CopyCited 1 times | Published | District Court, M.D. Florida | 74 Rad. Reg. 2d (P & F) 1055, 1994 U.S. Dist. LEXIS 101, 1994 WL 2853
...n (FCC) Preemption and alleging violations of the First and Fourteenth Amendments, due process, equal protection, and 42 U.S.C. §§ 1983 and 1988. This case was tried without a jury. The issues before the court are whether 47 CFR § 25.104 preempts section 641.61 of Cape Canaveral's zoning ordinance and whether the local ordinance violates Abbott's constitutional rights under the First Amendment and to due process and equal protection. The court concludes that 47 CFR § 25.104 does not preempt section 641.61 of Cape Canaveral's zoning ordinance....
...Abbott initially returned to Cape Canaveral in March 1992 and permanently returned to Cape Canaveral in April 1992. B. Regulation of Satellite Dishes While Abbott was living in California, Cape Canaveral enacted an ordinance pertaining to satellite dishes. The local ordinance at issue, section 641.61, provides in pertinent part: A....
...at the satellite dish had been removed for over four years. Subsequently, Kleving issued Abbott a Notice of Ordinance/Code Violation which informed Abbott that he was in violation of Cape Canaveral's Earth Station Antenna Regulations, in particular, section 641.61(A), (D), and (G)....
...e Board and request a hearing. Abbott initially appeared before the Board on August 20, 1992. However, the Board continued the matter until the scheduled September meeting. The September meeting resulted in the Board finding that Abbott had violated section 641.61, paragraphs (A), (D), and (G) of Cape Canaveral's zoning regulations. (Pl.'s Ex. 13.) Further, the Board ordered Abbott to comply with section 641.61 on or before October 20, 1992, by detaching his antenna from his residence and reinstalling the antenna to conform with Cape Canaveral's regulations....
...ception of satellite delivered signals by receive-only antennas or to impose costs on the users of such antennas that are excessive in light of the purchase and installation cost of the equipment. 47 CFR § 25.104 (1992). The parties stipulated that section 641.61 of Cape Canaveral's zoning regulations applies only to satellite antennas and not to other types of antenna facilities which receive communications from earth-based transmitters, such as conventional television antennas or ham radio antennas....
...Thus, because the local ordinance differentiates between satellite receive-only antennas and other types of antennas, the local ordinance must satisfy both subsections of the FCC regulation to avoid preemption. 1. Reasonable and Clearly Defined Health, Safety, or Aesthetic Objective. Abbott claims that local ordinance section 641.61 does not set forth a health, safety, or aesthetic objective, or in the alternative, that ordinance number 48-85 fails to justify a differentiation in treatment between receive-only satellite antennas and other antennas, and thus, the FCC regulation preempts the local ordinance. However, Cape Canaveral and the Board contend that because section 641.61 was enacted by ordinance number 48-85, the preamble of the enacting ordinance must be consulted in construing section 641.61....
...Further, the preamble stresses the difference in appearance between satellite dish antenna and dipole antenna as a basis for its aesthetic concerns. Although ordinance number 4-89 amended ordinance number 48-85, the amending ordinance merely renumbered section 639.61 to section 641.61. (Def.'s Ex. 3.) The amending ordinance did not alter any wording in the section. Thus, the court finds that because the preamble contains the required objectives, local ordinance 641.61 satisfies 47 CFR § 25.104(a)....
...plan and survey; $125.00 for engineering drawings; approximately $200.00 for electrical installation; and $50.00 for a building permit for the satellite dish. Cape Canaveral and the Board contend, however, that the costs associated in complying with section 641.61 are not unreasonable in light of Abbott's purchase and installation costs....
...ry to comply with the local ordinance are not excessive in light of Abbott's purchase and installation costs. Accordingly, the local ordinance satisfies the requirements to avoid FCC preemption. B. Abbott's Constitutional Claims Abbott contends that section 641.61 violates his rights provided by the First and Fourteenth amendments, due process, and equal protection....
...nd aesthetics, and thus, the ordinance does not violate substantive due process. As to Abbott's equal protection claim, Abbott argues that the ordinance, as applied to him, violates his fundamental First Amendment rights. The parties stipulated that section 641.61 applies only to satellite receive-only antennas and not to other types of antenna facilities, and thus, the local ordinance treats satellite antennas differently....
...of rights, privileges or immunities secured by the Constitution or laws of the United States and that conduct complained of was committed under color of state law), cert. denied, ___ U.S. ___,
111 S.Ct. 2053,
114 L.Ed.2d 459 (1991). III. Conclusion Section
641.61 of the Cape Canaveral ordinance contains reasonable and clearly defined health, safety, and aesthetic objectives, does not impose unreasonable limitations or prevent reception of satellite signals, and does not impose excessive costs in light of the purchase and installation costs of Abbott's satellite system. Thus, 47 CFR § 25.104 does not preempt section
641.61....
...Further, Abbott fails to show that the local ordinance violates his constitutional rights under the First Amendment, or to substantive due process and equal protection. Accordingly, the court rules in favor of Cape Canaveral and the Board. It is SO ORDERED. APPENDIX A City of Cape Canaveral, Florida Zoning Regulations Section 641.61 A....
