United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 5, 2001 Decided July 6, 2001

No. 99-1009

Building Owners and Managers Association

International, et al.,

Petitioners

v\.

Federal Communications Commission and

United States of America,

Respondents

Satellite Broadcasting and Communications

Association, et al.,

Intervenors

Consolidated with

No. 99-1021

On 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

\[a\]ny restriction, including but not limited to any state or local law
or regulation, including zoning, land-use or building regulation, or any
private covenant, 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 in the
property that impairs the installation, maintenance, or use of
\[antennas that are designed to receive direct broadcast satellite
service, video programming services via multipoint distribution
services, or television broadcast signals\]\....

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\").

Several trade associations representing real estate owners and property
managers[^1] 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. Finding unpersuasive
these facial challenges to the amended OTARD rule, we deny the petition.

I.

In promulgating the OTARD rules, the Commission relied on § 207 of the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (the
\"1996 Act\"), which provides:

Within 180 days after the date of enactment of this Act, the Commission
shall, pursuant to Section 303 of the Communications Act of 1934,
promulgate regulations to prohibit restrictions that impair a viewer\'s
ability to receive video programming services through devices designed
for over-the-air reception of television broadcast signals, multichannel
multipoint distribution service, or direct broadcast satellite services.

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. § 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. § 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. § 154(i).

As early 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
§ 207 on August 5, 1996. See First OTARD Order, 11 F.C.C.R. 19276
(1996). The first OTARD rule provided:

Any restriction, including but not limited to any state or local law or
regulation, including zoning, land-use or building regulation, or any
private covenant, 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 in the
property, that impairs the installation, maintenance, or use of \[a §
207 device\] \... is prohibited\....

47 C.F.R. § 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 § 207) had an ownership interest.
Despite its stated prohibition of \"any\" restriction, the rule allowed
for several exceptions: Restrictions on § 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. §
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. § 1.4000(c).

The first OTARD rule left unresolved whether the § 207 prohibition
should apply to \"property not within the exclusive \[use or\] 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 § 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 \[a § 207
device\] \... is prohibited\....

47 C.F.R. § 1.4000(a)(1) (1998) (new language italicized). Under the
amended OTARD rule, tenants are able, subject to some restrictions, to
install § 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 viewers generally do not have access or possession). See
id. at 23893 p 35.

Following the Commission\'s denial of petitions for reconsideration of
the Second OTARD Order, petitioners filed this appeal.

II\.

Petitioners contend that the Commission exceeded its statutory authority
by extending the OTARD prohibition to leased property. To determine
whether the Commission acted within its legally delegated authority in
promulgating the amended OTARD rule, the court employs the familiar test
outlined by the Supreme Court in Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984): If, through the
Communications Act, Congress has spoken directly to the precise issue
presented by petitioners, \"that is the end of the matter,\" and the
court defers to the \"unambiguously expressed intent of Congress.\"
Chevron, 467 U.S. at 842-43. If, however, the Communications Act \"is
silent or ambiguous with respect to the specific issue\" at hand, the
Commission may exercise its reasonable discretion in construing the
statute.[^5] Id. As petitioners contend\--and as the Commission
implicitly concedes, see Second OTARD Order, 13 F.C.C.R. at 23880\--the
Communications Act does not explicitly address the landlord-tenant
relationship, nor does it explicitly grant the Commission jurisdiction
over the real estate industry, an area that is normally outside the
Commission\'s scope of authority. See, e.g., Illinois Citizens Comm. for
Broad. v. FCC, 467 F.2d 1397, 1400 (7th Cir. 1972). Hence, the court\'s
focus is on whether, in implementing § 207, the Commission reasonably
interpreted its statutory authority. We look to the text of the
Communications Act of 1934 and the Telecommunications Act of 1996, and
to the legislative history of § 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. § 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. § 154(i); see also id. § 303(r).

Congress continued in the 1996 Act to vest broad authority in the
Commission, granting the Commission \"exclusive jurisdiction to regulate
the provision of direct-to-home satellite services,\" 47 U.S.C. §
303(r), and instructing the Commission promptly to issue regulations to
\"prohibit restrictions\" that impede \"viewer\[s\]\" from using § 207
devices.[^6] Id. § 207. Consistent with the broad language of other
sections of the 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 § 207 reinforces the conclusion that Congress
intended in § 207 to give the Commission a very broad mandate. The House
Committee Report on § 207 states that:

The Committee intends this section to preempt enforcement of State or
local statutes and regulations, or State or local legal requirements, or
restrictive covenants or encumbrances that prevent the use of antennae
designed for off-the-air reception of television broadcast signals or of
satellite receivers designed for receipt of \[direct broadcast
satellite\] services. Existing regulations, including but not limited
to, zoning laws, ordinances, restrictive covenants or homeowners\'
association rules, shall be unenforceable to the extent contrary to this
section.

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. § 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. § 303(v); 1996
Act, Pub. L. No. 104-104, § 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
§ 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 \[a § 207 device\].\" 47 C.F.R. § 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).

III\.

Possibly foreseeing their fate under Chevron, petitioners contend that
our analysis of the amended OTARD rule 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
Act[^9] 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 § 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.

The first 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 § 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 and therefore amounts to a
per se taking. Petitioners further contend that the amended OTARD rule
constitutes a per se taking under Loretto because it enlarges the
tenant\'s rights beyond the contractual provisions of the lease, thereby
stripping landowners of property rights that they rightfully reserved,
and constitutes a taking of the property owner\'s right to exclude. None
of these contentions suffices to characterize the amended OTARD rule as
a per se taking.

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. § 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 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 all
economic injuries that such regulation entails,\" Loretto, 458 U.S. at
440, even though some of these regulations \"transfer wealth from the
one who is regulated to another.\" Yee v. City of Escondido, 503 U.S.
519, 529 (1992). Although a landlord\'s lease restrictions are
enforceable property rights, see United States v. General Motors, 323
U.S. 373, 380-82 (1945), governmental restrictions on the exercise of
those rights do not necessarily constitute a per se taking. For example,
\"\[w\]hen a landowner decides to rent his land to tenants, the
government may place ceilings on the rents the landowner can charge, or
require the landowner to accept tenants he does not like, without
\[creating a per se taking\].\" Yee, 503 U.S. at 529 (citations
omitted); see also PruneYard Shopping Center v. Robins, 447 U.S. 74
(1980); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258
(1964); McAndrews v. Fleet Bank of Massachusetts, 989 F.2d 13 (1st Cir.
1993). In light of this precedent, regulation of a single aspect of the
landlord-tenant relationship, enacted pursuant to the manifest
congressional objective of safeguarding viewers\' access to
direct-to-home satellite services, does not result in a per se taking.
See 47 U.S.C. §§ 151, 303(v).

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. at
127-28 (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 (1984));
see also Bell Atlantic, 24 F.3d at 1445 n.1. Second, because
petitioners\' regulatory taking claim depends upon ad hoc, factual
inquiries, it cannot satisfy the requirements for making the kind of
facial challenge petitioners have brought here. See Yee, 503 U.S. at
533-34; Gulf Power Co. v. United States, 187 F.2d 1324, 1328 (11th Cir.
1999). Petitioners are still free to make claims for just compensation
on account of regulatory takings with respect to their individual
buildings, but no such claims have been made here, nor could they be.
See Riverside Bayview Homes, 474 U.S. at 128, 129 n.6.

IV\.

As an apparent afterthought, petitioners summarily contend that in the
absence of a taking, the Commission acted arbitrarily and capriciously,
and abused its discretion, in promulgating the amended OTARD rule.
Petitioners primarily quote what they consider a \"tautology\" from the
Second OTARD Order: \"Removing a restriction on installing an antenna
within a leasehold does not impose a duty on the landlord to relinquish
property because the landlord has already voluntarily relinquished
possession of the leasehold by virtue of the lease.\" Second OTARD
Order, 13 F.C.C.R. at 23881. This statement, petitioners assert,
demonstrates that the Commission\'s rule is \"purposeless or
illogical\": If the Commission \"has taken nothing,\" petitioners ask,
\"then why is the rule necessary?\" Petitioners have misconstrued the
Commission\'s position.

Contrary 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. See Second
OTARD Order, 13 F.C.C.R. at 23881-86.

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 § 207 and of its broad
mandate under the Communications Act, and we deny the petition.[^14]

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. §
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. § 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, § 251, 110 Stat. 868 (1996) (codified at 5
U.S.C. §§ 801-808), or afterwards.

Given the opportunity, I would vote to overturn Bell Atlantic.

[^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.

[^3]: In the Second OTARD Order, the Commission amended § 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\....\"

[^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.

[^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.

[^6]: The parties\' discussion of § 207 is not advanced by emphasis on
    whether § 207 is properly labeled as a directive for the Commission
    to act pursuant to pre-existing authority, rather than as a source
    of independent authority. Whether § 207 is viewed as new authority
    or as a directive to act upon existing authority, § 207 suffices as
    a statutory basis for the Second OTARD Order. Moreover,
    petitioners\' belittling of the significance of § 207 on the ground
    that, unlike other sections of the 1996 Act, § 207 is uncodified is
    misplaced; that the section was not codified in the United States
    Code does not detract from § 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.

[^8]: Petitioners do not rely on § 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.

[^9]: At issue in Bell Atlantic was the authority of the Commission,
    pursuant to 47 U.S.C. § 201(a), to order carriers \"to establish
    physical connections with other carriers.\"

[^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 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.

[^11]: 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. §
    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).

[^12]: In the Second OTARD Order, the Commission recognized the
    limitations of its new mandate:

    In \[§\] 207, Congress did not direct the Commission to impose
    affirmative duties on other parties to install \[§\] 207 devices or
    to grant access to restricted areas to permit the installation of
    \[§\] 207 reception devices, and in particular, Congress did not
    direct the Commission to require property owners to subject property
    to a Fifth Amendment taking.

    Second OTARD Order, 13 F.C.C.R. at 23877.

[^13]: To determine whether a regulation constitutes a regulatory
    taking, the court generally evaluates three factors: (1) \"the
    economic impact of the regulation on the claimant\"; (2) \"the
    extent to which the regulation has interfered with distinct
    investment-backed expectations\"; and (3) the \"character of the
    governmental action.\" Penn Central, 438 U.S. at 124.

[^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).