that local authorities justify a differentiation in treatment
between TVRO antennas and other types of antenna facilities.
Cawley, 753 F. Supp. at 132; Elm Grove, 724 F. Supp. at 612 (citing
FCC Report ¶ 34). To avoid preemption by the FCC Order, an
ordinance must clearly state a permissible objective behind
drawing a distinction between TVROs and other types of antennas.
Cawley, 753 F. Supp. at 132; Elm Grove, 724 F. Supp. at 612
(construing 27 C.F.R. § 25.104). A valid ordinance, in other
words, must explicitly state why it differentiates between TVROs
and other antenna facilities. Hence is the requirement that local
ordinances that differentiate between TVROs and other types of
antenna facilities "are preempted unless such regulations . . .
[h]ave a reasonable and clearly defined health, safety or
This Court is not alone in interpreting the FCC Order as
requiring localities such as Niskayuna to have a clearly defined
permissible objective behind distinguishing between TVROs and
other antennas. The Southern District of New York observed that,
in enacting the clearly defined objective requirement, "[t]he FCC
intended `to require local authorities to justify a
differentiation in treatment' between TVRO antennas and other
types of antenna facilities." Cawley, 753 F. Supp. at 132 (quoting
FCC Report ¶ 34). The court in Elm Grove held that the FCC Order,
while not perfectly explicit, "clearly affirms that demanding `a
reasonable and clearly defined health, safety or aesthetic
objective' is a means of `requiring local authorities to justify
a differentiation in treatment [in order to] help insure that
local zoning power is not used to restrict unreasonably the
installation of satellite receive-only antennas.'" 724 F. Supp. at
614 (citation omitted).
Counsel for the Town urges the Court to instead follow the
contrary ruling set forth in Van Meter, 696 F. Supp. at 1029.
There the District of New Jersey opined, in an statement devoid
of any authority whatsoever, that the required "clearly defined"
objective could be simply inferred from the ordinance, and that
the state objective need not declare why the ordinance
differentiates between TVRO and other antenna restrictions. Id.
The Van Meter ruling on this point has been adopted by no other
court having addressed the issue. This Court rejects Van Meter
and instead agrees with the Southern District of New York's
assessment, that "the courts that have carefully considered the
language and regulatory history of the FCC regulation on this
point have concluded that the regulation requires the ordinance
to define its objective explicitly. . . . If such an implied and
unclear purpose could satisfy the FCC regulation, the words
`clearly defined' would be meaningless." Cawley, 753 F. Supp. at
132 (citing three other cases that have rejected the Van Meter
Certainly the FCC Order could have been more clearly drafted.
Accord Elm Grove, 724 F. Supp. at 614. Given the requirement's
purpose of preventing discrimination against TVROs, however, a
local ordinance will not avoid preemption if it is supported only
by a general statement of aesthetic purpose that does not justify
its disparate treatment of TVROs from other antenna facilities.
Turning to the present case, Niskayuna's ordinance is preempted
by the FCC Order to the extent that it restricts use of TVROs,
because it does not state a clearly defined permissible objective
for its disparate treatment of satellite dishes. In its only
statement of objective, the ordinance provides generally that its
purpose is, inter alia, "to promote the health, safety, morals,
and general welfare of the community." See Niskayuna Building
Code § 1.2 (Purposes), quoted in full supra n. 3. The ordinance
is undeniably devoid of any justification for the distinction
between satellite dishes and other antenna facilities. Hence,
under the FCC Order, the Niskayuna Building Code is preempted as
it relates to satellite dish limitations.
The Town has articulated some understandable concerns relating
to the aesthetic impact of satellite dishes amassing in its
neighborhoods. This Court does not hesitate to proclaim its
sympathy for the
Town's consternation. Nonetheless, the Court is bound by the
Supremacy Clause to hold that the federal regulation preempts the
Town ordinance. See New York v. FCC, 486 U.S. 57, 108 S.Ct. 1637,
1641-42, 100 L.Ed.2d 48 (1988), cited in Van Meter, 696 F. Supp.
at 1029. The Town should recognize that while the FCC Order is
strict in its language mandating preemption, it is by no means
impossible to satisfy. At least one town has successfully
articulated a clearly defined proper objective for
differentiating between TVROs and other antennas. Elm Grove, 724
F. Supp. at 614. Alternatively, the Town should consider that the
FCC Order applies only to localities that discriminate against
TVRO use. "If [a town] is truly concerned with preserving an
environment uncluttered with antennas, it is completely free to
do so [without being preempted by the Order] so long as it does
not discriminate against TVRO antennas." Cawley, 753 F. Supp. at
132 (citing FCC Report ¶ 32).
D. Attorneys Fees
The Kesslers and Sorianos seek recovery of attorneys' fees
incurred in pursuing this action, pursuant to 42 U.S.C. § 1988.
That section allows recovery of attorneys fees when judgment is
rendered pursuant to, inter alia, 42 U.S.C. § 1983. Id. The
plaintiffs submit that their recovery is grounded in section
1983, thus entitling them to recovery. At oral argument, this
Court expressed some concern over whether an action alleging
federal regulatory preemption of a local ordinance is properly
deemed to be a section 1983 action.
Section 1983 provides a private cause of action for any person
who, under color of state law, has been deprived "of any rights,
privileges, or immunities secured by the Constitution and laws"
of the United States. 42 U.S.C. § 1983 (emphasis added). Indeed,
numerous Supreme Court cases have recognized that section 1983 is
not limited to Constitutional or civil rights issues; an action
may be properly brought under § 1983 alleging deprivation of a
right secured by the laws of the United States. Dennis v.
Higgins, ___ U.S. ___, 111 S.Ct. 865, 868-70, 112 L.Ed.2d 969
(1991); Wilder v. Virginia Hosp. Assoc., ___ U.S. ___, 110 S.Ct.
2510, 2517, 110 L.Ed.2d 455 (1990); Golden State Transit v. Los
Angeles, 493 U.S. 103, 110 S.Ct. 444, 448, 107 L.Ed.2d 420
(1990); Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504,
65 L.Ed.2d 555 (1980).
In the present case, however, any "rights" the plaintiffs might
have would arise under the FCC Order, which is a federal
regulation. This Court has concern over whether an action
alleging deprivation of rights secured by a federal regulation is
cognizable under section 1983. This is because section 1983, by
its very terms, limits remedies to deprivation of rights secured
by the Constitution and laws of the United States. 42 U.S.C.v §
1983. This Court is faced with the dilemma of whether "and laws"
includes federal regulations such as the FCC Order.
The cases cited by the plaintiff at oral argument are of no
assistance. Although the courts in Cawley and Van Meter made
blanket statements that actions alleging violations of the FCC
Order are cognizable under section 1983, neither court provided
acceptable rationale supporting its conclusion.*fn5 See Cawley, 753
F. Supp. at 131; Van Meter, 696 F. Supp. at 1027. Furthermore, the
Supreme Court cases discussing causes of action under section
1983 have been limited to examining rights secured by the
Constitution or laws, and not by regulations. Dennis, ___ U.S.
S.Ct. 865, 112 L.Ed.2d 969 (rights secured by the Commerce
Clause); Wilder, ___ U.S. ___, 110 S.Ct. 2510, 110 L.Ed.2d 455
(rights secured by Boren Amendment to the Medicaid Act); Golden
State Transit, 493 U.S. 103, 110 S.Ct. 444, 107 L.Ed.2d 420
(deprivation of rights secured by the NLRA); Thiboutot,
448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (rights secured by the Social
Security Act). This court is able to discern no authority
speaking to the issue of whether section 1983 provides a cause of
action for alleged deprivation of rights secured by regulations
of the United States.
Neither party to this action has briefed the Court on the
question of attorneys fees in this case. This Court simply does
not have enough information to render a decision on this leg of
plaintiffs' motion. Therefore, this Court reserves decision on
the question of whether plaintiffs can recover attorneys fees in
light of today's ruling. If the plaintiffs wish to pursue their
motion for attorneys' fees, they are directed to file a brief
with this Court within twenty (20) days of the date of this
decision. Defendant's brief in response should be filed in this
Court within ten (10) days after plaintiffs' filing. Letter
briefs will be sufficient. The Court will order oral argument on
this issue only if necessary. The Court respectfully requests
that the parties address the issues and concerns raised herein
concerning whether this action, brought pursuant to a federal
regulation, is cognizable under 42 U.S.C. § 1983.
Since the Niskayuna Building Code operates to differentiate
between TVROs and other antenna facilities yet fails to state a
legitimate objective for the distinction, the code's provisions
regulating TVRO use are preempted. Plaintiffs' motion for summary
judgment is therefore granted.
Decision on plaintiffs' motions for attorneys fees is reserved
pending further briefing by the parties.
IT IS SO ORDERED.