Petition for Writ of Certiorari — Freeman v. Burlington Broadcasters, Inc.
Supreme Court brief2000
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99188 0 may 2200
No. ____OFFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
GRAEME FREEMAN, et al.,
Petitioners,
V.
BURLINGTON BROADCASTERS, INC.,
dba WIZN, ei al.,
Respondents.
On Petition For Writ OF CERTIORARI
To Tue Unitep STATES CourT OF APPEALS
For THE SECOND CIRCUIT
PETITION FOR WRIT OF CERTIORARI
GERALD R. TARRANT *
TARRANT, MARKS & GILLIES
P.O. Box 1440
MONTPELIER, VERMONT 05601-1440
(802) 223-1112
Counsel for Petitioners
* Counsel of Record
BECKER GALLAGHER LEGAL PUBLISHING, INC.,
CINCINNATI, OHIO 800-890-5001
29SeP
QUESTION PRESENTED
Is_ local zoning preempted by the Federal
Communications Act and regulations promulgated by the
Federal Communications Commission when radio or
telecommunications facilities cause interference with local
electrical and electronic devices used by local businesses and
institutional services?
PARTIES TO THE PROCEEDING
Petitioners
Graeme Freeman, Mary Beth Freeman, Frank Ittleman,
Elaine Ittleman, Mike Fournier, Holly Fournier, Ellen Lane,
William Pinney, Jr., Mark W. Bolles, Claudia Mucklow,
Donna A. Wark, Iris Muggenthaler, James H. Squires,
Lawrence Hamilton, Robert Carmody, Mark Musiel, Michael
Yantachka, Lorie Gaboury, Chris McGee, Peter Coleman,
Barbara Sanford Farrell, and William Pinney, Sr. Petitioners
are individuals and have no corporate affiliations.
Respondents
Burlington Broadcasters, Inc. dba WIZN, Charlotte Fire &
Rescue Services, Inc. and NYNEX Mobile Limited
Partnership 1 dba Bell Atlantic NYNEX Mobile
il
TABLE OF CONTENTS
I 026 a hs Wig gb A Ae ee a i
ene OO I oa ihe ee wees il
Ee a ey oe ili
EI re a ar re ae Vili
ee ee ee ea ee ee ee xii
PR GE PUIG sc ee et ew eae Xil
Constitutional and Statutory
REPT Ce eee ere xii
eee ee ee eee eee l
I. proce@eral Case Titgiofy .. ww... ieee 1
a. We I BE ong cc eee 1
b. Interference and Investigation by
Zoning Administrator ............. y
e. Appeal to Zoning Board of
Is on 0 a oo ee ow 2
d. Appeal to Vermont Environmental
Court and Removal To Federal
II 5a ok ae we ee 3
e. Appeal to Second Circuit Court of
RE bc os aie Ge kw es we ee 3
Reasons for Granting the Writ ................. 4
iil
II.
The Question Presented is Important to the
FOUL: es ee ee ee
The Decision of the Court of Appeals
Conflicts with Decisions of the Supreme Court
on the Rules of Federal Preemption and States’
eee re se er te eee
A. The Second Circuit’s Decision Was
Inconsistent with the Supreme Court’s
Preemption Standards .............
1. Preemption Is Not Applicable .. .
The Supreme Court Has Held
That There Is A Presumption
Against Preemption ..........
B. The Second Circuit’s Decision is
- Inconsistent With the Tenth ~
SE ec Se eee ee
1. Field Preemption Is _ Not
Applicable Under the Tenth
PO CS Si ee
2: Clear Statement/Plain Meaning
I i ke ec ns cs
3. The Plain Meaning
Demonstrates the FCC is
Without Authority ..........
4. The FCC is Not Authorized t to
Regulate Business Electronic
WE ese 8 rene ee
5. Legislative History Proves No
Pa Ps os ee
6. The 1996 Amendments .......
iV
a A
3 The Neighbors’ Remedies Are
Not Available at the FCC ...... 26
CAR 68s ee fe 28
Appendix
Appendix A
Court of Appeals Opinion, 2/23/00 ......... la
Appendix B
Court of Appeals, Notice of Appeal, 9/8,97 .. 32a
Appendix C
District Court Judgment, 8/11/97 ......... 34a
Appendix D
District Court Opinion and Order, 8/11/97 ... 36a
Appendix E
District Court Motion to Dismiss Transcript,
RE CAS GENCE es er 50a
Appendix F
District Court Notice of Removal, 9/6/96 .... 82a
Appendix G
Environmental Court Statement of Questions,
POS 6b 6 ew ee er es eee 86a
Appendix H
Zoning Board Notice of Decision, 7/11/96 ... 93a
Appendix I
Notice of Zoning Violation Letter, 4/5/96... 103a
Vv
Appendix J
Zoning Board Minutes, 11/20/86 ........ 108a
Appendix K
Zoning Board Minutes, 12/23/86 ........ 112a
Appendix L
Findings of Fact and Notice of Decision,
SPE 6 6 orn ea Wo eae 115a
Appendix M
Findings of Fact, 10/28/91 ........5000. 117a
Appendix N
es FE Oe kk ee eee 119a
Appendix O
P.L. 104-104, Telecommunications Act of
Pree ee Sera 124a
Appendix P
OG TOGO viawdes td tes Kee ei eee 137a
Appendix Q
BP i wii oneads can eee 148a
Appendix R
BR. 5: SAR, Tae ona ces 154a
Appendix S
OF Cre OS Ps oh ac eee l6la
vil
Appendix T
OF Re I io te VA ee ocaeee 162a
Appendix U
eg 3 go ae roe wee ea ee ee 164a
Appendix V
Sf Ae PORE eee 165a
Appendix W
H.R. 1555, Report No. 104-204, PartI .... 167a
Appendix X
Guidelines for Evaluating Radiofrequency
I ee eee er ee ee er 173a
Appendix Y a
I as i RW eho ea eee 179a
Appendix Z
Engineering Report, WIZN-FM, 5/10/96 ... 185a
Appendix AA
House Conference Report No. 97-765,
EE i hae od oe Ok do 19la
Appendix BB
Affidavit of Mark F. Hutchins, 11/21/96 ... 235a
Appendix CC
Municipal and County Government - T.-24
OS ed ag Ay Why Uo aia « alice ors mse 237a
Vii
TABLE OF AUTHORITIES
Cases
360 Degrees Communications Company of
Charlottesville v. The Board of
Supervisors of Albemarle County,
AT&T Wireless PCS, Inc. v. City Council of
Virginia Beach, 155 F.3d 423 :
Or 6 So a (wee ke wees 18, 24
AT&T Wireless PCS, Inc. v. Winston-Salem
Zoning Board of Adjustment, 172 F. 3d
BT ee Se ie ac oe er es 18
Brockett v. Spokane Arcades, Inc..,
ee ey DS ks A eee eke ee 15
Broyde v. Gotham Tower, Inc..,
12 Fe ee ee ee be ee ees 22
Cipollone v. Liggett Group, Inc..,
as oe 8 se eh es passim
Commercial Mortg. Ins. Ine. v. Citizens Nat.
Bank of Dallas, D.C. Tex., 526
PA, SO OME: ok ob a ees 26
Dalton v. Little Rock Family Planning Services,
ee ee Oe 5 ok ee 14
Vill
Soernerecs
English v. General Electric Co.,
SR ok rc eae nS 15
Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528 (1985) ...... 12
Goodstein v. Bombardier Capital, Inc.,
We n, FER OOEE 6 ok ak ek ee ee 13
Great Lakes Wireless Talking Machine Company
d/b/a WZSH 95 FM v. David Hayes, et al.,
No. 91-6140OT, Slip op. at6 ........ 9, 17, 22
Gregory v. Ashcroft,
as CUE a ek ha sds ea 11
Head v. New Mexico Board of Examiners
In Optometry, 374 U.S. 424 .......... 5s ae a ie
John Hancock Mutual Life Insurance Co. v.
Harris Trust & Savings Bank,
og es ga 0G Sop ak Nee Ss 25
Keene Co. v. United States,
ee Shs EE vs kk es ek ewes 9,17
McCullough v. State of Maryland,
4 Wheat. 406, 4 L.Ed. 579 (1819) ......... 11
New York v. United States,
nk os ae aig A eww 11
Pacific Gas & Electric Company v. State Energy
Resources Conservation and Development
Commission, 461 U.S. 190 (1983 ...... 14, 15
ix
Printz v. United States ,
i Be ee ot. Pere re rr ee re ee 11
Reno v. Condon,
SA) ak. GD hin es 05% OSs See 11
Schad v. Borough of Mount Ephraim,
ee Ce Gk SD ri hao oe Ks 8
Securities Industry Association v. Connolly,
Gos &.am $206 (1 Ce. TR) ww ce ces 9
Tafflin v. Levitt,
ee Wes ee CE 8k 6 ee eek eee 11
U.S. Term Limits, Inc. v. Thornton,
TOE Ae. TPO kc 8s ee ee 12
United States v. Am. Trucking Ass’n, Inc.,
See Sa SO ce eee ca hee ee 13
United States v. Bass, }
Se Wiss TE cs Bixee a eee ee 13
United States v. Darby,
Pe CED eke ee eee 10
Statutes
ee BOE 5 5 es 8 Xii
SES RE os Swe Seer er xii
ae ee ee a ee Sl os ee 3
bt ee ee ae ere ree ete xili, 19
ak ae SF eer eee error re passim
SD Le
AR LS Sed McA Sie eat 2c
rep Bie 3 | rere ae ee Pena S xili, 19, 21
yah * oe oS | ae Lee ee eee Tee 19
eS ere eee ee ee ee xiii, 19
Oe ee ER 6 be eas ese ds xili, 19
yee is Os a ee Es ae eH xiii, 19
Fs OD hi a a oe oe ks ees aa
gf Foie > eae ara ee a a a ae xiii, 19
Or OE 5 a ee es aD xiii, 19
Federal Communications Act of 1934 .... xiii, 3, 16, 25
Vt. Stat. Ann. tit. 24 § 4464(a) (Supp. 1996) ....... 2
Vt. Stat. Ann. tit. 24 § 4470 (Supp. 1996) ......... 3
Other Authorities
Laurence H. Tribe, American Constitutional Law
7. > Setar e a ae ee eee 13
The Tenth Amendment to the United States
Constitution passim
U.S. Code Cong. & Admin. News,
97" Cong. 2% (1982), 2237, 2276 .......... 23
Rules
— § 2 oe oY. |) re oom erarer erat eenr a eee a ee
a oe 8 Ry | Renner er are See 3
xi
Petitioners respectfully petition for a writ of certiorari
to review the judgment of the Second Circuit Court of
Appeals in this case.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Second Circuit is reported at 204 F3d 311 (2d Cir. 2000).
A copy of the Opinion is included as Appendix A. The
Opinion of the District Court for the District of Vermont is
reported at 975 F.Supp. 570 (D. Vt. 1997) and is included as
Appendix B.
STATEMENT OF JURISDICTION
The United States Court of Appeals for the Second
Circuit issued its Opinion on February 23, 2000. This
Petition for Writ of Certiorari is filed within ninety-days of
that Opinion. The Court’s jurisdiction is invoked pursuant to
28 U.S.C. §§1254(1) and 2106.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Tenth Amendment to the United States
Constitution.
The Tenth Amendment states:
The powers not delegated to the United States
by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively,
or to the people.
xii
The Federal Communications Act of 1934, as
amended, 47 U.S.C. § 302a provides in relevant part
(emphasis added):
(a) 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 energy by radiation,
conduction, or other means in sufficient degree
to cause harmful interference to radic
communications; and,
(2) establishing minimum performance
standards for home electronic equipment and
standards to reduce their susceptibility to
interference from radio frequency energy.
In addition, there are specific federal statutes granting
the FCC precise authority to regulate interference among
licensed radio stations, radio operators, government stations
and ships at sea. See e.g. 47 U.S.C. §§ 301, 303(f),
303(m)(1)(E), 306, 320-1, 323 and 354 (b) and (c). Under
settled precedent of this Court, where Congress has included
explicit authorizing language in one section of a statute, but
omits similar language relative to other aspects of business, it
is presumed Congress acted intentionally and purposely.
Preemption is not favored.
Xili
_ STATEMENT OF THE CASE
{
I. Procedural Case History
a. The Permit in 1987.
This case arises out of various local permitting
decisions first denying and then allowing the construction and
location of a telecommunications tower owned by Charlotte
Volunteer Fire & Rescue Service (CVFRS) and used by
CVFRS and Burlington Broadcasters, Inc. d/b/a WIZN
(WIZN), and more recently by NYNEX MOBILE LIMITED
PARTNERSHIP 1, d/b/a Bell Atlantic NYNEX Mobile
(BANM).
In 1986 the local zoning authority denied the co-
application by WIZN and CVFRS to construct a
telecommunications tower on Pease Mountain in the town of
Charlotte, Vermont on the grounds that it was not located in
the commercial zone. The co-applicants reapplied and
represented that they corrected the earlier problem by re-
locating the tower consistent with zoning requirements.
Concerns were raised whether the tower would cause radio
frequency interference (RFI) where the tower was proposed
to be located. A representative of the co-applicants stated that
there would be no interference and if there were they “would
trap it out.” Appendix K at page 113a. This became a
condition of the zoning permit issued January 7, 1987.
Appendix L at page 116a. By virtue of the failure to appeal
this permit, this became a final, binding condition.
b. Interference and Investigation by Zoning
Administrator.
Interference began almost immediately after WIZN
went on the air in 1987. Complaints were made directly to
WIZN but few of the complaints were adequately addressed.
After the complaints of people in town were not addressed,
several residents filed a complaint with the local zoning
administrator. After investigating the complaint, the
Charlotte Zoning Administrator issued a notice of zoning
violation on April 5, 1996 against CVFRS, the owner of the
tower. The notice of violation cited CVFRS, WIZN and
BANM for operating and/or permitting the operation of a
broadcast facility that “has caused long term and continuous
[radio frequency] interference (“RFI”) with electrical devices
in homes and businesses throughout the town.” Appendix I
at page 104a.
c. Appeal to Zoning Board of Adjustment.
CVRES, WIZN and BANM filed a timely appeal of
the zoning administrator’s decision with the Charlotte Zoning
Board of Adjustment (ZBA). Vt. Stat. Ann. Tit. 24 § 4464(a)
(Supp. 1996). The Petitioners made their appearance as
parties to support the zoning administrator’s decision. Vt.
Stat. Ann. Tit. 24 § 4464(b) (Supp. 1996).
After a public hearing, the ZBA on July 11, 1996
ruled “that WIZN has caused continuous and widespread
[radio frequency interference] that has impaired the ability of
Charlotte residents to communicate, transact business, and
experience the peaceful enjoyment of their homes and
property.” Appendix H at page 97a. Nevertheless, the ZBA
dismissed the notice of violation because it found that
Congress intended to maintain federal jurisdiction over RFI
2
phenomena and that the ZBA was without authority to
regulate such interference. /d. at page 100a.
d. A 1 to Vermont Envi tal Court
and Removal to Federal District Court.
On August 8, 1996, the Petitioners filed a Notice of
Appeal of the ZBA decision to the Vermont Environmental
Court. Vt. Stat. Ann. Tit. 24 § 4470 (Supp. 1996). On
September 6, 1996, BANM and WIZN filed a Notice of
Removal with the United States District Court for the District
of Vermont claiming the district courts had original
jurisdiction founded on a claim arising under the Federal
Communications Act of 1934 (as amended), 47 U.S.C. § 151
et seq.
WIZN then filed a motion to dismiss with the U. S.
District Court pursuant to Fed.R.Civ.P. 12(b)(6) and BANM
filed a similar motion pursuant to Fed.R.Civ.P. 12 (b)(1) and
12(b)(6). Both motions essentially claimed that the Federal
Communications Act preempts the Petitioners’ zoning appeal.
CVFRS joined in both motions. After briefing and oral
argument, the District Court granted BANM’s motion to
dismiss on the grounds of subject matter jurisdiction.
WIZN’s Motion to Dismiss was denied as moot.
e. Appeal to Second Circuit Court of Appeals.
The Petitioners appealed to the United States Court of
Appeals for the Second Circuit. On February 23, 2000, the
Circuit Court modified and affirmed the ruling of the District
Court. The Circuit Court held that federal law preempts
enforcement of local zoning permit conditions requiring
licensees to remedy radio frequency interference. As a
procedural matter, the Circuit Court modified the judgment so
3
that it affirmed the local zoning board’s decision on the
preemption issue.
REASONS FOR GRANTING THE WRIT
I.
THE QUESTION PRESENTED IS IMPORTANT
TO THE NATION
Under the guise of federal preemption, the Second
Circuit decision deprives local communities of the power to
site telecommunication towers under traditional zoning
principles which have been consistently upheld by the courts
and even the FCC relative to radio frequency radiation.
Appendix A. The Second Circuit’s decision would deprive
local communities of the power to enforce Zoning Ordinances
designed to protect the health and safety of their residents.
The Second Circuit’s decision, if followed throughout the
country, will have a significant adverse impact on local
communities, small businesses and local institutions such as
school districts. The granting of Petitioners’ writ would
resolve an important question of federal law that affects
virtually every community in our country at a time when
telecommunication facilities are being sited at a rapid pace.
Under the Second Circuit’s decision licensees would
be free of any local zoning regulations — even those explicitly
accepted as a condition of accepting local permits —that relate
to the location of telecommunication towers relative to
interference within a community. As a practical matter, this
would deprive local residents of any meaningful forum to
remedy such interference. (The District Court and Second
Circuit directed the Petitioners to the FCC (Appendix D at
4
page 48a and Appendix A at page 30a.) Such a review would
occur in a context in which Congress has explicitly defined
exactly the kinds of interference that are preempted, yet
allowed to stand state regulation over the type of radio
frequency interference at issue in this case.
The issue presented here is one of first impression for
this Court, and of significant national importance.
Il.
THE DECISION OF THE COURT OF APPEALS
CONFLICTS WITH DECISIONS OF THE
SUPREME COURT ON THE RULES OF
FEDERAL PREEMPTION AND STATES RIGHTS
The Second Circuit’s decision inferring federal
preemption cannot be squared with Supreme Court precedent.
The Circuit Court found no express preemption of local
authority over the regulation of business electronic equipment;
it found preemption by inference. Appendix A at page 19a.
The Second Circuit made this decision knowing there were
specific federal statutes granting the FCC precise authority to
regulate radio frequency interference between radio operators
and licensees and between ships and licensees. None of these
authorities specifically preempt the local zoning regulation at
issue in this case. All of these authorities narrowly define
specific subjects of preemption, leaving the broader field
undisturbed.
Ba Aetna
sey
a ee ee
\ ee a ee Lee eee Ty Oe TE
A. THE SECOND CIRCUIT’S DECISION
WAS __INCONSISTENT_ WITH THE
SUP E__COURT’S _PREEMPTION
STANDARDS.
The Second Circuit ignored the rule of the Supreme
Court that where Congress enacted provisions in legislation
explicitly defining the preemptive reach of the statute that
“matters beyond that reach are not preempted.” Cipollone v.
Liggett Group, Inc., 505 U.S. 504, 517 (1992). The Second
Circuit cited the various statutes that directed the FCC to
regulate interference in certain instances such as between
radio stations and inferred that such authority meant that the
FCC had authority over all “technical” issues.’ Appendix A
' The Circuit Court correctly found that Congress intended to
preserve local zoning authority over the placement of personal
wireless facilities. Without any authority the Circuit Court then
presumed that Congress did not intend to “repeal the FCC’s
exclusive jurisdiction over RF interference complaints.” Appendix
A at page 24a. The preservation of local authority can be found
within the 1996 Telecommunications Act. Appendix N at pages
120a-121a. It should be emphasized that the FCC’s authority over
the “environmental effects of radio frequency emissions” relate to
the biological effects of RF radiation and only extends “to the
extent that such facilities comply with the Commission’s regulations
concerning emissions.” /d at page 121a; Cf Appendix A at pages
28a-29a. In subsequent rulemaking, the FCC explicitly found that
its preemptive reach relative to the effects of radio frequency
radiation did not extend to broadcasting facilities and other facilities
that are not personal wireless facilities. Appendix Y at pages 179a-
182a. These matters have always been considered to be within the
traditional authority of local zoning authorities. Nevertheless, the
Second Circuit found that the FCC’s “pervasive” regulation of
broadcasting technology supported its conclusion to preempt States
and local governments from regulating the siting of antenna and
6
at pages 18a-19a. The Second Circuit confirmed this
inference by deferring to the FCC as the agency which
oversees telecommunications. Appendix A at page 20a.
Congress never stated or intended to preempt local
zoning decisions over the placement of telecommunications
towers except where explicitly stated. See e.g. 47 U.S.C.
§ 332(c). Appendix N at pages 120a-121a. This is shown
through the plain meaning of congressional enactments. The
1982 amendments to the Act, for example, demonstrate how
the FCC’s authority is /imited to regulations authorizing it to
establish minimum performance standards for home electronic
equipment, and not business electronic equipment. Should
there be any ambiguity or confusion, the Congressional
Record explicitly describes how Congress has restricted the
FCC’s authority to promulgating minimum performance
standards for home electronic equipment, as distinguished
from any regulation over business electronic equipment.
Be Preemption Is Not Applicable.
The Second Circuit purportedly relied upon the
standards set forth in the Cipollone case to conclude that by
inference federal law preempts the regulatory powers of state
and local governments over interference affecting business
electronic equipment. Cipollone recognizes three ways
federal law can preempt local law: (1) expressly, as when the
federal law says it preempts state or local law on the subject;
tower support structures based on local interference phenomena.
Appendix A at page 24a. While basing its holding on the FCC’s
“pervasive regulation of broadcasting technology,” it found the
preservation of local siting authority on the basis of radio frequency
emissions to have “no relevance to the issue of RF interference.”
Appendix A at page 29a.
(2) if the state or local law actually conflicts with federal law;
or (3) when federal law so preoccupies a legislative field that
no room is left for the states to supplement it. /d., 505 U.S.
at 516. The Second Circuit concluded that the third prong of
Cipollone, “field preemption,” applied despite the fact that
Congress had directed the FCC to specifically regulate
interference in some narrow, precise situations while leaving
other local authority intact. It failed to apply the test
properly.
de The Supreme Court Has Held That There Is
A Presumption Against Preemption.
“The power of local governments to zone and control
land use is undoubtedly broad and its proper exercise is an
essential aspect of achieving a satisfactory quality in both
urban and rural communities.” Schad v. Borough of Mount
Ephraim, 452 U.S. 61, 68 (1981). States may legislate on
subjects relating to health, life and safety though the
legislation may indirectly affect the commerce of the country.’
Head v. New Mexico Board of Examiners In Optometry, 374
U.S. 424, 428. However, the power of local governments to
regulate land use is admittedly not unlimited. Schad, supra.
“Under the Supremacy Clause of the United States
Constitution, where the Congress has enacted a statute which
preempts a state or local law, the state or local government is
2 Radio frequency radiation and interference are considered to be
air pollution under Vermont law. 24 V.S.A. § 4407(7). Appendix
CC at page 243a. Except for the limited restrictions imposed under
the 1996 Telecommunications Act relating to the effects of
environmental emissions from personal wireless facilities “to the
extent that such facilities comply with the Commission’s regulations
concerning such emissions” the local impacts are local issues not
regulated by the FCC. Appendix Y at page 181a.
8
without the authority to act within that area.” See Great
Lakes Wireless Talking Machine Company d/b/a WZSH 95
FM v. David Hayes, et al., No. 91-614OT, Slip op. at 6
(citing Securities Industry Association v. Connolly, 883 F.2d
1114, 1117 (1st Cir. 1989), cert. denied, 110 S. Ct. 2559
(1990). The general rule, however, is that there is a
presumption against federal preemption of state law.
In Cipollone, the Supreme Court reaffirmed the
presumption against federal preemption of state law. The rule
in Cipollone is clear: Congress’ enactment of provisions in
legislation explicitly defining the preemptive reach of the
Statute means that “matters beyond that reach are not
preempted.” Cipollone, 505 U.S. at 517; also Keene Co. v.
United States, 508 U.S. 200, 208 (1993) (“[W]here Congress
includes particular language in one section of a statute but
omits it in another . . . it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion. (citation omitted)”)
The Second Circuit did not address the presumption
against preemption under the Supreme Court’s rulings. The
Second Circuit failed to address the principles of statutory
construction within this context. One cannot infer preemption
where Congress has explicitly carved out statutory language
that preempts state and local activities in other ways. The
Supreme Court’s decision in Cipollone does not support the
Second Circuit’s decision.
i a a ee ta
B. THE SECOND CIRCUIT’S DECISION IS
INCONSISTENT WITH THE TENTH
AMENDMENT.
i Field Preemption Is Not Applicable Under
the Tenth Amendment.
The Second Circuit concluded that the federal law in
the present case is governed by field preemption. The Court
of Appeals found legislative intent to provide the FCC with
exclusive jurisdiction over RFI in the 1982 amendments to 47
U.S.C. § 302a. Appendix A at pages 18a-19a. The Court
concluded that the legislative intent of Section 302a was to
restrict state or local regulation over all radio frequency
interference. In reaching its conclusion, the Court ignored
specific language in the legislative history that provides that
the FCC’s authority to promulgate minimum performance
standards applied only to home electronic equipment “as
distinguished from devices intended for office and business
use.” Appendix Q at page 151la.
This is clear error. Federal legislation does not have
to authorize state or local regulation; state or local regulation
is allowed if federal regulation is silent. “All is retained
which has not been surrendered.” United States v. Darby,
312 U.S. 100, 124 (1941). Surrender occurs through the
actions of Congress. The power originally resides with the
states, and needs to be taken away by Congress.
[T]here is no phrase in the [U. S.
Constitution] which, like the articles of
confederation, excludes incidental or implied
powers; and which requires that every thing
granted shall be expressly and minutely
described. Even the 10" amendment, which
10
was framed for the purpose of quieting the
excessive jealousies which had been excited,
omits the word “expressly” and declares only
that the powers “not delegated to the United
States, nor prohibited to the States, are
reserved to the States or to the people;” thus
leaving the question, which the particular
power which may become the subject of
contest, has been delegated to the one
government, or prohibited to the other, to
depend on a fair construction of the whole
instrument.
McCullough v. State of Maryland, 4 Wheat. 406, 4 L.Ed. 579
(1819).
The Tenth Amendment was enacted to allay fears
about the centrality of federal authority and the potential loss
of sovereignty by the states. The founders intentionally
avoided a system in which the federal government would
regulate the states. The founders chose instead to establish a
system that regulates individuals directly, rather than to
attempt to “federalize” the state (or by necessary implication
local governments.) Printz v. United States , 521 U.S. 898,
919-920 (1997); accord, New York v. United States, 505 U.S.
144, 161-166 (1992) (“In providing for a stronger central
government therefore, the framers explicitly choose a
Constitution that confers upon Congress the power to regulate
individuals, not States.”); also Reno v. Condon, 120 S.Ct.
666, 671-2 (2000).
Federalism is a system of dual sovereignty. Gregory
v. Ashcroft, 501 U.S. 452, 457 (1991); Tafflin v. Levitt, 493
U.S. 455, 458 (1990). As Justice Kennedy wrote,
federalism’s great invention is that “our citizens would have
11
See ete 2
two political capacities, one state and one federal, each
protected from incursion by the other. The resulting
Constitution created a legal system unprecedented in form and
design, establishing two orders of government, each with its
own direct relationship, its own privity, its own set of mutual
rights and obligations to the people who sustain it and are
governed by it.” U.S. Term Limits, Inc. v. Thornton, 514
U.S. 779, 838 (1995) (Kennedy, J., concurring).
In the present case, a federal agency without express
statutory authority from Congress, is said to enjoy preemptive
powers over the siting of telecommunications facilities by
local government, acting under the direct authority of a
general enabling law of zoning. The FCC asserts this power
even though it has been granted express statutory authority to
regulate interference relative to its regulated licensees and
between such licensees and other entities that create
interference such as ships at sea and government
communication facilities. It can point to no statutory
authority to regulate interference by telecommunications
facilities with local business, institutional and medical
equipment. It relies on inference.
We do not doubt that the commerce power authorizes
Congress to create private rights as against the States. See
Garcia v. San Antonio Metropolitan Transit Authority, 469
U.S. 528 (1985). To do so Congress must act. Here it has
not done so. By failing to affirmatively act, the parties drop
into the safety net of the Tenth Amendment to recognize that
the zoning laws of the small Vermont town of Charlotte are
the authority that rules this application.
The Second Circuit ignored the Tenth Amendment,
although the Constitutional arguments were briefed and
argued to the Court.
12
ae Clear _Statement/Plain Meaning Rule
The clear statement rule applies. The courts read
statutory language narrowly when the Commerce Clause is
involved to determine whether Congress intended to preempt
the states. Laurence H. Tribe, American Constitutional Law
(1988), § 58 at pp. 316-317. “[U]nless Congress conveys its
purpose clearly, it will not be deemed to have significantly
changed the federal-state balance.” United States v. Bass,
404 U.S. 336, 349 (1971). As Professor Tribe explains the
clear statement rule, “Congress must be prevented from
resorting to ambiguity as a cloak to accommodate the
competing interests bearing on the federal-state balance.”
American Constitutional Law, supra, at § 5-8, page 317. Yet,
the Second Circuit inferred preemption where none was to be
assumed.
When a statute is clear, there is no need to look
beyond the statutory language to divine Congressional intent.
Goodstein v. Bombardier Capital, Inc., 889 F. Supp. 760,
765 (1995); United States v. Am. Trucking Ass'n, Inc. , 310
U.S. 534, 543 (1940) (“There is, of course, no more
persuasive evidence of the purpose of a statute than the words
by which the legislature undertook to give expression to its
wishes.”) This is especially true when evaluating a
preemption claim since preemption is not presumed.
Cipollone, supra, 505 U.S. 504, 521-522 (1992).
The question of whether a particular regulatory field
has been preempted by Congress turns on the purpose of the
federal regulation or statute. In siting a nuclear waste facility,
for example, the State of California decided to create a
regulatory system to determine whether the location was
economically feasible. The utility challenged the California
13
onal i eae a a Ne line
ea
re eed 6 ms ei bm
act on grounds of preemption, and the United States Suprcme
Court determined that there was authority for the state to act,
principally because its concerns were local (in this case,
economic), while the concerns of the federal nuclear
-regulatory authority were principally related to safety, which
is appropriately preempted. Pacific Gas & Electric Company
v. State Energy Resources Conservation and Development
Commission, 461 U.S. 190 (1983); Dalton v. Little Rock
Family Planning Services, 516 U.S. 474 (1996) (“In a pre-
emption case such as this, state law is displaced only ‘to the
extent that it actually conflicts with federal law,’” citing
Pacific Gas and Electric, 461 U.S. at 204).
Petitioners in Pacific Gas and Electric argued that the
siting of nuclear waste facilities was preempted by federal
law, but the Supreme Court concluded otherwise. It held that
California could say “no” to a developer of a facility without
offending the federal interest in ensuring that the nuclear
waste facility was safe, because the purposes of the two
regulatory approaches (state and federal) did not overlap, in
the same way as the Charlotte Zoning Board of Adjustment
and the FCC each pursue different objectives. The roles are
just reversed in the present case. In our case, the federal law
seeks to ensure economic advantages for broadcasters, by
seeking to prevent interference of signals between stations
competing for the same airspace or through the establishment
of home electronic standards, while the Charlotte ZBA is
responsible for ensuring that all development is safe, and
appropriate with respect to the local character of the area.
The ZBA approves the local siting of the facilities. There is
no overlap here; indeed, there are no regulations purporting
to cover interference to business equipment by the FCC (and,
in fact, limited authority relative to home electronic
equipment.)
14
The FCC recognized in 1996 that its technical
oversight of the health and safety effects from radio frequency
radiation was limited by statute. Appendix Y at pages 179a-
182a. Nevertheless, in the present case, the Second Circuit
“deferred” to the FCC’s position claiming preemptive
authority over “technical” issues dealing with radio frequency
interference. Appendix A at pages 18a and 20a. The Second
Circuit misinterpreted the meaning of the FCC’s 1996
decision that it did not preempt state and local authority of
radio frequency radiation emitted from broadcasting facilities
on the grounds that Congress had only directed it to
promulgate rules relative to RFR with respect to personal
wireless facilities.
In a preemption case such as this, state law is
displaced only “to the extent that it actually conflicts with
federal law.” Pacific Gas & Elec. Co., 461 U.S. at 204. See
English v. General Electric Co., 496 U.S. 72, 84 (1990)
(citing Pacific Gas & Elec. Co. supra, 461 U.S. 190, 212-213
(1983)) (a state tort claim brought by an employee of a
nuclear-fuels production facility against her employer was not
pre-empted by a federal whistle-blower provision because the
state law did not have a “direct and substantial effect” on the
federal scheme). The rule is that a “federal court should not
extend its invalidation of a statute further than necessary to
dispose of the case before it.” Brockett v. Spokane Arcades,
Inc., 472 U.S. 491, 502 (1985). Similarly, it should be
hesitant to infer federal regulatory authority where none
exists.
The Second Circuit failed to address the clear meaning
rule or otherwise attempt to apply statutory construction
principles to the federal law presented to it.
RN ANT SR OTR
a. The Plain Meaning Demonstrates the FCC
is Without Authority.
The plain meaning and legislative history of section
302(a) of the Communications Act of 1934 (the “Act”),
clearly shows that Congress’ intent was only to regulate
interference to “home electronic equipment” and interference
between licensees and other enumerated operators, not
interference to business, office, institutional or medical
equipment. State and local governments can regulate in these
areas by approving the proper siting of telecommunications
antennas and transmitters.
In 1982, Congress amended the Communications Act
of 1934 and established minimum electronic standards for
“home electronic equipment and systems.” Section 302a
(“Devices which interfere with radio reception”) provides in
relevant part:
(a) | 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 energy by radiation,
conduction, or other means in sufficient degree
to cause harmful interference to radio
communications; and,
(2) establishing minimum performance
standards for home electronic equipment and
standards to reduce their susceptibility to
interference from radio frequency energy.
47 U.S.C. § 302a(a)(1-2) (emphasis added). The plain
language of section 302a (a) clearly limits federal regulation
16
to devices which could emit radiation in their operation that
would potentially “cause harmful interference to radio
communications” and to "home electronic equipment.” /d.
This is entirely consistent with the other statutory authority
directing the FCC to regulate ship and radio station signals so
they do not interfere with other FCC services and signals.
Congress never intended to regulate local siting considerations
to protect the local businesses, churches and schools from
receiving interference from the radio facilities. That is a local
responsibility.
Where Congress intended regulation over interference
from radio frequency energy, it has known how to say so.
Congress selected areas it felt were necessary to be regulated.
Keene Co. v. United States, 508 U.S. 200, 208 (1993)
(“[W]here Congress includes particular language in one
section of a statutes but omits it in another . . . it is generally
presumed that Congress acts intentionally and purposefully in
the disparate inclusion and exclusion.”).
Congress was concerned with all devices that might
interfere with radio communications. Subsection (1) of §302a
(a)(1) is clear in this respect. However, in terms of radio
communications interfering with electronic devices, Congress
limited the FCC’s authority to establishing minimum
performance standards for “home electronic equipment.”*
> Actually, a fair and literal reading of § 302a(a)(2) would limit
the FCC’s authority to establishing the performance standards for
home electronic equipment but the courts, demonstrating confusion
or a lack of understanding of local zoning issues, transferred this
limited authority to the siting of telecommunications facilities
relative to impacts on home electronic equipment. See e.g. Great
Lakes Wireless Talking Machine Co., d/b/a WZSH 95 FM v.
Hayes, et. al., CIV-916140T (W.D.N.Y. June 25, 1991).
17
‘ |
This is clear in subsection (2). It is restrictive in its
delegation. Even if the courts were correct that they could
extend this statutory authority to siting towers thereby
preempting local zoning and state land use oversight relative
to home electronic equipment, they are without any authority
to do so relative to business and institutional equipment.
4. The FCC is Not Authorized to Regulate
Business Electronic Equipment.
Radio frequency interference is a byproduct of radio-
frequency radiation. The presence of RFI reveals the
presence of radiation. The siting of the antennas, i.e. the
source of the radiation, is the key to moderating or
eliminating the intensity of radio-frequency interference and
therefore unreasonable impacts on a community. Who
regulates local placement is the underlying question in this
case. No federal law prevents local regulation of the
placement of these towers based on local impacts. See e.g.
AT&T Wireless PCS, Inc. v. City Council of Virginia Beach,
155 F.3d 423, 430 (4 Cir. 1998) (“. . . the opposition to the
application rested in traditional bases of zoning regulation;
preserving the character of the neighborhood and avoiding
aesthetic blight.”); AT&T Wireless PCS, Inc. v. Winston-
Salem Zoning Board of Adjustment, 172 F. 3d 307, 315 (4"
Cir. 1999) (“The Winston-Salem Zoning Board had
‘substantial evidence’ to deny a special-use permit for the
construction of a 148 foot antenna near a historical house that
was surrounded by low-density, single-home, residential
property with no commercial property nearby.”); 360
Degrees Communications Company of Charlottesville v. The
Board of Supervisors of Albemarle County, 2000 WL 346182
(4" Cir. 2000). (The Court took into consideration objections
to the tower’s visibility, its inconsistency with environmental
preservation goals, and its impact on the character of the
18
area.) In each of these cases, the Fourth Circuit reversed the
district court’s judgment directing the local board to issue a
construction permit.
Ironically, had the Charlotte, Vermont Zoning Board
denied the tower in 1986 on the grounds that the 199 foot
tower abutted the University of Vermont Conservation Area,
the Charlotte Central Historic District or was too near
residences, the Charlotte Congregational Church or Charlotte
Central School, it appears the courts would have upheld the
decision based on aesthetics, character of the area and so-
called “traditional” zoning considerations.
The impacts of interference - a local phenomena - is
a local siting consideration since it impacts the character of
the area. This is very distinct from the authority the FCC
operates under to protect its licensees from interference from
other communication signals. The FCC has distinct statutory
authority to prevent interference in those limited situations.
See e.g. 47 U.S.C. §301 (authority to regulate interference
between radio stations); §303(f) (authority to regulate
interference between FCC licensees); §303m(1)(E) (authority
to suspend license of operator who willfully or maliciously
interferes with other radio signals); §305(a) (United States
radio stations shall not interfere with FCC licensed radio
stations); §306, §§320-1, §323 (interference between
government and commercials stations is regulated); 354(b)
and (c) (ships, including foreign ships within the jurisdiction
of the U.S., shall not interfere with radio stations). Congress
has statutorily directed the FCC to ensure that radio signals
are not interfered with by other communication signals,
including ships, governmental and licensed FCC radio
stations. Congress has nc enacted a statute that directs the
FCC to regulate stations from interfering with electronic
equipment of local business or local government services such
19
as aschool. The first deals with a signal directly interfering
with another signal which deserves protection under federal
law; the second deals with the localized effects from the
signal which is a local consideration.*
The presence of local interference from a radio or
cellular facility is neither a technical nor complicated subject.
Just as the biological effects of radiated power are regulated
for health impacts by States and local governments, so too are
the effects from radio frequency interference. There is some
overlap of jurisdiction relative to the biological effects of
radiation. States and local governments may not establish
more stringent health standards than those established by the
FCC with respect to personal wireless facilities. With respect
to broadcasting facilities States and local governments jointly
regulate health standards, but States and local governments
are not restricted from developing more stringent standards.
Appendix Y at pages 181a-182a. Similarly, radio frequency
interference - a bi-product of RF radiation - is an area which
may be regulated by States and local authorities. The
* A telecommunications provider does not have a right to site a
tower in any particular location. Its federal license authorizes it to
serve a city and area but that can be accomplished from any number
of sites, towns, counties or even states. Once a federal permit is
gained, the licensee then must approach landowners to either
purchase or lease land to site their facilities. Finally, they must
gain local and state approval to site the tower on the purchased or
leased land. The skirmishing which results in cases such as this one
is the attempt by the industry to reduce oversight by local entities
versus the attempts by local residents or boards to retain some
control over their communities. This has become a more heated
battle as the cellular and other personal wireless facilities struggle
to gain multiple sites to serve their constituencies throughout the
country.
20
inference by which the Second Circuit found FCC preemption
was based on the fiction advanced by the industry that such
issues are technical and must be regulated by the FCC.
The science is available to predict the location and
extent of the interference before an antenna and its support
structure are sited and constructed. The people of a
community have a right to plan and regulate local land use
through reasonable zoning regulations and conditions that will
reduce the impact of such facilities on their communities. By
placing the burden on the residents of the Town of Charlotte
rather than the telecommunications industry, the Circuit Court
disregards the Tenth Amendment and infers that Congress
intended to preempt the field despite the fact that Congress
developed precise and explicit language authorizing the FCC
to regulate certain activities relative to interference.
The Second Circuit found that residents, businesses,
schools and churches could lodge complaints with the FCC
and that the FCC would resolve blanketing interference
problems. Appendix A at page 30a. That too is wrong. The
Second Circuit misunderstood 47 U.S.C. §302a. The FCC
rules only cover devices that receive transmissions from FCC
regulated services. The FCC blanketing interference rules are
limited in scope and do not purport to cover non-receiver
electronic equipment found in most businesses and
institutions. |The blanketing interference rules were
promulgated to carry out the FCC’s responsibility to maintain
the integrity of FCC regulated services. See e.g. 47 U.S.C.
303(f) and 303(m)(1)(E). The FCC is expressly authorized to
regulate electronic devices which emit radio frequency energy
and are therefore capable of causing harmful interference to
FCC regulation services. 47 U.S.C. §302a(a)(1). The
Second Circuit failed to appreciate these aspects of FCC
regulation. Appendix A at page 22a-23a.
21
Cases upon which the Second Circuit relied are based
on either a town’s attempt to regulate radio stations or a
town’s attempt to regulate “home electronic equipment or
systems” under 47 U.S.C. § 302a(a)(2). They do not address
interference to business and institutional equipment.
Congress has explicitly made the determination that the FCC
does not have the authority to regulate such matters.
5. Legislative History Proves No FCC
Authority.
The plain meaning appears to answer the question
Clearly and succinctly, but in case the Supreme Court
concludes there is some ambiguity and wishes to look behind
the veil of language into legislative history, there is ample
evidence supporting the Petitioners’ position that no
preemption of business electronic equipment was intended.
The legislative history shows that Congress did not intend the
FCC to have exclusive control over all types of RFI. The
Conferees Report cited in Great Lakes Wireless Talking
Machine Company d/b/a WZSH 95 FM v. David Hayes, et
al., supra, and Broyde v. Gotham Tower, Inc., 13 F.3d 994 —
(6th Cir. 1994) ends debate on the issue. Congress only
authorized the FCC to regulate performance standards of
“home electronic equipment.” | Congress went to great
Jengths to distinguish the FCC’s authority over home
electronic equipment as opposed to business electronic
equipment.*° The Conferees Report states in pertinent part:
The Conferees intend that the Commission’s
authority apply only to “home electronic
° This explains why the FCC has not attempted to promulgate
rules addressing business electronic equipment.
22
equipment and systems” likely to be found in
the private residence and intended for
residential use, as distinguished from devices
intended for office and business use.
U.S. Code Cong. & Admin. News, 97" Cong. 2™ (1982),
2237, 2276. Congress did not intend federal regulation in the
form of performance standards for business or institutional
equipment. This section of legislative history was omitted by
the Second Circuit in its analysis and decision.
The Neighbors do not dispute that the tele-
communications law partially preempts state and local
authority, but that preemption is limited to conflicts among
licensees and possibly to conflicts involving home electronic
equipment, as explained above. Except with respect to
devices which are capable of emitting harmful interference,
business electronic equipment remains untouched by federal
law. 47 U.S.C. §302a. It is reserved to the states by this
Court’s precedent and the Tenth Amendment to the United
States Constitution.
The Court of Appeals attempted to distinguish these
clear authorities by asserting that the type of recipient of
interference was immaterial. Appendix A at page 22a. This
holding violates the distinction explicitly created by Congress.
It was Congress that decided, in plain, unambiguous terms,
that preemption would apply to interference with home
devices, but would not apply to interference with business
devices. It is this distinction that must be upheld.
In a recent case interpreting the authority of the FCC
in relation to municipal regulation where the City Council
denied appellees’ application to erect a telecommunications
23
tower® the District Court ordered the Council to approve the
tower; and the Fourth Circuit reversed, finding no violation
of the Act. AT&T Wireless PCS, Inc., supra. In explaining
its decision, the Court wrote, “the evidence shows that
opposition to the application rested on traditional bases of
zoning regulation: preserving the character of the
neighborhood and avoiding aesthetic blight. If such behavior
is unreasonable, then nearly every denial of an application
such as this will violate the Act, an obviously absurd result.”
Id. at 4. Local regulation would not conflict with the
purposes of the Act, according to the Court; “our reading
simultaneously furthers the Act’s explicit goals of facilitating
competition, by strengthening the hand of new market
entrants who cannot show that they have been unreasonably
discriminated against, and of preserving a large portion of
local authority by maintaining that authority in particular
cases.” Id. at5. The Act was never designed to destroy local
authority to regulate the siting of telecommunications towers,
according to the Court, only to ensure that the review was fair
and compatible with the purposes of the Act.
Just as in AT & T Wireless, the interference concern
is a local neighborhood issue. It is a siting issue. A court’s
traditional discomfort with technical matters is not involved
here, because no FCC technical issues are involved. The
— issue is basic to zoning: where should something offensive
best be placed. The Town of Charlotte thought it had the
answer by first denying the application based on location and
then approving a different location when the applicants
promised to cure any problems that arose relative to
6 The AT&T Wireless case involved a cellular tower or a
“personal wireless facility, as opposed to a broadcast facility like
WIZN.
Jf
interference. The zoning board accepted this concession, but
attached a reasonable condition. Now, when the permittees
are to be held to account for their promises, they claim
preemption as a shield.
The plain meaning and legislative history of section
302a together with the case law show that Congress intended,
and the courts have found, federal preemption only of local
regulation of interference to home electronic equipment and
between licensees and other operators, not of business and
institutional equipment.
6. The 1996 Amendments.
The 1996 amendments to the Federal Communications
Act of 1934 provide compelling evidence of ZBA authority to
regulate siting decisions. Section 107(a)(7) of the House bill,
H. 1555 (1996), included preemption language stating that the
FCC should adopt guidelines regulating the placement,
construction, modification, or operation of facilities of
commercial mobile services. H. 1555 as of May 3, 1995,
Section 704(a)(7). Appendix W at page 17la. These
preemption provisions were removed from the final version
of the Act. As the U.S. Supreme Court has stated when
divining congressional intent, “we are mindful that Congress
had before it but failed to pass, just such a scheme.” John
Hancock Mutual Life Insurance Co. v. Harris Trust & Savings
Bank, 114 S. Ct. 517, 526 (1983). Therefore, Congress
clearly intended state and local governments to continue to
control in this area as they have always done.
According to section 704 (1996), as long as state and
local controls of “personal wireless service facilities” remain
within the enumerated limitations, there is no federal
25
preemption of state and local authority, except for health
matters.’ Appendix N at page 121a.
State and local government are the governments
directly responsible for the health, safety and welfare of their
residents. Narrowing their authority will significantly impair
these governments’ ability to function in ways essential to
their existence. Commercial Mortg. Ins. Inc. v. Citizens Nat.
Bank of Dallas, D.C. Tex., 526 F.Supp. 510, 523 (1981).
: a The Neighbors’ Remedies Are Not Available
at the FCC.
The Court of Appeals reasons that the Neighbors are
not without a remedy, but merely need to bring their concerns
to the FCC. But the FCC has not adopted regulations
covering this issue. Although the FCC has adopted
regulations to resolve complaints of interference those
regulations do not cover matters such as those being
considered here. The FCC rules address permanently and
correctly installed receivers, within what is called the
“blanketed area” which is where the signal is particularly
strong and interference is likely. These rules are a
manifestation of the FCC’s role in prohibiting interference to
the services its regulates. The FCC is authorized to protect
its regulated services from receiving interference. 47 U.S.C.
§302a. In addressing FM broadcast station blanket
interference the FCC has specifically excluded from its rules
’ Congress has preempted the regulation of “radio frequency
emissions.” This has been interpreted by the FCC to preempt states
from regulating the placement of personal wireless facilities on the
basis of the health effects from radiation. The FCC has concluded
that it has no such oversight over broadcast facilities. Appendix Y
at page 179a-182a.
26
most consumer devices. Section 73.318 provides in relevant
part:
(b) After January 1, 1985, permittees or
licenses who either (1) commence program
tests, or (2) replace their antennas, or (3)
request facilities modifications and are issued
a new construction permit must satisfy all
complaints of blanketing interference which
are received by the station during a one year
period .... Resolution of the complaints
shall be at no cost to the complainant. These
- requirements specifically do not include
interference complaints resulting from
malfunctioning or mistuned receivers,
improperly installed antenna systems, or the
use of high gain antennas or antenna booster
amplifiers. Mobile receivers and non-RF
devices such as tape recorders or hi-fi
amplifiers (phonographs) are also excluded.
The Neighbors’ concerns are properly before the state
and local tribunals. If they cannot find relief there, they
cannot look to the FCC, since it has not promulgated any
rules to deal with these issues. State and local jurisdiction
does not conflict with FCC regulation. Meaningful,
reasonable regulation will enhance, not defeat, this industry.
The law is clear that State and local government may
regulate the type of interference being addressed in this
proceeding. If a telecommunications or broadcasting facility
believes it has been denied its rights it has an explicit avenue
to address any alleged violations. See 47 U.S.C.
§ 332(c)(7)(B)(v).
27
CONCLUSION
The technological age has given people the right to
have a cellular telephone and access to digital television and
other forms of competitive communication services. In doing
so it has significantly affected the way we live in both direct
and more subtle ways. With the introduction of new and
expanded types of telecommunications facilities within our
communities it has also created zones where businesses,
schools and religious establishments cannot operate
computers, telephones, medical equipment, and other types of
electric and electronic business machines. New
telecommunication technologies have strained communities in
Vermont and elsewhere to accommodate new entrants into the
market place. Local communities have been willing to accept
reasonable burdens to allow their communities and adjoining
regions the privilege of these new technologies, however, our
communities must also be accorded the right to approve the
siting of those facilities in a manner that mitigates the impacts
on local businesses and residents. The present case offers the
Court with the opportunity to provide guidance to the
industry, FCC and states and local communities regarding the
siting of telecommunication facilities. There is no scientific
or legal reason why communities cannot have both reliable
forms of diverse communications and reliable functioning
electronic equipment in their businesses, schools and
churches.
The Town of Charlotte is not preempted from
exercising reasonable oversight and control over radio and
cellular services that cause pervasive, harmful interference to
the Town and its citizens. Congress never authorized nor
intended the FCC to regulate the interference of business and
institutional electronic equipment. Congress only authorized
the FCC to establish performance standards for home
28
electronic equipment. Any ambiguity reveals that the
Conferees expressly limited the FCC’s authority to home
electronic equipment.
The Court of Appeals Decision in this case violates
basic principals of preemption law and thereby deprives
municipalities their basic ability to protect their citizens.
Radio frequency interference issues have been addressed by
Congress. Congress has deliberately decided to leave to
municipalities the responsibility for determining whether the
impacts from radio frequency interference on local businesses
are appropriate under local zoning ordinances. The Court
should accept certiorari to resolve this important question of
federal law.
Respectfully submitted,
/s/
Gerald R. Tarrant
Tarrant, Marks & Gillies
P.O. Box 1440
Montpelier, Vermont 05601-1440
Attorneys for Petitioners
29
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
[Filed February 23, 2000]
No. 97-9141
GRAEME FREEMAN, MARY
BETH FREEMAN, FRANK
ITTLEMAN, ELAINE
ITTLEMAN, MIKE FOURNIER,
HOLLY FOURNIER, ELLEN
LANE, WILLIAM PINNEY, JR.,
MARK W. BOLLES, CLAUDIA
MUCKLOW, DONNA A. WARK,
IRIS MUGGENTHALER JAMES
H. SQUIRES LAWRENCE
HAMILTON, ROBERT
CARMODY, MARK MUSIEL,
MICHAEL YANTACHKA,
LORIE GADBOURY, CHRIS
MCGEE, PETER COLEMAN,
BARBARA SANFORD
FARRELL, AND WILLIAM
PINNEY, SR.,
Plaintiffs -Appellants,
ee ee ee ee ae O_O i
la
Court of Appeals Opinion - 2/23/00
BURLINGTON
BROADCASTERS, INC.,
d/b/a WIZN, CHARLOTTE FIRE
& RESCUE SERVICES INC., and
NYNEX MOBILE LIMITED
PARTNERSHIP 1, d/b/a BELL
ATLANTIC NYNEX MOBILE,
Defendants - Appellees.
August Term 1999
Argued: October 15, 1999
Before: NEWMAN, WALKER and SOTOMAYOR, Circuit
Judges.
Appeal from the August 11, 1997, judgment of the
United States District Court for the District of Vermont
(William K. Sessions, III, Judge), dismissing, for lack of
subject matter jurisdiction, an administrative appeal removed
from the Vermont Environmental Court.
Affirmed as modified.
JON O. NEWMAN, Circuit Judge:
This appeal raises a preemption issue pitting federal
authority in the field of radio communications against local
zoning authority. The precise issue is whether the Federal
Communications Act of 1934, as amended (FCA), and
regulations promulgated by the Federal Communications
Commission (FCC) preempt a local zoning board’s power to
enforce a condition of a permit to construct and use a
2a
Court of Appeals Opinion - 2/23/00
communications tower; the permit condition requires the
permittees to remedy any radio frequency interference (“RF
interference” or “RFI”) from tower signals with appliances
and devices in local homes. Appellees Burlington
Broadcasters (“WIZN”), Charlotte Volunteer Fire & Rescue
Services (“CVFRS”), and NYNEX Mobile Limited
Partnership 1 dba Bell Atlantic NYNEX Mobile (“BANM”)
transmit radio signals from a tower in Charlotte, Vermont.
The Appellants, homeowners living near the tower
(“Homeowners”), appeal from a judgment by the United
States District Court for the District of Vermont (William K.
Sessions, III, District Judge) dismissing after removal from
the Vermont Environmental Court, their appeal from a
decision of the Town of Charlotte’s Zoning Board of
Adjustment (“ZBA”) that held the condition unenforceable
See In re Freeman, 975 F. Supp. 570 (D. Vt. 1997). We
agree with both the local agency and the District Court that
federal law preempts enforcement of the permit condition, but
we conclude that the appropriate disposition is not to dismiss
the removed appeal but to affirm the ZBA’s decision on the
preemption issue.
Background
Facts. The underlying facts are largely undisputed.
Appellee WIZN operates a radio station under an FCC
license, which authorizes WIZN to broadcast from a 199-foot
tower in Charlotte. Appellee BANM transmits cellular
telephone calls from four 13-foot “whip” antennas mounted
on the tower. Appellee CVFRS uses tower transmitters
intermittently in connection with providing fire and ambulance
services to the Town of Charlotte.
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In late 1986, WIZN and CVFRS sought a permit from
the Town of Charlotte to build a tower on Pease Mountain
and to transmit radio signals from it. At a hearing to discuss
the matter, a WIZN representative assured concerned
townspeople that there would not be any RF interference with
their home electronic devices, and that if such interference
occurred, WIZN would “trap it out.” The phenomenon of RF
interference is explained in the legislative history of the 1982
Amendments to the FCA: “Radio frequency interference
arises when a signal radiation by a transmitter is picked up by
an electronic device in such a manner that it prevents the clear
reception of another and desired signal or causes malfunction
of some other electronic device.” H.R. Conf. Rep. No. 97-
765, at 21 (1982), reprinted in 1982 U.S.C.C.A.N. 2261,
2265.
In January 1987, the Town of Charlotte’s Zoning
Board of Adjustment (“ZBA”) issued WIZN and CVFRS a
permit to construct and use the tower on the express condition
that “any interference with reception in homes in the area
because WIZN began broadcasting will be remedied by
WIZN.” After the tower was built, WIZN conveyed
ownership to CVFRS. In April 1987, WIZN began
broadcasting from space on the tower leased to it by CVFRS.
In 1991, BANM’s predecessor and CVFRS received approval
from the ZBA to mount four whip antennas on the tower for
the purpose of cellular phone signal transmission. Although
a representative of CVFRS orally assured the ZBA that the
antennas would cause no interference, BANM was not
required to agree to any conditions concerning RF
interference. |
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State administrative proceedings. On April 5, 1996,
in response to a considerable number of RF interference
complaints by the Appellants and other Charlotte residents,
the Charlotte Zoning Administrator issued a notice of
violation to WIZN, BANM, CVFRS, and the landowner.
The notice alleged that the facility caused long-term and
continuous RF interference in violation of the condition of
WIZN’s permit.
The cited parties appealed the notice of violation to the
ZBA, which conducted public hearings in May 1996 pursuant
to Vt. Stat. Ann. tit. 24, § 4467 (1992 & Supp. 1999). The
Homeowners, the Appellants in the pending appeal, appeared
as “interested persons” under id. § 4464 (b) and identified
various RF interference problems with their household
electrical and electronic devices. On July 11, 1996, the ZBA
issued its Notice of Decision. The ZBA found that
RFI that has impaired the ability of Charlotte
residents to communicate, transact business,
and experience the peaceful enjoyment of their
homes and property. In addition, the Board
finds that these individuals have expended
substantial amounts of money in their attempts
to remedy interference problems.
| WIZN has caused continuous and widespread
Notice of Decision at 5. The ZBA also commented on
WIZN’s sluggishness in responding to complaints. The ZBA
noted that “{w]hile WIZN successfully reduced and/or
eliminated RFI in some cases, other Charlotte residents
continue to experience annoying, costly, and burdensome
interference problems.” Id. However, the ZBA found “no
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credible evidence” demonstrating that any of the other cited
parties - CVFRS, BANM, and the landowner - caused RF
interference. Id.
Although the ZBA found that WIZN was in violation
of the condition of its permit, the ZBA also concluded that its
authority to enforce the permit condition was preempted by
the federal government’s occupation of the field of RF
interference regulation. The ZBA also noted that Vermont
law provides that, under some circumstances, co-permittees
and property owners are jointly liable for violations, but
found that any such co-permittee liability was also subject to
preemption.
The Homeowners and the Town of Charlotte appealed
the decision of the ZBA to the Vermont Environmental Court
pursuant to Vt. Stat. Ann. tit. 24, § 4471 (1992 & Supp.
1999). In addition to challenging the preemption decision
concerning enforceability of the permit condition, the parties
argued that state or local jurisdiction existed over claims of
fraud, deceit, or misrepresentation against WIZN, BANM,
and CVFRS, and that Charlotte residents had been denied
unspecified consumer rights. The Homeowners also
challenged the ZBA’s factual finding that only WIZN, and not
CVFRS, BANM, and the property owner, caused the RF
interference.
District Court proceedings. Before decision by the
Vermont Environmental Court, the Appellees removed the
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case to the District Court.' BANM moved to dismiss,
pursuant to Rule 12(b) (1), for lack of subject matter
jurisdiction, and, pursuant to Rule 12 (b)(6), for failure to
State a claim. WIZN also moved to dismiss for failure to state
a claim. CVFRS joined both motions. The thrust of all the
Appellees’ arguments was that pervasive federal regulation
preempted enforcement of the locally imposed condition. The
District Court recognized its obligation to consider subject
matter jurisdiction, but did so primarily by inquiring whether
local regulation of RF interference was federally preempted.
The Court concluded that federal law conferred exclusive
jurisdiction on the FCC to regulate RF interference. Turning
to the Homeowners’ allegation of fraud and deceit, based on
the Appellees’ promise to the ZBA either to avoid RF
interference with home devices or eliminate it, the Court
distinguished between the Homeowners’ possible remedies; to
the extent that they sought the remedy of eliminating RF
interference, the Court ruled that such a remedy was
preempted, and to the extent they were seeking (or even had
standing to seek) any other relief, their claims “were not part
of the proceeding from which they appealed, and are properly
before this Court.” Freeman, 975 F. Supp. at 576. Based on
its preemption ruling and its ruling that any non-preempted
remedy for fraud and deceit was outside the scope of the state
court appeal, the District Court dismissed the removed case
for lack of subject matter jurisdiction.
' The Town of Charlotte sought and received permission
to withdraw from the case.
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Discussion
1.- Subject Matter Jurisdiction
A. Jurisdiction Based on the Preemption Issue
Although neither party has questioned the District
Court’s subject matter jurisdiction, the matter is not self-
evident, and we are obliged to consider it. See Fax
Telecommunicaciones Inc. v. AT&T, 138 F.3d 479, 485 (2d
Cir. 1998). And, although an objection to the propriety of
removal is forfeited by failure to assert it, see id. at 487-88,
subject matter jurisdiction must exist, if not at the time of
removal, then at least at the time the District Court entered
judgment, see Grubbs v General Electric Credit Corp., 405
U.S. 699, 705 (1972); Fax Telecommunicaciones, 138 F.3d |
at 488.
The Appellees removed from the Vermont
Environmental Court a civil action brought to that court by
the appeal of the Homeowners from the administrative ruling
of the ZBA. An appeal of an administrative ruling to a state
court is removable to a federal district court so long as the
complaint to the state court presents a well pleaded claim
arising under federal law. See City of Chicago v.
International College of Surgeons, 522 U.S. 156, 163-64
(1997).
Whether the pending case satisfies the standard of City
of Chicago merits careful consideration. City of Chicago,
although involving review of an agency decision, presented a
traditional federal-question case: the state court plaintiff's
complaint alleged that the action of the defendant (a city
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agency) and the ordinance under which the defendant acted
violated the plaintiff's constitutional rights. As the Supreme
Court explained, even though state law (illinois’s
Administrative Review Law) created the plaintiff’s cause of
action, that cause of action nonetheless arose under federal
law because the plaintiff's “‘right to relief under State law
require[d] resolution of a Substantial question of federal
law.’” Id. at 164 (quoting Franchise Tax Board of California
v. Construction Laborers Vacation Trust for Southern
California, 463 U.S. 1, 13 (1983)).
The pending case differs from City of Chicago in three
respects. First, unlike the state court plaintiff in City of
Chicago, who filed a complaint, the Homeowners invoked the
jurisdiction of the Vermont Environmental Court by filing a
notice of appeal. That technical difference is irrelevant for
purposes of determining the district court’s removal
jurisdiction. District courts have original jurisdiction over
federal claims seeking review of an administrative decision,
whether the court case is initiated by a complaint, sce, e.g.,
42 U.S.C. § 405(g) (authorizing action to “review” final
decision of Commissioner of Social Security), or a petition for
review, see, €.g., 28 U.S.C. § 2344 authorizing action to
“review” final order of various federal agencies).
Second, the plaintiff’s initial pleading in the state court
in City of Chicago set forth a cause of action, whereas the
Homeowners presented their issues to the Vermont
Environmental Court by a Statement of Questions, pursuant
to the required local procedure. See Vt. R. Civ. P. 76(e) (4)
(B) (Supp. 1999). Although a “Statement of Questions” does
not present a claim that may be examined to determine if it
arises under federal law in quite the same manner as a
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“complaint” asserting a cause of action, this technical
difference also provides no basis for rejecting federal subject
matter jurisdiction. The well-pleaded complaint rule is
concerned with the existence of a federal question on the face
of the document invoking a state court’s jurisdiction, not
whether that document bears the label “complaint.”
Arguably more significant is a third distinction: the
issue tendered to the Illinois state court in City of Chicago
was whether the local agency’s ordinance or action violated
the Constitution, whereas the issue tendered to the Vermont
Environmental Court was whether federal law preempted
enforcement of the condition of the Appellees’ permit. The
preemption issue was initially tendered in it this case when it
was asserted by the Appellees before the ZBA as a defense to
the Zoning Administrator’s notice of violation. Under the
“well-pleaded complaint” rule see Franchise Tax Board, 463
U.S. at 9; Gully v. First National Bank, 299 U.S. 109, 113
(1936) (“[T]he controversy must be disclosed upon the face
of the complaint, unaided by the answer or by the petition for
removal.’ ), a state law complaint, filed in a state trial court,
that tries to anticipate a defense of federal preemption will not
support federal question removal jurisdiction, see Caterpillar
Inc. v. Williams, 482 U.S. 386, 393 (1987); Gully, 299 U.S.
at 116 (“By unimpeachable authority, a suit brought upon a
state statute does not arise under an act of Congress or the
Constitution of the United States because prohibited
thereby.”), unless the limited doctrine of “complete
preemption” applies, see Metropolitan Life Insurance Co. v.
Taylor, 481 U.S. 58, 63-64 (1987). Under that doctrine, the
plaintiff's state law claim, recharacterized pursuant to the
“artful pleading” rule, see Travelers Indemnity Co. v.
Sarkisian, 794 F.2d 754, 758 (2d Cir. 1986), is said
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necessarily to arise under federal law, regardless of how the
plaintiff has pled the claim, see Metropolitan Life, 481 U.S.
at 63-64. In the FCA context, we have ruled that the
“complete preemption” doctrine does not apply with respect
to state law billing claims and other business practice claims.
See Fax Telecommunicaciones, 138 F.3d at 486; Marcus vy.
AT&T Corp., 138 F.3d 46, 53 (2d Cir. 1998). It is arguable,
however, that the complete preemption defense applies to state
law claims that concern technical aspects of electronic
transmissions, and we might well Support subject matter
jurisdiction in this case on that basis. We need not do so,
however, because of an alternative basis for satisfying the
well-pleaded complaint rule
Although the preemption issue was initially asserted
defensively by the Appellees at the administrative level, later,
when the Homeowners invoked the jurisdiction of the
Vermont Environmental Court, they did so by tendering the
preemption issue affirmatively as the initial question to be
decided in their effort to reverse the decision of the ZBA.
After explaining that the ZBA had ruled that the condition of
WIZN’s permit was void because of federal preemption, the
Homeowners’ Statement asked as a first question, “Does
federal law preempt state and local jurisdiction over
interference?” Although it is arguable that the defensive
nature of the preemption issue when first injected into the case
at the agency level should govern throughout the litigation at
least for purposes of determining federal question jurisdiction,
we think the better approach is to permit removal when a
litigant’s initial entrance to a state court seeks a decision that
an administrative ruling upholding a federal preemption
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defense is erroneous.’ Our view rests on the reason why the
well-pleaded complaint rule has been fashioned to bar
anticipation of a federal defense.
The well-pleaded complaint rule is usually justified as
a protection against the undue expansion of federal court
jurisdiction that would occur if a plaintiff with only a state
law claim could invoke federal jurisdiction simply by
speculating that the defendant might assert a federal defense.
See, e.g., Richard H. Fallon et al., Hart and Wechsler’s The
Federal Courts and the Federal System 910-11 (4th ed. 1996)
(“Hart_and Wechsler”) (well-pleaded complaint rule
“designed to avoid making original jurisdiction turn on
speculation as to what issues will be decisive in the
litigation” ) (footnote omitted). However, after a state or local
agency has considered a federal defense, such as preemption,
tendered by a defendant, and ruled that the defense is valid,
the reason for the well-pleaded complaint rule has been
substantially diminished: the federal defense is no longer
> The procedural posture of this case is to be distinguished
from that of a plaintiff entering state court to seek a declaratory
judgment that a defendant's anticipated preemption defense to the
plaintiff's state law claim is unavailing. That would be the classic
anticipation of a federal defense that the well-pleaded complaint
rule bars. In the pending case, a local governmental agency has
ruled that the preemption defense is valid. The state court plaintiffs
want not only a decision on the preemption defense; they want a
court to reverse an adverse administrative ruling that is grounded
on federal law.
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merely a matter of speculation.’ Thus, when the Homeowners
sought judicial review of the ZBA’s preemption ruling, the
federal defense had been adjudicated and the Homeowners
entered the state court to obtain judicial review of the agency
ruling. They were not merely seeking a declaratory judgment
from the Vermont Environmental Court, which might well not
have been removable,‘ but rather exercising their state law
right to obtain judicial review of agency action, the same
procedural route that justified removal in City of Chicago.
And, as in City of Chicago, the state court suit, though
authorized by state law, arose under federal law because of
the nature of the federal question on which the outcome
depended.
> The Hart and Wechsler treatise pointedly queries,
“[D]id it make sense to apply the rule where, as in [Louisville &
vi v [, 211 U.S. 149 (1908)) itself, the
jurisdictional issue arose for the first time on appeal at a time when
both parties and the court below agreed that the case turned entirely
on federal issues?” Hart and Wechsler at 911 n.5.
* Removal of a declaratory judgment action normally
turns On whether the coercive action as to which a declaration is
sought would have stated a federal claim on the face of the
complaint. See Franchise Tax Board, 463 U.S. at 17-22 (rule of
v._Philli m Co., 339 U.S. 667 (1950),
applies to state court declaratory judgment actions). Attempted
removal of a state court declaratory judgment action in the pending
case would have encountered the objection that the coercive
enforcement action to which the declaratory judgment action related
would have been the enforcement suit by the Zoning Enforcement
Officer, a suit that would not have included a federal claim.
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The logic of permitting removal once a federal defense
has been adjudicated could arguably be invoked to justify
removal of a state court appeal from a state trial court
decision adjudicating a federal defense.” However, removal
of such an appeal would encounter the obstacle of the
Rooker/Feldman doctrine, prohibiting a federal district court
from exercising appellate jurisdiction Over a state court. See
District of Columbia Court of Appeals v. Feldman, 460 U.S.
462, 474 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
416 (1923). Since this case involves removal of a case
pending in a state court of first instance, seeking review of an
agency decision adjudicating a federal issue, it could have
been brought originally in a district court, and is therefore
properly removable. See 28 U.S.C. § 1441(a) (1994). We
also observe that had the state agency adjudicated the federal
issue adversely to the Appellees, they could have brcught an
action in the District Court to enjoin enforcement of the
condition of the zoning permit. See Shaw v. Delta Air Lines,
Inc., 463 U.S. 85, 96 n.14 (1983).
B. Jurisdiction Based on Other Issues
In addition to tendering the preemption issue to the
Vermont Environmental Court, the Homeowners also raised
other issues: whether BANM and CVFRS have caused RF
interference? 2) Whether BANM and CVERS bear joint
liability with WIZN as co-permittees? (3) Whether WIZN,
> Adjudication of a federal defense in a suit not otherwise
within the jurisdiction of a federal court (where no party challenges
federal jurisdiction) does not create federal question jurisdiction.
See Mottley, 211 U.S. at 152.
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BANM, and CVEFRS are Subject to state or local jurisdiction
for fraud, deceit, and misrepresentation arising from the
promises made when the permit was issued? 4) Whether
WIZN, BANM, and CVER have violated some unspecified
consumer rights?
These issues raise only state law questions.° City of
| Chicago instructs that where a removal petition properly
invokes district court’s subject matter jurisdiction over matters
initially presented to an administrative agency, that court’s
authority to consider other issues turns on traditional
considerations applicable to the exercise of supplemental
jurisdiction under 28 U.S.C. 1367(a). See City of Chicago,
522 U.S. at 164-65. Since the federal claim (that the ZBA’s
preemption ruling is erroneous) failed at the Outset in the
District Court, it would be inappropriate to exercise
supplemental jurisdiction with respect to the state law claims,
especially in a removed case like this one, where a federal
In presenting the fourth issue, denial of unspecified
consumer rights, to the Vermont Environmental Court, the
Homeowners made a passing reference to federal law by citing a
Provision of the Telecommunications Act of 1996, Pub. L. 104-104
§ 101(a), 110 Stat. 56, 70 (1996) (codified at 47 U.S.C. § 253 (b)
(Supp. 1997)), which provides: “Nothing in this section shall affect
the ability of a State to impose . . . requirements necessary to
. . . Safeguard the rights of consumers.” The “section” to which
Subsection 253 (b) refers concerns access to the provision of
telecommunications service. See 47 U.S.C. § 253(a). It has
nothing to do with radio transmissions. The Appellants wisely do
not pursue on appeal any claim that subsection 253(b) creates
Subject matter jurisdiction. We consider in Part II the effect of
section 253 on the merits of the preemption issue.
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court would be obliged to consider the extent to which such
claims had been sufficiently tendered to the ZBA to make
them available for review in the Vermont Environmental
Court. We consider in Part III the consequence of not
exercising such jurisdiction.
II. Federal Preemption
This Circuit has not yet confronted the issue whether
federal law preempts state and local regulation of RF
interference. Of the various forms of federal preemption, the
most pertinent to the pending inquiry is so-called “field
preemption”: state law is preempted when the “scheme of
federal regulation [is] so pervasive as to make reasonable the
inference that Congress left no room for the States to
supplement it.” Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230 (1947). As is always the case in preemption
analysis, Congressional intent is the “ultimate touchstone.”
Cippolone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992)
(internal quotation marks and citations omitted). Consistent
with this view of the importance of congressional intent, the
Supreme Court has explained that “field pre-emption may be
understood as a species of conflict pre-emption: a state law
that falls within a pre-empted field conflicts with Congress’
intent (either express or plainly implied) to exclude state
regulation.” English v. General Electric, 496 U.S. 72, 79 n.5
(1990); see also 1 r —_ Ameri
Constitutional Law § 6-31 (3d ed. 1999).
For the reasons below, we conclude that federal law
has preempted the field of RF interference regulation.
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The_FCC’s Statutory Authority to Requlate Radio
Broadcasting. Several Statutory provisions indicate the extent
of the FCC’s authority and responsibility to regulate radio
broadcasting. 47 U.S.C. § 151 states the purposes of the
FCA, among them to “centraliz[e] authority heretofore
granted by law to several agencies” in the FCC, and to
“grant[] additional authority with respect to interstate and
foreign commerce in wire and radio communication” to the
FCC. Section 301’ provides that “it is the purpose of this
chapter, among other things, to maintain the control of the
United States over all the channels of radio transmission”
under licenses granted by the FCC in accordance with the
FCA. Subsection 307(b) requires the FCC to “make such
distribution of licenses, frequencies, hours of operation, and
of power among the several States and communities as to
provide a fair, efficient, and equitable distribution of radio
service to each.”
Moreover, under subsection 302a(a) (1), the FCC has
power to “make reasonable regulations . . . governing the
interference potential of devices which in their operation are
capable of emitting radio frequency energy by radiation
conduction, or other means in sufficient degree to cause
harmful interference to radio communications.” Section 303
grants extensive powers to the FCC to regulate radio
broadcasting technology and RF interference phenomena.
Among other powers, subsection 303(d) empowers the FCC
to “[d]Jetermine the location of classes of Stations or individual
Stations.” Subsection 303(e) empowers the FCC to
Unless otherwise indicated, all Statutory sections cited
are in Title 47.
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“[rJegulate the kind of apparatus to be used with respect to its
external effects and the purity and sharpness of the emissions
from each station and from the apparatus therein.”
Subsection 303(f) allows the FCC to “[mJake such regulations
not inconsistent with law as it may deem necessary to prevent
interference between stations and to carry out the provisions
of this chapter.” Subsection 303(h) confers “authority to
establish areas or zones to be served by any station.”
These statutory provisions make it clear that Congress
intended the FCC to possess exclusive authority over technical
matters related to radio broadcasting. See Head v. New
Mexico Board of Examiners in Optometry, 374 U.S. 424, 430
n.6 (1963); Broyde v. Gotham Tower, Inc. ,13 F.3d 994, 997
(6th Cir. 1994). This authority is embedded in the FCC’s
broad authority to develop a comprehensive national
regulatory system governing telecommunications. See, e.g.,
National Broadcasting Co. v. United States, 319 U.S. 190,
219-20 (1943); FCC v. Pottsville Broadcasting Co., 309 U.S.
134, 137 (1934).
Moreover, the legislative history of the 1982
Amendments to the FCA, Pub. L. No. 97-259, 96 Stat. 1087
(1982), supports the conclusion that Congress’s grant of
authority to the FCC was intended to be exclusive and to
preempt local regulation. The House Conference Report
states with respect to enacting section 302a, which empowers
the FCC to set manufacturing standards for home electronic
equipment to minimize the RF interference effects of signals
from nearby transmitters:
The Conference Substitute is further intended
to clarify the reservation of exclusive
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jurisdiction to the Federal Communications
Commission over matters involving RFI. Such
matters shall not be regulated by local or state
law, nor shall radio transmitting apparatus be
Subject to local 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
equipment or systems. Rather, the Conferees
intend that regulation of RFI phenomena shall
be imposed only by the Commission.
H.R. Conf. Rep. No 97-765, at 33 ( 1982), reprinted in 1982
U.S.C.C.A.N. 2261, 2277. This statement from the
legislative history is consistent with our inference of complete
preemption from Congress’s comprehensive legislation in the
field and Congress’s explicit delegation of authority to the
FCC to regulate the instrumentalities of radio broadcasting
throughout the United States
The FCC’s Regulation of RF Interference Throu h
Rule-making. Federal regulations have the same preemptive
force as federal statutes. See Fidelity Savings and Loan Ass’n
v. de la Cuesta, 458 U.S. 141, 153-54 (1983). The FCC has
exercised its rule-making power to extensively regulate the
technologies involved in FM broadcasting. See, e.g., 47
C.F.R. §§ 73.201-73.333 ( 1998). These rules govern, among
other things, the power and height of antennas, see id.
§ 73.211, the use of common antenna sites, see id. § 73.239,
and FM transmitter locations see id. § 73.315. Most
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significantly, the FCC regulates “FM _blanketing
interference,” which is the sort of interference complained of
by the Homeowners. See id. § 73.318. The FCC first
defines the area assumed to be blanketed by radio emissions
as a function of the effective radiated power of the antenna.
Notably, the FCC imposes a requirement that licensees
remedy the RF interference occurring in that area:
“[P]lermittees or licensees who ... are issued a new
construction permit must satisfy all complaints of blanketing
interference which are received by the station during a one-
year period. ... Resolution of complaints shall be at no cost
to the complainant.” Id. § 73.318(b).° Following the one-
year period, the licensee or permittee must provide technical
information or assistance to complainants concerning remedies
for interference. See id. § 73.318(d). Finally, pursuant to an
explicit grant of authority under subsection 302a(a) (1), the
FCC has promulgated extensive regulations governing devices
that emit either intentional or incidental RF interference. See
47 C.F.R. pt. 15 (1998).
In light of our conclusion that Congress intended that
the FCC enjoy exclusive jurisdiction to regulate RF
interference phenomena, the FCC’s regulations cannot be said
to be anything other than reasonable interpretations of the
scope of FCC authority, and thus are entitled to deference
under Chevron U.S.A. Inc. v. Natural Resources Defense
Council Inc., 467 U.S. 837 842-43 (1984).
' The FCC excludes complaints resulting from
malfunctioning or improperly used receivers and antenna systems,
mobile receivers, tape recorders and phonographs, and high gain
antennas or antenna booster amplifiers. See 47 C.F.R.
§ 73.318(b).
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The FCC’s Interpretation of the Scope of Preemption.
An agency’s interpretation of an ambiguous statute it is
charged with administering is entitled to Chevron deference
not only when the agency interprets through rule-making, but
also when it interprets through adjudication. See Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building and
Construction Trades Council, 485 U.S. 568, 574 (1988). To
whatever extent any ambiguity exists in the FCA, the FCC
has resolved this ambiguity in favor of federal preemption of
RF interference issues. Cf. City of New York v. FCC, 486
U.S. 57, 64 (1988) (“If the agency’s choice to pre-empt
represents a reasonable accommodation of conflicting policies
that were committed to the agency’s care by the statute, we
should not disturb it unless it appears from the statute or its
legislative history that the accommodation is not one that
Congress would have sanctioned.”) (citation and internal
quotation marks omitted). In In re Mobilecomm of New
York, Inc., 2 F.C.C.R. 5519 (Common Carrier Bureau
1987), the FCC examined two sections of the Code of the
Town of Wilton, Connecticut, that purported to regulate RF
interference. Wilton’s Code required that a paging signal
transmitter notify the Town’s Planning and Zoning
Commission when it changed the power and/or frequency of
its transmission, and provided that “[njo operation shall be
permitted which produces any perceptible electromagnetic
interference with normal radio or television reception in any
area within or without the town.” Id. 3 n.3. The FCC
determined that Wilton’s rule was preempted by federal law,
see id. {4 8-11, and rejected Wilton’s argument that its zoning
regulations were “reasonably tailored police powers
necessarily enacted for the protection of town residents.” Id.
15. See also In re 960 Radio, Inc., FCC 85-578 3, 1985
WL 193883 (1985) (holding that FCC’s exclusive jurisdiction
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over RF interference between two radio stations preempted
enforcement of use permit conditioned on station’s “not
operat[ing] [its] new facility so as to produce electronic
interference to existing facilities”).
The Homeowners’ Arguments That Federal Law
Authorizes Local Regulation of RF Interference. The
Homeowners make three arguments that federal law expressly
or impliedly exempts from preemption state and local
regulations like the permit condition at issue. We disagree
with these arguments.
First, the Homeowners rely on the 1982 Amendments,
which, among other things, grant the FCC authority to
promulgate performance standards for consumer electronic
equipment. See 47 U.S.C. 302a(a)(2). The Appellants argue
that this limited grant of authority reflects a conscious
decision by Congress to confer on the FCC exclusive power
to set standards for consumer electronic equipment but not
business electronic equipment, leaving RF interference
affecting business electronic equipment available for local
regulation. Because the ZBA found that the WIZN signal
interfered with equipment used for business the argument
continues, the condition on WIZN’s permit is not preempted
by federal law or regulations.
This argument is untenable. Although Congress
limited the FCC’s standard-setting authority to consumer
electronic equipment, this limited grant of authority concerns
devices that receive RF interference, not devices that emit
radio signals. Thus, were we to infer from the statute’s
inclusion of consumer electronic equipment the exclusion of
business electronic equipment, we would conclude at most
22a
Court of Appeals Opinion - 2/23/00
Standards for the manufacture of business electronic devices)
that would minimize malfunctions caused by the receipt of RF
interference.’ This is an altogether different matter from the
regulation of radio transmitters emitting radio signals that are
the source of RF interference in recipient devices. In fact,
Congress explicitly granted the FCC authority to regulate RF
emissions causing interference. See 47 U.S.C. § 302a(a)(1).
Finally, we note that the provision relied upon by the
Homeowners was passed as part of the 1982 Amendments.
The Conference Report for these amendments, quoted above,
explicitly states Congress’s intent to preempt any local or state
attempts to regulate or remedy RF interference.
Second, the Homeowners argue that the 1996
Amendments “preserve” local zoning authority over RF
emissions. They point to two provisions: one provision
concerns wireless telephones (and thus implicates the
Homeowners’ claim against BANM) and the other concerns
common carrier regulations. :
The Homeowners argue that the wireless telephone
provisions in the 1996 Amendments affect the analysis
whether the ZBA has the authority to regulate RF interference
° ‘The legislative history reveals that Congress was
responding to increasing complaints concerning RF interference
with home electronic equipment. However, Congress determined
that business equipment manufacturers were already adequately
safeguarding their electronic equipment from RF interference, and
that FCC standard-setting was not necessary to resolve that
problem. See H.R. Conf. Rep. No. 97-765, at 32-33, 1982
U.S.C.C.A.N. at 2275-76.
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Court of Appeals Opinion - 2/23/00
attributable to BANM."° They point to subsection 332(c)
(7)(A), entitled “Preservation of local zoning authority,”
which states:
Except as provided in this paragraph, nothing
in this chapter shall limit or affect the authority
of a State or local government or
instrumentality thereof over decisions
regarding the placement, censtruction, and
modification of personal wireless services
facilities.
Thus, Congress did preserve some local zoning authority over
the placement of wireless services transmitters like BANM’s.
However, we conclude that Congress did not intend by this
provision to repeal the FCC’s exclusive jurisdiction over RF
interference complaints The statute’s preservation of local
power extends only to “placement, construction and
modification” of “facilities.” In light of the FCC’s pervasive
regulation of broadcasting technology, this provision is most
reasonably understood as permitting localities to exercise
zoning power based on matters not directly regulated by the
FCC. Cf. AT&T Wireless PCS, Inc. v. City of Virginia
Beach 155 F.3d 423, 427 (4" Cir. 1998) (upholding under this
provision city’s denial of building permit to wireless services
provider, when that denial rested on “traditional bases of
zoning regulation: preserving the character of the
neighborhood and avoiding aesthetic blight”). Moreover, this
interpretation is supported by the express provision in the
1996 Amendments forbidding implied repeal:
10 We note that the ZBA found none.
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Court of Appeals Opinion - 2/23/00
(c) Federal, state, and local law. --
(1) No implied effect. -- This Act and the
amendments made by this Act shall not
be construed to modify, impair, or
supersede Federal, State, or local law
unless expressly so provided in such
Act or amendments.
Pub. L. No. 104-104, § 601, 110 Stat. 56, 143 (1996)
(codified in notes to 47 U.S.C. § 152 (1994 & Supp. 1997)).
It would contravene this provision to find that subsection
332(c)(7) impliedly repeals the FCC’s exclusive authority to
regulate RF interference. We note also that the legislative
history indicates that this preservation of authority “relate[s]
to local land use regulations and [is] not intended to limit or
affect the Commission’s general authority over radio
telecommunications, including the authority to regulate the
construction, modification and operation of radio facilities.”
H.R. Conf. Rep. No. 104-458, at 209 (1996), reprinted in
1996 U.S.C.C.A.N. 124, at 223.
The amicus brief of the Vermont Senators and
Congressman also cites subsection 332(c)(7) in arguing
against the ZBA’s preemption ruling. Their point is that no
provision similar to this subsection, which concerns personal
wireless service, can be found regarding the “siting” of radio
broadcast towers. Brief of Amicus Curiae Leahy et al. at 4.
However, the preexisting pervasive federal regulation of RF
interference suffices to resist any negative implication that
might otherwise be drawn from subsection 332(c)(7).
Moreover, local authority over siting of broadcast towers,
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Court of Appeals Opinion - 2/23/00
based on considerations not within the exclusive regulatory
authority of the FCC, remains unimpaired.
The Homeowners also point to the 1996 Amendments’
common carrier regulations, codified in section 253 and
reading in part:
(a) In general. No State or local statute or
regulation, or other State or local legal
requirement, may prohibit or have the effect of
prohibiting the ability of any entity to provide
any interstate or intrastate telecommunications
service.
(b) State regulatory authority. Nothing in this
section shall affect the ability of a State to
impose, On a competitively neutral basis and
consistent with section 254 of this section,
requirements necessary to preserve and
advance universal service, protect the public
safety and welfare, ensure the continued
quality of telecommunications services, and
safeguard the rights of consumers.
The Homeowners argue that these provisions, particularly
subsection (b), “preserve” the right of a state to impose RF
interference conditions because those conditions “protect the
public safety and welfare.” This argument is unavailing. The
section at issue is contained in the statutory subchapter
entitled “Common Carriers” and the part entitled
“Development of Competitive Markets.” The section
concerns the provision of local telephone service and the
impermissibility of state-created barriers to competitive
26a :
Court of Appeals Opinion - 2/23/00
markets. It has nothing to do with RF interference.
Moreover, the legislative history indicates that “[b]y ‘public
safety and welfare,’ the Committee means, among other
things, making certain that emergency services, such as 911,
are available to the public.” H.R. Rep. No. 104-204, at 75
(1995), reprinted in 1996 U.S.C.C.A.N. 10, at 41.
Third, the Homeowners argue that the FCC has
expressly declined to regulate or to preempt local regulation
of radio frequency matters affecting safety. They point to the
following explanatory portions of an FCC proposed rule, and
argue that it establishes that the FCC intended to preserve
state and local regulations affecting health and safety:
164. In the past, parties have requested
that the Commission preempt State and local
authority over RF exposure matters. To date
the Commission has declined to preempt on
health and safety matters. However, the
Commission has noted that should non-Federal
RF radiation standards be adopted that
adversely affect a licensee’s ability to engage
in Commission-authorized activities, the
Commission would consider reconsidering
whether Federal action is necessary.
166. Decision. In the past the
Commission has hesitated to intrude on the
ability of states and localities to make
regulations affecting health and safety. Many
of the comments indicate that a patchwork of
27a
Court of Appeals Opinion - 2/23/00
divergent local and State regulations could
pose a burden on interstate communications
However, since these comments were filed,
Congress has passed the Telecommunications
Act of 1996 Section 704 of _ the
Telecommunications Act amends _ the
Communications Act by providing for federal
preemption of state and local regulation of
personal wireless service facilities on the basis
of RF environmental effects. The
Telecommunications Act also provides for
resolution of conflicts related to the regulation
of RF emissions by the courts or by petition to
the Commission. Accordingly, we are
amending § 1.1307 of our rules to incorporate
the provisions of Section 704 of the
Telecommunications Act.
Guidelines for Evaluating the Environmental Effects of
Radiofrequency Radiation, 58 Fed. Reg. 19,393 (1993)
(codified at 47 C.F.R. pt. 1, 2, 15, 24, 97) (adopted Aug. 5,
1996) (footnotes omitted).
The Homeowners misunderstand the meaning of
“health and safety” in this context. This term is used in
conjunction with the term “environmental effects,” which is
not defined in the statute but most likely refers, to the already-
existing requirement that the FCC prepare an Environmental
Assessment in connection with the grant of a license. See 47
C.F.R. § 1.1307 (1998). The environmental effects specified
by the regulations do not include RF interference, but rather
focus on degradation of the natural environment, effects on
historical landmarks, and the biological effects of RF
28a
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Court of Appeals Opinion - 2/23/00
radiation. Consequently, the FCC’s adoption or rejection of
a position with respect to that issue has no relevance to the
issue of RF interference.
We conclude that allowing local zoning authorities to
condition construction and use permits on any requirement to
eliminate or remedy RF interference “stands as an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress,” Fidelity Savin Loan Ass'n, 458
U.S. at 152 (quoting Hines v. Davidowitz, 312 U.S. 52, 67
(1941)) (internal quotation marks omitted), in delegating
regulatory power to the FCC for uniform regulation of
broadcast technologies. At least one other court has agreed
with this view with respect to local zoning permits. See
Southwestern Bell Wireless Inc. v. Board of County
Commissioners, 199 F.3d 1185, 1193 (10th Cir. 1999),
Other courts have reached the same conclusion when fazed
with the question whether federal law preempts state common
law nuisance actions purporting to regulate RF interference.
See Broyde, 13 F.3d at 998; Still v. Michaels, 791 F. Supp.
248, 252 (D. Ariz. 1992) (alternate holding); Still v.
Michaels, 803 P.2d 124, 125 (Ariz. Ct. App. 1990); Helm v.
Louisville Corp., 667 S.W.2d 691, 693 (Ky. 1984);
Blackburn v. Doubleday Broadcasting Co., 353 N.W.2d 550,
556-57 (Minn. 1984); Smith v. Calvary Educational
Broadcasting Network, 783 S.W.2d 533, 536-37 (Mo. Ct.
App. 1990); Monfort v. Larson, 693 N.Y.S.2d 286, 289
(N.Y. App Div. 1999); Fetterman v. Green, 689 A.2d 289,
294 (Pa. Super. Ct.), appeal denied, 695 A.2d 786 (1997): cf.
Goforth v. Smith, 991 S.W.2d 579, 583-84 (Ark. 1999) (state
law action to remedy environmental effects of RF emissions
preempted).
Court of Appeals Opinion - 2/23/00
As the ZBA noted, see Notice of Decision at ? n.2,
- preemption of the permit condition does not leave the
Homeowners without a remedy. Federal regulations impose
a continuing duty on WIZN to provide technical assistance to
residents within the blanketing interference area to resolve RF
interference problems. See 47 C.F.R. § 73.318(d) (1998).
In the first year of any new or upgraded transmitter’s
operation, the transmitting station must satisfy all complaints
of blanketing interference with most common devices at no
cost to the complainant. See id. § 73.318(b). In addition, the
Homeowners may file informal requests for action with the
FCC. See id. § 1.41. They may also ask the FCC to deny
renewal of WIZN’s license on the ground that the interference
is SO severe that it violates the public interest. See 47 U.S.C.
§ 307(c)(1); Broyde, 13 F.3d at 998. Judicial review of FCC
decisions and orders is available in the United States Court of
Appeals for the District of Columbia Circuit. See 47 U.S.C.
§ 402(b).
III. | Consequence of Preemption
The District Court ruled that, because local
enforcement of the condition of WIZN’s permit was
preempted, the Court lacked subject matter jurisdiction.
Though the Court lacked jurisdiction to grant any relief with
respect to the Homeowners, claim to remedy the RF
interference, it did not lack jurisdiction to rule, as it correctly
did, that the permit condition was preempted and that any
attempt to obtain a federal or state law remedy that regulates
RF interference was preempted. Having made that ruling, the
proper disposition in the removed case was to affirm the
ruling of the ZBA, which had also ruled the permit condition
preempted. Although the preemption issue was raised by
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Court of Appeals Opinion - 2/23/00
motions to dismiss pursuant to Rules 12(b) (1) and (6), the
resolution of the issue in favor of the Appellees, after full
consideration, left nothing further to be done on the federal
issue, and at that point at least a partial summary judgment for
the Appellees was warranted. We need not consider whether
the state law issues should have been remanded to the
Vermont Environmental Court, because the Homeowners
have not sought that relief on this appeal. The only relief
sought by the Homeowners in this Court is reversal of the
District Court’s preemption ruling.
Conclusion
For the foregoing reasons, the ruling of the District
Court on the preemption issue is affirmed, and the judgment
dismissing the removed case is modified to reflect that the
decision of the ZBA the preemption issue is affirmed. The
Appellees may recover their costs.
3la
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
[Filed September 8, 1997]
No. 2:96-CV-295
GRAEME AND MARY BETH
FREEMAN, et at.,
Appellants,
iP
BURLINGTON
BROADCASTERS, Inc., et al.,
)
)
)
)
)
)
)
)
Appellees. )
)
NOTICE OF APPEAL
NOTICE IS HEREBY GIVEN THAT Graeme
Freeman, Mary Beth Freeman, Frank Ittleman, Elaine
Ittleman, Mike Fournier, Holly Fournier, Ellen Lane,
William Pinney, Jr., William Pinney, Sr., Rev. Mark W.
Bolles, Claudia Mucklow, Donna A. Wark, Iris
Muggenthaler, James H. Squires, Lawrence Hamiiton, Robert
Carmod, Mark Musiel, Michael I. Yantachka, Lorie Gaboury,
Chris McGee, Peter Coleman, and Barbara Sanford Farrell,
plaintiffs, by and through their attorneys, Tarrant, Marks &
Gillies of Montpelier, Vermont, pursuant to Rules 3 and 4(a)
32a
“ “Pee pe TD
a
(1) of the Federal Rules of Appellate Procedure, hereby
appeal to the United States Court of Appeals for the Second
Circuit from the Opinion and Order, Docket No. 2:96-CV-
295, issued by the Honorable William K. Sessions, III,
granting defendant’s Motion to Dismiss entered in this action
on August 8, 1997, with Judgment and Order dated August
11, 1997,
Dated at Montpelier, Vermont this 5 day of
September, 1997.
APPELLANTS
By: /s/
Gerald R. Tarrant, Esq.
Tarrant, Marks & Gillies
P.O. Box 1440
Montpelier, Vermont 05602
Federal Bar ID #000381706
Their Attorney
33a
APPENDIX C
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
[Filed August 11, 1997]
No. 2:96-CV-295
GRAEME FREEMAN, et al,
Appellants,
V.
BURLINGTON
BROADCASTERS, INC. d/b/a
WIZN, CHARLOTTE FIRE AND
RESCUE SERVICES, INC.,
NYNEX MOBILE LIMITED
PARTNERSHIP 1, d/b/a Bell
Atlantic NYNEX Mobile,
Appellees.
New me ee eee ee”
JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the
Court for trial by jury. The issues have been
tried and the jury has rendered its verdict.
34a
X Decision by Court. This action came to trial or
hearing before the Court. The issues have been tried
or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that pursuant to the
Court’s Opinion and Order (Paper No. 34) filed August 11,
1997, appellee NYNEX Mobile Limited Partnership 1’s
motion to dismiss on the ground of lack of subject matter
jurisdiction (Paper No. 14) is granted. JUDGMENT is
hereby entered for appellees Burlington Broadcasters, Inc.,
Charlotte Fire and Rescue Services, Inc. and NYNEX Mobile
Limited Partnership 1, against the appellants.
RICHARD PAUL WASKO
Date: August 11, 1997 Clerk
/s/
(By) Deputy Clerk
JUDGMENT ENTERED ON DOCKET
DATE: 8-1-97
35a
OUI iii i
APPENDIX D
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
[Filed August 11, 1997]
No. 2:96-CV-295
IN RE: APPEAL OF GRAEME _ )
and MARY BETH FREEMAN, )
ET AL. )
)
OPINION AND ORDER
This action is an appeal from a decision by the Town
of Charlotte Zoning Board of Adjustment (“ZBA”) finding
that it had no jurisdiction to enforce its requirement that the
users of a telecommunications tower remedy any radio
frequency interference (“RFI”) experienced by the residents
of the town. The users of the tower, Burlington Broadcasters,
Inc., d/b/a WIZN-FM (“WIZN”), NYNEX Mobile Limited
Partnership 1 d/b/a Bell Atlantic NYNEX Mobile
(“BANM”), and Charlotte Volunteer Fire and Rescue
Services, Inc. (“CVFRS”), seek dismissal of the action on the
grounds that the Federal Communications Commission
(“FCC”) has exclusive jurisdiction over complaints involving
RFI.
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District Court Opinion & Order - 8/11/97
I. Factual Background
WIZN operates an FM radio station and is licensed by
the FCC to broadcast from an approximately 199 foot radio
transmission tower on Pease Mountain in Charlotte, Vermont.
BANM transmits cellular calls from four thirteen foot “whip”
antennas mounted halfway up the tower. CVFRS makes
intermittent use of the tower in connection with providing fire
and ambulance service for the town.
In 1986 WIZN and CVERS received zoning approval
from the Town of Charlotte to build the Pease Mountain
tower. Ata hearing in connection with the zoning permit to
build the tower, community residents raised concerns about
RFI.' According to the minutes of the meeting, WIZN’s
representative, Michael Calhoun, stated that there would not
be any interference, and if there was, WIZN would “trap it
out.” (paper 19, att. B). WIZN and CVFRS received
approval to construct the tower, on the condition that “[a]ny
interference with reception in homes in the area because
WIZN begins broadcasting will be remedied by WIZN.
WIZN will broadcast 50,000 watts per day.” Id.
After the tower was built, WIZN conveyed ownership
of the tower to CVFRS. In April 1987 WIZN began
broadcasting from the tower. In 1991 BANM (formerly
Contel Cellular) and CVFRS received zoning approval from
‘RFI arises when a signal radiated by a transmitter is
picked up by an electronic device in such a manner that it prevents
the clear reception of another signal or causes malfunction of the
electronic device. H.R. Conf. Rep. No. 97-765, at 11 ( 1982),
1982 reprinted in U.S.C.C.A.N. 2261.
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District Court Opinion & Order - 8/11/97
the ZBA to mount the whip antennas. The ZBA placed no
conditions respecting RFI on the approval.
On April 5, 1996, the Charlotte Zoning Administrator
issued a notice of violation to WIZN, BANM, CVERS and
the landowner. According to the notice, the operation of the
broadcast facility had caused “long-term and continuous”
interference with electronic devices and other appliances, in
violation of the terms and conditions of ZBA approvals and
permits, which required that any RFI would be remedied by
the users.
WIZN, BANM, CVERS, and the landowner appealed
the notice of zoning violation to the ZBA. The ZBA
conducted public hearings in May, 1996, pursuant to Vt. Stat.
Ann. tit. 24, 4467 (Supp. 1996). A group of “interested
persons” as defined in Vt. Stat. Ann. tit. 24, § 4464(b) (Supp.
1996) (“the Freemans” or “the Neighbors”) appeared and
were heard at these proceedings. At the hearings, Charlotte
residents identified RFI problems with “various electrical and
electronic devices, including but not limited to telephones,
answering machines, radios, stereos and tape machines,
public address systems, televisions and VCRs, baby monitors,
computers and security systems.” Notice of Decision at 4
(paper 1, att. 2).
On July 11, 1996 the ZBA issued its Notice of
Decision. The ZBA found “that WIZN has caused continuous
and widespread RFI that has impaired the ability of Charlotte
residents to communicate, transact business, and experience
the peaceful enjoyment of their homes and proper.” Id. It
found no credible evidence that CVFRS, BANM or the
landowner had caused RFI in Charlotte.
38a
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District Court Opinion & Order - 8/11/97
The ZBA concluded that WIZN had violated the terms
of its conditional use approval and of its zoning permit. It
concluded further, however, that the FCC has exclusive
jurisdiction over RFI phenomena, and that the ZBA had no
authority to enforce a permit condition requiring WIZN to
remedy any interference problems. Accordingly, it dismissed
the Notice of Violation.
The Neighbors appeaied the ZBA decision to the
Vermont Environmental Court pursuant to Vt. Stat. Ann. tit.
24 § 4471 (Supp. 1996). They raised the following issues on
appeal: whether federal law preempts state and local
jurisdiction over RFI; whether BAN M or CVEFRS caused RFI
in Charlotte; whether BANM and CVERS, as co-permittees
of WIZN, bore responsibility for WIZN’s permit violations;
whether there is state of local jurisdiction over an allegation
of fraud, deceit or misrepresentation: and whether Charlotte
residents have been denied their rights as consumers.
WIZN, BANM, CVERS and the landowner removed
the case to this Court, asserting that the case concerned a
claim arising under the Federal Communication Act of 1934
(as amended) (“FCA”), 47 U.S.C. §§ 151-613 (1991 and
Supp. 1997).
Before the Court are WIZN’s motion to dismiss
pursuant to Fed. R. Civ. P. 12(b) (6) (paper 13), and
BANM’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1)
and 12(b) (6) (paper 14).? Specifically, WIZN and BANM
contend that the Federal Communications Act preempts the
> CVERS has joined in both motions (paper 16)
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District Court Opinion & Order - 8/11/97
Neighbors’ zoning appeal. The Neighbors oppose the
dismissal, and seek a remand to the ZBA.”
I. Discussion
BANM has challenged this Court’s subject matter
jurisdiction over this zoning appeal. In ruling on a motion to
dismiss under Fed.R.Civ.P. 12(b)(1), the allegations of the
complaint are to be construed favorably to the pleader. The
issue is not whether claimants will ultimately prevail, but
whether they are entitled to offer evidence to support their
claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). For
the purposes of this motion to dismiss, therefore, the Court
accepts the Neighbors’ factual allegations as true.
Congressional intent is the “ultimate touchstone” of
preemption analysis. Cipollone v. Liggett Group. Inc., 505
U.S. 504, 516 (1992). That intent may be
explicitly stated in the statute’s language or
implicitly contained in its structure and
purpose. In the absence of an express
congressional command, state law is
preempted if that law actually conflicts with
> The Town of Charlotte opposed the dismissal as well,
but has orally sought and received this Court's permission to
withdraw from the case. Consequently its opposition is moot.
40a
District Court Opinion & Order - 8/11/97
federal law, or if federal law so thoroughly
occupies a legislative field as to make
reasonable the inference that Congress left no
room for the States to supplement it.
Id. (citations omitted).
The Federal Communications Act of 1934 (as
amended) does not contain an express provision preempting
state or local regulation of radio frequency interference.
Therefore, to determine whether preemption is implied, the
Court must analyze whether Charlotte’s zoning permit
condition actually conflicts with federal law, or if federal law
occupies the field of radio frequency interference so
thoroughly that state or local regulation is precluded.
In enacting the Communications Act of 1934,
Congress created a “unified amd comprehensive regulatory
system” for the broadcasting industry. National Broadcasting
Co. v. United States, 319 U.S. 190, 214 (1943). In Section
301 of the Act, Congress stated that the purpose of Act was
“among other things, to maintain the control of the United
States over all the channels of radio transmission.” 47
U.S.C. § 301 (1991) .
In Section 151 of the Act, Congress created the FCC
to “execute and enforce the provisions” of the Act. 47
U.S.C. § 151 (Supp. 1997). Congress endowed the FCC with
“comprehensive powers to promote and realize the vast
potentialities of radio.” National Broadcasting, 319 U.S. at
217. The Supreme Court made clear in National Broadcasting
that the Commission is empowered to deal with “technical and
engineering impediments” to the “effective use of radio in the
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District Court Opinion & Order - 8/11/97
public interest.” Id. See also FCC v. Pottsville Broadcasting
Co., 309 U.S. 134, 138 (1940) (Communications Act
expressed Congress’s desire to maintain, through
administrative control, grip on dynamic aspects of radio
transmission); Head v. New Mexico Bd. of Examiners, 374
U.S. 424, 430, n. 6 (1963) (FCC’s jurisdiction over technical
matters associated with transmission of radio signals is clearly
exclusive).
The FCC has been given statutory authority to regulate
the transmission of radio energy that creates interference in 43
U.S.C. § 301, § 302a(1), and § 303(c), (d), (e) and (f) (1991
and Supp. 1997). The Neighbors argue, however, that their
complaints of RFI have interfered with business and
institutional equipment in the town, and that the ZBA has the
authority under 47 U.S.C. § 302a (1991) to regulate RFI that
affects business and institutional electronic devices as
opposed to home electronic devices.
Section 302a(a) (2) of Title 47 of the United States
Code authorizes the FCC to make reasonable regulations
“establishing minimum performance standards for home
electronic equipment and Systems to reduce _ their
susceptibility to interference” from RFI. Section 302a(a)(1)
authorizes the FCC to regulate any devices which are capable
of transmitting radio frequency energy which could harm
radio communications. The statute does not authorize the
FCC to establish performance standards for commercial and
business electronic equipment. From this statutory silence,
the Neighbors have inferred that the regulation of RFI which
affects commercial and business electronic equipment is
within the purview of state and local authorities. Section 302a
does not purport to regulate radio stations which may produce
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of tel Be’ * es oe
District Court Opinion & Order - 8/11/97
interference, however, but only to regulate devices which
interfere with radio reception or home electronic devices
which are susceptible to RFI.
Although Congress has not enacted a specific statute
that explicitly authorizes the FCC to regulate radio station
RFI that affects business and commercial electronic devices,
it clearly intends that the FCC have exclusive jurisdiction over
RFI in general. With the enactment of the Communications
Amendments Act of 1982, which amended § 302a to provide
for the establishment of performance standards for home
electronic equipment, Congress clarified that the FCC had the
power to regulate not only the transmitters of RFI, but the
devices in the home that are susceptible to RFI. The House
Conference Report which accompanied the Communications
Amendments Act of 1982 clarified that “exclusive jurisdiction
over RFI incidents (including preemption of state and local
regulation of such phenomena) lies with the FCC.” H.R.
Conf. Rep. No. 97-765, at 16 (1982), reprinted in 1982
U“ ~C.A.N. 2261. It stated further that
[s]uch matters [involving RFI] shall not be
regulated by local or state law, nor shall radio
transmitting apparatus be subject to local 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 equipment or systems. Rather, the
Conferees intend that regulation of RFI
43a
District Court Opinion & Order - 8/11/97
phenomena shall be imposed only by the
Commission.
Id. at 40, 1982 U.S.C.C.A.N. at 2277.
Section 302a does not, expressly or by implication,
authorize state or local regulation of the source of radio
frequency interference. And although Congress limited the
FCC to establishing performance standards for home
electronic devices instead of for all electronic devices which
might be susceptible to RFI,* it emphasized that all RFI
complaints were to be handled through the Commission.
The Neighbors also claim that Section 704 of the
Telecommunications Act of 1996, codified at 47 U.S.C.
§ 332(c) (7) (Supp. 1997), preserved the ZBA’s authority to
make and enforce conditions regulating RFI with respect to
BANM’s provision of cellular telephone service. Section 332
of Title 47 deals with the provision of commercial mobile
services. In 1996 the section was amended specifically to
prevent FCC preemption of local and state land use decisions
regarding the placement, construction, and modification of
personal wireless service facilities. Telecommunications Act
of 1996 (“TCA”), Section 704, 47 U.S.C. § 332(c)(7).
The Zoning Administrator’s Notice of Violation and
the ZBA’s subsequent findings are not local land use decisions
* The House Conference Report noted that devices
designed and marketed for use in a commercial environment
normally included protection against RFI, and did not require FCC
regulation. H.R. Conf. Rep. No. 97765, at 38 (1982).
d4a
District Court Opinion & Order - 8/11/97
regarding the placement, construction, and modification of
wireless facilities. The original approval of the application to
install BANM’s whip antennas was not appealed. No
application or request to modify BANM’s permit has been
made. The Zoning Administrator found BANM in violation
of its permit on the basis of excessive RFI; the ZBA
subsequently found that BANM neither contributed to the RFI
problem in Charlotte, nor was responsible as a cO-permittee
for WIZN’s RFI. Because the decisions by the local zoning
authorities do not concern the placement, construction or
modification of a wireless service facility, § 332(c)(7)’s limit
on FCC preemption is not implicated.
Even if the ZBA proceedings did involve placement,
construction or modification of wireless facilities, 332(c)(7)
does not authorize state or local regulation of radio frequency
interference. Under this subsection, state and local regulation
of personal wireless service facilities with respect to the
environmental effects of radio frequency emissions is
preempted. 47 U.S.C. § 332(c) (7) (B) (iv). The statute is
silent as to the ability of state or local authorities to regulate
with respect to radio frequency interference. Section 601 of
the TCA, however, provides that “[t]his Act and the
amendments made by this Act shall not be construed to
modify, impair, or supersede Federal, State or local law
unless expressly so provided in such Act or amendments.” 47
U.S.C. § 152 (note) (Supp. 1997).
In the absence of an express provision allowing state
and local authorities to regulate with respect to radio
frequency interference, the TCA cannot be construed to
permit such regulation, given the FCC’s pervasive regulaiion
in this area. See e.g. 47 C.F.R. § 21.902 (1997): 47 C.F.R.
45a
District Court Opinion & Order - 8/11/97
§ 73.318 (1997); 47 C.F.R. § 101.103 (1997). Moreover,
according to the legislative history of the TCA, the limitations
on the FCC’s jurisdiction are intended to relate strictly to
local land use regulations, and are not intended to limit or
affect the FCC’s general authority over radio
telecommunications. S. Rep. No. 104-230, at 462 (1996).
Section 332 thus does not, expressly or by implication,
authorize state or local regulation of radio frequency
interference which may be produced by cellular
telecommunications facilities.
An unreported decision from a district court of this
Circuit has held on similar facts that a zoning board may not
regulate radio interference, either by imposing restrictions or
conditions related to RFI in a zoning permit, or by revoking
the permit because of excessive RFI. The district court
concluded that Congress intended to maintain exclusive
jurisdiction over RFI phenomena, and to assign regulatory
responsibility to the FCC. Great Lakes Wireless Talking
Machine Co. v. Hayes, No. CIV-91-6140T, slip op. at 9
(W.D.N.Y. Jun. 25, 1991).
Case law from other jurisdictions supports the
conclusion that the FCC has exclusive jurisdiction over
complaints involving radio frequency interference. In Broyde
v. Gotham Tower, Inc., 13 F.3d 994 (6th Cir.), cert. denied,
511 U.S. 1128 (1994), the Sixth Circuit affirmed the
dismissal of a nuisance suit brought by area residents claiming
that defendants’ radio signals interfered with the operation of
their home electronic equipment. The Court held that radio
signal interference fell within the FCC’s exclusive jurisdiction
over technical matters associated with the transmission of
radio signals. Id., at 997.
District Court Opinion & Order - 8/11/97
In Still v. Michaels, 791 F. Supp. 248 (D. Ariz.
1992), neighbors of a ham radio operator brought a nuisance
suit Claiming radio and television reception interference as a
result of the radio transmissions. In dismissing the case for
lack of subject matter jurisdiction, the district court ruled that
nuisance actions involving RFI are preempted by the FCA,
and that RFI matters are exclusively regulated by the FCC.
Id., at 252-53.
In Blackburn v. Doubl Br in i“ ae
N.W.2d 550 (Minn. 1984), the Supreme Court of Minnesota
affirmed the dismissal of a nuisance suit against radio stations
on the ground that their claims were preempted by the FCA’s
delegation to the FCC of exclusive jurisdiction over the
regulation of RFI. Id., at 556. See also Helm v. Louisville
Two-Way Radio Corp., 667 S.W.2d 691 (Ky. 1984)
(affording relief from RFI would involve prohibiting or
controlling radio transmissions, a matter within the exclusive
jurisdiction of the FCC); Fetterman v. Green, 689 A.2d 289
(Pa. Super.), appeal denied, 695 A.2d 786 (Jun. 17, 1997)
(FCA preempts common law claims involving RFI); Still v.
Michaels, 803 P.2d 124 (Ariz. App. 1990) review denied
(1991) (FCC regulation of RFI is exclusive, precluding
Nuisance action); Smith v. Calvary: Educ. Broadcastin
Network, 783 S.W.2d 533 (Mo. App. 1990) (court lacks
subject matter jurisdiction over suit to enjoin radio station
operator from causing RFI to electrical and electronic
appliances in plaintiffs’ homes and businesses).
In cases involving challenges to local zoning
ordinances or permit conditions which would regulate RFI,
the FCC has ruled that it has exclusive jurisdiction over RFI.
See, In re Mobilecomm of New York, Inc., 2 F.C.C.R. 5519
47a
District Court Opinion & Order - 8/11/97
(1987) (local zoning ordinance regulating RFI in radio paging
facility conflicts with federal regulatory scheme); In re 960
Radio, Inc., FCC 85-578 (Nov. 4, 1985) 1985 WL 193883
(local zoning board preempted from imposing requirement on
FM radio station that it not cause RFI to existing facilities).
Examination of the Federal Communications Act, the
legislative history and case law compels the conclusion that
the FCC has exclusive jurisdiction over complaints involving
radio frequency interference, whether they are cast as
nuisance actions or zoning violations, and whether the
complaints involve interference with computers in the home
or computers at work. The Neighbors must bring their claims
of radio frequency interference to the FCC.
The Neighbors have argued that their claim has to do
with the proper siting of a broadcasting facility pursuant to the
town’s zoning laws. The issue of whether the tower was sited
in compliance with the town’s zoning regulations (apart from
the ZBA’s condition requiring remediation of RFI) was not
raised in the Notice of Violation, the Notice of Decision or
the Neighbors’ Statement of Questions presented on their
appeal of the ZBA’s decision, and is thus not before this
court.
The Neighbors have further argued that they have
made claims of fraud and deceit which are not preempted.
The sole issue raised by the Zoning Administrator, and
appealed to the ZBA, was whether the permittees were in
violation of the terms and conditions of their permits,
specifically a requirement that they remedy any RFI.
Assuming that the permittees did obtain their permits by
means of fraud and deception, if the remedy sought is
48a
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District Court Opinion & Order - 8/11/97
elimination of RFI, state and local jurisdiction is preempted.
Assuming that the Neighbors have standing to seek some
other relief, such as revocation of the zoning permits, under
theories of fraud and deceit, these claims were not part of the
proceeding from which they appealed, and are not properly
before this Court. Such claims, were they made, would not
arise under the Federal Communications Act for purposes of
removal jurisdiction under 28 U.S.C. § 1441(b). Claims of
fraud or deceit in connection with the zoning permit process
may be brought before the appropriate state or local
jurisdiction.
IT. nclusion
BANM’s Motion to Dismiss (paper 14) is GRANTED
on the ground of lack of subject matter jurisdiction. WIZN’s
Motion to Dismiss (paper 13) is DENIED as moot.
Dated at Burlington, Vermont this 8" day of August,
1997.
/s/
William K. Sessions, [II
United States District Court Judge
49a
APPENDIX E
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
[Dated July 17, 1997]
No. 96-295
GRAEME FREEMAN, et al.
7:
BROADCASTERS, INC., d/b/a/
)
)
)
)
BURLINGTON )
)
WIZN, et al )
)
MOTIONS TO DISMISS
Thursday, July 17, 1997
Burlington, Vermont
BEFORE:
THE HONORABLE WILLIAM K. SESSIONS III
District Judge
THURSDAY, JULY 17, 1997
(The following took place in open court at 2:45 p.m.)
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District Court Motion to Dismiss T. ranscript - 7/17/97
COURTROOM DEPUTY: This is civil number 96-
295, Graeme Freeman, et al., versus Burlington Broadcasters
Incorporated, et al. Present in the Courtroom on behalf of the
plaintiffs is attorney Gerald Tarrant. Also present in the
courtroom on behalf of the defendants are attorneys John
Cain, Thomas Heilmann, and Brian Sullivan. The matter
before the Court is a hearing on pending motions to dismiss.
THE COURT: All right. I promise to try not to
confuse this hearing with the one I just finished. Wouldn’t
make you nervous, by the way, coming into the courtroom,
having heard the last hearing, would it?
MR. TARRANT: A little.
THE COURT: Let’s see, first I would like to start
with a statement. In reviewing all of the pleadings here, I
notice that the opinion from the board of zoning adjustment in
Charlotte was signed by a person named Jonathan Fisher. |
quite frankly didn’t recognize -- I didn’t look at this until just
getting into the hearing today, in preparation for the hearing,
and noticed that he was the chair of that committee. I have
known him, I have probably -- I don’t know him well. I don’t
think we have ever socialized, but I have known him over a
number of year’s and probably seen him on six occasions, I
would guess, five or six occasions. Basically I know him but
I don’t know him well. So I thought I should disclose that on
the record. And quite frankly, I don’t think that has any
impact whatsoever on my judgment here.
Second, I also noticed today that the Town of
Charlotte was not noticed of this hearing. And I think we can
still proceed, but they were not noticed and they have not -
Sla
District Court Motion to Dismiss Transcript - 7/17/97
obviously did not appear herve. They have rendered -- they
have submitted a pleading, a memorandum, in regard to the
motion to dismiss, and I think we will contact them and afford
them an opportunity to make an argument, if they wish to
make a supplemental argument, but I would like to go forward
with today’s hearing.
HOLLY FORNIER: My name is Holly Fornier and
I am on the Charlotte select board, and we decidéd not to
participate any further in any legal avenues related to this --
to the Burlington Broadcasters issue.
THE COURT: Oh, you have?
HOLLY FORNIER: Yeah, we have decided not to be
involved any longer.
THE COURT: All right.
HOLLY FORNIER: So that’s why -- but the board
was aware, the select board was aware of this meeting, and --
but we’ve advised the town attorney not to participate any
longer.
THE COURT: Okay. The town attorney is actually
supposed to contact the court and notify the court that he is
withdrawing or --
HOLLY FORNIER: Okay.
THE COURT: -- the Town is withdrawing from this
action. I appreciate that. So rather than have him come and
argue to the Court, perhaps he can just withdraw -
52a
District Court Motion to Dismiss Transcript - 7/17/97
HOLLY FORNIER: Okay.
THE COURT: -- your appearance. All right. Are we
ready to proceed? Mr. Cain has filed a motion to dismiss.
MR. CAIN: Your Honor, on our side, we tried to
arrange things to be in coherent order.
THE COURT: Ina coherent order?
MR. CAIN: Well, we are trying, your Honor, and
Brian Sullivan, if the Court please, would like to lead off.
THE COURT: All right.
MR. CAIN: Thank you.
THE COURT: Does this mean I go right to left?
MR. CAIN: Something like that.
MR. SULLIVAN: Not that coherent yet. Brian
Sullivan, on behalf of Bell Atlantic Nynex Mobile, one-of the
appellees in this action.
This action, as the Court is aware, concerns
complaints raised by the appellants concerning radio
frequency interference, which I will refer to as RFI. RFI is
alleged to be caused by an FCC licensed transmitting source.
That is the only issue that’s before the Court today, the
motion to dismiss concerning who has jurisdiction over RFI
complaints against transmitting sources.
53a
District Court Motioa to Dismiss Transcript - 7/17/97
RFI has two components, and as the Court will see,
distinguishing between the two is crucial to this motion to
dismiss. First of all, RFI requires a transmitter that emits
radio signals that cause interference, which I think is obvious.
Less obviously, though, RFI requires a device that can receive
those signals. And when we get to the 1982 amendments to
the Federal Communications Act, that distinction will become
important. For now, suffice it to say that every court that’s
ever looked at the issue has ruled that only the Federal
Communications Commission has jurisdiction over RFI
complaints against transmitting sources.
The cases that we cite in our briefs are unanimous on
that point. And that follows from other case law where
United States Supreme Court and lower courts have ruled that
Congress intended that the FCC would have sole authority
over the technical aspects of radio communications, RFI from
transmitters being one of those technical aspects.
Therefore, because of that exclusive jurisdiction, any
effort to bring an action in the state or local forum has to be
preempted, and for that reason, this motion should be
dismissed.
THE COURT: What you are suggesting is that if the
action that is filed with the town seeks to regulate in any way
those transmission -- that transmission facility, the
transmission of the radio frequency interruption -- not
interruptions, but -
MR. SULLIVAN: Interference, actually the signals
that cause the -- to be precise.
54a
District Court Motion to Dismiss Transcript - 7/17/97
THE COURT: Right. If there is an effort to actually
directly prohibit those, or restrict those, then that is
preempted
MR. SULLIVAN: Yes.
THE COURT: My question goes beyond that,
though. Let us say, and actually get to the heart of it, there’s
a fraud claim made by the plaintiffs in this particular case,
that is that the actual tower back in 1987 was constructed as
a result of a permit which was obtained by way of fraudulent
representations. If that were in fact true, if that were actually
at issue, does the town have the power to wipe out the permit
completely?
MR. SULLIVAN: First of all, your Honor. I think
it’s important to say that that is not at issue in this case
because that was never before the zoning board, could not be
before the zoning board.
THE COURT: I was going to ask the other side that
question,-but -
MR. SULLIVAN: Okay.
THE COURT: -- this is just an intellectual question
for you.
MR. SULLIVAN: Hypothetically, I believe that there
is an avenue for state relief for fraud, even though there is
RFI alleged. But the proper avenue would be to file an action
in superior court alleging fraud. I don’t think the zoning
board has jurisdiction for issuer of fraud, not because of
55a
District Court Motion to Dismiss Transcript - 7/17/97
federal preemption, but because that’s beyond their powers as
a zoning board.
THE COURT: I mean, you had represented -- well,
guess actually Mr. Cain had represented in his pleading, as I
recall, that the plaintiff had the power to go to the FCC to
resolve this particular issue. If in fact there’s a claim, a fraud
claim, you are now suggesting that also the plaintiffs would
have the option to go to superior court to try to basically
remove the permit in the first place, that is remove the tower.
MR. SULLIVAN: I am not sure what exactly the
superior court could order. But I think it’s pretty clear that
they could attempt to bring a claim in superior court for
fraud. It would have to comply with the special pleading
requirements for fraud.
THE COURT: Sure.
MR. SULLIVAN: Again, on the facts of this case I
don’t think they can state a claim, but hypothetically, that
avenue is available.
THE COURT: All right.
MR. SULLIVAN: Just in quick summary fashion, we
have outlined the history of the FCC’s jurisdiction over RFI
in our reply brief. I think that speaks for itself. The courts
were developing this law all the way up until the 1970s.
Watershed occurred in 1982, when Congress amended the
communications act, and again, I think our briefing is pretty
clear, the legislative history of that amendment shows that,
contrary to the appellants’ assertions, the amendment meant
\
56a
District Court Motion to Dismiss Transcript - 7/17/97
to broaden the FCC’s authority, and in fact every court that’s
looked at that amendment since has upheld that as well.
Before the 1982 amendment, it was clear that the FCC
had sole authority over all transmitting complaints of RFI. In
‘82, Congress also gave them authority over RFI problems
caused by receiving devices, but only consumer-receiving
devices, and the legislative history is very clear that the
reason for that is because the manufacturers of the consumer
devices were not building their equipment to sufficient
standards.
They tried voluntary regulation. It didn’t work.
Congress decided they were going to impose regulations for
consumer devices but not for commercial, and I think the
- perhaps fatal flaw in the appellants’ argument is failing to
recognize, first of all, the distinction between regulating the
transmitter and regulating the receiving device, number one;
and number two, confusion between Congress’s attempt to
broaden the FCC’s jurisdiction versus Congress’s statements
about an area where jurisdiction was already clear.
THE COURT: Is the distinction between the
transmitting and the receiving devices really that significant?
Let me just give you -- let me give you my personal
experience prior to being -- prior to being a judge.
I was a lawyer in Middlebury, and we had a particular
radio frequency interference problem, and that is whenever
we would go to the bathroom, flush the toilet, out came
WFAD - sorry -- vibrated the pipes.
57a
District Court Motion to Dismiss Transcript - 7/17/97
MR. SULLIVAN: [I heard interference from toasters,
but this is a first.
THE COURT: So who do you complain to?
MR. SULLIVAN: Well, you complain to the FCC
and you can do it in a couple of different ways. One is to file
a complaint and the other is to monitor the station’s licensing
process, because it has to be renewed periodically, and to
intervene in that process, to become a petitioner in that
process.
THE COURT: But then it could very well say then,
if you are really focusing in upon the receiving end then, I
theoretically got a problem with the pipes that seem to be
hooked into WFAD whenever we flush a toilet.
MR. SULLIVAN: I suppose there could be a cause of
action for some kind of product liability claim against the
manufacturer of the pipe. Without being too facetious if there
is a commercial receiving device that is not being built
properly and is not rejecting the unwanted interference, |
believe that the state of the law allows the party receiving the
interference to sue that company.
They couldn’t sue for a commercial -- or a consumer
device because that’s preempted by the FCC. But if you have
business equipment that is just not doing its job, rejecting
these radio signals, I think you could maintain a cause of
action against the manufacturer.
58a
District Court Motion to Dismiss Transcript - 7/17/97
THE COURT: All right. Ever since I started reading
about this case, I really wanted to find out what the ultimate
solution was to the bathroom pipes.
MR. SULLIVAN: Well, I think it’s interesting that in
-- in the Broyde case, which is the leading case we cite, the
court recites some of the remedies that are available, and it
talks about the FCC process, and it also points out, as did the
Charlotte zoning board, that the culmination of that is an
appeal to the United States Court of Appeals for the federal
circuit, I believe, or D.C. Circuit.
THE COURT: D.C. Circuit
MR. SULLIVAN: Yes. So there’s not only
administrative relief, there's judicial review of that relief as
well.
Basically I’d just like to close and let John Cain pick
up with some of the case law by talking briefly about the
further amendments made to the communications act in 1996.
This is what’s called the Telecommunications Act. The
appellants have attempted to argue that that somehow undoes
this body of law, and I think they’d have to concede that
there’s nothing in the Telecommunications Act that says that.
So any argument they are making about repeal has to be an
implied repeal.
The problem they run into there is section 601 of the
act forbids implied repeal, number one. Number two, the
section that they are relying upon, section 704, only preserves
existing local zoning authority. And we have pointed to the
basic definition of preserved, maintaining something that
59a
District Court Motion to Dismiss Transcript - 7/17/97
already exists. Well, there was no local zoning authority
before 1996 over RFI transmissions. There was nothing to
preserve.
And then finally, we, just as background, attached a
couple letters from the chairman of the FCC, showing how
that agency interprets its authority. And those letters were
written after the '96 act became effective, and show that the
FCC still believes that it has complete authority over RFI.
THE COURT: But there is no case law after 1996
law, indicating that there has been a waiver of the
preemption?
MR. SULLIVAN: Exactly, your Honor. In fact,
there was one case that we sent to the Court, in a
supplemental file -- ;
THE COURT: The New Jersey case?
MR. SULLIVAN: Pennsylvania, I believe.
Fetterman versus Green.
THE COURT: I thought it was New Jersey. But it
was relatively geographically close.
MR. SULLIVAN: And it was decided in early ‘97.
So if there was any change in the law caused by the ‘96 act,
it was not apparent to that court.
THE COURT: Okay.
MR. SULLIVAN: Thank you, your Honor.
60a
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District Court Motion to Dismiss Transcript - 7/17/97
THE COURT: All right, Mr. Cain?
MR. CAIN: Thank you, your Honor.
THE COURT: By the way, I did lose control there
with laughter at the thought of the -- and I didn’t mean to be
facetious.
MR. CAIN: Morning, your Honor. I am John Cain
representing Burlington Broadcasters. And WIZN does
business and we are licensed and regulated by the Federal
Communication Commission, and in this particular motion, I
was looking through the materials last week, and I -- we have
tried, Mr. Tarrant and Mr. Allen and Mr. Sullivan, we really
tried to do as good a job as we can to brief as exhaustively as
we could the entire matter, and I really think that the entire
subject of our motion here has been laid out in the briefs, and
we have tried to give the Court every single case that’s been
decided in this area.
THE COURT: All right. I am curious a little bit
about the facts because there was some representation as to
Calhoun. I think Michael Calhoun was the head of your
company.
MR. CAIN: He was the station manager.
THE COURT: Station manager.
MR. CAIN: Yes.
District Court Motion to Dismiss Transcript - 7/17/97
THE COURT: At the time when the 1987 -- when
this was constructed, and apparently made this representation
that no way was there going to be any interference.
MR. CAIN: Right.
THE COURT: Factually is that accurate?
MR. CAIN: Yes. He did make that representation.
After he made the representation, a number of people,
including all of the plaintiffs, moved to the tower, and there
have been what we call RFI, people have experienced RFI, —
and in conjunction with that particular topic, I would invite
the Court to look at Great Lakes, which I sent in, which is
factually identical to this case, including the fact that one of
the representatives of the radio station made representations
about getting rid of the RFI.
And as I said, the issue here is whether the Charlotte
zoning board is preempted from regulating RFI under the
Federal Communications Act. And I would like the Court to
- I would like to emphasize to the Court that every single case
that has been decided here has indicated that there is total
preemption of local or state regulation of RFI.
We have state cases, we have federal cases, we have
one that went up to the circuit court of appeals, cert. denied
by the Supreme Court, and I also sent in two cases from the
Federal Communications Commission, which have the same
result.
As I indicated =
Pe ee ee eS ee, ee ee
District Court Motion to Dismiss T, ranscript - 7/17/97
THE COURT: And I just received one from the
District Four Environmental Commission, as I recall, on this
particular issue.
MR. CAIN: Right, and Mr. Tarrant, on behalf of the
neighbors, had a couple of arguments or defenses to
preemption. His latest one is that business institution -
institutional and medical equipment is not preempted. And he
tried that argument with the district environmental board and
they, in a relatively short opinion, indicated that they rejected
that argument.
THE COURT: He has raised that in this case.
MR. CAIN: He brought it over to this case, yes.
THE COURT: Right.
MR. CAIN: But I would like to point out that even
with the knew argument -
THE COURT: Let’s go back, going beyond the state
cases and the federal cases, to the opinion -- the higher
opinion of fairness, what happens if a -- a person’s going to
construct a device like this, comes to a town, gets the permit
by making false representations; shouldn’t the town have
some sort of way to cure the wrong, because they were
basically defrauded?
MR. CAIN: Well, I don’t know if that’s accurate
because, as I said, about the complaining plaintiffs here, all
moved to the tower. At the time the tower went up, the
representations were made, and we did try to track out
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District Court Motion to Dismiss Transcript - 7/17/97
whatever RFI were there. Now these people moved to the
tower. They were having interference. They do have a
remedy. They can go to the Federal Communication
Commission. They can participate in our licensing
proceeding which is going to take place at the end of the year.
THE COURT: They have responded by suggesting
that if you go to the FCC, there are no standards. The FCC
standards aren’t applicable to these particular devices that are
becoming defective.
- MR. CAIN: Congress indicated that there were going
to be certain rules which radio stations had to adhere to, and
we are going to adhere to them. And if you look at
Fetterman, they talked about, well, what if there is no
remedy, and the court said, even if there is no remedy, there’s
still no jurisdiction.
THE COURT: I guess my question is there no
remedy? I have raised the question a second ago, in the fraud
action, bring it in superior court. If they decide to bring an
action to invalidate, I'm not so sure you would even say the
permit, but you could invalidate the construction of the
antenna, based upon the fact that they were -- the permits
were fraudulently obtained, do they have -- can they do that?
Or is that preempted by the federal government as well?
MR. CAIN: The Town of Charlotte cannot bring the
- some type of fraud action, I don’t believe the way you are
talking. I don’t want to do the creative legal work for the
plaintiffs -
THE COURT: No, right. I -
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District Court Motion to. Dismiss Transcript - 7/17/97
MR. CAIN: -- but I would imagine that there would
be instances in which they could start some kind of fraud
action in superior court.
THE COURT: But the reason I bring this up,
actually, is because you actually raised the question about they
have other alternatives. They can go to FCC. Then they
respond they can’t go to FCC. And then I started to think if
there’s a fraud action here, if in fact this was constructed as
a result of fraudulent -- fraudulent representations made by
WIZN or -- or whomever, could in fact the construction be
negated?
MR. CAIN: Not here. Okay. And they -- we do not
agree that there is no remedy. I want to make sure you
understand that. We don’t agree there was fraud. They have
Started another action in which they have claimed that we
fraudulently put the antenna in the wrong place. So they do
have other remedies and they are taking that action in another
forum.
THE COURT: Which forum is that?
MR. CAIN: We’re in environmental -
THE COURT: I -
MR. CAIN: I beg your pardon?
THE COURT: Environmental court?
MR. CAIN: Yes.
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District Court Motion to Dismiss Transcript - 7/17/97
THE COURT: Vermont District Court?
MR. CAIN: Yes. We went to the zoning board and
we are now up to the environmental court.
THE COURT: All right.
MR. CAIN: And we have not alleged nor are we
going to that there is preemption in that matter. So they are
getting their -- going ahead with their remedy.
THE COURT: So they have avenues to resolve their
claims. I wonder if there’s any efforts made on behalf of your
clients, as well as the other parties here, to try to resolve this
problem.
MR. CAIN: We have tried. We have hired an
engineer to go out to the people’s houses. I mean, you can
talk to some of the plaintiffs here. We have been out to their
houses a number of times and we have tried to resolve the
problems that they have.
As Brian pointed out, one of the problems is when you
buy cheap consumer devices, sometimes they’re not made to
reject RFI the way the commercial products are.
THE COURT: All right.
MR. CAIN: Anyway, as I said, I would invite the
Court’s attention to particularly the Great Lakes case, which
is factually identical to the case that we have here.
Procedurally to the Broyde case -
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District Court Motion to Dismiss Ti ranscript - 7/17/97
THE COURT: It’s Western District of New York?
MR. CAIN: Yes. Eastern district, I believe, but yes
THE COURT: I thought it was western district.
MR. CAIN: Well, it’s the district court out there.
THE COURT: Great Lakes actually probably
indicates that it’s toward Buffalo, I would think so. That
would be western district.
MR. CAIN: Anyway, I would like to Close, but I
would like to rest on our briefs, and I would ask the Court to
THE COURT: Briefs are excellent, by the way.
MR. SULLIVAN: Thank you. Your Honor, if I
could just have one second before Tom starts. I think there
is a bit of a misunderstanding on the FCC licensing
procedure. Even though some of these consumer devices are
more or less immune from action because of what the FCC
has done, it doesn’t mean that the operator of the transmitter
is immune.
One of the things that’s looked at when they apply to
renew their license is how responsive they have been to RFI
complaints. And if they just Say, well, the one-year period
where we have to be financially responsible for RFI is up, too
bad, then they're not going to get their license renewed, and
that happened in the case of -- I believe it’s Smith versus
Calvary Broadcasting.
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District Court Motion to Dismiss Transcript - 7/17/97
The broadcasting company did prevail on the
preemption argument in court and then got its license pulled
before the FCC because it wasn’t responsive.
THE COURT: Okay. Mr. Heilmann?
MR. HEILMANN: Just want to be very brief, your
Honor. Charlotte Fire and Rescue Services owns the physical
structure that these transmitters are placed upon, so I don’t
think the claim here is that the tower itself is causing the radio
frequency interference. It’s the transmitting devices. There
are three. One is the band of Nynex, the other is the WIZN
transmitter, and the other is the broadcast transmitter that the
fire and rescue service maintains for its purposes. To the
extent that we do transmission, we also have FCC licenses,
and therefore think we come within the same case law that
relates to the arguments --
THE COURT: Have there been any efforts made to
determining what the source of the RFIs, at least in respect to
all three of these transmitting devices?
MR. HEILMANN: I think there have been.
THE COURT: Any solution? There have been
efforts, but any -- any solution? Do you know which one is
causing the problem or -
MR. HEILMANN: As far as we can tell, the -- the
transmitter operated by WIZN, which is a much larger
transmitter of course, is the source of whatever this RFI
phenomenon is. We think it’s quite clear that the very modest
and intermittent broadcasting done by fire and rescue services,
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District Court Motion to Dismiss T; ranscript - 7/17/97
to keep their personnel aware of emergency situations, is not
the source of RFI.
We think it’s also clear that the BANM transmissions,
even at their maximum and continuous Outputings, they are
also intermittent transmitters, is not the source of the
difficuity, but to the extent that there is this RFI issue, we
think they’re covered by the case law.
One further point, you mentioned the question of
fraud, and certainly there -- I don’t think the fraud assertions
are directed against the fire and rescue services transmitter.
It’s the other transmitter, the WIZN transmitter that’s
involved. And I don’t want to leave it suggesting that the
fraud case is an open and shut case.
There are decisions decided by our Vermont Supreme
Court under the zoning -- under the planning and zoning
Statutes in Vermont indicating that even if misrepresentations
were used to obtain local permits, there has to be timely
appeals from those permits. And I am not here to argue that
point because you don’t have that claim directly before you.
THE COURT: The reason | bring that up, quite
frankly, is because it was raised by Mr. Tarrant, and I was
not sure, and now I am fairly Certain, as to whether that issue
was ever raised before the zoning administrator because I am
basically dealing with an appeal from the board of zoning
adjustment. If it wasn’t raised, it's not to be resolved. So
that basically the fraud claim is not Significant, i
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