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KESSLER v. TOWN OF NISKAYUNA

October 10, 1991

MICHAEL W. AND BARBARA S. KESSLER, PLAINTIFFS,
v.
TOWN OF NISKAYUNA, DEFENDANT. ANTHONY SORIANO AND PATRICIA SORIANO, PLAINTIFFS, V. TOWN OF NISKAYUNA, DEFENDANT.



The opinion of the court was delivered by: McCURN, Chief Judge.

MEMORANDUM-DECISION AND ORDER

I. OVERVIEW

This consolidated motion arises from litigation over two families' (plaintiffs) plans to install and/or maintain satellite television receive-only dish antennas ("TVROs") on the rooftops of their respective homes in Niskayuna, New York (defendant). The defendant has prevented one family from installing the satellite dish and is threatening legal action against the other if it does not remove the dish from its roof. The plaintiffs have brought this action to resolve the issue of whether federal law or the United States Constitution protects their interests in having TVROs on their respective rooftops. Asserting that there are no genuine issues of material fact, the plaintiffs now move for summary judgment.

II. STATEMENT OF FACTS

A. Background

"Satellite television receive only antennas," also known as "TVROs" and "earth stations," are devices that enable their users to receive television signals transmitted directly by satellite for view on their television sets. Van Meter v. Township of Maplewood, 696 F. Supp. 1024, 1024 (D.N.J. 1988). A "parabolic antenna," more commonly known as a "satellite dish" because of its dish shape, is a type of TVRO. Id. TVROs deliver a range of television programming that surpasses that available over other media, including cable television. See Preemption of Local Zoning and Other Regulation of Receive Only Satellite Earth Stations, 51 Fed.Reg. 5519-01, at ¶ 25 (codified at 47 C.F.R. § 25.104 (1990)) ("FCC report"). Fully operating TVROs in Niskayuna, New York can receive over ninety television and radio programming services being transmitted from nineteen different satellites orbiting the earth. See Affidavit of Chuck Hall (5/12/91), at ¶¶ 6, 7 ("Hall Affidavit").

TVROs can reach their full capabilities, however, only if they have unobstructed views of the satellites. "[D]ense obstruction in the line of sight between a TVRO and a Television Satellite will preclude reception of a television signal by a TVRO. Such obstructions include, but are not limited to, shrubs, trees, and houses." Id. at ¶ 10; accord Cawley v. City of Port Jervis, 753 F. Supp. 128, 130 (S.D.N.Y. 1990); Van Meter, 696 F. Supp. at 1030.

B. The Present Controversy

Plaintiffs Michael and Barbara Kessler built a new home in Niskayuna, New York ("Town") in 1990. Shortly after moving to Niskayuna, the Kesslers made formal application to the appropriate Town authority for permission to install a satellite dish on their rooftop. The Kesslers had a satellite dish at their former home, and wanted to continue use of a dish to receive programs for professional and business purposes. Affidavit of Michael Kessler (5/22/91), at ¶ 5. The Town rejected their application on grounds that the dish placed on the rooftop would violate the Town zoning ordinance. The Kesslers thereafter applied to the Niskayuna Zoning Board for a variance of the ordinance but were met with strong opposition from their neighbors. The Board denied the variance application. The Kesslers subsequently brought this action against the Town, seeking a declaration that the Niskayuna zoning ordinance at issue is preempted by federal law and unconstitutional, and an order enjoining enforcement of the ordinance against them.

Upon stipulation of all parties, the Kesslers' and Sorianos' actions have been consolidated. The plaintiffs together now move for summary judgment.

III. DISCUSSION

The Town relies exclusively on the Niskayuna Building Code to block plaintiffs' efforts to legally install TVROs on their rooftops. The plaintiffs challenge the ordinance on four alternative grounds:

(1) The ordinance is preempted by federal regulation;

  (2) The ordinance violates their first amendment
    right to receive information;
  (3) The ordinance violates the equal protection
    clause of the ...

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