# Petition for Writ of Certiorari — Broyde v. Gotham Tower, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1398%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 511 U.S. 1128 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1398%3A1. Public record. Not legal advice.