of course the New York experience, when people could not watch the Yankees last year, caused many to switch from cable to satellite.

In part to “promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies,” Congress passed the Telecommunications Act of 1996 to allow people in various types of housing to get satellite television in their homes. The act provided:

“[T]he Commission shall … promulgate regulations to prohibit restrictions that impair a viewer's ability to receive video programming services through devices designed for over-the-air reception of television broadcast signals, multi-channel multi-point distributions service, or direct broadcast satellite services.”

The various multiple tenant environments that exist in urban areas were an objective of the Act, and discussed in In the Matter of Promotion of Competitive Networks and Local Telecommunications Markets, WT Docket No. 99-217 (2000), where the Federal Communications Commission (FTC) stated:

“In this item, we further our ongoing efforts under the Telecommunications Act of 1996 to foster competition in local communications markets by implementing measures to ensure that competing telecommunications providers are able to provide services to customers and multiple tenant environments (MTEs).”

Following the Congressional mandate, the FCC issued a rule prohibiting restrictions of certain over-the-air reception devices (OTARD). That rule invalidated restrictions by states or municipalities, as well as any private covenants of homeowners' associations or similar restrictions, on any user who has a direct or indirect ownership interest in the property, provided, of course, such restriction impaired the installation, maintenance or use of the OTARD device. Some 2 years later in 1998, the FCC extended the prohibition to give protections to tenants who did not have an ownership interest.

National Issues

Several trade associations representing real estate owners and property managers contended that the FCC's rule exceeded its statutory authority when it was extended to leased property and that the rule violated the Takings Clause of the Fifth Amendment. The court in Building Owners and Managers v. Federal Communications Commission , 254 F.3d 89, 349 U.S. App. D.C. 12 (2001) found these claims, as well as others, unpersuasive. As to the claim that the FCC exceeded its statutory authority, the court found that Congress had given the FCC a broad mandate. As a result, the court deferred to the Commission's interpretation of its statutory authority. 254 F.3d at 96.

The Fifth Amendment takings claims of the various real estate groups did not fare much better. The Building Owners court confronted the Supreme Court's invalidation, in Loretto v. Teleprompt of Manhattan CATV Corp. , 458 US 419 (1982), of a New York State statute authorizing a cable television company to place cable equipment onto a private owner's building. The crucial factor against the takings claim, and the application of Loretto, was “consent to the occupation of the property.” When it came to rules regarding satellite dishes, a landlord had ceded control of portions of her property to a tenant with whom the landlord had a contractual relationship.

The New York Experience

While the FCC rule survived a gauntlet of Supreme Court decisions and the Fifth Amendment, in New York the rule may meet even more motivated foes. As may be the case in other urban areas, New York City presents at least two complicating factors. First, there is a scarcity of outdoor space, and under the current technology, the antenna must have a clear view to the southwest. This, of course, drastically reduces the viewing population.

Second, due to various types of rent regulation, in particular Rent Stabilization and Rent Control, the incentive for a landlord to get vacancies is enormous. In short, if the tenant puts up a dish the chances of the landlord suing are uncomfortably high.

The issues of the size of the dish, safety, and the application of historic district exceptions are rather mundane when compared with the disputes that may be arising over where the dish can be attached. It is fairly plain that if a tenant, co-op unit owner, or condominium owner have outdoor space, they may put the dish there, or even on a railing to a balcony. Matter of Implementation of Section 107 of the Telecommunications Act of 1996, 1998 WL 801763 (F.C.C.), 13 F.C.C.R. 23,890, 13 FCC Rcd. 23,874 (1998), 23,890. More important to millions of New Yorkers is the scope of their rights if they do not have outdoor space. One case currently on appeal is addressing that issue.

In 2682 Kingsbridge Associates v. Martinez, (Bronx Civil Court 2003, Index # 76024/02) a rent-stabilized tenant attached a satellite dish to his window guard. The landlord sued to evict, claiming, incorrectly, that the dish was drilled into the exterior wall. Drilling into an exterior wall would without doubt be prohibited both by the tenant's lease, and the FCC rule. Nonetheless, the court considered whether attaching to the window guard would be allowed. The court held that it would not, and found that the guard was not within the exclusive “use or control” of the tenant as the regulation required.

No explanation was offered as to who else had use of the window guard, any more than anyone else had use of the tenant's oven. No cases directly on point were cited by counsel for either side. Cases involving aerials and antennas were put forth by the landlord where they prohibited antennas from being attached outside of a tenant's apartment. However, the tenants argued that these examples were not applicable because they did not address the issues of areas of exclusive use, and of course did not have the 1996 Telecommunications Act and the regulations to face. The tenant submitted a case defining the tenant's possessory rights in the window area of an apartment. In RuthAnne Corp. v. Adler , 197 Misc. 30, the court held that a tenant: “must be deemed to have a possessory right in every part of the window, throughout its length, and depth: from its inner perimeter to its outer perimeter and all that lies between. This possessory right is not at the whim of or mere license of the landlord. It is an in separate part of the original demise under the lease, even though not specifically mentioned.” 197 Misc. at 31.

Since the window guard in Martinez's case was entirely within this three-dimensional box area of the window, it was within the tenant's exclusive use. And since the lease only prohibited affixing an antenna to the exterior wall, it also supported the tenant's position at the window guard was within an area of his exclusive use.

Another placement of the satellite dish was also addressed in Martinez, supra (and is also being addressed on appeal), which is attaching the dish to the windowsill that is inside the window, so that while the dish is outside the window in part, there is no attachment completely outside the window. The added argument for the tenant is that the dish is attached inside the tenant's apartment to an area that he undisputedly has exclusive use.

The landlord in Martinez did not raise any safety or historical district issues. As is often presumed in these cases, there is an issue of the incentives to obtain a vacancy and increase the rent significantly. Moreover, a landlord may restrict a tenant's installation of an individual antenna when it is “based on the availability of a central or common antenna” 13 FCCR CD at 23 890. Thus, if a landlord sincerely has arguments over safety or aesthetics, a central dish can be put on the roof.

Conclusion

As TV has changed the American city, perhaps one American city will change how people are able to receive it. The New York real estate market of course affects how people live. Now it will affect what they can watch.

Darryl Vernon practices law in Manhattan with the firm of Vernon & Ginsburg, LLP. The firm is representing the tenant in 2682 Kingsbridge Associates v. Martinez.