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June 6, 1991

WAYNE and JUDIE JOHNSON, Plaintiffs,

The opinion of the court was delivered by: JENSEN


 This is an action challenging an ordinance of the City of Pleasanton (the "City"), Chapter 18.112 of the Pleasanton Municipal Code ("Satellite Earth Station Development Standards"), regulating satellite receive-only antennas within municipal boundaries. *fn2" Following a series of applications to and proceedings before various City bodies, plaintiffs Wayne and Judie Johnson were denied a variance for their antenna. Plaintiffs were subsequently informed on several occasions that they must bring their antenna into conformity with the provisions of chapter 18.112, and that failure to do so would result in imposition of penalties.

 On January 12, 1990, the Johnsons filed the present action seeking declaratory and injunctive relief, as well as damages, on the grounds of federal preemption and for alleged violations of plaintiffs' constitutional rights under the First and Fourteenth Amendments. On February 15, 1990, the City counterclaimed against plaintiffs, seeking damages according to the civil penalties applicable to violations of chapter 18.112 and, therefore, effectively seeking enforcement of the ordinance against the Johnsons.

 In an Order filed November 26, 1990, this Court held that the ordinance was preempted by regulations of the Federal Communications Commission ("FCC"). *fn3" See Johnson v. City of Pleasanton, Civ. 90-0122-DLJ Order (N.D. Cal. Nov. 26, 1990) (Ezra, J.) [hereinafter Order of November 26, 1990]. Specifically, the Court found that the ordinance differentiated between satellite receive-only antennas and other types of antennas in four different respects. The Court also found that although the City's ordinance had "a reasonable and clearly defined health, safety or aesthetic objective" for the distinction, see 47 C.F.R. § 25.104 (1990), the City had failed to meet its burden on summary judgment of contesting plaintiffs' showing that the ordinance placed such unreasonable limitations on their use of the antenna as to effectively prevent their reception of satellite delivered signals. See Order of November 26, 1990, at 9. Because the ordinance failed to satisfy both prongs of section 25.104, the Court concluded that the ordinance was preempted.


 Under Rule 56(c) of the Federal Rules of Civil Procedure, a district court may grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

 Recognizing that summary judgment motions can contribute significantly to the resolution of litigation when there are no factual issues, the Supreme Court and the Ninth Circuit have established the following standards for consideration of such motions: "If the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrates the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv. Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting Fed.R.Civ.P. 56(e) (emphasis added) and citing Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 U.S. 949, 107 S. Ct. 435, 93 L. Ed. 2d 384 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)). With respect to these specific facts offered by the non-moving party, the court does not make credibility determinations or weigh conflicting evidence, and is required to draw all inferences in a light most favorable to the non-moving party. T.W. Elec. Serv., 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348, 1356, 330-65 Trade Cas. (CCH) P67,001 (1986)).

 Rule 56(c) nevertheless requires this Court to enter summary judgment, "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 106 S. Ct. at 2552. The mere existence of a scintilla of evidence in support of the non-moving party's position is insufficient: "There must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). This Court thus applies to either a defendant's or plaintiff's motion for summary judgment the same standard as for a motion for directed verdict: "Whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id.


 A. First Amendment claims.

 Plaintiffs contend that the provisions of chapter 18.112 of the Pleasanton Municipal Code violate their First Amendment right to freedom of expression as implementation of the ordinance denies them of their constitutional right of access to the television programming of their choice. Defendant in opposition argues that the ordinance sets forth a reasonable time, place, and manner restriction which does not unconstitutionally infringe on plaintiffs' receipt of such programming. *fn4"

 Plaintiffs cite the Supreme Court's decision in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969), for the proposition that the First Amendment protects an individuals right to receive a wide variety of television programming. *fn5" In language quoted by plaintiffs, the Court stated:

 It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail . . . . It is the right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and expressions which is crucial here. That right may not be constitutionally abridged.

 Id. at 390 (emphasis added). Thus, although plaintiffs have access to 37 channels through cable transmission and 15 channels through ordinary network broadcast, they effectively contend that such access is not sufficiently "suitable" in light of the superior quality and quantity of reception available through a satellite antenna (236 video channels, including U.S. and Canadian programs otherwise unavailable in the Pleasanton area, as well as earlier reception of programs airing in other time zones).

 While the Court readily acknowledges both the First Amendment and the Federal Communications Act goals in furthering the public interest in free access to information, it finds no absolute and all-encompassing right to the television programming of choice. Indeed, plaintiffs agree that they do not have such an absolute right of access. At the hearing before this Court, plaintiffs conceded that they have neither the absolute right to construct and use any antenna they choose, nor is there an absolute right to some minimum number of satellite programs which are feasibly accessible from their backyard. Instead, as acknowledged by the FCC in its regulation providing for preemption in certain cases, there is an anticipated balancing of the local community's interest against that of the individual antenna owner.

 Moreover, the evidence before the Court establishes that there are some twenty other satellite receive-only antennas already approved and placed in the Pleasanton area, yet plaintiffs are the only ones who are apparently unable to receive a "suitable" number of programs. Thus plaintiffs effectively request that this Court deem as unconstitutional an ordinance which is an otherwise valid exercise of a municipality's police power because it allegedly infringes on an individual's First Amendment interests in a single case of application. Moreover, as is discussed infra, part of this "total" deprivation is attributable at least in part to the configuration of plaintiffs' backyard, where the location of their pool prohibits compliance with the setback requirements of the ordinance.

 Although a government "has considerable latitude in regulating property right in ways that may adversely affect the owners," Hodel v. Irving, 481 U.S. 704, 107 S. Ct. 2076, 2082, 95 L. Ed. 2d 668 (1987), and despite the several contentions listed above, plaintiffs nonetheless contend that the ordinance, while facially valid against a First Amendment challenge, effects a total deprivation of their use of a satellite antenna -- or, more specifically, the satellite antenna of their choice -- and therefore unconstitutionally abridges their First Amendment rights. Therefore the Court proceeds to analyze the ordinance under the traditional time, place, and manner standards applicable to government regulations having an effect on speech.

 1. Content-neutral state regulations.

 Content-neutral statutes regulating the time, place, and manner of expression will be upheld against a First Amendment challenge so long as they further a substantial governmental interest and do not unreasonably limit alternative avenues of communication. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 928, 89 L. Ed. 2d 29 (1986). *fn6" This Court finds that the ordinance itself is "content-neutral" as it does not distinguish between types of speech or its content but merely distinguishes between the size of antennas and their location on properties within municipal limits. Significantly, the ordinance has not been shown or even alleged to be related to the suppression of expression, see United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968), or to favoring expression of certain view over others, Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984), nor does it seek to ban satellite receive-only antennas altogether. Renton, 106 S. Ct. at 928. Thus the ordinance is clearly content-neutral in both its language and application.

 2. Substantial governmental interest.

 "The power of local governments to zone and control land use is . . . broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life." Schad v. Mt. Ephraim, 452 U.S. 61, 68, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981) (Blackmun, J., concurring). This Court has already found that the ordinance seeks to promote reasonable and clearly defined aesthetic and safety objectives. "It is well settled that the state may legitimately exercise its police power to advance aesthetic values," Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 805, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984), and clearly the present ordinance seeks to advance just such values. As the Supreme Court in Red Lion noted that the time and decibel levels of sound trucks may be regulated in light of their increased loudness, and thus a person running such trucks or using a loudspeaker does not have a First Amendment right to be heard at all times and at all levels so "that [he] drowns out civilized private speech," see Red Lion, 395 U.S. at 387, so the "expression" of the satellite antenna may be repressed from imposing its visual self on neighbors for aesthetic reasons.

 The Supreme Court has observed, "a city's 'interest in attempting to preserve the quality of urban life is one that must be accorded high respect.'" Renton, 106 S. Ct. at 930 (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976)). The concerns of both visual irritation and a potential decrease in property values and community appraisal resulting from such unsightly objects delineate secondary effects supporting an upholding of the ordinance. See Order of November 26, 1990, at 5 (quoting City's staff report noting that satellite antennas "tend to be unsightly" and "are often indiscriminately installed on existing buildings" and thus "elegant buildings can be made to look trashy by their presence on rooftops"). In addition, such antennas pose a serious safety threat in their susceptibility to "'severe wind loadings, necessitating careful attention to their installation in order to avoid injury to persons and property.'" See Order of November 26, 1990, at 5 (quoting a City staff report cited in Defendant's Memorandum in Opposition at exh. 1).

 Based on the foregoing, the Court finds that the ordinance is sufficiently related to furtherance of a substantial government interest to ...

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