United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 5, 2001 Decided July 6, 2001
Building Owners and Managers Association International, et al.,
Satellite Broadcasting and Communications Association, et al.,
Consolidated with No. 99-1021
Petitions for Review of an Order of the Federal Communications Commission
Matthew C. Ames argued the cause for petitioners. With him on the brief were William Malone and Nicholas P. Miller.
Gregory M. Christopher, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Christopher J. Wright, General Counsel, Daniel M. Armstrong, Associate General Counsel, A. Douglas Melamed, Acting Assistant Attorney General, United States Department of Justice, Robert B. Nicholson and Robert J. Wiggers, Attorneys. John E. Ingle, Deputy Associate General Counsel, Federal Communications Commission, Catherine G. O'Sullivan and Nancy C. Garrison, Attorneys, United States Department of Justice, entered appearances.
Richard P. Bress argued the cause for intervenors, DIRECTV, Inc., et al. With him on the brief were James H. Barker, Margaret L. Tobey, Joan E. Neal, Cristina Chou Pauze, Timothy R. Graham, Joseph M. Sandri, Jr., Barry J. Ohlson, David Alan Nall, Jonathan Jacob Nadler and Benigno E. Bartolome, Jr. Philip L. Verveer and Theodore C. Whitehouse entered appearances.
Before: Randolph, Rogers and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Concurring opinion filed by Circuit Judge Randolph.
Rogers, Circuit Judge: Following enactment of the Telecommunications Act of 1996, the Federal Communications Commission promulgated a rule prohibiting restrictions on certain over-the-air reception devices ("OTARD"). The rule invalidated
including but not limited to any state or
Preemption of Local Zoning Regulation of Satellite Earth Stations, Implementation of Section 207 of the Telecommunications Act of 1996: Restrictions on Over-the-Air Reception Devices: Television Broadcast Service and Multichannel Multipoint Distribution Service, 11 F.C.C.R. 19276 (1996) ("First OTARD Order"). In 1998, the Commission extended the prohibition, with certain exceptions, to "lease provision[s]... where the [antenna] user has a ... leasehold interest in the property." In the Matter of Implementation of Section 207 of the Telecommunications Act of 1996--Restrictions on Over-the-Air Reception Devices: Television Broadcast, Multichannel Multipoint Distribution and Direct Broadcast Satellite Services, 13 F.C.C.R. 23874 (1998) ("Second OTARD Order").
trade associations representing real estate owners and property managers1
appeal the Second OTARD Order, contending that the rule, as amended, is
invalid on its face. They contend, first, that the Commission exceeded
its statutory authority in extending the OTARD rule to leased property;
second, that the amended rule violates the Takings Clause of the Fifth
Amendment of the United States Constitution;2 and third, if there
is no taking, that the Commission acted arbitrarily and capriciously in
extending the rule to leaseholds.
1 Petitioners are the Building Owners and Managers Association International, the Institute of Real Estate Management, the National Apartment Association, the American Seniors Housing Association, the National Multi Housing Council, the National Association of Realtors, the Real Estate Roundtable, and the National Association of Home Builders.
2 "[N]or shall private property be taken for public use, without just compensation." U.S. Const. amend. V.
In promulgating the OTARD rules, the Commission relied on s 207 of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (the "1996 Act"), which provides:
days after the date of enactment of this Act,
The 1996 Act also added a new subsection 303(v) to the Communications Act of 1934, granting the Commission exclusive jurisdiction to regulate the provision of direct-to-home satellite services ... [T]he term "direct-to-home satellite services" means the distribution or broadcasting of programming or services by satellite directly to the subscriber's premises without the use of ground receiving or distribution equipment . . . .
47 U.S.C. s 303(v). The 1996 Act left undisturbed the broad statutory directives contained in the Communications Act of 1934, including the Commission's mandate to "make [communications services] available ... to all the people of the United States," 47 U.S.C. s 151, and the Commission's authority to "perform any and all acts, make such rules and regulations, and issue such orders . . . as may be necessary in the execution of its functions." Id. s 154(i).
as the 1980s, the Commission had begun restricting potential barriers to
the development of satellite-based residential video programming.
See, e.g., Preemption of Local Zoning or Other Regulation of Receive-Only
Satellite Earth Stations, 51 Fed. Reg. 5519 (1986). In direct response
to the directives in the 1996 Act, the Commission promulgated rules to
safeguard viewers' ability to use devices designed for direct broadcast
satellite services, television broadcast services, and multichannel multipoint
distribution services (collectively, "s 207 devices"). See, e.g.,
Preemption of Local Zoning Regulation of Satellite Earth Stations, 11 F.C.C.R.
5809 (1996); Implementation of Section 207 of the Telecommunications
Act of 1996: Restrictions on Over-the-Air Reception Devices:
Television Broadcast and Multichannel Multipoint Distribution Service,
Notice of Proposed Rule-making, 11 F.C.C.R. 6357 (1996). The Commission
adopted its first rule implementing s 207 on August 5, 1996. See
including but not limited to any state or
47 C.F.R. s 1.4000 (1996). The prohibitions in the first OTARD rule applied only to property in which the "user" of satellite services (i.e., the "viewer" for purposes of s 207) had an ownership interest. Despite its stated prohibition of "any" restriction, the rule allowed for several exceptions: Restrictions on s 207 devices were permissible if they served a "clearly defined safety objective" and were administered "in a nondiscriminatory manner to other . . . devices . . . that [we]re comparable in size, weight and appearance," or if they were "necessary to preserve an historic district," and if the restrictions were no more burdensome than necessary. Id. s 1.4000(b)(1)-(3).3 In addition, the OTARD rule permitted waiver by the Commission upon the request of local governments or associations. See id. s 1.4000(c).
The first OTARD rule left unresolved whether the s 207 prohibition should apply to "property not within the exclusive.
3 In the Second OTARD Order, the Commission amended s 1.4000(b)(2) to except "a prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion on, the National Register of Historic Places...." [use or] control of a person with an ownership interest," such as common areas or rental properties. First OTARD Order, 11 F.C.C.R. at 19311; see also id. at 19314. On November 20, 1998, after notice and comment, the Commission expanded the OTARD prohibition to include restrictions on s 207 reception devices on rental property that is within the exclusive use or control of the tenant who has a leasehold interest in the property. See Second OTARD Order, 13 F.C.C.R. 23874 (1998). The amended OTARD rule provides in relevant part:
(a)(1) Any restriction, including but not limited to any state or local law or regulation, including zoning, land-use, or building regulations, or any private covenant, contract provision, lease provision, homeowners' association rule or similar restriction, on property within the exclusive use or control of the antenna user where the user has a direct or indirect ownership interest or lease-hold interest in the property that impairs the installation, maintenance, or use of [a s 207 device] ... is prohibited....
47 C.F.R. s 1.4000(a)(1) (1998) (new language italicized). Under the amended OTARD rule, tenants are able, subject to some restrictions, to install s 207 devices "wherever they rent space outside of a building, such as balcony railings, patios, yards, gardens, or any other similar area" and, in some instances, inside rental units. Second OTARD Order, 13 F.C.C.R. at 23875.4 The Commission did not, however, extend the OTARD rule to the placement of antennas on common property such as outside walls (where viewers may have access but not possession and exclusive rights of use or control) or restricted access areas such as rooftops (where
4 For tenants who do not lease outside rental space, the Commission noted that "our new rules permit the installation of Section 207 devices inside rental units and anticipate the development of future technology that will create devices capable of receiving video programming signals inside buildings." Second OTARD Order , 13 F.C.C.R. at 23875-76. The Commission noted that one such device already permits inside receipt of signals. Id. at 23876.viewers generally do not have access or possession). See id. at 23893 p 35.
the Commission's denial of petitions for reconsideration of the Second
OTARD Order, petitioners filed this appeal.
5 The court properly applies Chevron analysis to the amended OTARD rule because "Congress delegated authority to [the Commission] generally to make rules carrying the force of law, and [the OTARD rule] was promulgated in the exercise of that authority." United States v. Mead Corp., 121 S. Ct. 2164, 2171 (2001); see also infra Part II. 1934 and the Telecommunications Act of 1996, and to the legislative history of s 207.
In enacting the Communications Act of 1934, Congress intended "to confer upon the Commission sweeping authority to regulate 'in a field of enterprise the dominant characteristic of which was the rapid pace of its unfolding.' " Office of Communication of the United Church of Christ v. F.C.C., 707 F.2d 1413, 1423 (D.C. Cir. 1983) (quoting National Broad. Co. v. United States, 319 U.S. 190, 219 (1943)). In accordance with this goal, the provisions of the Communications Act are "explicitly applicable to 'all interstate and foreign communication by wire or radio,' " and the Commission, being the "single Government agency with 'unified jurisdiction and regulatory power over all forms of ... communication,' " is granted "broad authority" to execute its mandate. United States v. Southwestern Cable Co., 392 U.S. 157, 167-68 (1968) (quoting 47 U.S.C. s 152(a)) (footnotes omitted); see also Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 700 (1984); Metropolitan Council of NAACP Branches v. FCC, 46 F.3d 1154, 1162 (D.C. Cir. 1995); United Video, Inc. v. FCC, 890 F.2d 1173, 1182-83 (D.C. Cir. 1989); National Ass'n of Regulatory Utility Comm'rs v. FCC, 746 F.2d 1492, 1499, 1501 (D.C. Cir. 1984); Wold Communications, Inc. v. FCC, 735 F.2d 1465, 1474-76 (D.C. Cir. 1984). The Communications Act thus directs the Commission to "perform any and all acts, make such rules and regulations, and issue such orders . . . as may be necessary in the execution of its functions." 47 U.S.C. s 154(i); see also id. s 303(r).
Congress continued in the 1996 Act to vest broad authority in the Commission, granting the Commission "exclusive juris- diction to regulate the provision of direct-to-home satellite services," 47 U.S.C. s 303(r), and instructing the Commission promptly to issue regulations to "prohibit restrictions" that impede "viewer[s]" from using s 207 devices.6 Id. s 207. Consistent with the broad language of other sections of the
6 The parties' discussion of s 207 is not advanced by emphasis on whether s 207 is properly labeled as a directive for the Commis- sion to act pursuant to pre-existing authority, rather than as a source of independent authority. Whether s 207 is viewed as new authority or as a directive to act upon existing authority, s 207 Commission's enabling statute, Congress demonstrated no intent to qualify the terms "viewer" and "restrictions": It did not specify which types of "viewer[s]" were covered, or which types of "restrictions" were permissible. Had Congress intended to qualify these terms, it clearly would have done so, especially in light of the courts' expansive reading of Congress's previous delegations of authority to the Commission. See generally Commissioner v. Keystone Consol. Indus., 508 U.S. 152, 159 (1993); Cannon v. University of Chicago, 441 U.S. 677, 696-99 (1979); Lorillard v. Pons, 434 U.S. 575, 580- 81 (1978); Sea-Land Service, Inc. v. Department of Transp., 137 F.3d 640, 645-46 (D.C. Cir. 1998). Having "explicitly left a gap for [the Commission] to fill," Congress delegated to the Commission the authority to "elucidate [s 207] by regulation" and to "address[ ] ambiguity in the statute," United States v. Mead Corp., 121 S. Ct. 2164, 2171 (2001) (quoting Chevron, 467 U.S. at 843-44), and thus to preempt State enforcement of lease provisions that place "restrictions on viewers who wish to install, maintain, or use a [s ] 207 reception device within their leasehold."7 Second OTARD Order, 13 F.C.C.R. at 23877.
The legislative history of s 207 reinforces the conclusion that Congress intended in s 207 to give the Commission a suffices as a statutory basis for the Second OTARD Order. More- over, petitioners' belittling of the significance of s 207 on the ground that, unlike other sections of the 1996 Act, s 207 is uncodi- fied is misplaced; that the section was not codified in the United States Code does not detract from s 207's legal authority. See United States Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 448 (1993).
7 The Commission's statutory authority is, of course, subject to limitations: It is "restricted to that reasonably ancillary to the effective performance of [its] various responsibilities." Southwestern Cable Co., 392 U.S. at 178. In light of Congress's explicit (and exclusive) grant of jurisdiction to the Commission over direct-to-home satellite services and its broad responsibility to make communications services available to all individuals, an OTARD rule that safeguards all viewers' access to these services clearly falls within this limitation.
Very broad mandate. The House Committee
Report on s 207 states that:
H.R. Rep. No. 104-204 at 123-24 (1995). Petitioners read this statement to reflect Congress's intent to prohibit only restrictions affecting property owners, such as zoning restrictions, covenants, and homeowners' association restrictions, thereby restoring those individuals' property rights. An equally plausible reading of the House Report--and one consistent with the broad authority reflected in the Commission's statutory mandate--would indicate Congress's intent to invalidate various types of private contracts under State law, such as homeowners' association contracts and lease agreements, that might interfere with a viewer's ability to receive certain types of satellite broadcasting signals.
Petitioners' essential claim is that however broad the Commission's mandate, it may only exercise its authority over "communications and persons . . . engaged in communications." 47 U.S.C. s 152(a). This, petitioners contend, does not include either the real estate industry or the landlord-tenant relationship, which is a legal allocation of property rights governed by State law. Petitioners rely on cases in which courts have denied the Commission the authority "to determine the validity of contracts between [Commission] licensees and others," Regents of the Univ. Sys. of Georgia v. Carroll, 338 U.S. 586, 602 (1950), or to regulate any and all activities that "substantially affect communications." Illinois Citizens Comm. for Broad., 467 F.2d at 1400; see also Radio Station WOW v. Johnson, 326 U.S. 120, 131-32 (1945); Southwestern Bell Tel. Co. v. FCC, 19 F.3d 1475, 1484 (D.C. Cir. 1994). In contrast to those cases, however, the issue here is not the extent to which a ruling by the Commission affects areas that are tangential to the Commission's jurisdiction, such as the height and location of a building. See, e.g., Illinois Citizens Comm. for Broad., 467 F.2d at 1400. Congress has expressly vested the Commission with exclusive jurisdiction and authority to ensure that all viewers may access direct-to-home satellite services. See 47 U.S.C. s 303(v); 1996 Act, Pub. L. No. 104-104, s 207, 110 Stat. 56. Where the Commission has been instructed by Congress to prohibit restrictions on the provision of a regulated means of communication, it may assert jurisdiction over a party that directly furnishes those restrictions, and, in so doing, the Commission may alter property rights created under State law. See Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 368-69 (1986); Fidelity Fed. Savings and Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153-54 (1982); Capital Cities Cable, 467 U.S. at 698-700; New York State Comm'n on Cable Television v. FCC, 749 F.2d 804, 807-08 (D.C. Cir. 1984).
8 For these reasons, we hold that the Commission could reasonably construe s 207 to apply to all "viewer[s]," including tenants, and to obligate the Commission to prohibit "[a]ny restriction," including lease provisions, "that impairs the installation, maintenance, or use of [a s 207 device]." 47 C.F.R. s 1.4000. It follows that the court properly defers to the Commission's interpretation of its statutory authority. See Mead Corp., 121 S. Ct. at 2171-73; Chemical Mfrs. Ass'n v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125 (1985); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131 (1985).
8 Petitioners do not rely on s 152(b) as a jurisdictional limitation on the Commission's authority to promulgate the amended OTARD rule. See Louisiana Pub. Serv. Comm'n., 476 U.S. at 369. should be guided not by Chevron, but rather by the principles set forth in Bell Atlantic Telephone Companies v. FCC, 24 F.3d 1441 (D.C. Cir. 1994). In Bell Atlantic, the court declined to apply Chevron deference to a Commission order requiring the physical collocation of competitive access providers to the central offices of local telephone exchange companies. Faced with a similar statutory silence on the precise issue at hand, see id. at 1445, the court adopted a "narrowing construction" of the Communications Act9 because the Commission's interpretation created an "identifiable class" of applications that would "necessarily constitute a taking." Id. at 1445-46 (quoting Riverside Bayview Homes, 474 U.S. at 128 n.5). Petitioners contend that, as in Bell Atlantic, the Commission's interpretation of s 207 and of its authority under the Communications Act creates such an "identifiable class" and is therefore impermissible. Consistent with Supreme Court instruction, we disagree.
obstacle to petitioners' takings claim arises from their effort to classify
the amended OTARD prohibition as a per se taking under Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419 (1982). In Loretto, the Supreme
Court held that a "physical intrusion by government [is] a property restriction
of an unusually serious character for purposes of the Takings Clause."
Id. at 426 (internal quotations omitted). The Court further held
that "when the physical intrusion reaches the extreme form of a permanent
physical occupation, a [per se] taking has occurred." Id. Thus,
in Loretto, the Supreme Court invalidated a New York statute authorizing
a cable television company to place cable equipment onto a private property
owner's building on the grounds that the statute constituted a per se taking.
Id. at 438-39. Petitioners contend that a tenant's unauthorized use of
the property, by installing a s 207 device against the express wishes of
the landlord, is an invasion of the property rights that the landlord has
chosen to retain in the leased property
First, petitioners fail to acknowledge a key factor that places the amended OTARD rule outside the scope of Loretto: consent to the occupation of the property. The Loretto court emphasized that the per se taking rule is "very narrow" and applies only to regulations that "require the landlord to suffer the physical intrusion of his building by a third party." Id. at 440-41 (emphasis added). Unlike the building owner in Loretto, whose premises were occupied without her consent, the landlord subject to the amended OTARD rule has ceded control of his or her property to a tenant with whom the landlord has a contractual relationship. Thus, no "third party" stranger to the property is involved. While petitioners would label a tenant a "third party" intruder if the tenant uses the premises in a way that is prohibited by the lease, the Supreme Court has rejected this characterization. Consensual occupation of the property, as distinct from a "permanent physical occupation," Loretto, 458 U.S. at 426, occurs once the landlord voluntarily enters into a lease with the tenant. In FCC v. Florida Power Corp., 480 U.S. 245 (1981), for example, the Supreme Court upheld the Commission's authority under the Pole Attachments Act, 47 U.S.C. s 224 (1991), to regulate pole rental fees paid to an electric utility by various cable television companies using the utility's poles.
10 The Court noted that the Pole Attachments Act was "enacted by Congress as a solution to a perceived danger of anticompetitive practices by utilities in connection with cable television service." Florida Power, 480 U.S. at 247. Prior to that enactment, utility companies had leased the space on their poles to cable operators, who claimed that "the utility companies were exploiting their monopoly position by engaging in widespread overcharging...." Id.
The Commission states in its brief that petitioners are building Court distinguished Loretto on the grounds that, unlike the New York statute that allowed cable companies to access an individual's property, the Pole Attachments Act did not authorize third parties to access the utility poles, but merely regulated the terms of the rental once cable companies and the utilities agreed to the rental of the poles. "Required acquiescence," the Court held, "is at the heart of the [Loretto] concept of occupation." Id. at 252. It is thus "the invitation, not the rent, that makes the difference. The line which separates [landlord-tenant] cases from Loretto is the unambiguous distinction between a commercial lessee and an interloper with a government license." Id. at 252-53 (emphasis added). As with the pole rentals in Florida Power, the landlord affected by the amended OTARD rule will have voluntarily ceded control of an interest in his or her property to a tenant. Having ceded such possession of the property, a landlord thereby submits to the Commission's rightful regulation of a term of that occupation.11 See Florida Power, 480 U.S. at 252.
Second, petitioners ignore the extensive case law upholding the government's authority to regulate various aspects of the landlord-tenant relationship "without paying compensation for owners who seek to maintain bottleneck control over access to rental buildings by cable and satellite master antenna operators of the building owners' choosing. See Br. for Respondent at 11-12. The court has no occasion to evaluate this statement.
Contrary to petitioners' contention, Gulf Power Co. v. United States, 187
F.3d 1324 (11th Cir. 1999), does not imply a different result. In
Gulf Power, the Eleventh Circuit held that a 1996 amendment to the Pole
Attachments Act, providing that utilities must provide telecommunications
carriers access to their utility poles, ducts, conduits, and rights-of-way,
effected a per se taking of the utility's property. See id. at 1329;
see also 47 U.S.C. s 224(f)(1). The court concluded that the 1996
amendment "require[d] a utility to acquiesce to a permanent, physical occupation
of its property" by a third party. Id. at 1329. This element
of "required acquiescence," the court observed, distinguished the case
from Florida Power and brought the amended statute within the scope of
Loretto. Id. at 1329 (quoting Florida Power, 480 U.S. at 252).
Third, the Supreme Court has rejected the contention that regulation of the terms of a landlord-tenant relationship constitutes on its face an invasion of the landlord's right to exclude. See Yee, 503 U.S. at 527-28. In Yee, the Court held that a rent control ordinance affecting the owners of a mobile home park, even when considered in light of a State law restricting the landlords' right of eviction, did not constitute a taking of the landlords' right to exclude. See id. The Court stated that "no government has required any physical invasion of petitioners' property. Petitioners' tenants were invited by petitioners, not forced upon them by the government." Id. at 528 (citing Florida Power, 480 U.S. at 252-53). Consequently, "[w]hile the 'right to exclude' is doubtless ... 'one of the most essential sticks in the bundle of rights that are commonly characterized as property,' ... that right [was not] taken from petitioners on the mere face of the [regulation]." Id. (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)).
Because the amended OTARD rule does not amount to a compelled physical invasion of property,12 and hence a per se taking, petitioners' only potential takings claim is a regulatory taking claim. That kind of claim requires "ad hoc, factual inquiries," Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978),13 and "entails complex factual assessments of the purposes and economic effects of government action." Yee, 503 U.S. at 523. Because of this context specific standard, the amended OTARD rule cannot be said to create an "identifiable class" of applications that would "necessarily constitute a [regulatory] taking." Bell Atlantic, 24 F.3d at 1445-46 (quoting Riverside Bayview Homes, 474 U.S. at 128 n.5). For that reason, the Bell Atlantic approach to statutory interpretation does not apply, and the Chevron analysis of Part II does.
Petitioners' alternate claim that even if statutorily authorized, the amended OTARD rule is nonetheless an unconstitutional regulatory taking that must be set aside fails for two independent reasons. First, "in general, '[e]quitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to that taking.' " Riverside Bayview Homes, 474 U.S.
In the Second OTARD Order, the Commission recognized the limitations of
its new mandate:
Second OTARD Order, 13 F.C.C.R. at
to petitioners' assertion, the Commission does not argue that the landlord
"gave [ ] away" a property right to the tenant by relinquishing possession
of the property. Rather, the quoted statement represents the Commission's
position, explained in detail in the subsequent paragraphs of the Second
OTARD Order, that although a landlord may retain property interests in
a leasehold, a restriction on the terms that the landlord may impose on
the tenant is not a physical occupation giving rise to a per se taking
because the landlord has "voluntarily relinquished possession" of the property.
Accordingly, because petitioners' facial challenge fails to present an "identifiable set of instances in which mere application of [the amended OTARD rule] will necessarily or even probably constitute a taking," Riverside Bayview Homes, 474 U.S. at 128 n.5, we apply Chevron deference to the Commission's interpretation of s 207 and of its broad mandate under the Communications Act, and we deny the petition.
14 In a footnote to their brief, petitioners contend in two brief sentences, without supporting citation, that the amended OTARD rule is void for vagueness. The court declines to address an issue that was presented in such a cursory fashion. See Washington Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 39 (D.C. Cir. 1997).
Randolph, Circuit Judge, concurring: While I join all of the court's opinion, I write separately to express my opinion that Bell Atlantic Telephone Cos. v. FCC, 24 F.3d 1441 (D.C. Cir. 1994), was wrongly decided and ought to be overruled.
Our opinion in Railway Labor Executives Ass'n v. United States, 987 F.2d 806, 815-16 (D.C. Cir. 1993) (per curiam), issued shortly before Bell Atlantic, summarized the governing principles: "The Fifth Amendment guarantees that when the government takes private property, it will provide just compensation. Under the Tucker Act, 28 U.S.C. s 1491(a), the United States Court of Federal Claims has original jurisdiction over suits seeking compensation from the United States under the Constitution. Except for cases in which the amount in controversy is less than $10,000, in which event jurisdiction is concurrent with the federal district courts, see 28 U.S.C. s 1346(a)(2), the Federal Claims Court's jurisdiction in such actions is exclusive. '[T]akings claims against the Federal Government are premature until the property owner has availed itself of the process provided by the Tucker Act.' Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 195 (1985)."
"... The Taking Clause does not prohibit the government from taking private property. The Clause requires only that the government accomplish the taking in a particular way, namely, by paying for the property. See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 314-15 (1987); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1020 (1984). There is no constitutional necessity for payment to be made in advance, at least so long as the government provides a way for the property owner to recover just compensation after the taking is completed. See Ruckelshaus, 467 U.S. at 1016. As we have said, those adversely affected by the Commission's action may pursue their claims in the Federal Claims Court or, depending on the amount at stake, in the federal district courts."
"There is nothing to petitioners' further point that, at the least, we ought to construe [the statute] to avoid the possibility that the [agency] has effectuated a taking in this case. The argument may rest on the familiar canon that if one permissible interpretation of statute would render it unconstitutional and another permissible interpretation would make it constitutional, the latter should prevail because the judiciary should not assume Congress meant to violate the Constitution. Blodgett v. Holden, 275 U.S. 142, 147-49 (1927) (opinion of Holmes, J.). Or the argument may rely on the more debatable canon of construing statutes to avoid constitutional doubts. Compare Johnson v. Robison, 415 U.S. 361, 366-67 (1974), with Rust v. Sullivan, 500 U.S. 173, 190-91 (1991). But these canons do not fit. Because just compensation is presumptively available under the Tucker Act, there is neither an unconstitutional result nor a constitutional doubt to be averted by interpretation. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 127-28 (1985)."
Doubtless in recognition of these principles, Bell Atlantic begins with a disclaimer and then adds a qualifier: this court has no "power" to decide whether an agency regulation rule "inflicted" a taking of private property within the meaning of the Fifth Amendment to the Constitution--if the regulation was within the agency's statutory authority. 24 F.3d at 1444 n.1. How to determine the "if"? According to Bell Atlantic, not in the usual deference-laced manner because "statutes will be construed to defeat administrative orders that raise substantial constitutional questions," id. at 1445. That point is directly contrary to Railway Labor's recognition that there is no constitutional doubt to be avoided. And it is also directly contrary to the Supreme Court's holding in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 128 (1985), that "the possibility that the application of a regulatory program may in some instances result in the taking of ... property is no justification for the use of narrowing constructions to curtail the program if compensation will in any event be available in those cases where a taking has occurred."
Bell Atlantic's other rationale for adjudicating whether a regulation would take property, and for construing the statute to prevent this, stems from a footnote in Riverside Bayview Homes, Inc., 474 U.S. at 128 n.5. The Supreme Court there distinguished United States v. Security Industrial Bank, 459 U.S. 70, 78 (1982), on the basis that statutory interpretation might be affected if "there is an identifiable class of cases in which application of a statute will necessarily constitute a taking." The Court described Security Industrial Bank as a case in which a narrowing construction was appropriate because "a particular provision of the Bankruptcy Code would in every case constitute a taking." Id. This is reflected in the Court's expression of doubt in Security Industrial Bank whether so applying a Code provision "comports with the Fifth Amendment." 459 U.S. at 78. Given the Court's analysis in Riverside Bayview--namely, that only an uncompensated taking of private property could violate the Fifth Amendment--the statement in Security Industrial Bank just quoted has to mean that there would have been no just compensation for the threatened takings, or that the Court thought there would not be. This reading is supported by Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935), the case Security Industrial Bank relied upon and reaffirmed. Radford invalidated a retroactive change in the bankruptcy laws permitting debtors to retain their property more easily because the "Act as applied ha[d] taken from the Bank without compensation." Id. at 601 (emphasis added).
In this case there is no doubt that if a taking occurs as a result of the Commission's rule, the property owner may receive just compensation. See maj. op. at 17. To my mind, that ought to end the takings inquiry. I recognize that Bell Atlantic treats the matter very differently: "Chevron deference to agency action that creates a broad class of takings claims, compensable in the Court of Claims, would allow agencies to use statutory silence or ambiguity to expose the Treasury to liability both massive and unforeseen." Bell Atlantic, 24 F.3d at 1445. In other words, the fact that compensation would be available is a reason for a narrowing construction--the opposite of what the Supreme Court held.
But my disagreement with Bell Atlantic's theory rests on more than just its misreading of the Supreme Court's opinion in Riverside Bayview. It is not clear to me how, in many instances, we could determine whether an agency rule would bring about a taking in a "broad" class of cases (a term not used in Riverside Bayview). Bell Atlantic makes no distinction between regulatory and per se takings; whether a regulatory taking has occurred may depend on the "background principles" of each state's property law. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1031 (1992). In how many states, or in how many instances, there must be a taking before we find a "broad class of takings" under Bell Atlantic is a mystery.
I also disagree with the rationale, relied upon in Bell Atlantic, that it is the business of the federal courts to protect the government from some imagined risk of agency encroachment on Congress's taxation and appropriations powers. By passing the Tucker Act, Congress generally bound itself to paying for authorized takings by the federal government, regardless whether the specific liability in any particular case was intended or foreseen. See Regional Rail Reorganization Act Cases, 419 U.S. 102, 126-27 (1974). While it may be the case that the courts must protect one branch from the aggrandizing actions of another, see generally Mistretta v. United States, 488 U.S. 361, 380-84 (1989) (collecting cases), surely it is not the case that the courts must protect Congress from creating responsibilities for itself (so long as they do not detract from the other branches' powers or violate the delegation doctrine). Since the political branches have made a legislative choice to accept federal liability for takings, the federal courts must respect that determination. Besides, if Congress disagrees with an agency's subjecting the Treasury to liability through taking claims, it can always reverse the agency's rule through legislation, either before the rule takes effect, see Congressional Review Act, Pub. L. No. 104-121, tit. II, s 251, 110 Stat. 868 (1996) (codified at 5 U.S.C. ss 801-808), or afterwards.
Given the opportunity, I would vote to overturn Bell Atlantic.
|ARRL Board Calls
for Congressional Action on CC&Rs
Meeting July 20-21, 2001 in Connecticut
Board members felt that amateurs should be granted the right to install an antenna having a visual impact similar to that of a home television satellite dish or other antenna that falls under the FCC's Over the Air Reception Devices (OTARD) policy. In 1999, the FCC reaffirmed the OTARD rule that prohibits restrictions that impair the installation, maintenance or use of antennas used toreceive video programming.
The Board also approved the filing of a petition seeking a domestic, secondary allocation for the Amateur Service at 5.250 to 5.400 MHz. The petition will ask that amateurs General and above be allowed to operate in the so-called 60-meter band at up to maximum authorized power. No mode subbands will be proposed at this time.
The Board also adopted the revised band
plan for 160 meters based on a proposal from the ad hoc 160-Meter Band
Plan Committee. The plan adopted sets aside a segment for digital modes
from 1.800 to 1.810 MHz, maintains CW operation for the entire 1.8 to 2.0
The 1.830 to 1.850 MHz ''DX window'' was eliminated. The committee recommended that contest sponsors ''consider the use of DX windows as necessary.'' The plan accommodates established frequencies used on 160 for AM.
The ARRL Board of Directors also endorsed the Logbook of the World. An electronic alternative to collecting traditional QSLs for awards, the project goes beyond simply replacing printed cards with electronic versions. Logbook of the World will make use of electronic confirmations within a giant repository of QSO information maintained by ARRL. Digital security methods will ensure data integrity and authenticity.
The Board also approved a new QRP DXCC award. Applications likely will be accepted starting early next year. No QSL cards would be required, and there would be no time limits or endorsements.
The Board approved a plan to invite all International Amateur Radio Union Region 2 countries to take part in Field Day starting in June of 2002. This would expand participation in the popular annual event to include stations in both North and South America.
The Board also resolved to encourage hamfest and convention sponsors to offer free admission to anyone under 16 years old and accompanied by a paying adult.
The Board also recognized ARRL Southeastern Division Vice Director Evelyn Gauzens, W4WYR, for her 22 years of service. Gauzens has announced that she will not seek another term.
RE: Antenna Restrictions of Spruce Creek
This letter acknowledges receipt on July 27, 2001 of the petition that you filed with the Federal Communications Commission concerning antenna restrictions enforced by the Spruce Creek Development Company ("Developer"). Your petition contends that the Developer's antenna restrictions do not comply with the Commission's Over-the-Air-Reception Devices rule.
The Over-the-Air-Reception Devices rule
(47 C.F.R. 1.4000) addresses governmental and non-governmental restrictions
on installation, maintenance or use of antennas that receive television
broadcast signals, satellite dish antennas one meter or less in diameter
that receive or transmit video, data or other programming, and antennas
one meter or less in diagonal measurement that receive or transmit video,
data or other programming via multipoint
Section 1.4000(f) of the rule required
that copies of petitions for declaratory ruling be served on interested
parties (e.g., the Developer) and that a certificate of service stating
on whom the petition was served must be filed with the Petition.
Your Petition does not indicate that it was served on the Developer and
does not include the certificate of service as required.
We welcome the opportunity to resolve the issues raised in your petition informally, if possible. If you or a representative of the Association would like to discuss the issues in question, please contact me at 202-418-7200.
Guidelines For Use Of Satellite Dishes ( The Villages )
The Federal Communications Commission (FCC)
has adopted a rule preempting restrictive