plaintiffs' lot, the antenna would have to be mounted on the roof to enable plaintiffs to receive signals from all of the available satellite television channels.
At the time of their purchase, plaintiffs were aware of a zoning ordinance enacted by the Maplewood Township Committee (the "Committee") that governed the installation of dish antennas. The "Maplewood Dish Antennae Zoning Ordinance" (the "Ordinance") became effective June 6, 1985. Among its provisions, the Ordinance forbids the use of a dish antenna greater than six feet in height "measured at the highest point of its outer circumference or extension," requires that the dish be placed in the rear yard, established minimum setbacks from property lines and buildings and requires that the dish be "screened from view . . . by evergreen planting which shall be at least six feet in height at the time of planting." (A complete copy of the Ordinance is set out in the Appendix to this Opinion).
On May 24, 1986, plaintiffs wrote the township construction official seeking a variance from the Ordinance to allow them to place the antenna on their garage roof. The construction official, Robert Mittermaier, wrote the Van Meters on April 1, 1986, and informed them that the placement they proposed was "not acceptable" and denied their "application for permission" to erect a dish antenna.
Plaintiffs attempted to appeal Mittermaier's decision to the township's Board of Zoning Adjustment (the "Board"). They allege that although they complied with the procedures for appeal as explained by Mittermaier, he rejected the application because notice of publication was not timely served on the municipality. According to plaintiffs, Mittermaier, and later the mayor of the township, informed the plaintiffs that an appeal to the Board would be futile. Defendant disputes these allegations.
After learning of an order of the Federal Communications Commission ("FCC") that plaintiffs believed permitted the installation of their antenna without regard to the local Ordinance, plaintiffs installed the antenna on the roof of their house. On May 5, 1987, plaintiffs received a summons for violation of the Ordinance and were ordered to appear before the municipal court on May 19, 1987. That summons is still pending.
On November 11, 1987, plaintiffs filed this action under 42 U.S.C. sec. 1983 claiming that the Ordinance is preempted by FCC regulation and that it violates their First Amendment rights to receive satellite television signals. They seek injunctive and declaratory relief and ask for attorney's fees pursuant to 42 U.S.C. sec. 1988.
Although not raised directly as a bar to this action by defendant, I must first address the issue of abstention. Abstention, in its various manifestations, is a prudential doctrine applied to further comity, federalism and judicial economy. In certain limited circumstances, a federal court should abstain from exercising its jurisdiction where a state proceeding involving the same dispute is pending, Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971); Williams v. Red Bank Bo. of Educ., 662 F.2d 1008 (3d Cir. 1981), where allowing a state court to construe its challenged statute could avoid the necessity of reaching any constitutional issue, Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), or where the issue involves a complex, comprehensive body of state regulation over an area of traditionally local interest, Burford v. Sun Oil Co., 319 U.S. 315, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943). Although abstention reflects sensitivity to state sovereignty, its application is not the result of mere deference but reflects an accommodation between state and federal interests.
The doctrine first announced in Younger, supra, prevents a federal court from hearing a case involving strong and compelling state interests where a proceeding between the same parties and involving the same issues is pending in the state courts. In the present case, a summons was issued to the plaintiffs for violation of the Ordinance on May 7, 1986. While Younger principles might arguably require abstention in this instance, here defendant states that "Maplewood . . . has agreed to stay the prosecution of its Municipal Court complaint against Van Meter until after plaintiff's motion for summary judgment is decided." Because defendant has voluntarily submitted to the jurisdiction of this court, therefore, the values underlying Younger are not implicated and its prudential constraints do not apply. Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 626, 91 L. Ed. 2d 512, 106 S. Ct. 2718 (1986); Brown v. Hotel & Restaurant Employees and Bartenders Int'l Union Local 54, 468 U.S. 491, 500 n.9, 82 L. Ed. 2d 373, 104 S. Ct. 3179 (1984); Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 480, 52 L. Ed. 2d 513, 97 S. Ct. 1898 (1977).
Nor does Younger abstention apply to any administrative remedy which may have been available to plaintiffs through the township's Board of Adjustment because no proceeding is pending before that body. Plaintiffs twice attempted to obtain a variance from the Board. Their first letter, requesting a "zoning variance hearing at the next town meeting," was treated as an "application for permission" to erect a dish antenna and "denied" by the township construction official who also informed plaintiffs of their right to appeal his decision to the Board. Plaintiff discussed the notice requirements for a hearing application before the Board with the construction official and then completed and filed an "Application for Hearing" and had a public notice of an appeal for a variance printed in the local newspaper. According to plaintiffs' certification, however, the construction official refused to accept the application because he claimed not to have received proof of publication in sufficient time. Defendant does not claim that a variance application is now pending and it is clear that the unappealed decision of a municipal administrative official is not a pending proceeding within the meaning of the Younger doctrine.
Pullman abstention requires a federal court to abstain when difficult and unsettled questions of state law must be resolved before a federal question can be decided. The "relevant inquiry" under the Pullman doctrine, as the Supreme Court observed in Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 237, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (1984) "is not whether there is a bare, though unlikely, possibility that state courts might render adjudication of the federal question unnecessary." Rather, the question is whether the statute is of an uncertain nature and "'obviously susceptible of a limiting construction.'" Id., quoting Zwickler v. Koota, 389 U.S. 241, 251 and n. 14, 19 L. Ed. 2d 444, 88 S. Ct. 391. Pullman abstention is inappropriate here. The language of the Ordinance is clear and unmistakable on its face and no difficult area of state law is presented for interpretation. Moreover, Pullman abstention is inappropriate in cases involving a claim of preemption. Kennecott Corp. v. Smith, 637 F.2d 181, 185 (3d Cir. 1980).
Exhaustion of Administrative Remedies
I must next address defendant's claim that plaintiffs' complaint should be dismissed for failure to exhaust administrative remedies.
Exhaustion of state administrative remedies is not required before initiating an action under 42 U.S.C. sec. 1983. Patsy v. Florida Bo. of Regents, 457 U.S. 496, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982). A section 1983 action may be brought for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. sec. 1983. Congress legalized the reception of authorized or unencrypted satellite television signals under the Cable Communications Policy Act of 1984 (the "Cable Act"), as discussed at greater length below, and the FCC, in turn, issued the Order to minimize interference with satellite television reception. This permits plaintiffs to bring a Section 1983 action for interference with this federal scheme. Maine v. Thiboutot, 448 U.S. 1, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980); see also, e.g., Kennecott Corp., supra, 637 F.2d at 186 n. 5 (section 1983 action may be brought for federal statutory rights protected by Williams Act); Pietroniro v. Oceanport, 764 F.2d 976, 980 (3d Cir.), cert. denied, 474 U.S. 1020, 88 L. Ed. 2d 554, 106 S. Ct. 570 (1985) ("In the absence of a comprehensive enforcement scheme within the regulatory scheme which encompasses plaintiffs' complaint," there is a private cause of action through section 1983 to redress state's failure to provide housing relocation assistance under Housing Act of 1949 and Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970). Exhaustion of administrative remedies is therefore not a bar to this action.
Exhaustion of administrative remedies is further inappropriate in this instance because the administrative proceedings available to plaintiffs are not adequate forums for their federal claims and would not materially advance the resolution of this controversy. See, e.g., Republic Indus., Inc. v. Central Pennsylvania Teamsters Pension Fund, 693 F.2d 290, 295 (3d Cir. 1982); Cerro Metal Prods. v. Marshall, 620 F.2d 964, 970-71 (3d Cir. 1980). The Board's functions are narrowly limited to technical matters involving review of decisions of administrative officers of the Board, interpretations of zoning maps and ordinances and the granting of variances. See N.J.S.A. sec. 40:55D-70. Its proceedings are not bound by the rules of evidence. N.J.S.A. sec. 40:55D-10(e). Appeals from a Board decision may be taken to the municipality's governing body, in this case the township committee, only "if permitted by [township] ordinance." N.J.S.A. sec. 40:55D-17(a). Even then, appeals are limited to the Board's decisions on special use variances. Id.; Nickerson v. Newark, 220 N.J. Super. 284, 531 A.2d 1095 (L.Div. 1987). To require exhaustion of an administrative process that is without competence to consider plaintiffs claims would merely delay the ultimate resolution of this dispute.
Finally, invocation of the exhaustion doctrine is also inappropriate where a federal plaintiff faces state criminal prosecution under a statute he challenges as facially invalid and where the state administrative body is without competence to resolve the claim. Moore v. East Cleveland, 431 U.S. 494, 497 n. 5, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (plaintiff facing quasi-criminal proceeding for violation of local zoning ordinance not required to seek zoning variance).
Since I conclude that plaintiffs are not required to exhaust administrative remedies, defendant's motion to amend its answer to assert this affirmative defense is denied as futile.
The FCC Order
In 1984, Congress passed the Cable Communications Policy Act of 1984 (the "Act") amending the Communications Act of 1934. The main thrust of this legislation is to assure that the exploding market for cable television technology provides the widest possible diversity of information services to the public. See House Committee on Energy and Commerce, Cable Communications Policy Act of 1984, H. R. Rep. No. 89-934, 98th Cong., 2d Sess. 19, reprinted in part in 1984 U.S. Code Cong. & Admin. News 4655, 4656. Recognizing that cable suppliers often rely on encrypted satellite transmission feeds which they then distribute through the cable distribution network to home viewers, the Act also provided for stiffened penalties for unauthorized satellite video users who intercept and decode these "pirated" messages for private use. See 47 U.S.C. 605(a). This provision also contains a limited exception to liability for direct reception of unencrypted and authorized reception of encrypted satellite television transmissions. Id. at sec. 605(b). Congress apparently believed that unrestricted market forces embodied in the purchasing decisions made by individual consumers would be the best means of determining the viability of this information distribution technology. See 120 Cong. Rec. S14,286 (Oct. 11, 1984) (statement of Sen. Packwood) reprinted in U.S. Code Cong. & Admin. News, 4742, 4747.
Relying in part on the Cable Act's satellite television provisions, see 51 Fed. Reg. 5519, 5522 (1986), the FCC issued an Order entitled "Preemption of local zoning of earth stations," found at 47 C.F.R. sec. 25.104. The Order provides, in relevant part, that:
State and local zoning or other regulations that differentiate between satellite receive-only antennas and other types of antenna facilities are preempted unless such regulations:
(a) Have a reasonable and clearly defined health, safety or aesthetic objective; and