Do federal regulations designed to promote access to satellite TV service permit a residential tenant to place a satellite dish on a window guard required to be installed by a landlord under New York law? This question was answered in the negative by a Bronx housing court in 2682 Kingsbridge Associates, LLC v. Martinez, because the window guard was not considered property under the exclusive control of the tenant as required by federal rules for the installation of a satellite TV dish.
In this action, the landlord moved for an order granting it summary judgment and entered a final judgment of possession in its favor against the tenants. The tenants cross-moved for an order granting them summary judgment dismissing the petition.
The landlord had began this summary holdover proceeding around September 10, 2002, after service of a ten-day notice to cure and seven-day notice of termination. The premises, Apt. 3G at 2682 Creston Avenue in The Bronx, were subject to rent stabilization. The tenants had resided in the premises since 1997, and continued their tenancy under a renewal lease for the term running from April 1, 2002, to March 31, 2003.
The notice to cure advised the tenants that they were violating a substantial obligation of their tenancy in that, “You have erected a satellite dish outside your apartment by drilling into the exterior wall without the prior consent of the landlord.”
The gravamen of this case was whether the tenants were permitted, under their lease and the law, to erect a satellite dish on the window guard in the premises. The landlord argued that the installation of a satellite dish antenna drilled into the exterior wall of the building without the prior consent of the landlord constituted a breach of the lease. Moreover, the Federal Telecommunications Act of 1996 did not require a contrary result. The tenants maintained just the opposite stance, to wit; federal regulations allowed them to maintain a satellite dish. Unfortunately, in doing its research, the court found a veritable dearth of reported cases from New York courts on this issue. Therefore, this was a case, at least in the housing court, of first impression.
Initially, the court reviewed the Code of Federal Regulations, 47 C.F.R. Section 1.4000, which limits certain restrictions impairing reception of television broadcast signals, direct broadcast satellite services, or multi-channel multi-point distribution services. It provides as follows:
“(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, homeowner’s 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 or leasehold interest in the property that impairs the installation, maintenance, or use of;
“(i) an antenna that is:
“(A) used to receive direct broadcast satellite service, including direct-to-home satellite service, or to receive or transmit fixed wireless signals via satellite, and
“(B) one meter or less in diameter, or is located in Alaska;”
The landlord rested its case on the proposition that the area to which the antenna or satellite dish was attached is not property within the exclusive use or control of the antenna-user, that is, the tenants. According to the landlord, the windowsill, window, and window guard were not property within the exclusive use or control of the tenant. Rather, these areas were the property of the landlord and are part of the common elements of the building. As common elements, they arguably were not within the exclusive use or possession of the tenants.
The tenants moved for dismissal, claiming that the Federal Communications Commission (FCC) precluded the proceeding in that allowing the landlord to compel removal of the satellite dish would frustrate the purposes of the federal law.
Following the FCC’s establishment of the law regarding the installation of satellite dishes, or OTARD (over-the-air reception devices) rules, it issued a second report and order entitled, “In the Matter of Implementation of Section 207 of the Telecommunications Act of 1996.” In that report, the F.C.C. stated:
“[I]n practice, under the amendment to our rules, renters will be able, subject to the terms of Section 207 Rules, to install Section 207 reception devices whenever they rent space outside of a building, such as balconies, balcony railings, patios, yards, gardens, or any other similar areas.”
The order further provided that:
“In addition, unlike common areas, the leasehold (e.g., an apartment including a balcony or terrace) is generally under the exclusive use or control of one party (i.e., the lessee), thus enabling that party to address liability concerns.”
Additionally, the order provided:
“Thus, for example, Tenants could be prohibited from drilling holes through the exterior walls of their apartment. In addition, Tenants could be prohibited from piercing the roof of a rented house in any manner given the risk of serious damage.”
Furthermore, the order stated:
“35. Section 207 does not authorize us to permit a viewer to install a Section 207 device on common or restricted access property over the property owner’s objection … we do not believe the statute requires a landlord or community associate to relinquish possession of a common or restricted access property. We see no distinction in this regard between the neighbor’s property and a landlord’s property that the landlord has leased to a Tenant: both situations would impose affirmative duties not intended by the statute.”
The FCC noted that by virtue of a lease a landlord invited a tenant to take possession of property within the leasehold. However, at the same time, that landlord did not invite the tenant to take possession of common and restricted access property.
Constitutional issues arise surrounding a contrary interpretation of the statute. To permit a tenant to install the dish and antenna on common elements of the building might amount to an unconstitutional per se, taking as a permanent physical occupation authorized by the government without regard to the public interest, which requires compensation to the property owner. In a prior case, the installation of cable wires that were about one-half inch in diameter and thirty feet in length on the rooftop of a building together with silver cable boxes was found to be an unconstitutional taking in violation of the takings clause of the fifth amendment of the United States Constitution.
In another case, the Second Circuit dispelled constitutional takings arguments arising from the second order and report of the FCC. The Court analyzed that report and order and its provisions. The Second Circuit Court noted:
“Under the amended OTARD rules, Tenants are able subject to some restrictions, to install Section 207 reception devices where ever 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…. 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 viewers generally do not have access or possession).”
The Second Circuit, in the line of cases, recognized Congress’s intent to invalidate various types of private contracts under state law, such as homeowners’ association contracts and lease agreements, which impaired the installation, maintenance, or use of a Section 207 device.
The court noted there that the homeowners’ associations “taking” arguments must fail, because the association had already ceded control of the property to the tenant. Since the tenant leased space outside their apartment, the balcony railings, patios, yards, gardens, or other areas and therefore, there was no physical intrusion on the associations’ property since the homeowner had invited the tenant onto the premises leased to the tenant. The distinguishing factor was the exclusive use and control, and the federal courts have consistently held that the installation of Section 207 devices, such as satellite dishes and antennas in common areas, continue to be prohibited.
Although there were no reported cases in New York regarding the installation of satellite dishes on the exterior walls of apartment buildings, the court said that there were numerous cases regarding the installation of television aerials to the outside of window frames. The legion of cases held that the installation of a television aerial to the outside frame of a window of a tenant’s apartment is an unauthorized intrusion or squatting upon the landlord’s property. Failure to cure the condition would provide for the eviction of the tenant from the premises. In one New York case, the tenant affixed a television aerial to the outside frame by bolts without the landlord’s permission.
Thereafter, New York courts had consistently held that the placement of a television aerial or wire running from a window of a tenant’s apartment was an intrusion or squatting upon the landlord’s property requiring the eviction of the tenant if they failed to cure. In fact, there was a line of cases that hold that a landlord may even use self-help to remove an antenna installed by a tenant, and the tenant had no cause of action against the landlord as a consequence said the court.
After careful examination of the facts of this case, federal law and reported cases, the court held that the window guard, although attached to the window frame, was not within the exclusive use or control of the tenants. It constituted common property, in which the landlord had access, but not possession or exclusive rights of use or control. The court concluded that both the Federal courts and New York courts had noted a clear distinction between the installation of antennas or aerials on common property that is prohibited or in areas within the exclusive possession and control of tenant, which would be permitted.
Accordingly, the landlord’s motion for summary judgment was granted. The landlord was awarded a final judgment of possession. However, the tenants were given an opportunity to cure their default by removing the satellite dish within ten days.
Comment: While this case involved a rental building, the result is equally applicable to a co-op, where general principles of landlord/tenant law are applicable. The issue is one of exclusive control by the tenant. Without that, the tenant’s rights to a satellite TV dish are restricted. The same principle should apply in the condominium building if the satellite dish is placed on a common element, other than a limited common element such as a terrace or balcony, where the unit-owner has the right of exclusive use.