Petition for Writ of Certiorari — Broyde v. Gotham Tower, Inc.

u-reme Court, U. s. (t)

.

93161 94PR 81994

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

No.

October Term, 1994

Beryl Broyde; Mirel Broyde; David Cohen;

Judith Cohen; Milton Duchan; Marion Duchan;

Phillip D. Haack; Diane Hochberg; Helen

Kuperman; Jerry T Novetsky; Elliot

Schoenig; Sarah Schoenig; Sharon K.

Teasley; Robert L. Tilden; Samuel Tron and

Doris Tron,

Petitioners

Ve

Gotham Tower, Inc.; Bell Broadcasting

Company; Marlin Broadcasting Company and

Viacom International, Inc.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DONNELLY W. HADDEN, P.C.

By: Donnelly W. Hadden

Attorney for Petitioners

301 E. Liberty St., Suite 585

Ann Arbor, MI 48104

(313) 741-5050

QUESTION PRESENTED FOR REVIEW

Whether the Federal

Communications Act pre-empts petitioners’

state law common-law nuisance claims.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW... . 1

TABLE OF AUTHORITIES .. . . 1 2 « 3

OPINIONS BELOW .. 1. 2s es ee vee 4

GROUNDS FOR JURISDICTION ...... 4

STATUTES and REGULATIONS . . ron ee 4

STATEMENT OF THE CASE .......-. 9

"e setattinss gs, A a a ee er ee

CONCLUSION 1.6 +s 4 be Oe ee

TABLE OF AUTHORITIES

CASES

Ackerman v Columbia Broadcasting System,

Inc., 301 F Supp 628, 631 (SD NY

1 969 ) . . . . . ° . . . , . . . . . . + 28

Ahmad v Levi, 414 F Supp 597, 603 (ED Pa

1976) + . . 7 7 . . > . >. . + . > o . 28

Belluso v Turner Communications Corp., 633

F2d 393, 397 (Sth Cir 1980) ..... 28

Buckeye Union Insurance Co. v. State of

Michigan, 383 Mich. 630, 178 NW 2d 476

( 1970) - . . > . . * _ oO ” 7 . . . . 14

Burke v Dow Chemical Co, 797 F Supp 1128

ia wee? Bees, bos C5, wruiak v souae 23

Cippolone v Liggett Group, Inc., 505 US ass

, 112 S. Ct. 2608, 120 L Ed 2d 407

(90S Pee '. che OS. LEB, BY, 90-88, 27, 29

Cleveland v Piper Aircraft Corp., 985 F2d

MR Te oe BR 8 i ey ae oe 23

Comtronics, Inc. v Puerto Rico Tel Co., 553

F2d 701, 708 ( 1977) cAa@rerere BIG. 21

Couture v Dow Chemical U.S.A., 804 F Supp

pe ee ee 22

Daley v Columbia Broadcasting System, Inc.,

309 F2d 83, 86,(7th Cir 1962)... . 28

Kilts v Board of Supervisors of Kent

County, 162 Mich 646, 127 NW 821

Dea chrchet tb ig aes cs bie 2S te eee TE OP OS

Lechtner v Brownyard, 679 F2d 322, 325 (3d

Gis SOGR). 6: 6 sa ve ge el ee 28

Margolis v United Airlines, Inc., 811 F

Sunpp..318..( ED. MI. 1908) scceuice of sens 23

New England Telephone & Telegraph Co. v

Public Utilities Comm’n, 565 F Supp 949,

955-956 (1983) . . . . > . . . . . > 27

Papas v Zoecon Corp., US ie een

Ct 3020, 120 L Ed 2d 892 (1992)... 22

Post v Payton, 323 F Supp 799, 802 (ED NY

1971) * . * . - . . . . . « . . 28

Rice v Santa Fe Elevator Corp., 331 US 218,

67 S Ct 1160, 91 L Ed 1468 (1947). . 16

Schnapper v Foley, 667 F2d 102, 116 (DC Cir

1981) cert den 102 S Ct 1448 .... 28

Silkwood v Kerr-McGee Corp., 464 US 238,

104 S Ct. 615, 78 L Ed 2d 443 (1984)

oe eles ata 5 Ce eee EF Lvs 8is ae

Tennessee Valley Authority v Hill, 437 US

190, 98 S Ct 2299, 57 L Ed 2d 117 (1978)

. > >. . * 7 >. * . > . . 7 . _ . . . .28

West Virginia University Hospitals, Inc. v

Casey; US »>3114-6 Ce 1138; 1147,

333. 4. Ba..26 GS ALGGR) + 168k fe TOE Fi in “WRF

STATUTES

Sa ees tit sere ie ee a te HTALE

ee ee a ae he ele ee Sk ee eee 10

28 USC §1346 * . . . . oJ ° . .

28 USC §1346..

ee Re i sw geo tt oe eae 10

28 BRC: GSSSC( a) s.r ee S F OU RR

47 USC §151 et seq. *. ° . . 2 . . . . 10

ee a sg ee! ee op we oe 25

OT RGHG4 TH 0A eee STS i3, 20

oe eet eta. +s ee ee tee 8 23

Mich. Stat. Ann. §27A. 2940, Mich Com. Laws

Crs 634 «. «2 4-6 #8. et * eet 15

REGU N

OF Geers. «8. 9 0 868 a me 19

49; CPR BT35318e wee we MWe 18, 19

OTHERS

1982 U.S. Code Cong. & Ad. News 2267 24

In the Matter of Federal Preemption of

State and Local Regulations Pertaining to

Amateur Radio Facilities, 1001 F.C.C. 2d

962. (1966) @ 969-960... «4.0. +.» 6489 24

OPINIONS BELOW

The opinion below is’ styled

Broyde et al. v Gotham Tower, et al., 13

F3d 994 (6th Cir 1994).

GROUNDS FOR JURISDICTION

The opinion sought to be reviewed

was filed January 14th 1994. No rehearing

was sought or granted, nor any extension of

time within which to file the petition for

writ of certiorari.

Review is sought because the

United States Court of Appeals decision in

this case has decided a federal question in

a way that conflicts with applicable

47 USC §414 decisions of the Supreme Court

and is in conflict with the decisions of

other United States Courts of Appeals on

the same matter.

STATUTES and REGULATIONS

Michigan Statutes Annotated

§27A.2940, (Michigan Compiled Laws

§600.2940). Claims based on or to abate

nuisances.

(1) All claims based on or to abate

nuisance may be brought in the circuit

court. The circuit court may grant

injunctions to stay and prevent nuisance.

(2) When the plaintiff prevails on a

claim based on a private nuisance, he may

have judgment for damages and may have a

judgment that the nuisance be abated and

removed unless the judge finds that the

abatement of the nuisance is unnecessary.

28 USC §1331. Federal Question

The district courts shall have

original jurisdicticn of all civil actions

arising under the Constitution, laws, or

treaties of the United States.

28 USC §1441. Actions removable

generally

(a) Except as otherwise expressly

provided by Act of Congress, any civil

action brought in a State court of which

the district courts of the United States

have original jurisdiction, may be removed

by the defendant or the defendants, to the

district court of the United States for the

district and division embracing the place

where such action is pending.

475 USC §151. Purposes; Federal

Communications Commission created

For the purpose of regulating

interstate and foreign commerce in

communication by wire and radio so as to

make available, as far as possible, to all

the people of the United States a rapid,

efficient, nationwide, and worldwide wire

and radio communication service with

adequate facilities at reasonable charges,

for the purpose of national defense, for

the purpose of promoting safety of life and

property through the use of wire and radio

communication, and for the purpose of

securing more effective execution of this

policy by centralizing authority heretofore

granted by law to several agencies and by

granting additional authority with respect

to interstate and foreign commerce in wire

and radio communication, there is hereby

created a commission to be known as the

"Federal Communications Commission", which

shall be constituted as hereinafter

provided, and which shall execute and

enforce the provisions of this act.

47 USC §303 Powers and duties

of Commission

(b) Assign bands of frequencies to

the various classes of stations, and assign

frequencies for each individual station and

determine the power which each station

shall use and the time during which it may

operate.

(f) Make such regulations not

inconsistent with law as it may deem

necessary to prevent interference between

stations and to carry out the provisions of

this Act:...

47 USC §302a Devices which

interfere with radio reception

(a) Regulations. The Commission

may, consistent with the public interest,

convenience, and necessity, make reasonable

regulations (1) governing the interference

potential of devices which in their

operation are capable of emitting radio

frequency by radiation, conduction, or

other means in sufficient degree to cause

harmful interference to radio

communications; and (b) establishing

minimum performance standards for home

electronic equipment and systems to reduce

their susceptibility to interference from

radio frequency energy. Such regulations

9

shall be applicable to the manufacture,

import, sale, offer for sale, or shipment

of such devices and home electronic

equipment and systems, and to the use of

such devices.

47 CFR §73.310 FM technical

definitions.

Blanketing is that form of

interference to the reception of

other broadcast stations which

is caused by the presence of an

FM broadcast signal...

47 CFR §73.318 FM Blanketing

interference.

Areas adjacent to the transmitting

antenna that receive a signal with a

strength of 115 dBu (562 mV/m) or greater

will be assumed to be blanketed. In

determining the blanketed area, the 115 dBu

contour is determined by calculating the

inverse distance field using the effective

radiated power of the maximum radiated lobe

of the antenna without considering its

vertical radiation pattern or height. For

10

directional antennas, the effective

radiated power in the pertinent bearing

shall be used.

47 USC §414 Exclusiveness of

Act

Nothing in this Act shall in any way

abridge or alter the remedies now existing

at common law or by statute, but the

provisions of this act are in addition to

such remedies.

STA NT OF THE CASE

Petitioners Beryl Broyde and 15

other individuals seek a Writ of Certiorari

to the decision below, which affirmed a

grant of summary judgment in favor of

defendants in the United States District

Court for the Eastern District of Michigan.

The subject matter of this case is a

claim by residents in the city of Oak Park,

Michigan that radio signals broadcast by

four FM radio stations who concurrently

broadcast from a single antenna tower owned

by Gotham Tower, Inc. quite near their

homes create conditions in their homes

11

en

which amount to a nuisance under the common

law of Michigan. They commenced this suit

in the state court of Michigan, alleging

that conduct of the defendants constituted

a nuisance as to them and seeking both

damages at law and equitatle relief.

Defendants-respondents removed the case

under 28 USC §1441 alleging that the case

presented a federal question and that the

United States court has jurisdiction under

28 USC §1331. The district court dismissed

their cases on the grounds that plaintiffs’

claims were pre-empted by the Federal

Communications Commission Act, 47 USC §151

et seq.

The basis for federal

jurisdiction in the US District Court was

28 USC §1331. Petitioners do not agree that

there is federal jurisdiction here. They

moved to remand which was denied.

Plaintiff-petitioners live or operate

business in a certain area of Oakland

County near the defendant FM stations’

broadcast antennas, all of which are

affixed to a structure known as the Gotham

Tower. The signals from these stations,

when combined together, interfere with

12

appliances and devices which are normal,

even essential, attributes of modern urban

life. In some instances things are

activated or de-activated remotely by the

interference; in other cases the item is

rendered unusable by the signals. For

example; plaintiffs expect to prove that

the defendants cause excessively intense

interference with television reception,

telephones, garage door openers, recording

devices, stereos and VCR’s.

Plaintiffs are not broadcasters nor do

they claim that there is any interference

as between broadcasters. They do not claim

that any licensed defendant is, by itself,

causing them any problems. Rather, they

claim that the signals, broadcast by the

station defendants together from the tower

all of them use interferes with their use

and enjoyment of their homes. They claim

that those signals interfere with their use

of telephones, television, recording

devices, stereos, VCRs and cause electric

garage doors to open and close "by

themselves" to the detriment of their

personal security, and other phenomena so

bothersome to their quality of life that it

constitutes a nuisance.

13

It is important to note what

plaintiffs do not claim. They do not claim

that the defendant stations interfere with

any signals that plaintiffs wish to

broadcast. They do not claim that

defendants’ transmissions interfered with

or distorted the transmissions of other

licensed FM stations. They only claim that

conditions existing at defendants’ point of

broadcast interfere with their normal use

and enjoyment of their homes or businesses.

Several plaintiffs have complained to |

the FCC but it asserted that it has no

authority to act where the interference is

not with another FM station.

Petitioners claim that these

constitute a private nuisance per accidens |

as to them and sue to assert their common-

law rights under that theory.

ARGUMENT

Petitioners’ argument is organized

around four main rules:

le There is a presumption against

pre-emption. Plaintiffs’ claims are not

pre-empted because federal law does not

14

a

pre-empt common law damages actions unless

the congress specifically so mandates,

which it has not done here.

2. The Federal Communications

Commission Act has a savings clause, 47 USC

§414, which preserves to plaintiffs their

common-law remedies. This indicates that

the U. S. Congress did not intend to occupy

the entire field of radio broadcast

litigation.

3. There is no federal pre-emption

here because the state law is not an

obstacle to accomplishing the purposes of

congress. Compliance with both state

common-law and federal law is possible, and

desirable.

4. The federal law regulates between

licensees, not between licensees and the

petitioners. The federal law provides no

remedy for them, especially as to their

damages claims.

Petitioners’ theory: common-law

nuisance.

In Kilts v Board of Supervisors of

Kent County, 162 Mich 646, 127 NW 821

(1910) the court said that a condition

which: »

..- deprives his neighbor of the

reasonable and comfortable

enjoyment and use of his

property, or which violates the

unwritten but accepted law of

decency, or which endangers or

renders insecure the life and

health of his neighbor is a

nuisance. (162 Mich @ 652)

"

Nuisance is in Michigan a kind of “‘no-

fault" tort. In Buckeye Union Insurance Co.

v. State of Michigan, 383 Mich. 630, 178 NW

2d 476 (1970) a building owned by **: state

was held to have been a fire hazard

nuisance to plaintiff’s adjoining property.

The court distinguished negligence cases !

from nuisance cases, and as to nuisance,

defined it as follows; (p. 636).

Primarily, muisance is a

condition. Liability is not

predicated on tortious conduct

through action or inaction on

the part of those responsible

for the condition. Nuisance may

result from want of due care...,

but may still exist as A

dangerous, offensive or

hazardous condition even with

the best of care.

Plaintiff-appellants allege that radio

transmissions from defendants’ operations

16

iain

cross over plaintiffs’ properties at high

levels of intensity which either exceed

federal blanketing interference standards

",..0r are otherwise excessively intense."

Their Complaint alleges that such

transmissions by defendants "seriously and

substantially interferes with the use and

enjoyment of plaintiffs’ property, and

",,.,.,constitute a continuing nuisance ...and

a nuisance per se."

Here there is A condition at

defendants’ facility which broadcasts a

force which interferes with plaintiffs’ use

and enjoyment of their homes and

businesses. They have a viable claim at

common law in Michigan. The Michigan

circuit court has jurisdiction to award

damages and/or grant injunctions to stay

nuisances, Mich. Stat. Ann. 827A. 2940,

Mich Com. Laws §600.2940.

The issue is whether the federal

government has taken that right away from

them through the Federal Communications

Act. It has not, as is explained within.

The presumption against pre-emption of

common law remedies is not overcome by

17

congress here.

The controlling authority now on

federal pre-emption of state law damage

actions is Cippolone v Liggett Group, Inc.,

505 US ____, 112 S. Ct. 2608, 120 L Ed2d

407 (1992). This case holds that federal

statutes do not pre-empt state court tort

damage claims unless it is the clear intent

of the congress to do so, and to provide an

alternate remedy. The methodology for

analysis of pre-emption questions is laid

out.

The first rule is that there is a

presumption against pre-emption. Every

analysis of the pre-emption issue must

begin with recognition of the underlying

presumption against pre-emption.

Consideration of pre-emption issues start

with the assumption that the historic

powers of the states are not to be

superseded by federal act unless that is

the clear and manifest intent of the

congress, Rice v Santa Fe Elevator Corp.,

331 US 218, 67 S Ct 1160, 91 L Ed 1468

(1947).

The fact that state common-law damage

18

actions may incidentally regulate conduct

by discouraging tortfeasance does not mean

such actions are pre-empted by federal

regulatory statutes, Silkwood v Kerr-McGee

Corp., 464 US 238, 104 S Ct. 615, 78 L Ed

2d 443 (1984). The court there also found

it particularly significant that congress

had failed to provide a federal remedy for

those injured by conduct violating federal

standards. Id. @ 623 ("It is difficult to

believe that congress’ would, without

comment, remove all means of. judicial

recourse for those injured by illegal

conduct.” ) The incidental regulatory

consecuences of tort damage awards under

state law was something that congress was

willing to accept. If did not, then it is

obliged to say so clearly. Id. @ 625.

Justice Blackmun, concurring in the

Cippolone case said, "...we cannot find the

state common-law damages claims at issue in

this case pre-empted by federal law in the

absence of clear and unambiguous evidence

that congress intended that result.” (120

L Ed 2d @ pg 442) The majority opinion

reviews the logical progression analysis

that must be used with every pre-emption

19

contention. At pg 420, the only three ways

of overcoming the presumption against pre-

emption are stated.

This presumption can be overcome only

where there is either (1) express language

in a federal statute saying so, or (2)

federal law occupies the entire field of

regulation leaving no room for state law,

or (3) when compliance with both state and

federal law is impossible [-or- that state

law stands as an obstacle to accomplishing

the purposes of congress. ]

The Court of Appeals based its holding

on the third ground, saying that there is,

",..an irreconcilable conflict between the

FCC’s exercise of exclusive jurisdiction

over the regulation of radio frequency

interference and the imposition of common

law standards in a damages action.”

Because "The radio signal interference

at issue falls within the FCC’s technical

domain." the presumption against pre-

emption, it said, is overcome.

That is not a recognized basis for

casting aside the presumption against pre-

emption.

47 CFR 873.318 prescribes a numerical

standard for "FM blanketing interference.”

20

But "FM Blanketing" is defined in 47 CFR

§73.310:

Blanketing is that form of

interference to the reception of

other broadcast stations which

is caused by the presence of an

FM broadcast signal... (emphasis

supplied)

Plaintiff-petitioners do not complain that

any of these radio stations is blanketing

any other broadcast station, but rather

that together they are blanketing

appliances, devices, communications and

entertainment in their homes.

The Federal Regulations only address

problems where FM_~ stations’ signals

interfere with the reception of signals

broadcast by other FM stations. There is no

federal regulation of interference by FM

Signals with anything else. 47 CFR §73.318

describes a blanketed area as one which

receives a signal with a strength above 115

dBu. Plaintiffs here receive several

signals. Indeed, the Federal Communications

Comnission has declined to assist

plaintiffs in resolving their problems,

citing lack of authority. Plaintiffs do not

seek to regulate interference between

stations. That is the province of the FCC.

21

Plaintiffs seek compensation for

interference between stations and

themselves. That is beyond the scope of the

FCC.

Federal law does not occupy the field,

as shown by the savings clause.

A savings clause in the FCC Act shows

that congress intended not to pre-empt the

field. The courts may not substitute their

intent to pre-empt instead.

In the Cippolone case the U.S. Supreme

Court has sounded the death knell for

judicial pre-emption: where congress "has

included in the enacted legislation a

provision explicitly addressing” pre-

emption, "there is no need to infer

congressional intent to pre-empt state laws

from the substantive provisions." (120 L Ed

2d @ 423) In the instant case congress did

explicitly address pre-emption.

The Federal Communications Commission

Act contains a "savings clause at 47 USC

§414 which reads:

Nothing in this Act contained

shall abridge or alter’ the

remedies now existing at common

22

law or by statute, but the

provisions of the Act are in

addition to such remedies.

This section of the statute clearly

recognizes the existence of more, non-FCC,

remedies. See, e.g., Comtronics, Inc. v

Puerto Rico Tel Co., 553 F2d 701, 708 (

1977) (8 414 preserves "causes of action

for breaches of duties distinguishable from

those created under the Act.”) In order for

there to be pre-emption there must be some

explicit expression of the manifest intent

of congress to obliterate state law

remedies. The existence of the savings

clause indicates that congress disclaimed

any interest in promoting the development

and utilization of FM radio frequencies "by

means that fail to provide adequate

remedies for those who are injured..."

Silkwood v Kerr-McGee Corp, supra at 625.

In Cippolone, supra, it has been made clear

that courts may not veto state tort law

under the guise of "implied pre-emption.”

Yet that is what the Court of Appeals has

done here. It is in error.

Plaintiffs have whatever is saved for

them at common law to assert in their

behalf, and the common law is not pre-

23

empted.

The state common-law is not an

obstacle to any congressional purpose.

Compliance with both is possible.

The Court of Appeals found pre-emption

anywa, because it opined that the state law

of nuisance conflicts with federal law.

There are two reasons expressed for this.

First, the court says, "The radio signal

interference at issue here falls within the

FCC’s technical domain." "Technical domain"

is not a recognized basis for federal pre-

emption. State courts are perfectly capable

of understanding technical matters as

relate to private damage lawsuits. Consider

the "technical domain" involved in several

cases where pre-emption has been denied.

Papas v Zoecon Corp., ___ US . san

S Ct 3020, 120 L Ed 2d 892 (1992) remanding

to the 1lith Circuit a case involving

pesticide exposure. Organic chemistry and

toxicology must have been involved, but

this is no reason for federal pre-emption.

Consider also Couture v Dow Chemical

U.S.A., 804 F Supp 1298 (D Mont 1992) and

24

Burke v Dow Chemical Co, 797 F Supp 1128

(ED NY 1992) [herbicides, organic

chemistry, not pre-empted by FIFRA].

Margolis v United Airlines, Inc., 811 F

Supp 318 (ED MI 1993) and Cleveland v Piper

Aircraft Corp., 985 F2d 1438 (10th Cir

1993) involved the “technical domain" of

aeronautical engineering and maintenance,

yet it was held there was no pre-emption by

the Federal Aviation Act. The FAA contains

a savings clause (49 USC §81305(a))

identical to the one in the Federal

Communications Commission Act.

In Silkwood v Kerr-McGee, supra, there

was no federal pre-emption despite the case

involving the technical domain of

radioactive radiation hazards. The F.C.C.

itself has declined to pr-empt all state

and local regulation in areas falling

within its "technical domain" even when

presented opportunities to do so. For

example, the F.C.C. declined a request to

pre-empt "all local ordinances which

provably preclude or significantly inhibit

effective reliable amateur radio

communications.” The F.C.C. determined that

"a reasonable accommodation may be made

25

between legitimate local interest in

regulating the health, safety and general

welfare of the community and the federal

interest in promoting amateur radio

operations,” and held that local

regulations involving placement, screening,

or height of antennas based on health,

safety or aesthetic amateur communications

are not pre-empted. In the Matter of

Federal Preemption of State and Local

Regulations Pertaining to Amateur Radio

Facilities, 1001 F.C.C. 2d 952 (1985) @

959-960.

Simply because evidence in a case may

fall with the "technical domain” of some

federal regulatory agency is not a

recognized basis for federal pre-emption.

Such A rule would pre-empt almost

everything in modern society.

Also, the Court of Appeals held that

because a Conference Report by the congress

expressed a belief that, "..-radio

transmitter operators should not be subject

to fines, forfeitures, or other liability

imposed by any local or state authority as

a result of interference appearing in home

electronic equipment or systems.", 1982

26

U.S. Code Cong. & Ad. News 2267, plaintiffs™

case is pre-empted by federal law. This is

the most dangerous part of the opinion

below.

It is legislation by committee. The

court below would imply pre-emption from a

committee report, bootstrapping that report

into the law of the land. Where statutory

language is plain and unambiguous, it

meaning is discerned from the statutory

text alone and not from the statements of

individual legislators or committees. West

Virginia University Hospitals, Inc. 4

Casey, : 2222 U6 * 2.) 2° 490'8 Ot 14398, 1147,

113 L Ed 2d 68 (1991). There is nothing in

the amendatory language expressly repealing

the savings clause. The statute (47 USC

§302a) authorizes the regulation of things

which emit radio energy (which plaintiffs

do not do) and the setting of standards for

the manufacture of home electronics to

reduce their susceptibility to radio

energy. (Plaintiffs don’t do this either. )

The statute does not say what remedies are

provided if the emissions are excessive and

the home electronics still susceptible. The

statute does not say what the conferees

27

believed. It does not expressly pre-empt

local or state liability. The savings

clause has not been repealed.

~~ To hold that the common-law nuisance

claims are pre-empted on the basis of a

committee report violates the "cardinal

rule" against repeal by implication in

Tennessee Valley Authority v Hill, 437 US

190, 98 S Ct 2299, 57 L Ed 2d 117 (1978).

There is no clear and unambiguous

language in the statute that congress

intended to pre-empt state law nuisance

damage claims. The committee comments are

" "

-+-in the enacted legislation..." as

required by the Cippolone rule (120 L Ed 2d

@ 423). The courts must follow statutes

not,

enacted by congress, but for the courts to

adopt as federal law a report issued by

only a committee of congress, and hold that

to be a manifest intent to obliterate state

law remedies, is implied pre-emption by the

courts of precisely the kind forbidden by

Cippolone.

Respondents must comply with federal

regulation and can also pay damages claims

if they create A nuisance, without

upsetting any grand regulatory scheme. It

28

merely gives them an option, a choice of

behavior as described by Justices Blackmun,

Kennedy and Souter in Cippolone, 120 L Ed

2d @ 435.

There is no other forum for

petitioners.

Lastly, the Court of Appeals said that

plaintiffs are not left without a forum. It

held that plaintiff can file petitions

within the FCC to resolve their complaints.

This holding conflicts with decisions by

other United States courts of appeals on

the same issue.

Except for certain actions against

common carriers), the Federal

Communications Act does not expressly

authorize private enforcement actions or

citizens’ suits. Federal courts which have

considered the question have generally held

that the act does not confer an implied

private cause of action for either damages

or injunctive relief. New England Telephone

I See sections 206 and 207 of

the Federal Communications Act, 47

USC 206 & 207.

29

& Telegraph Co. v Public Utilities Comm’n,

565 F Supp 949, 955-956 (1983). These

courts have reasoned that congress simply

did not intend to create any private

remedies other than those explicitly set

forth in the act because congress vested

regulatory and criminal enforcement of the

act in the FCC. Lechtner v Brownyard, 679

F2d 322, 325 (3d Cir 1982). See also

Schnapper v Foley, 667 F2d 102, 116 (DC Cir

1981) cert den 102 S Ct 1448; Belluso v

Turner Communications Corp., 633 F2d 393,

397 (5th Cir 1980), Daley v Columbia

Broadcasting System, Inc., 309 F2d 83,

86,(7th Cir 1962); Ahmad v Levi, 414 F Supp

597, 603 (ED Pa 1976); Post v Payton, 323

F Supp 799, 802 (ED NY 1971) and Ackerman

v Columbia Broadcasting System, Inc., 301

F Supp 628, 631 (SD NY 1969), all cited in

Lechtner, supra. Whatever private causes of

action exist are those saved by section

414.

And even the court below does not

suggest that the FCC can assess and grant

damages at law for the nuisance inflicted

up to now. Under state law petitioners can

claim these.

30

ee ee

In Cippolone it was held that the word

"regulation" refers to positive statutory

enactments by state legislatures, etc., not

to common-law damages actions. "There is no

general, inherent conflict between federal

pre-emption of state warning requirements

and the continued vitality of state common

law damages actions." (120 L Ed 2d @ 424.)

What we have in this Broyd case is a

situation where state law occupies a field

not touched upon by federal law and where

the state common law provides sanctions for

behavior not regulated by federal law, and

different from any under federal law. A

state may do this. A claim based upon such

state law is not pre-empted.

CONCLUSION

Petitioners have stated causes of

action under state law that are not pre-

empted by federal statutes. The Court of

Appeals decision conflicts with opinions of

the Supreme Court and with those of other

courts of appeal. The court below implied

pre-emption, which it is forbidden to do,

31

from a committee report. This is erroneous

and dangerous precedent. Petitioners

respectfully request that this court grant

a writ of certiorari in this matter.

Respectfully ; sepairentouania

“Ponnelly W. Hadden

Attorney for Petitioners

301 E. Liberty St., Suite 585

Ann Arbor, MI 48104

(313) 741-5050

April 7, 1994

32

APPENDIX

1. Opinion of the United States Court of

Appeals for the Sixth Circuit.

RECOMMENDED FOR FULL-

TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

ELECTRONIC CITATION: 1994 FED App. 0007P (6th Cir.)

File Name: 94A0007P.06

No. 92-2395

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BERYL BROYDE; MIREL BROYDE; |

DAVID COHEN; JUDITH COHEN;

NATHAN COHEN; MILTON

DUCHAN; MARION DUCHAN;

PuHitip D. HAACK; DIANE

HOCHBERG; ICEK KUPERMAN;

HELEN KUPERMAN; JERRY J.

NOVETSKY; ELLIOT SHOENIG;

SARAH SHOENIG; SHARON K.

TEASLEY; ROBERT L. TILDEN;

SAMUEL TRON; and Doris TRON,

Plaintiffs-Appellants,

Vv.

GOTHAM TOWER, INC; BELL

BROADCASTING COMPANY; HOKER!

BROADCASTING, INC.; MARLIN

BROADCASTING COMPANY; and

VIACOM INTERNATIONAL, INC.,

Defendants-Appellees.

. On APPEAL from the

United States District

Court for the Eastern

District of Michigan

ll Nh el a _

—

ae

ee ee ee SS eee ee ee ed

2 Broyde, et al. v. Gotham Tower, et al. No. 92-2395

Decided and Filed January 14, 1994

Before: MARTIN and BOGGS, Circuit Judges; and

HULL, District Judge.

BOYCE F. MARTIN, JR., Circuit Judge. In this action

predicated on common law nuisance, plaintiffs, all

residents of Oak Park, Michigan, allege that the

defendants’ radio signals interfere with the nae ngs of

home electronic equipment, thereby disrupting

plaintiffs’ use and enjoyment of their property. Pleintiffs

now appeal from an order of the district court dismissing

their complaint pursuant to Federal Rule of Civil Procedure

12(b)(6) for ilure to state a claim upon which relief can

be granted. For the following reasons, we affirm the

district court.

Defendant Gotham Tower, Inc. operates an eight-

hundred-foot tall radio tower in Oak Park from which

defendants Bell Broadcastin Company, Marlin

from this location and now regulates the frequency, timing,

and power of the defendants’ transmissions.

The plaintiffs, residents of a nearby nei

ut Sik oa send ig xf fiom sous pow

pee as ge TE sa ving behind a wake of malfunctioning

The plaintiffs allege that these

signals interfere with television and radio reception,

“The Honorable Thomas G. Hull, United States District Judge for

the Eastern District of Tennessee, sitting by designation.

2

No. 92-2395 Broyde, et al. v. Gotham Tower, et al. 3

activate garage door openers, and render certain

telephones, stereos, and recording devices unusable.

Maintaining that the intensity of the defendants’ signals

"regularly exceed{s] the federal standard for F.M.

blanketing interference,” the plaintiffs filed suit on common

law nuisanee grounds in County Circuit Court on

July 7, 1992. In their complaint, the plaintiffs sought both

injunctive relief and damages.

On July 27, the defendants removed the case to federal

district court and, shortly thereafter, moved to dismiss the

complaint pursuant to Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim upon which relief can

be ted. Specifically, the defendants contended that the

Federal Communications Act of 1934, 47 U.S.C. §§ 151-

613, preempts the plaintiffs’ nuisance claim.

In reaching its decision, the district court first noted the

consistent finding of ion by all courts that have

considered the interaction of common law nuisance claims

and the Federal Communications Act. See Still v.

Michaels, 791 Ai Supp. oe (D. Ariz. ay ay

action preem mmunications - v.

Michaels, 303 P.2d 124 (Ariz. 1990) (FCC has exclusive

jurisdiction over resolution of radio signal interference

nuisance claims); Smith v. Educational

Broadcasting Network, 783 S.W.2d 533 (Mo. Ct. App.

1990) (F Communications Act preempts state

nuisance action based on radio signal interference with

electrical liances); Blackburn v. Doubleday

Broadcasting Co., Inc., 353 N.W.2d 550 (Minn. 1984)

(radio transmission nuisance claims under exclusive

jurisdiction of FCC). The district court then held that

Judicial resolution of the plaintiffs’ nuisance claim would be

inconsistent with the FCC’s exercise of exclusive

jurisdiction over the broadcast industry. On October 21,

the district court dismissed the plaintiffs’ case. The

plaintiffs, in turn, filed this timely appeal.

In this Court, a "motion under Rule 12(b)(6) tests

whether a claim has been adequately stated in the

4 Broyde, et al. v. Gotham Tower, et al. No. 92-2395

complaint. The basic a eae new for a pleading are set

out in Rule 8(a) and call for ‘a short and statement of

the claim showing that the pleader is entitled to relief.’ In

cones Sie 12(b)(6) motion, the court must accept

as true all $s in the laint." Nishiyama

v. Dickson County, Tenn., 814 F.2d , 279 (6th Cir.

1987) (en banc) ew leetions omitted). A’ Rule 12(b)(6)

motion should only be granted if "it open ve hash ge

that the plaintiff[s can prove N0 set

(their) mse which would entitle [them] - to S etiel, :

Hospital Bldg. 5. v. age og Rex Hosp., 425 U.S.

we 746 (1 Here, the oa assert that wo

Supreme Ba ; “recent opinion in Cipollone v. Ligget

Group, Inc., _. U.S. __, 112 S.Ct. , 120 L.Ed.

407 (1992), alters federal preemption sis, authorizes

their common law nuisance suit, and reversal of

the district court’s grant of defendant’s Rule 12(b)(6)

motion. We are not persuaded.

Initially, plaintiffs note correctly that Cipollone reaffirms

the presumption against federal preemption of state law.

The Court’s opinion, limited to consideration of the Federal

Cigarette Labeling and Raa g Act and the Public

1969, held that the

legislation did not certain state law damage

actions. Cipollone, 112 S.Ct. at 2625. In reaching this

conclusion, the Court emphasized that ” enactment

of provisions in the legislati ici the

ive reach of the statutes meant that "matters _

that reach are not pre ." Cipollone, 112 S.

specific preemption provision [lower tat ent sch

it turn to an i

preemption analysis. tar As the Court’s jones

pr Bowls apace prado gawrear congressional

command, state law is that law actually

conflicts with federal law, peter, 1 Bem Resceere

a legislative field ‘os W inlthe vensenie Cie

inference that left no room for the States to

supplement it.’” Jd. at 2617 (citations omitted).

No. 92-2395 Broyde, et al. v. Gotham Tower, etal. 5

Such an implied preemption analysis is appropriate here.

The Federal Communications Act does not contain an

explicit provision defining the legislation’s ive

scope that limits this Court’s inquiry. Rather, this

is required to determine whether the plaintiffs’ state law

nuisance action actually conflicts with the Act or if

— claim is necessarily displaced because the Act

y occupies the field.

The plaintiffs raise four challenges to the district court’s

judgment that the Federal Communications Act preempts

common law actions to remedy a nuisance caused by radio

signals. First, the plaintiffs assert that there is no language

in the Act that expressly preempts state nuisance suits.

Next, the plaintiffs. sae bch veoh savings clause, 47

U.S.C. § 414, demonstrates clear congressional intent to

preserve state claims and, thus, that the Act does not

occupy the field. Third, the tiffs maintain that there

is no actual conflict between provisions of the Act and

their common law nuisance action. Finally, the plaintiffs

contend that they are entitled to bring their nuisance action

to enforce state standards that exceed the obligations

imposed upon defendants under the Act.

This Court has carefully considered each of the plaintiffs’

arguments. Resolution of this matter, however, turns on a

single issue: the existence of an irreconcilable conflict

between the FCC’s exercise of exclusive jurisdiction over

the regulation of radio frequency interference and the

An ae Oe =! Court prod a FCC urisdicti

upreme recognizes, sj on

“over technical matters” associated with the transmission of

radio signals “is clearly exclusive." Head v. New Mexico

an a ee to 374 U.S. 424, 430 n.6

(1963); of. In Re ‘or Distance Telecommunications

Litigation, 831 F.2d 633 (6th Cir. 1987) oO pl

claims for fraud and deceit are Fe

Communications Act because fall wthise ~

conventional experience of judges” nd "do not require

agency expertise for their treatment"). The radio signal

po ee a

ae eS ee

6 Broyde, et al. v. Gotham Tower, et al. No. 92-2395

interference at issue here falls within the FCC’s technical

domain.

To promote exclusive FCC jurisdiction over radio signal

poms Phe i and systems, the Act

empowers to adopt regulations “establishing

minimum performance standards for home electronic

equipment and systems to reduce their ate

og ingest roe 47 U.S.C. §

302a (a)(2). In ratifying section in 1982, the

Conference Report that the amendments were:

intended to clarify the reservation of exclusive

jurisdiction to the Federal Communications

Commission over matters involving RFI [radio

freq interference]. Such matters shall not be

regulated by local or sae law, nor shall radi

transmitting apparatus ject to or state

regulation as part of any effort to resolve an RFI

complaint. The Conferees believe that radio

transmitter operators should not be subject to fines,

forfeitures, or other liability imposed by any local or

state authority as a result of interference appearing in

home electronic poe or systems. , the

Conferees intend regulation of RFI phenomena

shall be imposed only by the Commission.

— U.S. ne & Ad. News — Given =

explicit congressi pronouncements, enforcement o

plaintiffs’ state law nuisance action would frustrate the

objectives of the Act. yeaa the district court

properly granted defendants’ Rule 12(b)(6) motion.

The plaintiffs are not, however, left without a forum in

which to raise their radio one age interference

complaints. The residents may lodge informal written

complaints, y ogg ree setting forth the nature and

duration of interference, with the Gotham Tower

stations, the local FCC field office, and the FM Branch of

the Mass Media Bureau. See In Re Application of

Calvary

Educational Broadcasting Network, Inc., 7 F.C.C.R. 4037

(1992) (noting that FCC action followed the filing by local

No. 92-2395 Broyde, et al. v. Gotham Tower, et al. 7

residents of more than nine hundred blanketing interference

complaints); 47 C.F.R. § 1.41 a The residents may

also file petitions to y license or renewal

applications filed with the F the Gotham Tower

stations. 47 U.S.C. f 3090); 4 at kidesrt idlanicadt

Nite Sie ay ae

Network, Inc., hare POOR OR 4037 (1992) (1992)

(designating station's application for renewal of license for

pio ar Moai Sagem a yen Day ane soc

wil have an taking such steps, moreover, the plaintiffs

cules. “Under te AM tate Petes cay ak

ma

coviser of decielaas dad odie alae C in the United

States Court of for the District of Columbia

Circuit. 47 U.S.C. ); see also FCC v. ITT World

Communications, Inc. , U.S. 463, 468 (1984).

For the foregoing reasons, the judgment of the district

court is affirmed.

a. Affidavit of Petitioner Jerry Novetsky

filed below.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BERYL BROYD et al.,

Plaintiffs

vs. No. 92 CV 74176 DT

Hon. Lawrence Zatkoff

GOTHAM TOWER, INC. et al.,

Defendants.

State of Michigan )

) ss

County of Washtenaw )

JERRY NOVETSKY being first duly sworn

deposes and says:

1. I am a plaintiff in this cause.

Se On many occasions during 1990 I

complained to the Federal Communications

ii

Commission about interference from Gotham

Tower stations with various electric and

electronic devices and appliances in my

home. I spoke many times on the telephone

with Mr. James A. Bridgewater, Electronic

Engineer, Enforcement Division, Federal

Communications Commission Field Operations

Bureau, 24897 Hathaway St., Farmington

Hills, MI 48331-1398. On one occasion Mr.

Bridgewater came to my home to investigate,

and acknowledged the problems.

Je Mr. Bridgewater stated repeatedly

that there is, "...nothing the FCC can do

about your problem.” and stated that it is

not the function of the FCC to resolve

these kinds of problems. He said, “It is

not the function of the FCC to help

individuals who have interference from

stations, only where other transmitters

have interference.”

4. The FCC has done nothing to

iii

resolve my complaints about these stations.

It has taken no action regarding them. It

has taken no action regarding the other

complaints either.

s/

Jerry Novetsky

Subscribed and sworn to before

me this 9th day of October, 1992.

s/

Genevieve Greenfield, Notary Public

Washtenaw County, Michigan

My Commission Expires: 12-6-95

iv