(1) the programming involved is not encrypted [or scrambled to prevent unauthorized reception]; and
(2) (A) a marketing system is not established . . . or
(B) a marketing system described in subparagraph (A) is established and the individuals receiving such programming have obtained authorization for private viewing under that system.
See 47 U.S.C. § 605(b) (emphases added).
"Satellite cable programming" is defined as "video programming which is transmitted via satellite and which is primarily intended for the direct receipt by cable operators for their retransmission to cable subscribers," id. § 605(d)(1), and "private viewing" is defined as "viewing for private use in an individual's dwelling unit by means of equipment, owned or operated by such individual, capable of receiving satellite cable programming directly from a satellite." Id. § 605(d)(4) (emphases added).
In partial reliance on the exceptions of subsection (b), the FCC, the agency responsible for implementing and enforcing the intent of Congress, adopted its Order permitting the preemption of local regulations found to interfere unnecessarily with an individual's reception of satellite programming. In its published Report and Order, the Commission stated as follows:
In our Notice we concluded that we had the authority to preempt non-federal regulations which stood as obstacles to the accomplishment of federal objectives. We determined that the broad mandate of Section 1 of the [FCA], to make communications services available to all people of the United States and the numerous powers granted by Title III of the [FCA] . . . establish the existence of a congressional objective in this area. More specifically, the recent amendment to the Communications Act, 47 U.S.C. , creates certain rights to receive unscrambled and unmarketed satellite signals. These statutory provisions establish a federal interest in assuring that the right to construct and use antennas to receive satellite delivered signals is not unreasonably restricted by local regulation.
Report and Order, Common Carrier Services; Preemption of Local Zoning and Other Regulation of Receive-Only Satellite Earth Stations, 51 Fed. Reg. 5519, 5522 para. 23 (Feb. 14, 1986) [hereinafter Notice and Order] (emphases added). Thus the Commission concluded that section 605 had created a federal interest which required federal preemption in order to preserve that interest from undue interference by state and local governments.
2. Application under 42 U.S.C. 1983.
Section 1983 provides a cause of action for the "deprivation of any rights, privileges, or immunities secured by the Constitution" or federal laws under the color of state law. See 42 U.S.C. § 1983; Maine v. Thiboutot, 448 U.S. 1, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980).
Plaintiffs concede that they are not claiming that any intrusion on satellite reception constitutes a violation of section of 1983, but maintain instead that whenever the City fails its burden under section 25.104 -- i.e., the ordinance imposes an "unreasonable limitation" or costs on a satellite antenna owner -- then a section 1983 cause of action will lie. Thus this Court looks to whether plaintiffs have been deprived of a right, privilege, or immunity within the meaning of section 1983 by virtue of the ordinance's preemption.
a. The Van Meter decision.
One district court has already determined that individual satellite receive-only antenna owners like the present plaintiffs have a cause of action under section 1983 by virtue of the rights conferred under 47 U.S.C. § 605(b) and 47 C.F.R. § 25.104. Van Meter v. Township of Maplewood, 696 F. Supp. 1024, 1027 (D.N.J. 1988). However, this Court is neither bound nor persuaded by this resolution
as the court in Van Meter did not conduct any type of "rights" analysis in reaching its conclusion, but merely stated as follows:
Congress legalized the reception of authorized or unencrypted satellite television signals under the Cable Communications Policy Act of 1984 . . ., and the FCC, in turn, issued the Order to minimize interference with satellite television reception. [47 C.F.R. § 25.104] This permits plaintiffs to bring a section 1983 action for interference with this federal scheme.
Id. (citations omitted). In contrast, this Court finds that the present case warrants a closer examination as to whether there is a clear basis for concluding that a satellite antenna owner has a cause of action against a municipality under section 1983 for unreasonable regulatory interference with his or her reception of satellite signals.
b. Cognizable rights under section 1983.
In determining whether a federal statute creates a cause of action under section 1983, this Court applies a two-step inquiry: (1) has Congress foreclosed a remedy under section 1983 in the enactment itself; and (2) does the statute create the kind of "rights, privileges or immunities" enforceable under section 1983. Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 93 L. Ed. 2d 781, 107 S. Ct. 766 (1987); Middlesex County Sewerage Authority v. National Sea Clammers Assoc., 453 U.S. 1, 19, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981). As the parties agree that the statutory scheme under the Federal Communications Act of 1934 ("FCA"), 47 U.S.C. § 151 et seq. does not preclude the possibility of private enforcement under section 1983, the Court's analysis focuses on the second prong of the inquiry.
The parties, however, disagree as to what test should be applied in determining whether section 605(b) in and of itself creates a right enforceable under section 1983. Plaintiffs contend that the proper inquiry is that under Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990), which looks at several factors in determining whether a right conferred by statute may be enforced under section 1983: (1) did Congress intend that the subject provision benefit "'the putative plaintiff'"; (2) if so, does the provision create a binding obligation on a governmental unit rather than merely a "'congressional preference'"; and (3) is the interest asserted sufficiently clear that it may be judicially enforced. Id. at 2517 (quoting Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 110 S. Ct. 444, 448, 107 L. Ed. 2d 420, and Pennhurst State School and Hosp. v. Halderman, 451 U.S. 1, 19, 67 L. Ed. 2d 694, 101 S. Ct. 1531 (1981)).
Defendant, in contrast, contends that this case presents a situation of implying a private right of action from a particular statute, which is a different inquiry altogether. Wilder, 110 S. Ct. at 2517 n.9. Thus, in the Ninth Circuit, a court applies the four-factor test in Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), to determine whether Congress in fact intended to create a private cause of action. Under both approaches, however, the key to determining whether a statute and/or regulation creates rights enforceable under section 1983 is legislative intent. Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 431, 93 L. Ed. 2d 781, 107 S. Ct. 766 (1987). As the Court finds that no enforceable right is created under either test, the Court analyzes section 605(b) under both.
(1). Wilder test.
As noted above, under Wilder a court will find that a statute creates an express right enforceable under section 1983 where it is shown that Congress intended to benefit the putative plaintiff, that the statute creates a binding obligation rather than merely a congressional preference, and that the interest asserted is sufficiently clear that it may be judicially enforced. Section 605(b) clearly sets forth that individuals who, for their own private viewing, are able to receive unencrypted or non-protected satellite transmissions through their own receive-only antennas are expressly exempted from the civil and criminal penalties otherwise applicable to unauthorized reception of satellite transmission. See 47 U.S.C. § 605(e). The fact that the federal interest enunciated is an "exception" rather than statutorily phrased as a benefit will not defeat its establishing a right or "immunity" under section 1983. See, e.g., Playboy Enters., Inc. v. Public Serv. Comm'n of Puerto Rico, 906 F.2d 25 (1st Cir.) (holding that the protection from liability for cable operators under the Cable Act created an "immunity" enforceable under section 1983), cert. denied, 112 L. Ed. 2d 398, 111 S. Ct. 388 (1990). Thus the statute identifies individual owners of satellite antennas as receiving the particular benefit of the statutory exception of section 605(b).
The Court finds, however, that there are serious problems with respect to whether the right of access to satellite programming granted under the statute does in fact create a binding obligation on state and local governments. Read in its purest sense, the language of the statute would seem to create an absolute right of uninhibited access to unencrypted and unmarketed satellite transmissions. However, while the language of section 605 served as a major factor in the FCC's adoption of the preemption provisions codified at 47 C.F.R. § 25.104, that very regulation imposed significant limitations on the unequivocal statutory language by permitting governmental interference through local and state regulation so long as it is justified by health, aesthetic, or safety goals, and it does not pose unreasonable limitations on the use of satellite antennas. As the agency responsible for carrying out the congressional objectives set forth in the FCA, the Commission's administrative interpretations are entitled to substantial deference. Clallam County v. Department of Transp., 849 F.2d 424, 428 (9th Cir. 1988), cert. denied, 488 U.S. 1008, 102 L. Ed. 2d 782, 109 S. Ct. 790 (1989). Thus the congressionally created right under the statute implying total government obligation and compliance has been tempered by the regulation to permit not only regulation but also a certain level of interference with satellite reception. Therefore the statutory language indicates more a congressional preference than a mandate -- i.e., all things being equal, individuals should have full and uninhibited access to a maximum of diversity of programming --such that the fact that a regulation has been preempted does not necessarily create a cause of action for a violation of one's federal rights under section 1983.
(2) The Cort test.
Even under the four-factor test of Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), this Court finds again that section 605 did not create an enforceable right under section 1983. Specifically, a court is to examine the following four factors under Cort : (1) is plaintiff a member of the class the statute seeks to especially benefit; (2) is there any discernible legislative intent either creating or denying a private cause of action; (3) is such action consistent with the underlying legislative scheme; and (4) is the cause of action one traditionally relegated to state law such that principles of comity argue against inferring a federal cause of action. Cort, 95 S. Ct. at 2088.
While section 605(b) is apparently intended to benefit individuals like plaintiffs who own and seek to operate their satellite receive-only antenna according to uses authorized by federal law, a private cause of action has arguably been denied within the meaning of the second factor by the FCC's provision of an "alternative" remedy through the preemption provisions of section 25.104. In like manner, the legislative scheme would again seem to be one in which state and local governments are free to regulate satellite reception up to and until such regulation becomes unreasonable, and then the offensive regulation is merely preempted; providing a separate cause of action for an alleged violation of an individual's civil rights would not seem consistent with this scheme.
Lastly, while the preemptive provisions of 47 C.F.R. § 25.104 clearly indicate that federal law will take priority where necessary to protect the underlying federal interests, the limiting under a federal regulation of an effectively absolute grant of a right of access to all unencrypted or unmarketed programming under a federal statute establishes that local limitation is not only contemplated but is also clearly permissible. Thus it is awkward to conclude that a particularly "localized" area such as a community zoning regulation can create a section 1983 cause of action in the single case in which that local ordinance is found to be "unreasonable" in its application.
The Court therefore concludes under the Cort test as well that the federal rights and interests created under section 605 are not the kind which Congress intended to be enforced under section 1983.
In conclusion, the Court finds that section 605(b) does not meet the test under either Wilder or Cort for establishing the existence of a federal right enforceable under section 1983. As discussed previously and conceded by plaintiffs, the statue and regulation contemplate a balancing between community and individual interests, and it is only once that balance places an unreasonable limitation on the individual does a violation of some federal interest first arise. Here, such unreasonableness has been found in only a single instance where arguably plaintiffs' own property and antenna selection may be deemed contributing factors to that unreasonableness. Under these circumstances and in light of the statutory and regulatory interplay, this Court finds that it would be contrary to the intent of the legislature to also provide a separate cause of action under section 1983 following a mere finding of preemption.
For the foregoing reasons, plaintiffs' motion for summary adjudication on this claim for relief action will be denied. Moreover, as there are no remaining issues of fact and therefore this claim for relief may be decided as a matter of law, the Court grants summary adjudication in favor of defendant pursuant to Federal Rule of Civil Procedure 56(d).
D. Defendant's counterclaim.
Defendant seeks summary adjudication that the portions of the Pleasanton ordinance not cited in this Court's prior finding of preemption -- specifically, the provisions concerning design review, screening, and no front yard placement -- may be severed from the provisions cited in this Court's prior Order, that they are valid, and that they may continue to be enforced. In its prior Order, this Court stated that,
according to the City's own memorandum submitted in opposition to the present motion, the regulations governing satellite antennas are more stringent than those governing other types of antennas in four significant respects.
See Order of November 26, 1990, at 4. The Court then went on to discuss the four cited areas of differentiation of height, color, yard setback, and roof mounting. Id. Based on these distinctions, the Court then examined the ordinance and its application under the two-prong test of 47 C.F.R. § 25.104, and concluded that the ordinance failed to satisfy the second prong. Therefore, the Court held that, "because . . . the ordinance does not satisfy both prongs of 47 C.F.R. § 25.104, it is preempted by federal law as it applies to this case." Id. at 13 (emphasis added).
An initial reading of this Court's ruling indicates that it was intended that the ordinance would be preempted in its entirety. See Hunter v. City of Whittier, 209 Cal. App. 3d 588, 257 Cal. Rptr. 559 (1989) ("If a community chooses to enact an ordinance which differentiates between types of antennas, the ordinance is preempted unless it meets" the requirements of section 25.104) (emphasis added). Having satisfied itself that the ordinance met the threshold requirement that it differentiated between classes of antenna holders on the four grounds specifically set forth by defendant,
the Court then went on to analyze the ordinance's language and operation. Consistently throughout the Order, the Court refers to "the ordinance" in its entirety as a single unit rather than to separate portions. As this Court indicated at the hearing on the present motions, it will not undo Judge Ezra ruling, and the Court finds that it was Judge Ezra's intent that the ordinance be deemed preempted in its entirety. Therefore defendant's motion for summary adjudication will be denied.
In light of the foregoing, the Court also finds that the facts and the law establish that defendant is not entitled to any relief through enforcement of its preempted ordinance. Therefore, pursuant to Federal Rule of Civil Procedure 41(b), plaintiffs' motion for involuntary dismissal of defendant's counterclaim will be granted.
For the foregoing reasons, the Court ORDERS as follows:
1. Plaintiffs' motion for summary adjudication is DENIED with respect to all claims. However, pursuant to Federal Rule of Civil Procedure 56(d), summary adjudication is GRANTED in favor of defendant on plaintiffs' second, third, and fourth claims for relief.
2. Defendant's motion for summary adjudication on the issue of severance of the ordinance is DENIED.
3. Plaintiffs' motion for involuntary dismissal of defendant's counterclaim is GRANTED, and such dismissal is to be deemed a judgment on the merits.
IT IS SO ORDERED.
JUDGMENT - June 6, 1991, Filed
For the reasons stated in the Order issued on this date, JUDGMENT IS HEREBY ENTERED in favor of defendant and against plaintiffs on the second, third, and fourth claims for relief set forth in the underlying complaint.
Parties to bear their own costs.
IT IS SO ORDERED.