Opposition Brief — Freeman v. Burlington Broadcasters, Inc.

Supreme Court, U.S.

GS FILED ;

JUN 2 2 2009

No. 99-1880

ke CLERK

Supreme Court of the United States

¢

GRAEME FREEMAN, et al.,

Petitioners,

BURLINGTON BROADCASTERS, INC.,

d/b/a WIZN, et al.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

4

RESPONDENT NYNEX MOBILF LIMITED

PARTNERSHIP 1 d/b/a VERIZON WIRELESS’

BRIEF IN OPPOSITION

—¢

BRIAN J. SULLIVAN*

DanieL A. SEFF

BurAK ANDERSON & MELLONI, PLC

30 Main Street, P.O. Box 787

Burlington, Vermont 05402-0787

(802) 862-0500

Counsel for Respondent

NYNEX Mobile Limited

Partnership 1 d/b/a

Verizon Wireless

June 23, 2000 *Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the Courts below correctly held that Con-

gress has conferred exclusive jurisdiction on the Federal

Communications Commission over complaints of radio

frequency interference lodged against all transmitting

sources.

ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6 of the Rules of the Supreme

Court of the United States, Respondent, NYNEX Mobile

Limited Partnership 1 d/b/a Verizon Wireless (f/d/b/a

Bell Atlantic NYNEX Mobile and Bell Atlantic Mobile), by

its attorneys, Burak Anderson & Melloni, PLC, respect-

fully submits this Corporate Disclosure Statement.

NYNEX Mobile Limited Partnership 1 is a Delaware

Limited Partnership of which Cellco Partnership is the

Managing General Partner. Cellco Limited Partnership is

owned by the following entities: Bell Atlantic Cellular

Holdings Limited Partnership, NYNEX PCS, Inc., PCSCO

Partnership (each of these three entities is owned by Bell

Atlantic Corporation, a publicly-traded company), PCS

Nucleus Limited Partnership, JP Partner Company Lim-

ited Liability Partnership and Airtouch Paging (each of

these entities are owned by Vodaphone Airtouch, PLC of

the United Kingdom, a publicly-traded company). It is

anticipated that Bell Atlantic Corporation will merge with

GTE Corporation, a publicly-traded company, shortly.

A WHARTON.

iil

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .........---+- sees eeeeees i

CORPORATE DISCLOSURE STATEMENT .......... ii

TABLE OF CONTENTS...........--- 0 eee eeeeeeeees iii

TABLE OF AUTHORITIES ..........--- 00 eeee scenes Vv

STATEMENT OF THE CASE.........-----++eee+e+: 1

REASONS FOR DENYING THE WRIT.......-.----. 2

I. CONGRESS HAS DEMONSTRATED ITS

INTENT TO CONFER EXCLUSIVE JURISDIC-

TION OVER RFI INCIDENTS ON THE FCC.. 4

A. The Regulatory Regime Created by the

FCA Confers Exclusive Jurisdiction over

i Ne een aekiesuete sees uas's 5

B. The 1982 Amendments of the FCA Extend

the FCC’s Exclusive Jurisdiction .......... 6

C. In the Course of Adopting the 1982

Amendments, Congress Reiterated the

FCC’s Exclusive and Plenary Jurisdiction

Over All RFI Matters ............----+-+: 8

D. Cases Decided After the 1982 Amendments

Uphold the FCC’s Exclusive Jurisdiction

I re a Ns ak whe Raa Rees EROS SS Gg

E. The Abrogation of this Body of Law, for

which the Petitioners Argue, Would Create

an Unworkable Set of Conflicting Regula-

iv

TABLE OF CONTENTS - Continued

Page

Il. THE SECOND CIRCUIT CORRECTLY APPLIED

THE CIPOLLONE FIELD PREEMPTION TEST... 12

lil. THE TENTH AMENDMENT PRESENTS NO

BARRIER TO THE APPLICATION OF FIELD

PREEMPTION IN THIS CASE ................ 13

A. Field Preemption Does Not Violate the

Fas x 6c he tik casa dontscesn 13

B. Petitioners Did Not Preserve Their Tenth

Amendment Argument Below............. 15

GUI AAs a6 ck Aas Lene eed bas adseueaeeuers 16

Vv

TABLE OF AUTHORITIES

Page

CASES

AT&T Wireless PCS, Inc. v. City Council of the City

of Virginia Beach, 155 F.3d 423 (4th Cir. 1998)....... 5

Blackburn v. Doubleday Broad. Co., 353 N.W.2d 550

Clb. FOGG. oss nccaiesacadas din tans uneks tenner ns 10

Broyde v. Gotham Tower, Inc., 13 F.3d 994 (6th Cir.),

cert. deniod, $12 US. DIZB CEPPD coc cncdccccansccs 4,9

Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d Cir.

yp P TOT TET eCTTeTee CT ret err eye 15

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) ..12, 14

City of New York v. FCC, 486 U.S. 57 (1988) ........-. 11

Crosby v. Nat'l Foreign Trade Council, No. 99-474,

2000 WL 775550 (U.S. June 19, 2000)...........--- 15

English v. General Electric Co., 496 U.S. 72 (1990)...... 4

FCC v. Pottsville Broad. Co., 309 U.S. 134 (1940)..... .

Fetterman v. Green, 455 Pa. Super. 639, 689 A.2d

289 (Pa. Super. Ct.), appeal denied, 695 A.2d 786

1, ey Serre ee ory rrr rr rr ere CES eer y yr 11

Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458

WD. BOE COIR is ok oa inca eccsrscinaescsessdnanes 15

Freeman v. Burlington Broadcasters, Inc., 204 F.3d

D2 Ghd Cie, BOG) onc ccsccascccawcccedccacadses 1, 10

Goforth v. Smith, 991 S.W.2d 579 (Ark. 1999)......... 11

Great Lakes Wireless Talking Machine Co. d/b/a

WZSH 95 FM v. Hayes, et al., CIV-91-6140T

(W.D.N.Y. June 25, 1991).........-ceeeeseeceeceeee 10

vi

TABLE OF AUTHORITIES - Continued

Page

Head v. New Mexico Bd. of Exam’rs in Optometry,

374 US. GAG CGD) vn kic vc eac ci ccncsiceasasaaswans 2, 6

Helm v. Louisville Two-Way Radio Corp., 667 S.W.2d

G91 (Ry. 19668). onc icscsvedarscsenssdaepasiauderens 10

In Re Appeal of Graeme and Mary Beth Freeman, et

al., 975 FSupp 370 GD.Vt. 1987). oc ccccsacasdccsiy 1, 9

In the Matter of 960 Radio, Inc., 1985 FCC LEXIS

2542 (ct. BD, TOGRD nckas cccancduverensueeaesonn 11

In the Matter of Mobilecomm of New York, Inc., 2

BCCR. SOS (UG) o okcsctciasdistiseasieasin 11

Monfort v. Larson, 693 N.Y.S.2d 286 (N.Y. App. Div.

1999), leave to appeal dismissed, 705 N.Y.S.2d 7

(NY. BOGB) .00s caaseescdadaveiaceeanes eerie 11

Nat'l Broad. Co. v. United States, 319 U.S. 190 (1943)..... 6

New York v. United States, 505 U.S. 144 (1992)....... 14

Printz v. United States, 521 U.S. 898 (1997)........... 14

Smith v. Cavalry Educational Broad. Network, 783

S.W.28 S33 Glo. ABD, THs is ckatekaneuacieiases 10

Southwestern Bell Wireless, Inc. v. Johnson County

Bd. of County Comm'rs, 199 F.3d 1185 (10th Cir.

1999), cert. denied, 68 U.S.L.W. 3631 (U.S. May

90, FOB os F0nttacnesdageeee 4,9, 10, 11, 13, 15

Still v. Michaels, 791 F.Supp. 248 (D.Ariz. 1992)...... 10

Still v. Michaels, 803 P.2d 124 (Ariz. Ct. App. 1990),

review Gentea (Agia. OFA) okies ks ck dawsassanesaues 11

—_— wen

Vii

TABLE OF AUTHORITIES —- Continued

Page

United States v. Southwestern Cable Co., 392 U.S. 157

‘L,. SPPPOPPER Toe ee errr rere TC eer yr rT Terre re 6

Winfield Village Cooperative v. Ruiz, 537 N.E.2d 331

(Ill. App.), —_ denied, 545 N.E.2d -135 (Ill.

Perr error rrer ry br errr ors rete Tre 10

Youakim v. Miller, 425 U.S. 231 (1976) ............... 16

STATUTES

gf ae E.R eer reer rere Serer re rT Troe yr 5

The Federal Communications Act of 1934.......... 2, 6

OTHER AUTHORITIES

H.R. Conf. Rep. No. 97-765 (1982), reprinted in

» BIR toe ak 2 Gh RE eee 3-4, 6-9

" Rosert L. STERN ET AL., SUPREME CourRT PRACTICE

gy oF Se. | ere peers PerrTT ee rrrry Tee 16

The Tenth Amendment to the United States Con-

Roe a ee earn ake Weak awa 13, 14, 15, 16

RULES

Pod. BR. Cow. F ERE) cd TAG ons kc ccccesccizses 1

Ee

STATEMENT OF THE CASE

On August 11, 1997, the United States District Court

for the District of Vermont granted the Motion to Dismiss

filed, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), by

Respondent, NYNEX Mobile Limited Partnership 1 d/b/

a Verizon Wireless (“Verizon Wireless”).1 In re Appeal of

Graeme and Mary Beth Freeman, et al., 975 FSupp. 570

(D.Vt. 1997). Verizon Wireless based that motion on the

exclusive jurisdiction of the Federal Communications

Commission (“FCC”) over complaints of radio frequency

interference (“RFI”) lodged against all transmitting

sources. Due to this exclusive jurisdiction and because

the underlying action solely concerned RFI complaints

alleged against such sources, the District Court correctly

dismissed that action.

Upon further appeal, the Second Circuit affirmed the

District Court’s ruling, holding that the FCC’s exclusive

jurisdiction prevents any state or local authority from

taking action based on RFI complaints against any trans-

mitting source. Freeman v. Burlington Broadcasters, Inc., 204

F.3d 311 (2d Cir. 2000) (Newman, J.). The Second Circuit

also directed the District Court to modify its judgment to

reflect the affirmance of the earlier decision of the Char-

lotte, Vermont Zoning Board of Adjustment (the “ZBA”).

Id. at 325. That earlier decision also found exclusive FCC

jurisdiction over the RFI complaints that are the subject of

this action.

1 This limited partnership formerly did business as Bell

Atlantic NYNEX Mobile and Bell Atlantic Mobile.

REASONS FOR DENYING THE WRIT

The Petitioners ask this Court to ignore the well-

established body of law on which the Second Circuit and

the District Court relied and, thereby, to abrogate the

FCC’s long-standing, exclusive jurisdiction over RFI com-

plaints. However, all of the federal appellate courts that

have decided this issue have ruled that the FCC’s exclu-

sive jurisdiction in this area preempts state and local

efforts to regulate RFI. Further, all of the federal district

courts and all of the state courts of last resort that have

faced this issue have reached the same result. Finally, the

administrative decisions rendered by the FCC itself

uphold this principle unanimously.

This uniformity stems from clear statements made

over a long period of time by this Court and the Con-

gress. Indeed, this Court has consistently held that the

FCC has exclusive jurisdiction over the technical areas of

broadcasting. See, e.g., Head v. New Mexico Bd. of Exam’rs

in Optometry, 374 U.S. 424, 430 n.6 (1963) (contrasting

regulation of advertising with “the [FCC’s] jurisdiction

over technical matters such as a frequency allocation,

over which federal control is clearly exclusive”). This

jurisdiction stems from the goals and policies evident in

the Federal Communications Act of 1934 (the “FCA”). See

FCC v. Pottsville Broad. Co., 309 U.S. 134, 138 (1940) (FCA

manifests Congress’ intent to “maintain... a grip on the

dynamic aspects of radio transmission”).

Congress again expressed its intent with regard to

regulation of RFI when it amended the FCA in 1982. In a

pointed summary of its purposes in crafting those

amendments, a joint conference committee of the House

and Senate stated:

The Conference Substitute is further intended to

clarify the reservation of exclusive jurisdiction

to the [FCC] 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 Con-

ferees 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 phe-

nomena shall be imposed only by the [FCC].

H.R. Conf. Rep. No. 97-765, at 33 (1982) (the “Committee

Report”), reprinted in 1982 U.S.C.C.A.N. 2261, 2277, quoted

in Freeman, 204 F.3d at 321; Pet. App. 233a. Hence, the

legislative history of the provision in question demon-

strates Congress’ intent to preempt the field of RFI com-

plaints directed at all transmitting sources.

The RFI issues presented by this case stem from a

condition imposed by a municipal zoning board purpor-

tedly requiring a permit holder to take action to prevent

and remedy RFI complaints.2 The Second Circuit cor-

rectly followed the line of cases that have confirmed the

FCC’s exclusive jurisdiction over such complaints and

2 The ZBA found that there was “no credible evidence” that

Verizon Wireless is the cause of the RFI alleged by the

Petitioners, a finding noted by both the District Court and the

Second Circuit. In re Appeal of Freeman, 975 F.Supp at 572;

Freeman, 204 F.3d at 323 n.10.

ruled that the condition at issue is unenforceable. Free-

man, 204 F.3d at 325 (citing cases). In so doing, that court

properly applied the test developed by this Court for

field preemption. Id. at 320, citing English v. General Elec-

tric Co., 496 U.S. 72, 79 n.5 (1990).

Because of this well-established body of law, the

question presented by the Petitioners does not warrant

the grant of their Petition. Indeed, the legislative, execu-

tive and judicial branches are in complete accord that the

issue has been resolved in favor of the FCC’s exclusive

authority. Neither does this case present an issue of “first

impression” in this Court. Contrast Pet. 5 with Broyde v.

Gotham Tower, Inc., 13 F.3d 994 (6th Cir.), cert. denied, 511

U.S. 1128 (1994) and Southwestern Bell Wireless, Inc. v.

Johnson County Bd. of County Comm'rs, 199 F.3d 1185 (10th

Cir. 1999), cert. denied, 68 U.S.L.W. 3631 (U.S. May 30,

2000). In sum, Petitioners present no compelling reason

for this Court to grant the writ that they seek.

CONGRESS HAS DEMONSTRATED ITS INTENT TO

CONFER EXCLUSIVE JURISDICTION OVER RFI

INCIDENTS ON THE FCC

RFI arises when 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 a malfunction of some other electronic device.

Committee Report at *5; Pet. App. 202a.3 In this matter,

3 Hence, as an initial matter, RFI is a phenomenon that

affects the performance of devices and not a matter of “health

the Petitioners ask this Court to assert jurisdiction over

RFI complaints directed at operators of FCC-licensed

transmitters. However, the FCC has plenary and exclu-

sive jurisdiction over RFI complaints lodged against all

transmitting sources.

A. The Regulatory Regime Created by the FCA

Confers Exclusive Jurisdiction over RFI on the

FCC

Congress created the FCC with the passage of the

FCA. In section 301 of that Act, Congress explicitly stated

that its purpose in doing so was: “among other things, to

maintain control of the United States over all channels of

radio transmission . . . ” and that “Injo person shail use

or operate any apparatus for the transmission of energy

or communications or signals by radio. - - . when inter-

ference is caused by such use or operation. - - - “47 USC.

§ 301. This Court has confirmed that Congress’ intent was

to create a uniform system of federal regulation over all

technical aspects of radio transmission. Pottsville Broad.

Co., 309 U.S. at 138.

Subsequently, this Court held that one of Congress’

primary reasons for creating the FCC was to eliminate the

and safety” as the Petitioners imply. Pet. 4; Freeman, 204 F.3d at

325. Neither does RFI present issues of visibility or other

aesthetic effects. Hence, Petitioners misplace their reliance on

the cases that uphold state and local authority over such

“traditional bases” of zoning and planning as “preserving the

character of the neighborhood” and “avoiding aesthetic blight.”

Pet. 18-19; AT&T Wireless PCS, Inc. v. City Council of the City of

Virginia Beach, 155 F.3d 423, 427 (4th Cir. 1998).

“confusion and chaos” caused by the rapid increase in the

number of radio transmitters and a lack of unified,

national control. Nat'l Broad. Co. v. United States, 319 U.S.

190, 212-14 (1943); see also Head, 374 U.S. at 430 n.6; United

States v. Southwestern Cable Co., 392 U.S. 157, 168 (1968)

(FCC created to serve as “the single Government agency”

with “unified jurisdiction” and “regulatory power over

all forms of electrical communication, whether by tele-

phone, telegraph, cable, or radio”) (footnotes and internal

quotation marks omitted). This Court has not reached a

contrary result.

B. The 1982 Amendments of the FCA Extend the

FCC’s Exclusive Jurisdiction

In 1982, Congress amended the FCA to expand the

FCC’s regulatory authority to encompass devices suscept-

ible to receiving RFI. Congress observed that commercial

receiving devices were generally not vulnerable to RFI

and did not need to be regulated. However, Congress also

found that the manufacturers of consumer receiving

devices were not voluntarily building their equipment to

reject RFI:

While almost any transmitter of any service is a

potential interference source, amateur or citi-

zens band (CB) stations are very often associ-

ated with RFI problems involving electronic

devices in the home . . . Appropriate rules of the

[FCC] require all transmitters of all services,

including the transmitting sections of trans-

ceivers, to suppress spurious radiation. It has

become evident that many interference prob-

lems involving home electronic equipment and

7

systems are not fully resolvable but that resolu-

tion of some interference problems may require

action with respect to receivers and other elec-

tronic devices picking up unwanted signals.

Committee Report at *11, Pet. App. 202a-203a. In other

words, Congress now believed that it should regulate the

devices that receive RFI as well as those whose transmis-

sions cause RFI.

In deciding to exercise this regulatory authority, Con-

gress specifically examined the receiving devices that

were causing the problem. In unambiguous terms, Con-

gress placed blame on the manufacturers:

The Conferees wish to emphasize that it was its

hope that voluntary efforts by manufacturers to

reduce RFI when possible, as opposed to the use

of government regulation, would be sufficient.

Id. at *37, Pet. App. 230a. Congress further made clear

that not all manufacturers were at fault and drew a sharp

distinction between those manufacturing commercial

devices (which were adequately protected against RFI)

and those manufacturing consumer devices (which were

not):

Devices designed and marketed for use in a

commercial environment normally include nec-

essary protection against interference and do

not require [FCC] regulation. In the market for

home devices, however, good faith industry

attempts to solve this interference problem have

not always been as successful. Thus, in view of

complaints regarding home devices, the con-

ferees believe that [FCC] authority to impose

appropriate regulations on home electronic

equipment and systems is now necessary to

insure that consumers’ home electronic equip-

ment and systems will not be subject to mal-

function due to RFI.

Id. at *37, Pet. App. 230a-231a.

In other words, Congress sought to address the speci-

fic problem of RFI complaints stemming from inadequate

protection against RFI in consumer devices by expanding

the FCC’s exclusive jurisdiction to cover those devices.

That agency’s exclusive authority over transmitters had

already existed for nearly 50 years.

C. In the Course of Adopting the 1982 Amend-

ments, Congress Reiterated the FCC’s Exclusive

and Plenary Jurisdiction Over All RFI Matters

Even as it broadened the FCC’s authority in this

manner, Congress reemphasized that the FCC retained

exclusive jurisdiction over RFI complaints against all

transmitting sources:

[T]he conferees wish to clarify that the exclusive

jurisdiction over RFI incidents (including pre-

emption of state and local regulation of such

phenomena) lies with the FCC.

The Conference Substitute is further

intended to clarify the reservation of exclusive

jurisdiction to the [FCC] over matters involving

the 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.

Id. at *15, *39, Pet. App. 207a, 233a. Hence, the distinction

urged by the Petitioners - for RFI complaints against

transmitters based on interference to consumer devices

rather than business devices - has no relevance to this

case. The FCC has exclusive jurisdiction over RFI com-

plaints directed at all transmitting sources.* Indeed, when

confronted with these unambiguous statements of legisla-

tive intent at oral argument below, Petitioners conceded

that the distinction between consumer and business

devices makes no difference. App. 90a-91a.

D. Cases Decided After the 1982 Amendments

Uphold the FCC’s Exclusive Jurisdiction over

RFI

In the intervening years, several courts have held

that the FCC continues to have exclusive jurisdiction over

all RFI complaints against FCC licensees. See Broyde v.

Gotham Tower, Inc., 13 F.3d 994 (6th Cir.) (FCC has exclu-

sive jurisdiction over the regulation of RFI), cert. denied,

511 U.S. 1128 (1994); Southwestern Bell Wireless, Inc. v.

Johnson County Bd. of County Comm'rs, 199 F.3d 1185 (10th

Cir. 1999) (rejecting contentions that 1996 amendments to

FCA alter FCC’s exclusive jurisdiction over RFI in context

of local land use permit condition), cert. denied, 68

4 Given the prevalence of personal computers at work, fax

machines at home and the like, this distinction would prove

extremely difficult to apply in practice. See Freeman, 975 F.Supp.

at 575 (reference to “computers in the home” and “computers at

work”).

10

U.S.L.W. 3631 (U.S. May 30, 2000); Freeman v. Burlington

Broadcasters, Inc., 204 F.3d 311 (2d Cir. 2000) (decision

from which Petitioners have sought review); Great Lakes

Wireless Talking Machine Co. d/b/a WZSH 95 FM v. Hayes, et

al., CIV-91-6140T (W.D.N.Y. June 25, 1991) (operators of

FCC-licensed transmitters answer only to FCC regarding

RFI matters); Still v. Michaels, 791 F.Supp. 248 (D. Ariz.

1992) (all claims that would obstruct FCC’s ability to

regulate radio frequencies are preempted); Blackburn v.

Doubleday Broad. Co., 353 N.W.2d 550 (Minn. 1984) (sub-

ject matter of RFI lies within FCC’s exclusive jurisdic-

tion); Helm v. Louisville Two-Way Radio Corp., 667 S.W.2d

691 (Ky. 1984) (state court lacks jurisdiction to control,

regulate or prohibit radio transmissions of an FCC-

licensed transmitter that interfered with county police

radio communications system - non consumer devices);

Smith v. Cavalry Educational Broad. Network, 783 S.W.2d

533 (Mo. App. 1990) (FCC has exclusive jurisdiction over

> In Still, the district court ruled that federal preemption

deprived all courts of subject matter jurisdiction over RFI claims

directed at amateur radio operators. Id., 791 F.Supp. at 251-53;

but see Winfield Village Cooperative v. Ruiz, 537 N.E.2d 331 (Il.

App.) (court allows landlord to maintain eviction action against

tenant/amateur radio operator who caused RFI), appeal denied,

545 N.E.2d 135 (Ill. 1989). It appears that no court has followed,

or even cited Winfield Village, other than to distinguish it and

limit its holding. See Southwestern Bell, 199 F.3d at 1192

(attributing holding of Winfield Village to fact that breach of

contract action is “private in nature” and does not involve state

regulation). Further, the Winfield Village court allowed claims of

RFI affecting consumer devices to stand, a position that even the

Petitioners concede is untenable. Compare id., 537 N.E.2d at 331

(interference with “consumer electronic equipment”) with Pet.

22.

11

complaints of RFI to electrical and electronic appliances

located in plaintiffs’ homes or businesses); Still v.

Michaels, 803 P.2d 124 (Ariz. Ct. App. 1990) (“federal

regulation of [RFI] matters is exclusive”), review denied

(Ariz. 1991); Fetterman v. Green, 455 Pa. Super. 639, 689

A.2d 289 (Pa. Super. Ct.) (upholding federal RFI preemp-

tion after enactment of 1996 amendments to FCA), appeal

denied, 695 A.2d 786 (Pa. 1997); Monfort v. Larson, 693

N.Y.S.2d 286, 289 (N.Y. App. Div. 1999) (“radio signal

interference at issue sub judice falls within the FCC’s

technical domain”), leave to appeal dismissed, 705 N.Y.S.2d

7 (N.Y. 2000); cf. Goforth v. Smith, 991 S.W.2d 579 (Ark.

1999) (state law action to remedy environmental effects of

RF emissions preempted).

Significantly, the FCC’s administrative rulings have

reached the same result. See In the Matter of 960 Radio,

Inc., 1985 FCC LEXIS 2342, at *78-85 (Oct. 29, 1985) (“fed-

eral power in the area of [RFI] is exclusive; to the extent

that state or local government attempts to regulate in this

area, their regulations are preempted”); In the Matter of

Mobilecomm of New York, Inc., 2 F.C.C.R. 5519 (1987) (the

FCA comprehensively regulates RFI and occupies that

field); Southwestern Bell, 199 F.3d at 1192 (courts defer to

FCC decisions that address preemption of local regula-

tion of RFI issues), citing City of New York v. FCC, 486 U.S.

57, 64 (1988).

E. The Abrogation of this Body of Law, for which

the Petitioners Argue, Would Create an

Unworkable Set of Conflicting Regulations

In addition, a core purpose of the FCC would be

stymied by allowing each state and locality to formulate

12

its own technical standards in the complex area of RFI

and the resulting imposition of liability on FCC licensees.

If such an outcome were allowed, operators of radio

transmitters and the public would soon face inconsistent

and conflicting technical standards.

Such a regime would pose special difficulties for the

operator of a multi-state, wireless communications net-

work such as Verizon Wireless. The provision of a uni-

form quality of service would be impossible if such

service providers faced varying technical regulations in

each municipality in which they operated. Indeed, the

chaos and confusion that Congress attempted to eliminate

when it created the FCC would carry the day.

II.

THE SECOND CIRCUIT CORRECTLY APPLIED THE

CIPOLLONE FIELD PREEMPTION TEST

Acknowledging that Cipollone v. Liggett Group, Inc.,

505 U.S. 504 (1992), states the applicable test for field

preemption, Petitioners nevertheless claim the Second

Circuit “failed to apply the test properly.” Pet. 8. A brief

review of the Second Circuit’s field preemption analysis

confirms that the Court correctly applied the Cipollone

test.

Initially, the Second Circuit recognized that congres-

sional intent is the “ultimate touchstone” in preemption

analysis. Freeman, 204 F.3d at 320, quoting Cipollone, 505

U.S. at 516. Having properly laid out the test and guide-

lines for field preemption, the Second Circuit

exhaustively analyzed the applicable statutes, legislative

history, FCC regulations and that agency’s interpretation

13

of the scope of preemption. Freeman, 204 F.3d at 320-22.

That Court then addressed and rejected Petitioners’ argu-

ments that federal law authorizes local regulation of RFI.

Id. at 322-25. After engaging in this comprehensive field

preemption analysis, the Second Circuit correctly con-

cluded that:

[a]llowing local zoning authorities to condition

construction and use permits on any require-

ment to eliminate or remedy RF interference

stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of

Congress in delegating regulatory power to the

FCC for uniform regulation of broadcast tech-

nologies.

Id. at 325 (internal quotation marks and citations omit-

ted); accord Southwestern Bell, 199 F.3d at 1193-94 (“the

statutes and legislative history support Congress’s intent

to occupy the field of RFI issues”).

Ill.

THE TENTH AMENDMENT PRESENTS NO BARRIER

TO THE APPLICATION OF FIELD PREEMPTION IN

THIS CASE ;

A. Field Preemption Does Not Violate the Tenth

Amendment

Petitioners appear to argue that all types of implied

preemption, including field preemption, violate the Tenth

Amendment per se. See Pet. 10, 12 (contending that Con-

gress’ alleged failure to “affirmatively act” to preempt

state regulation of RFI causes the parties to “drop into the

safety net of the Tenth Amendment,” and that therefore

“the zoning laws of the small Vermont town of Charlotte

14

are the authority that rules this application”). This Court

has never reached such a result, and the decided cases

lead to the opposite conclusion. See Printz v. United States,

521 U.S. 898, 919 (1997) (the Tenth Amendment expressly

confirms the residual state sovereignty implicit in

“the Constitution’s conferral upon Congress of not all

governmental powers, but only discrete, enumerated

CE. ok s-"h

Indeed, the Tenth Amendment provides only that

“[t]he 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.” U.S.

Const., AMEND. 10. This Court has described that Amend-

ment as “essentially a tautology,” which merely confirms

that “the power of the Federal Government is subject to

limits that may, in a given instance, reserve power to the

States.” New York v. United States, 505 U.S. 144, 157 (1992).

As a corollary, is settled law that:

[iJn the absence of an express congressional

command, state law is pre-empted if that law

actually conflicts with 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.”

Cipollone, 505 U.S. at 516 (internal quotation marks and

citations omitted). There is nothing incongruous about a

system of residual state sovereignty in which federal law

can impliedly occupy an entire legislative field. As this

Court has explained:

Pre-emption may be either express or implied,

and “is compelled whether Congress’ command

is explicitly stated in the statute’s language or

15

‘

implicitly contained in its structure and pur-

pose.” Absent explicit pre-emptive language,

Congress’ intent to supersede state law alto-

gether may be inferred because .. . “the Act of

Congress may touch a field in which the federal

interest is so dominant that the federal system

will be assumed to preclude enforcement of

state laws on the same subject,” or because “the

object sought to be obtained by federal law and

the character of obligations imposed by it may

reveal the same purpose.”

Fidelity Fed. Sav. & Loan Ass‘n v. de la Cuesta, 458 U.S. 141,

152-53 (1982) (citations omitted). Hence, field preemption

continues to be a viable doctrine, fully applicable to this

case. See Crosby v. Nat'l Foreign Trade Council, No. 99-474,

2000 WL 775550, at *6 (U.S. June 19, 2000) (“When Con-

gress intends to occupy the field, state law in that area is

preempted.”) (citations and internal quotation marks

omitted); see also Southwestern Bell, 199 F.3d at 1193-94

(rejecting argument that field preemption of RFI violates

the Tenth Amendment); cf. Cellular Phone Taskforce v. FCC,

205 F.3d 82, 96 (2d Cir. 2000) (rejecting argument that

exclusive jurisdiction of FCC over radio frequency radia-

tion violates the Tenth Amendment).

B. Petitioners Did Not Preserve Their Tenth Amend-

ment Argument Below.

Petitioners’ avowal that their constitutional argument

was “briefed and argued” to the Second Circuit is incor-

rect. Pet. 12. Neither of the two fleeting Tenth Amend-

ment references in Petitioners’ Second Circuit briefs

asserts that the field preemption doctrine is unconstitu-

tional or explains why that Amendment applies to this

case. App. 9a, 22a. Further, Petitioners never so much as

16

mentioned the Tenth Amendment during the Second Cir-

cuit oral argument. Id. 73a-92a. Petitioners’ failure to

make the constitutional argument below supplies an

ample basis to deny certiorari on the issue. See, e.g.,

Youakim v. Miller, 425 U.S. 231, 234 (1976) (“[o]rdinarily,

this Court does not decide questions not raised or

involved in the lower court”); Rosert L. STERN ET AL.,

SUPREME Court Practice § 6.26, at 364 (6th ed. 1986).

¢

CONCLUSION

For all of the foregoing reasons, Respondent, Verizon

Wireless respectfully requests that this Honorable Court

deny the Petition.

Respectfully submitted,

BRIAN J. SULLIVAN

Counsel of Record

Danie. A. SEFF

Burak ANDERSON & MELLONI, PLC

30 Main Street, P.O. Box 787

Burlington, VT 05402-0787

(802) 862-0500

Attorneys for Respondent

NYNEX Mobile Limited

Partnership 1 d/b/a

Verizon Wireless

la

APPENDIX

97-9141

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Graeme Freeman, Mary Beth Freeman, )

Frank Ittleman, Elaine Ittleman, Mike )

Fournier, Holly Fournier, Ellen Lane, )

Willaim 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. )

Plaintiffs-Appellants

vs. )

)

)

)

)

)

)

)

Burlington Broadcasters, Inc. dba

WIZN, Charlotte Fire & Rescue

Services, Inc. and NYNEX Mobile

Limited Partnership 1 dba Bell Atlantic

NYNEX Mobile

Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF VERMONT

APPELLANTS’ BRIEF

Gerald R. Tarrant

Tarrant, Marks & Gillies

P.O. Box 1440

Montpelier, Vermont 05602-1440

(802) 223-1112

2a

TABLE OF CONTENTS

Page

BAe GP Aas ee oc cewedscideseansainee ii

PRELIMINARY STATEMENT OF UNDERLYING

SING 6.06020 60ebndacnda'essbssien ee 1

STATEMENT OF THE SUBJECT MATTER AND

ATT RAAAEE Pasar Bees so ccccsvssdsccescuce 1

STATEMENT OF THE ISSUES PRESENTED FOR

PEN UEOE 0cccccncddvcnasesksonuedease eee 2

1. No Federal Authority to Regulate

2. Siting of Telecommunications Towers

a Local Matter

3. Local Enforcement Decision

STATEMENT OF THE CASE....................... 3

1. Procedural Case History ................... 3

2. BRE Oe TRIO 6 oc 6h0 486 cs dee ee 5

PEE, 6 64.6K0d600ddnebtkkanee Lee 10

B. - ONO o i.c a 'tcaccdenii ean 10

S Danone of Beebe iiciccidéccccucauec 11

A. The Tenth Amendment Reserves

Powers to The States.............. 12

B. Preemption Is Not Applicable ...... 12

C. Field Preemption Is Not Applicable 13

D. There Is A Presumption Against Pre-

GUNUER 0.0.0 0.nss casccsctacsessancssae 14

E. Clear Statement/Plain Meaning Rule

REIN «os ses cennecéancunacdaanene 14

3a

3. The FCC is Not Authorized to Regulate Busi-

ness Electronic Equipment ................. 17

A. The Plain Meaning Demonstrates

the FCC Is Without Authority ..... 19

B. Legislative History Proves No FCC

ESTE Terereeeee 19

4. The ZBA Has Authority to Regulate Ques-

RE en nee 24

A. The 1996 Amendments............. 24

= oecees woe OF the Act ............. 25

C. Permittees Are Jointly Liable....... 26

D. The Neighbors’ Remedies Are Not

Availabie at the FCC ............;. 27

5. Fraud and Deceit Are Independent Causes of

CEs 6 66d 5 asc eens siasces 28

CEG Shedd i deebes sends edevscces. 30

TABLE OF AUTHORITIES

CASES:

Appeal of Graeme, 975 F.Supp. 570 (D.Vt. 1997)........ 1

A.T. & T. Wireless v. Virginia Beach, Nos. 97-2389,

97-2513, 19938 WL 55366 (4th Cir. Va.)

Blackburn v. Doubleday, 353 N.W.2d 550............ 21,22

Brocket v. Spokane Arcades, Inc., 472 U.S. 491 (1985) .... 16

Broyde v. Gotham Tower, Inc., 13 F. 3d 997 ....14, 16, 26

Cipoillone v. Liggett Group, Inc., 505 U.S. 504 (1992)

SMES OSS GEE Es Oe a a2, 13, 14, 15, 2%

da

Commercial Mortg. Ins. Inc. v. Citizens Nat. Bank of

Dallas, D.C. Tex., 526 F.Supp. 510 (1981) .......... 25

Conley v. Gibson, 355 U.S. 41 (1957) ............2000% 12

Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42

ee SN SUEDE Ku ANG OS SRK iG on bp adeaes ke dbaieebasss 11

Cosmas v. Hassett, 886 F.2d 8 (2d Cir. 1989)....... 11, 12

Dalton v. Little Rock Planning Services, 516 U.S. 474

CEPI 6 6865500 a nGiisnedh Way aOabodede eee sRidkite dia 15

English v. General Electric Co., 496 U.S. 72 (1990)..... 16

Fetterman v. Green, et al., 689 A.2d 289 (Pa. Sup. Ct.

insess Min Mii EEOC TEE eT PETE 21

Geisler v. Petrocelli, 161 F.2d 636 (2d Cir. 1980) ...... 11

Goldstein v. Bombardier Capital, Inc., 889 F.Supp.

FOP CEWTOD 0.5.0 c 0s g iahnaed a cuaes sb nnkeans wineadaes 15

Great Lakes Wireles Talking Machine Company d/b/a

WZSH 95 FM v. David Hayes, et.al., No. 91-6140T,

GRWMEsMs BOOED os aes vine ns cenedes eienneabads 14, 16, 26

Hardwick-Morrison v. Albertsson, 158 Vt. 145, 605

PR Es baa Waa ph aca cch erie ns 30

Head v. New Mexico Board of Examiners in Optome-

ST, Dee Wet MPO COON 6 ha Se nccbvsessceaves seus 24, 28

Helm v. Louisville Two-Way Radio Corp., 667 S.W.2d

oe a Repeat eer arate en erence wer rete 20, 21

5a

In re Long Distance Telecommunications Litigation,

GS) Fie GEF COUN GE, BPG). ccc ccvncsccsecsses

John Hancock Mutual Life Insurance Co. v. Harris

Trust & Savings Bank, 114 S.Ct. 517, 126 L.Ed.2d

ge ROP eT erreT rT Terre ePeyTTOLTe PTT Tee

Keene Co. v. United States, 508 U.S. 200 (1993)....

McCullough v. State of Maryland, 4 Wheat. 406,

DG OP BRO 6 ahs sb es sn ces cecnancssenesice

Moccio v. New York State Office of Court Admin., 95

JB. ge eB, | rer rrr errr rrrre

Pacific Gas and Electric Company, 461 U.S. 190

POPPE PE Ese rer ry oe rie TTT ey ror ree er ry

Presseault v. I.C.C., 494 U.S. 1 (1990) .............

Proctor Trust Co. v. Upper Valley Press, 137 Vt. 346,

Ce Fe BES GROG) oe de ccccsvnerecvcscccssaes

Samuels v. Air Transport Local 504, 992 F .2d 12 (2nd

PPP PEC PrrrereTrrerrecrrerrrerre cry

Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101

Bi; Se ee IR 5 6 os ot ehhe ca ce aense die cccens

Securities Industry Association v. Connolly, 883 F.2d

1114 (1st Cir. 1989), 110 S. Ct. 2559 (1990) .....

Secretary, Vermont Agency of Natural Resources v.

Handy, 163 Vt. 476, 660 A.2d 312 (April 14, 1995) ....

Smith v. Calvary Educational Broadcasting Network,

783 S.W. 2d 533 (Mo. App. 1990) ..............

State v. Sanguinetti, 141 Vt. 349, 449 A.2d 922

6a

Trustees of the D. cese of Vermont v. State, 145 Vt.

510, 006 A.2G IGE cidsessh cs Ae ae 12

United States v. Am. Trucking Ass‘n., Inc., 310 U.S.

S34 (196B).. ccccadcadevaddcecnscaueennee eee ww

United States v. Bass, 404 U.S. 336 (1971) ............ 15

United States v. Darby, 312 U.S. 100 (1941)........... 13

United States v. Skinna, 931 F.2d 530 (9th Cir. 1990) .... 12

Yoder v. Orthomolecular Nutrition Institute Inc., 751

F.2d 595 (26 Cle. 1000D oc uicsicnks cee 12

STATUTES

28 USL. § 2BB .occcsiccaasissssesse eee 25, 26

28 USC. § 2998 esc inccsncscssuusssieeee eee 1

28 U.S.C. § 2608QD oc is cencevesssdsss3 scene 1

42 USC. § 2908... cacccconssvucndscuus eee 7

42 USC. § 2908... 020ccs0ccss+ss-0sas ee 7

47 USC. GB 191-G8B..occccisssssseseusas eee 1, 4

47 USC. © BSB oo osceecaccue-tsias:4sese 28

47 USC. § SORAMD. . .ccccscsicsss eee 2, 13, 24

47 USC. § Manta. «0.465: 17, 18, 26

47 USC. § MAD cos icddecia cane 10

47 USC. 6 BBB. .0ons<sctensscs5s 5 22

47 U.S.C. § TORRID 0.66 05005 sse ens eee 25, 28

24 VS.A. § 406MaD. ..00cccescssssussaess eee 4

24 VS.A. § GOGOUDD o00scccceckscsessuee ee eee 4

24 VS.A. © FO... 6s cencestarsess2se55seee eee 4

RULES

Le eS Bk) ee err re 4, 10

8 ae See 8 errr rrr errr errr 4, 10, 12

CONSTITUTIONAL PROVISIONS

United States Constitution, Tenth Amendment..... 2, 12

OTHER AUTHORITIES

Tribe, Laurence H., American Constitutional Law...... 14

Guidelines for Evaluating the Environmental Effects

Cr MTURUPACY RAGIALION...........2000ccccccees 16

U.S. Code Cong. & Admin. News, 97th Cong. 2nd

CRG hey iui GaN od Coach KECAM ECU tOb de 40s 20

ERE CS a ene er ee ee

Pate Meets SOctlOn 75.516... 2. cccsscccssccces 27

PRELIMINARY STATEMENT OF

~ UNDERLYING DECISION ~

Appellants (the Neighbors) seek review of an Opin-

ion and Order of the U.S. District Court for the District of

Vermont, dated August 8, 1997 (Order filed August 11,

1997), (Sessions, C.J.) granting Appellee Bell Atlantic

NYNEX Mobile’s (BANM’s) motion to dismiss for lack of

subject matter jurisdiction. Appeal of Graeme, 975 F.Supp.

570 (D.Vt.1997).1 The Neighbors opposed the motion on

two primary grounds: (1) that Congress had not granted

the FCC authority to oversee radio frequency interference

(RFI) of business electronic equipment and (2) that the

1 This is the way the case is cited by the federal reporter

system. It should read, Appeal of Graeme Freeman et al.

8a

authority to locate appropriate sites for telecommunica-

tions towers is local in nature and these matters are

reserved to the states and therefore not preempted by the

FCC.2

STATEMENT OF THE SUBJECT MATTER AND

APPELLATE JURISDICTION

This case raises a claim under the Federal Communi-

cations Act of 1934 (as amended), 47 U.S.C. §§ 151-613

(1991 and Supp. 1997). The case began with a ruling of

the Charlotte, Vermont Zoning Administrator, which was

appealed to the Charlotte Zoning Board of Adjustment

and then to the Vermont Environmental Court. Pursuant

to 28 U.S.C. §§ 1441(b), Appellees removed the case to the

United States District court claiming the federal court had

original jurisdiction founded on a claim arising under the

Constitution, treaties or laws of the United States. The

Neighbors timely filed this appeal. This Court has appel-

late jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

PRESENTED FOR REVIEW

This appeal raises three principal issues, each of

which turns on a question of fact or law.

1. No Federal Authority to Regulate. In granting

the Appellee’s motion to dismiss, did the District Court

erroneously rule that the local zoning order approving

the location of the WIZN tower on the condition that the

2 Fraud and deceit, as independent state claims, were

raised below and alone justify a denial of the motion to dismiss.

———

9a

permittee’s antenna not cause interference was pre-

empted by the Telecommur ‘cations Act of 1934 (as

amended)? The Neighbors believe the Act grants the

Federal Communications Commission (FCC) no authority

over radio frequency interference for business electronic

equipment. 47 U.S.C. § 302a(a).°

2. Siting of Telecommunications Towers a Local

Matter. In granting the Appellee’s motion to dismiss, did

the District Court erroneously conclude that states and

towns have no authority to regulate the location of

towers under traditional zoning concepts or to impose

reasonable conditions over users and permittees of tele-

communications towers to prevent or limit undue RFI

over local businesses, schools and institutions? The

Neighbors believe that preemption of state or local law

cannot be inferred by law in this case and that the power

to regulate the location of telecommunications towers is

reserved to the state as promised by the Tenth Amend-

ment to the U. S. Constitution.

3. Local Enforcement Decision. In granting the

Appellee’s motion to dismiss, did the District Court erro-

neously conclude that fraud and deceit were not raised

below and so have no place in this case? The Neighbors

disagree with this conclusion.

3 Appellees argued that Appellants have a remedy for their

problems with interference through the FCC. As a subset of this

argument, Appellants will demonstrate that no relief is

available through the FCC. See p. 18 infra.

10a

STATEMENT OF THE CASE

I. Procedural Case History

This case arises out of various local permitting deci-

sions allowing the construction and location of a telecom-

munications tower owned by Charlotte Volunteer Fire &

Rescue Service (CVFRS) and used by CVFRS and Bur-

lington Broadcasters, Inc. d/b/a WIZN, and more

recently by NYNEX MOBILE LIMITED PARTNERSHIP 1,

d/b/a Bell Atlantic NYNEX Mobile.

In 1986 the local zoning authority denied the co-

application by WIZN and CVFRS to construct a telecom-

munications 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

interference (RFI) where it was proposed to be located. A

representative of the co-applicants stated that there

would be no interference and if there was they “would

trap it out.” Appendix 119. This became a condition of the

zoning permit issued January 7, 1987. Id.

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

lla

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] inter-

ference (“RFI”) with electrical devices in homes and busi-

nesses throughout the town.” Appendix 125.

CVRFS, WIZN and BANM filed a timely appeal of

the zoning administrator’s decision with the Charlotte

Zoning Board. Vt. Stat. Ann. tit. 24 § 4464(a) (Supp. 1996).

The Neighbors made their appearance as parties to sup-

port the zoning administrator’s decision. Vt. Stat. Ann.

tit. § 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 abil-

ity of Charlotte residents to communicate, transact busi-

ness, and experience the peaceful enjoyment of their

homes and property.” Nevertheless, the ZBA dismissed

the notice of violation because it found that Congress

intended to maintain federal jurisdiction over RFI phe-

nomena and that the ZBA was without authority to regu-

late such interference.

On August 8, 1996, the Neighbors filed a Notice of

Appeal of the ZBA decision to the Vermont Environmen-

tal Court. Vt. Stat. Ann. tit. § 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 origi-

nal jurisdiction founded on a claim arising under the

Federal Communications Act of 1934 (as amended), 47

U.S.C. § 151 et seq.

12a

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 Neigh-

bors’ zoning appeal. CVRFRS 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.

The Neighbors filed this appeal on September 8,

1997.

II. Statement of Facts

The Neighbors are residents of the Town of Char-

lotte, Vermont, a small town approximately 12 miles

south of Burlington, Vermont of about 3,200 people. They

have experienced severe and continuing radio frequency

interference of home and business equipment for the past

ten years. This interference adversely affects their busi-

nesses, church and school. Their story began approxi-

mately twelve years ago.

In late 1986, WIZN, a commercial broadcaster operat-

ing an FM radio station under a license from the Federal

Communications Commission (“FCC”) and CVFRS jointly

applied to the Town of Charlotte for a zoning permit to

construct a 199 foot radio transmission tower on Pease

Mountain. Initially, the Zoning Board denied WIZN’s

application because it was located outside the commercial

area. Appendix 119. Following the initial denial, WIZN

filed a new application.

— eee ieeneneenesieseeneenensomenns

Ce re eee Ot ee are See

13a

The ZBA considered WIZN’s second request for a

permit at a public hearing on December 23, 1986. At the

hearing, concerns were raised about interference to the

community from the proposed WIZN tower. WIZN’s rep-

resentative, Michael Calhoun, addressed these concerns

by stating to the ZBA, “[T]here will not be any interfer-

ence and if there is, WIZN will trap it out.” Id.

Based on the representations made by WIZN, the

ZBA orally granted WIZN and CVERS conditional use

approval to construct the communications tower, subject

to certain conditions. On December 24, 1986, the Zoning

Administrator issued Zoning Permit No. 86-136-JO, lst-

ing WIZN as lessee of Henry and Marion Lane’s property.

The minutes state that “any other antennas authorized in

Charlotte — the last one in does an intermodulation study

and solves problems, if any.” Id.

On January 7, 1987, the ZBA issued its Findings of

Fact and Decision granting conditional use approval.

Appendix 121. The Findings specifically found that any

interference with reception because WIZN began broad-

casting “will be remedied by WIZN.” WIZN did not

appeal the permit.4

Following the issuance of the permit, WIZN con-

structed the tower. Immediately thereafter, WIZN con-

veyed tower ownership to CVFRS. WIZN then signed a

twenty-year lease agreement with CVFRS. On or about

4 Under Vermont law, the failure to appeal a decision of the

ZBA binds all parties to the decision and prohibits them from

raising such issues in subsequent cases. Vt. Stat. Ann. tit.

§ 4472(a) (Supp. 1996); Town of Charlotte v. Richmond, 158 Vt. 354,

356, 609 A.2d 638, 639 (1992).

l4a

April 17, 1987, WIZN began broadcasting from the tower.

Interference within the town was noticed almost imme-

diately and complaints were made to WIZN.

On October 16, 1991, the ZBA held a hearing on a

proposal by CVFRS and Contel Cellular of Vermont

(BANM’s predecessor) to construct four whip antennas

on the CVFRS/WIZN tower. During the hearing, mem-

bers of the ZBA inquired as to whether Contel’s proposal

would create interference. In response to these inquiries,

a representative of Contel Cellular, Charles Cannata,

stated that “there would be none.” Appendix 124. The

permit was orally granted, subject to certain conditions.

Mr. Cannata’s assurances that there would be no interfer-

ence was reflected in the October 28, 1991, Findings of

Fact and Notice of Decision (Finding No. 4) issued by the

ZBA. Id. Contel did not appeal the permit or its condi-

tions.

Contel Cellular failed to conduct an intermodulation

study following its construction of the four whip

antennas as required by the underlying zoning permit

approved in 1986.5

> An intermodulation study is a condition of the January 7,

1987 zoning permit, paragraph 7. Appendix 121.

“Intermodulation” is also known as “cross-talk,” and it occurs

“where dual broadcasts and harmonics are produced from one

frequency interacting with another.” Dwight H. Merriam,

“Dealing with Locally Unwanted Land Uses (LULUS): Wireless

Communications Facilities, ‘Super’ Service Stations, ‘Satellite’

Fast Food Restaurants, etc.,” American Law Institute (1991),

124.

15a

On April 5, 1996, after receiving complaints from

residents and businesses that the co-permittees’ had

failed to comply with their permit conditions, the Zoning

Administrator issued a Notice of Zoning Violation to

Henry Lane, CVFRS, WIZN and BANM directing the

parties to discontinue the violation and take the appro-

priate remedial action. Appendix 125-27. The Notice of

Violation cited the continuous and widespread problems

experienced in “homes and businesses throughout the

town” caused by interference from transmissions from

the tower.

On April 18, 1996, WIZN appealed the Notice of

Zoning of Violation to the ZBA. Soon thereafter, BANM,

CVFRS, and the Lane family joined in the appeal.

Immediately after the appeal was taken but prior to

the public hearings, BANM and WIZN filed memoranda

with the town explaining their right to file civil claims for

attorney’s fees pursuant to 42 U.S.C. §§ 1983, 1988. See

BANM Supplemental Memorandum (5/21/96), 8; WIZN

Memorandum of Law (5/22/96), 10-11. Attachments A &

B.

At public hearings conducted on May 22, 28, and 29,

1996, the ZBA heard extensive testimony from Charlotte

residents, doctors, church officials, and school adminis-

trators regarding the pervasiveness of the interference

problem. Several members of the local business commu-

nity testified. For example, Dr. Frank Ittleman, Chief of

Staff of the Cardiolothoracic Unit at Fletcher Allen Health

Care, in Burlington, Vermont, a Charlotte resident, stated

that he experiences difficulties while dealing with

patients due to WIZN broadcasting from the tower. Dr.

l6a

Ittleman is consistently interrupted by WIZN radio

broadcasting while speaking on the telephone with

patients. Appendix 192-93. Pastor Mark Bolles of the

Charlotte Congregational Church testified that WIZN

could be heard over the public address system and

through head-sets worn by hearing-impaired par-

ishioners during Sunday services. Appendix 128. Holly

Fournier of Mutual Fund Strategist, Ltd. stated that she

experiences interference in her home, as well as in her

business electronic equipment such as business com-

puters, telephones, telephone systems, televisions and a

postage meter. Appendix 130.

Guy Alderdice, Technology Coordinator for Charlotte

Central School, testified during the hearings. Mr. Alder-

dice stated that the Town had invested over $400,000 in

computers, cable television, and other technology for the

school. This equipment continuously malfunctioned, con-

sumed teachers’ time, and most notably, affected stu-

dents’ learning. The school was incurring on-going

additional expenses for equipment and repairs due to

interference with their equipment. Appendix 132.

Dr. Denise Kessler, D.V.M., owner of a local veterin-

ary clinic, testified that interference from the tower ren-

ders the clinic’s Audio Patient Monitor useless. Dr.

Kessler stated that “[t]he audio from WIZN is sometimes

as loud as the patient heartbeat during anesthesia” result-

ing in “increased expenses as it is necessary for an assis-

tant to monitor the patient’s heartbeat when the Audio

Patient Monitor is unusable.” Appendix 133.

Frederic Lowen stated in his affidavit that “interfer-

ence problems acted as a thorn in my side for many years

17a

and contributed to my decision to close Vermont Custom

Heating, Inc. in September 1996.” Appendix 135.

Mary Beth Freeman stated in her affidavit that she

was unable to conduct her consulting business due to

interference with her equipment. Appendix 202.

In response to these and other complaints, WIZN

admitted that it had received approximately 26 com-

plaints during its first two years of operation and a

limited number of additional complaints until 1995.

Appendix 140.

During the course of the zoning board hearings a

group of Charlotte citizens presented the ZBA with

copies of questionnaires distributed to local residents and

businesses during a recent survey. Eighty-eight respon-

dents indicated that they experienced interference prob-

lems in their home or business.®

During the hearings, the ZBA also heard from a

variety of experts. First, David Groth, WIZN’s technical

consultant, presented his report entitled: “Engineering

Report, WIZN-FM Site, Pease Mountain, interference

Study and Recommendations,” May 10, 1996. Appendix

204-7. Fred Lavenberg, WIZN’s Chief Engineer, testified

that the general interference is being caused by WIZN

based on hearing or detecting WIZN music. Lavenberg

was unable to identify the cause of the interference where

WIZN audio was not heard.

* The Town of Charlotte is a rural community comprising

about 3,200 residents in an area of about 36 square miles.

18a

Finally, Mark Hutchins, Broadcast Engineer, testified

on behalf of the residents that WIZN’s operations at the

Pease Mountain site cause interference. Hutchins testified

that WIZN knew or should have known in 1986 that its

operations at this site would cause significant interfer-

ence with residents, businesses, and institutions within

the Town of Charlotte. He testified WIZN knew or should

have known in 1986 that the interference could not easily

be corrected and in many instances was not correctable

without moving its antenna or significantly reducing the

power. Hutchins testified that the addition of CVFRS’ and

BANM’s operations on the tower could only have exacer-

bated the emission and interference problems. Appendix

146-47. He also identified sections of the FCC rules that

expressly decline to preempt state and local authority

over RF exposure matters or health and safety matters.

Appendix 199, 200.

On July 11, 1996, the ZBA issued a Notice of Decision

concluding that despite the reported interference causing

“continuous and widespread RFI that has impaired the

ability of Charlotte residents to communicate, transact

business, and experience the peaceful enjoyment of th

homes and property,” the ZBA lacked jurisdiction to reg-

ulate such interference. Appendix 137-45. The Neighbors

appealed the Notice of Decision to the Vermont Environ-

mental Court. WIZN, BANM, CVFRS, and the Lane fam-

ily removed the appeal to the District Court. WEN filed a

motion to dismiss under Fed.R.Civ. P. 12(b)(6). BANM

19a

filed a similar motion citing Fed.R.Civ.P. 12(b)(1)” and

12(b)(6).

ARGUMENT

I. Introduction

The District Court ruled in favor of BANM’s motion

to dismiss. It found federal preemption over local author-

ity to regulate the location of telecommunications towers

conditioned on the elimination of interference through

zoning. Although the Court found no express preemption

of local authority over the regulation of business elec-

tronic equipment, it found preemption by inference.

Where “technical and engineering impediments” are

involved in radio transmissions, the Court found the FCC

enjoys exclusive authority. Appendix 350-51.

The Court also concluded that the actions of Char-

lotte town officials did not constitute decisions “regard-

ing the placement, construction, and modification of

wireless facilities,” ruling out local jurisdiction as pro-

vided in 47 U.S.C. § 332(c)(7). It held that the offenses the

local authorities reviewed were exclusively related to RFI,

which is preempted. Appendix 354-55. Such complaints

7 BANM moved to dismiss action pursuant to Fed.R.Civ.P.

12(b)(1) for lack of subject matter jurisdiction. In its September

6,, 1996 Notice of Removal, BANM asserted that the District

Court had subject matter jurisdiction over this case pursuant to

28 U.S.C. § 1331. Section 1331 states: “the district courts shall

have original jurisdiction of all civil actions arising out of the

Constitution, laws, or treaties of the United States.” 28 U.S.C.

§ 1331. It is absurd that BANM then turned around and argued

successfully that the federal court lacks subject matter

jurisdiction.

20a

as the Neighbors have here ought to be raised before the

FCC, according to the Court, not in a local zoning forum.

Appendix 359.

The Neighbors respectfully disagree with each of

these conclusions of law, based on the statutory authority

granted by Congress to the FCC. They have found no case

supporting preemption of local authority to regulate the

siting of towers for purposes of business electronic equip-

ment. The Neighbors suggest that Congress never

intended to preempt local zoning decisions on the place-

ment of towers. This is shown through the plain meaning

of Congressional enactments, particularly the 1982

amendments to the Act, which demonstrate how the

FCC’s authority is limited to regulations affecting inter-

ference with home electronic equipment, and not busi-

ness electronic equipment. Should there be any ambiguity

or confusion, the Congressional Record explicitly

describes how the FCC has chosen not to regulate.

The Neighbors also suggest that a decision on the

location of a tower is preeminently appropriate for local

authorities to make. A. T. & T. Wireless v. Virginia Beach, et

al., Nos. 97-2389, 97-2513, 1998 WL 553666 (4th Cir., Va.).

Such a decision does not require a working knowledge of

technical or engineering esoteria, but is rather no differ-

ent from the usual review that such officials make with

any application for development.

Il. Standard of Review

Appeals from District Court decisions on motions to

dismiss are de novo. Moccio v. New York State Office of

2la

Court Admin., 95 F.3d 195, 197 (2d Cir.1996). The applica-

ble standard for this Court is the same as that employed

by the District Court. On a motion to dismiss a complaint,

the court simply determines its legal viability. Samuels v.

Air Transport Local 504, 992 F.2d 12 (2nd Cir. 1993); Geisler

v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980). On such a

motion only the facts alleged in the pleadings, documents

attached as exhibits or incorporated by reference in the

pleadings and matters of which judicial notice may be

taken are considered. Cortec Indus., Inc. v. Sum Holding

L.P., 949 F.2d 42, 47-48 (2d Cir.1991), cert. denied, 503 U.S.

960 (1992); Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.1989).

A complaint may not be dismissed “unless it appears

beyond doubt that the plaintiff can prove no set of facts

in support of his claim, which would entitle him to

relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

When reviewing a motion to dismiss pursuant to

Fed.R.Civ.P. 12(b)(6), the court must read the complaint

with “great generosity.” Yoder v. Orthomolecular Nutrition

Institute. Inc., 751 F.2d 555, 558 (2d Cir. 1985) (citing

Conley v. Gibson, 355 U.S. 41, 47-48 (1957)). The Court

must take all plaintiffs (i.e. the Neighbors in this appeal)

allegations as true, construe the complaint in the light

most favorable to the plaintiff, and must draw all infer-

ences in plaintiffs favor. Cosmas v. Hasset, 866 F.2d at 11;

Yoder, 751 F.2d at 562.

In addition, there is a general presumption against

federal preemption of state law See Cipollone v. Liggett

Group, Inc., 505 U.S. 504 (1992). The party claiming pre-

emption has the burden of proof. United States v. Skinna,

931 F.2d 530, 533 (9th Cir.1990)

22a

A. The Tenth Amendment Reserves Powers to the

States. The Tenth Amendment guarantees that the

“powers not delegated to the United States by the Consti-

tution, nor prohibited by it to the States, are reserved to

the States respectively, or to the people.” It is in a way an

underscoring of the Supremacy Clause, which holds,

“This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof. . . shall be the

supreme Law of the Land; and the Judges in every State

shall be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.” U. S.

Const., Art. VI. State laws that interfere with or are

contrary to the laws of Congress are invalidated by this

clause. Trustees of the Diocese of Vermont v. State, 145 Vt.

510, 513, 496 A.2d 151, 153, aff'd, Presseault v. 1.C.C., 494

U.S. 1 (1990).

B. Preemption Is Not Applicable. The District

Court relied upon the Cipillone case to conclude that

federal law preempts the regulatory powers of state and

local governments over interference affecting business

electronic equipment. Cipillone v. Liggett Group, Inc., 505

U.S. 504, 516 (1992). Cipillone recognized three ways fed-

eral law can preempt local law: (1) expressly, as when the

federal law says it preempts state or local law on the

subject; (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. 505 U.S. at 516.

C. Field Preemption Is Not Applicable. The Dis-

trict Court concluded that the federal law in the present

case is governed by field preemption. The Court found

23a

legislative intent to provide the FCC with exclusive juris-

diction over RFI in the 1982 amendments to 47 U.S.C.

§ 302a. The District Count concluded, “Section 302a does

not, expressly or by implication, authorize state or local

regulation of the source of radio frequency interference.”

Appendix 353.

This is error. Federal legislation does not have to

authorize state or local regulation; state or local regula-

tion 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. Constitu-

tion] 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 10th

amendment, which 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).

24a

D. There Is A Presumption Against Preemption.

The power of local governments to regulate land use

is admittedly not unlimited. “Under the Supremacy

Clause of the United States Constitution, where the Con-

gress has enacted a statute which preempts a state or local

law, the state or local government is without the author-

ity to act within that area.” (Emphasis added.) See Great

Lakes Wireless Talking Machine Company d/b/a WZSH 95 FM

v. David Haves, et al., No. 91-6140T, 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 pre-

sumption against federal preemption of state law. See also,

Broyde v. Gotham Tower, Inc., 13 F. 3d at 997. 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, 112 S. Ct. at 2618;

Broyde, 13 F.3d at 997 (relying on the principle of expressio

unius est exclusio alterius). See also Keene Co. v. United

States, 508 U.S. 200, 212 (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 dispa-

rate inclusion or exclusion.”

E. Clear Statement/Plain Meaning Rule Applies.

The clear statement rule also applies here. Statutory lan-

guage is read narrowly by the court when the Commerce

Clause is involved to determine whether Congress

a ne RE ECR RETR NR Te en 9 0

25a

intended to preempt the states. Laurence H. Tribe, Ameri-

can Constitutional Law (1988), § 5-8. “[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 pre-

vented from resorting to ambiguity as a cloak to accom-

modate the competing interests bearing on the federal-

state balance.” Id.

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 Assn. Inc.,

310 U.S. 534, 543 (1940) (“There is, of course, no more

persuasive evidence of the purpose of a statute that the

words by which the legislature undertook to give expres-

sion to its wishes.”) This is especially true when evaluat-

ing a preemption claim since preemption is not

presumed. Cipollone, supra, 505 U.S. 504, 511 (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 loca-

tion was economically feasible. The utility challenged the

California act on grounds of preemption, and the U. S.

Supreme 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 and Electric Company, 461 U.S. 190 (1983);

26a

Dalton v. Little Rock Planning Services, 516 U.S. 474 (1996)

(“In a pre-emption case such as this, state law is dis-

placed 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 fed-

eral 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 pur-

poses of the two regulatory approaches (state and fed-

eral) did not overlap, in the same way as Charlotte ZBA

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 sig-

nals between stations competing for the same airspace or

through the regulation of home electronic standards,

while Charlotte ZBA is responsible for ensuring that all

development is safe, from sources that include the dam-

aging impact of RFI on the quality of life, in this instance

on business, church or school, in part through siting

decisions. Guidelines for Evaluating the Environmental

Effects of Radiofrequency Radiation, FCC 93-142, 58 FR

19393 (1993), Appendix 199, paragraphs 164, 166. There is

no overlap here; indeed, there are no regulations purport-

ing to cover business equipment by the FCC.

In a pre-emption case such as this, state law is dis-

placed only “to the extent that it actually conflicts with

federal law.” Id., 461 U.S. at 204. See English v. General

Electric Co., 496 U.S. 72, 84 (1990) (citing Pacific Gas & Elec.

27a

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). “[T]he 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).

III. The FCC is Not Authorized to Regulate Business

Electronic Equipment.

When a rock and roll radio station’s broadcasts must

be heard in church, because the broadcast overpowers the

amplification system; when business computers, tele-

phones and fax machines fail to work properly; when

physicians cannot talk with their patients due to the din

of a superstation; when school computers and telephones

continuously malfunction; it is a local problem that

requires a local solution.

Radio frequency interference is a byproduct of radio-

frequency radiation. The placement of the source is the

key to the direction and intensity of radio-frequency radi-

ation and interference. Who regulates that placement is

the underlying question in this case. The Neighbors

believe no federal law prevents local regulation of the

placement of these towers. It is not a technical or compli-

cated subject. The science is generally available, and the

people of a community have a right to plan and regulate

local land use through reasonable zoning regulations and

conditions.

28a

The District Court accepted the arguments of WIZN,

BANM, and CVFRS that federal law preempts the author-

ity of state and local governments to regulate RFI. The

Court’s reasoning rests on the conclusion that the FCC

has exclusive jurisdiction over the regulation of all types

of RFI. The District Court also found that residents, busi-

nesses, school and church can lodge complaints with the

FCC and that the FCC will resolve blanketing interference

problems. This too is wrong. The FCC rules do not cover

these matters. Cases upon which the District Court relies

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 of business and institutional

equipment. Congress has explicitly made the determina-

tion that the FCC does not regulate such matters.

A. The Plain Meaning Demonstrates the FCC is

Without Authority. The plain meaning and legislative

history of section 302 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 broadcast stations, not interfer-

ence to business, office, institutional or medical equip-

‘ment. State and local governments can regulate in these

areas.§

8 WIZN and BANM need only locate a site which does not

materially affect the Town and its citizens. Presumably, other

locations exist. They should find such a location, obtain

appropriate permits and conduct their business properly. There

is nothing limiting their ability to do so.

29a

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, con-

duction, or other means in sufficient degree to

cause harmful interference to radio communications;

and,

(2) establishing minimum performance stan-

dards for home electronic equipment and stan-

dards to reduce their susceptibility to

interference from radio frequency energy.

47 U.S.C. § 302a(a)(1-2) (emphasis added). The plain lan-

guage of section 302a(a) clearly limits federal regulation

to devices which could in their operation “cause harmful

interference to radio communications” of RFI and to

“home electronic equipment.” Id.(compare section

392a(a)(1) (dealing with interference potential of

“devices” which could in their operation “cause harmful

interference to radio communications”) (emphasis

added); and, section 302a(a)(2) (relating only to perfor-

mance standards for “home electronic equipment” to pro-

tect it “from radio frequency energy”).

30a

Where Congress intended regulation over interfer-

ence from radio frequency energy, it has known how to

say so. Congress selected areas it felt were necessary to

be regulated. See Keene Co. v. United States, 508 U.S. 200,

208 (1993) (“[W]here Congress includes particular lan- |

guage in one section of a statutes but omits it in another

. it is generally presumed that Congress acts inten- |

tionally and purposefully in the disparate inclusion and

exclusion.”). A.T.&T. Wireless v. Virginia Beach, supra, at 6.

In this case, Congress was concerned with all devices

that might interfere with radio communications. Subsec-

tion (1) is clear in this respect. However, in terms of radio

communications interfering with electronic devices, Con-

gress limited the FCC’s authority to “home electronic

equipment.” This is clear in subsection (2). It is restrictive

in its delegation.

B. Legislative History Proves No FCC Authority.

The plain meaning appears to answer the question

clearly and succinctly, but in case this Court concludes

there is some ambiguity and wants to look behind the veil

of language into legislative history, there is ample evi-

dence supporting the Neighbors’ position that no pre-

emption 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., No. 91-610T (W.D.N.Y. 1991) and Broyde v.

Gotham Tower, Inc., 13 F.3d 994 (6th Cir. 1994), ends debate

on the issue. Appendix 158. Congress only authorized the

3la

FCC to regulate “home electronic equipment.” Congress

went to great lengths 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 equip-

ment 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, 97th Cong. 2nd (1982),

2237, 2276. Appendix 194, 195. Congress did not intend

federal regulation in the form of performance standards

for business or institutional equipment. The District

Court's partial recitation of the Conferee’s Report is not

helpful to its analysis when the section on interference is

read as a whole. Appendix 353.

The District Court cites a number of cases for the

Proposition that Congress intended to preempt “all

aspects of RFI.” Appendix 356-58. In fact, a brief review

of the facts of these cases shows that they only dealt with

“home electronic equipment” or interference between

broadcasting stations.°

* This explains why the FCC has not attempted to

promulgate rules addressing business electronic equipment.

10 See e.g., In the Matter of Mobilcomm of New York, Inc., 2

F.C.C.R. 5519 (1987) (holding Town of Wilton, CTs regulation of

interference between FM radio signals is preempted); In the

Matter of 960 Radio, Inc., 1985 FCC Lexis 2342 (FCC 85-78)

(October 29, 1985) (holding a Klamath Falls, Oregon's

32a

Appellees have previously argued that there are

three cases which allegedly support their propositions. In

Helm v. Louisville Two-Way Radio Corp., 667 S.W.2d 691 (Ky

1984), the Jefferson County Police Dept. filed suit against

Louisville Two-Way Radio Corp., a commercial system

seeking injunctive relief from interference with police

broadcasts. Helm, 667 S.W.2d. at 691 (emphasis added).

The Police Department’s claim against Two-Way Radio

conditional use permit regulating interference between existing

FM and TV stations void due to preemption); Blackburn v.

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

(holding FCC has exclusive jurisdiction to regulate interference

between radio stations); Great Lakes Wireless Talking Machine

Company d/b/a WZSH 95 FM v. David Hayes, et al., No. 91-610T

(W.D.N.Y. 1991) (regulation of “home electronic equipment” is

preempted; Broyde v. Gotham Tower, Inc., 13 F.3d 994 (6th Cir.

1994) (same), and Head v. New Mexico Board of Examiners in

Optometry, 374 U.S. 424, 430 n.6 (1963) (the Court points to this

decision as precedent the FCC has jurisdiction “over technical

matters.” Opinion at 11). That decision found that “State

regulation based on the police power, which does not

discriminate against interstate commerce or operate to disrupt

its required uniformity, may constitutionally stand.” Head at

428. The footnote referenced by the Court in its opinion

discussed technical matters “such as a frequency

allocation, ...” under 47 U.S.C. § 301. That section explicitly

authorizes the FCC to “maintain the control . . . over all the

channels of radio transmission;. ...” It has nothing to do with

the proper siting of a facility under zoning laws to limit

interference within a town. The neighbors agree that technical

matters dealing with frequency allocations and broadcast

spectrums are complex, technical matters which are regulated

by the FCC. Decisions relating to whether 50,000 watt broadcast

antenna will cause significant interference of office equipment

in a particular location can hardly be confused with frequency

allocations or oversight of interference between broadcast

stations.

tg, Naa eh tt a,

RP eS Ne a

33a

alleged that the “entire radio communication system of

the Jefferson County Police Department was interrupted

for a period in excess of one hour due to wrongful

interference by Two-Way.” Id. at 692. The Helm case deals

with interference between stations, i.e., a commercial sta-

tion and police broadcasts, not business equipment. The

court in Helm never addressed the central issue raised in

the instant case. It found the plaintiff provided no sup-

port for his claims. Helm offers no judicial guidance-

In Smith v. Calvary Educational Broadcasting Network,

783 S.W. 2d 533 (Mo. App. 1990), the Missouri Court of

Appeals, Southern District, Division Two, relying on

Blackburn v. Doubleday, 353 N.W.2d 550, supra, held that it

lacked subject matter jurisdiction over plaintiffs’ nuisance

claim because the authority to regulate RFI lies exclu-

sively with the FCC. Smith, 783 S.W. 2d at 537. The

Missouri lower court’s opinion in Smith is the only opin-

ion among all jurisdictions that even alludes to interfer-

ence with “business appliances.” See Smith, 533 S.W. 2d at

533. That is all the Court says about the subject. Nowhere

does it address the central issue raised by the Neighbors

in this case.

The gravamen of the plaintiffs’ complaint in Smith

was that the operation of radio station KOKS “cause[d]

interference in the use by plaintiffs of electrical and elec-

tronic appliances located in plaintiffs’ homes or busi-

nesses.” Plaintiffs sought relief based on Missouri’s

common law doctrine of peaceful enjoyment. Id.

In dismissing plaintiffs’ complaint, the Missouri

lower court stated:

Be ee

34a

Blackburn is the only case cited by the par-

ties or found by the independent research of this

court which addresses the issue of whether a

state court has jurisdiction to enjoin the trans-

mission of radio signals licensed by the FCC or

to order a reduction in the operating power of

such transmission.

Id. at 534.

None of the parties in Smith nor the Smith court itself

discovered any of the cases cited by BANM, WIZN or the

Neighbors. Thus, with no other precedent to refer to, the

court became convinced by the Blackburn rationale, and

dismissed plaintiffs’ complaint.

The Smith court failed to recognize the distinction

between “home electronic equipment” and “business

equipment.” In fact, it did not even discuss the distinc-

tion under the statute or the legislative history. Moreover,

it wrongfully applied the rule from Blackburn which dealt

with interference between radio stations, not interference

to business equipment. Therefore, Smith has little, if any,

precedential value here. BANM and WIZN’s reliance on

Smith as the sole case addressing RFI to “business

appliances” is unfounded.

The third case offered as precedent by the Appellees

in prior proceedings is Fetterman v. Green, et al., 689 A.2d

289 (Pa. Sup. Ct. Feb. 4, 1997). But Fetterman is a case

involving the interpretation of 47 U.S.C. § 333 (malicious

interference with transmission) in which two radio fre-

quency licensees (who were business competitors) col-

lided with each other over the use of a particular channel.

The Pennsylvania Court explained that if it asserted juris-

diction, “This would entail a state court deliberating over

ee eeaeeeerea=_e——EE——EE. ee

35a

exactly those types of technical matters which the

Supreme Court itself has held to be outside the purview

of our jurisdiction.” 689 A.2d at 293.

The Neighbors do not dispute that the telecommuni-

cations law partially preempts state and local authority,

but the preemption is limited to conflicts among licensees

and conflicts involving home electronic equipment, as

explained above. Business electronic equipment remains

untouched by federal law. It is reserved to the states.

The latest case interpreting the authority of the FCC

in relation to municipal regulation is AT&T Wireless PCS

Inc. v. City Council of the City of Virginia Beach, supra. There

the City Council denied appellees’ application to erect a

telecommunications tower;!! the District Court ordered

the Council to approve the tower; and the Fourth Circuit

reversed, finding no violation of the Act. 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.” Decision 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

11 The AT&T Wireless case involved a cellular tower or a

“personal wireless facility, as opposed to a broadcast facility

like WIZN.

36a

of preserving a large portion of local authority by main-

taining that authority in particular cases.” Decision at 5.

The Act was never designed to destroy local authority to

regulate towers, according to the Court, only to ensure

that the review was fair and compatible with the pur-

poses of the Act.

Just as in A.T & 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 technical issues are involved.

The issue is basic to zoning: where should something

offensive best be placed. Charlotte thought it had the

answer, when the applicants promised to cure any prob-

lems that arose. The zoning board agreed, but attached a

reasonable condition. Now, when they 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, not of business and

institutional equipment.

IV. The ZBA Has Authority to Regulate Questions of

Siting.

“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, 101 S. Ct. 2176, 2182

ARMA cA edt NOE KE dre

We aaNet anit

37a

(1981). Local governments may exercise their regulatory

power to institute zoning, when zoning reasonably

relates to public health, safety, morals or welfare. State v.

Sanguinetti, 141 Vt. 349, 351, 449 A.2d 922, 923 (1982).

States may legislate on subjects relating to health, life and

safety though the legislation may indirectly affect the

commerce of the country. Head, 374 US. at 428, supra.

Traditional bases of zoning regulation preserving the

character of the neighborhood and avoiding aesthetic

blight have been upheld by the Fourth Circuit. AT & T

Wireless, supra.

A. The 1996 Amendments.

The 1996 amendments to the Federal Communica-

tions 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 lan-

guage stating that the FCC should adopt guidelines regu-

lating the placement, construction, modification, or

operation of facilities of commercial mobile services. H.

1555 as of May 3, 1995, Section 704(a)(7). Appendix 189.

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 mind-

ful 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, 126

L.Ed.2d 524 (1983). Therefore, Congress clearly intended

state and local governments to continue to control in this

area as they have always done.

38a

‘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 preemption of state and local authority, except for

health matters.!2 Appendix 196.

State and local government are the governments

directly responsible for the health, safety and welfare of

their residents. Narrowing their authority will signifi-

cantly 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).

B. Section 253 of the Act.

Section 253 (“Removal of Barriers to Entry”) of the

Act provides:

(a) IN GENERAL. - No State or local stat-

ute 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 tele-

communications service.

(b) STATE REGULATORY AUTHORITY. -

Nothing in this section shall affect the abil-

ity of a State to impose, on a competitively

12 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 effects from radiation.

Appendix 199-200 (para. 166-67). The FCC has concluded that it

has no such oversight over broadcast facilities. Id.

me iar AY

39a

neutral basis and consistent with Section

254, requirements necessary to preserve and

advance universal service, protect the public

safety and welfare, ensure the continued qual-

ity of telecommunications services, and safe-

guard the rights of consumers.

+ * *

28 U.S.C. § 253.

Pursuant to section 253(b), the State of Vermont (and

by delegation the Town of Charlotte ZBA) may impose

permit conditions in zoning permits in order to protect

the public health, safety and welfare and safeguard the

rights of consumers. In its decision, the ZBA included

conditions relating to interference in order to protect its

residents who are consumers who rely on devices such as

computers, modems, fax machines, pagers, telephones,

and the like for their livelihoods. Subsequently, those

conditions were violated by WIZN, BANM, and CVERS.

Therefore, the ZBA may issue a Notice of Violation. This

section is broad enough to cover all consumers, although

we acknowledge 47 U.S.C. § 302a(a)(2) authorizes the

FCC to regulate minimum performance standards for

“home electronic equipment.” The Conferees Report was

intended to insure that states and local governments not

adopt minimum performance standards that might be

inconsistent with the FCC’s standards. Nevertheless, the

courts in Great Lakes and Broyde applied that language to

all regulation of home electronic equipment, including

nuisance claims. The courts have apparently applied the

third prong of the Cipillone test (field preemption) to

extend home standards to home nuisance complaints. It

would be wrong to extend this authority to business

40a

electronic equipment, where Congress has purposefully

withheld authority from the FCC.

C. Permittees Are Jointly Liable.

Among Appellees there has been some hope that one

or another of the three ought to be liberated from liability

because they were not directly involved in the interfer-

ence. That was the decision of the ZBA. Appendix 141.

Under Vermont law, “co-permittees are both respon-

sible for complying with . . . permits and share fault for

the violations.” Secretary, Vermont Agency of Natural

Resources v. Handy Family, Enterprises, et al., 163 Vt. 476,

486, 660 A.2d 312, 315 (April 14, 1995). Since BANM,

WIZN, and CVFRS are co-permitees at the Pease Moun-

tain site, they are to some extent responsible for comply-

ing with permits and share fault equally for permit

violations, regardless of which causes the interference.

Therefore, the ZBA has the authority to issue a Notice of

Violation to BANM, WIZN, and CVFRS collectively for

any and all violations by each individually.

D. The Neighbors’ Kemedies Are Not Available at

the FCC.

The Appellees argue that the Neighbors are not with-

out a remedy. BANM has contended that the Neighbors

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

4la

rules address permanently and correctly installed

receivers, within what is called the “blanketed area”

which is where the signal is particularly strong and inter-

ference is likely. In addressing FM broadcast station blan-

ket interference the FCC has specifically excluded from

its rules most consumer devices. See Affidavit of Mark

Hutchins. Appendix 146, para. 8.

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 sat-

isfy all complaints of blanketing interfer-

ence 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 speci-

fically do not include interference com-

plaints resulting from malfunctioning «r

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 (phono-

graphs) are also excluded.

Moreover, the Neighbors are not aware of any rules

that govern the susceptibility of business or institutional

electronic equipment. Affidavit of Mark Hutchins, supra.

There has been no showing of any conflict or “overlap-

ping” with federal law. See Head, 374 U.S. at 432.

The Neighbors’ concerns are properly before the state

and local tribunals. If they cannot find relief there, they

42a

cannot look to the FCC, since it has not promulgated any

rules to deal with these issues.!3 Jurisdiction is not incon-

sistent with interstate commerce or FCC regulation.

Meaningful, reasonable regulation will enhance, not

defeat, this industry. The FCC is without jurisdiction

here. If further proof is required, consider that the FCC

has not stepped in and declared the actions of the ZBA

preempted. See Section 253 of the Act which provides

that if a “State of local government has permitted or

imposed any statute, regulation, or legal requirement that

violates subsection (a) or (b), the Commission shall pre-

empt the enforcement of such statute, regulation, or legal

requirement to the extent necessary to correct such viola-

tion or inconsistency.” 47 U.S.C. § 253(d) (preemption).!4

The law is clear that State and local government can

regulate the type of interference being addressed in this

proceeding. If a telecommunications or broadcasting

'3 This is not surprising, since the FCC has no statutory

authority to do so.

14 Sections (a) and (b) of this section provide:

“(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.”

43a

facility believes it has been denied its rights it has an

explicit avenue to address any alleged violations. See also

47 U.S.C. § 704(a)(7)(B)(v) (legal redress).

V. Fraud and Deceit Are Independent Causes of

Action.

In dismissing the suit, the District Court declared

that the Neighbors’ claims of fraud and deceit “were not

part of the proceeding from which they appealed, and are

not properly before this Court.” Appendix 360. This too is

error. The Neighbors raised the issue of fraud, deceit, and

misrepresentation during the May 1996 hearings before

the ZBA. The ZBA failed to explicitly address this claim

in its April 5, 1996, Notice of Decision (but see Appendix

143). The ZBA did find, however, that WIZN made repre-

sentations during the pendency of its permit application

in 1986 that there would not be any interference and if

there was, WIZN would remedy it. Appendix 119. The

ZBA found this to be “particularly disturbing” in light of

the pervasive interference that WIZN could not trap out

and the undeniable harm and expense to the citizens of

Charlotte caused by the interference. The ZBA also noted

that Contel made similar representations upon which the

ZBA had relied.

Furthermore, a witness for the Neighbors, Mark

Hutchins, testified during the May ZBA hearings that

WIZN knew or should have known in 1986 that a 50,000

Watt radio broadcasting facility placed in close proximity

to homes, businesses, churches, and schools, would cause

substantial interference. He also testified that WIZN

knew or should have known that it could not “trap it out”

A

44a

as it suggested to the ZBA when seeking its 1986 permit.

See Affidavit of Mark Hutchins. Appendix 146.

Based on BANM’s and WIZN’s misrepresentations to

the ZBA, they were granted permits. The co-permittees

were in a position to have superior knowledge in

addressing the local zoning board regarding interference.

The co-permittees gained an unfair advantage due to

their misrepresentations. The ZBA was mistaken that it

had no jurisdiction to address this violation of the public

trust.

Courts have long deferred to states with respect to

claims for fraud and deceit. In re Long Distance Telecommu-

nications Litigation, 831 F. 2d 627, 633 (6th Cir. 1987).

Fraud and deceit are not preempted by the Communica-

tions Act because they fall “within the conventional expe-

rience of judges” and “do not require agency expertise for

their treatment.” Id.

Vermont courts have traditionally reviewed fraud

claims under two separate doctrines: actual fraud and

constructive fraud. Actual fraud is typically defined as

deceitful misrepresentation or concealment with evil

intent. Proctor Trust Co. v. Upper Valley Press, 137 Vt. 346,

354, 405 A.2d 1221, 1225 (1979). Constructive fraud, in

contrast, is mere wrongdoing without bad faith. Id. “Con-

structive fraud may occur where a wrongful act injures

another but is done without bad faith or a malevolent

purpose on the part of the perpetrator. It may be found in

cases involving misrepresentations that do not rise to the

level of deceit, or actual fraud, and in cases where a party

in a position of superior knowledge or influence inten-

tionally gains an unfair advantage at the expense of

————

—s oo

eee, re ee em eas

- nee he is POW ane bh

45a

another person.” Hardwick-Morrison v. Albertsson, 158 Vt.

145, 150, 605 A.2d 529, 532 (1992).

Accordingly, based on fraud, deceit and/or material

misrepresentations the ZBA may revoke WIZN’s,

BANM‘s, and CVFRS’ permits, as an alternative basis to

the Neighbors’ position on the preemption argument.

VI. Conclusion

The Town of Charlotte is not preempted from exercis-

ing reasonable oversight and control over radio and cel-

lular services that cause pervasive, harmful interference

to the Town and its citizens. Congress never intended the

FCC to regulate the interference of business and institu-

tional electronic equipment. Congress only authorized

the FCC to adopt performance standards for home elec-

tronic equipment. Any ambiguity reveals that the Con-

ferees expressly limited the FCC’s authority to home

electronic equipment. WIZN and BANM have misled the

Town, caused significant harm to it, its school, church,

businesses and citizens. They cannot continue to pretend

the avenue for recourse for the Neighbors is to file a

complaint with the FCC when the FCC is neither autho-

rized, nor has it adopted regulations covering these mat-

ters. The Town must exercise its authority reasonably and

may allow reasonable accommodation to WIZN and

BANM within the Town, but it need not become a back-

water, second-class town to accommodate these two ser-

vices.

For the foregoing reasons, the ZBA has the authority

to issue the Notice of Violation to WIZN, BANM, and

CVFRS. Accordingly, Appellees’ motions to dismiss

x 46a

should be denied and the case remanded to the ZBA for

findings in accordance with this decision.!°

Dated at Montpelier, Vermont, this 9th day of Octo-

ber, 1998.

APPELLANTS

BY: /s/ Gerald R. Tarrant

Gerald R. Tarrant, Esq.

P.O. Box 1440

Montpelier, Vermont 05601

Federal Bar ID #000381706

15 The ZBA may provide WIZN, BANM and CVFRS a

reasonable time to locate and identify an alternative site and

move their facilities from the existing location. If that site is

within the Town of Charlotte, they should re-file within a

reasonable time and demonstrate they will meet all reasonable

concerns of the Town and State.

Pee § ey ee

PED ach RM is aL ik ale be RS,

aaa t

OBS eR SHOA

oP BA OE BS RE Se! * es 2

47a

97-9141

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Graeme Freeman, Mary Beth )

Freeman, Frank Ittleman, Elaine )

Ittleman, Mike Fournier, Holly )

Fournier, Ellen Lane, Willaim 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.

Plaintiffs-Appellants

vs.

Burlington Broadcasters, Inc. dba

WIZN, Charlotte Fire & Rescue

Services, Inc. and NYNEX Mobile

Limited Partnership 1 dba Bell

Atlantic NYNEX Mobile

Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF VERMONT

APPELLANTS’ REPLY BRIEF

Gerald R. Tarrant

Tarrant, Marks & Gillies

P.O. Box 1440

Montpelier, Vermont 05602-1440

(802) 223-1112

48a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

GRAEME AND MARY

BETH FREEMAN, et al., : U.S. Appeals Court

Appellants, Docket No. 97-9141

V.

BURLINGTON

BROADCASTERS, Inc., et

al.,

Appellees.

CERTIFICATE OF COMPLIANCE

Counsel for the appellants hereby certifies the fol-

lowing pursuant to F.R.A.P. Rule 32:

The reply brief I have filed on behalf of my clients is

in compliance with amended F.R.A.P. 32. My brief uses a

courier 14-point font, is under 650 lines and contains

fewer than 7000 words. Specifically, my reply brief con-

tains 4056 words and 370 lines.

Dated at Montpelier, Vermont, this 14th of January,

1999.

APPELLANTS

By: /s/ Gerald R. Tarrant

Gerald R. Tarrant, Esq.

Tarrant, Marks & Gillies

P.O. Box 1440

Montpelier, Vermont 05602

Federal Bar ID #000381706

ee Maal jt i ot Lot oh ei el ae | git J

Te Ae OT I ee eae F re re agen | So

&

i

j

49a

TABLE OF CONTENTS

Pag

TABLE OF AUTHONITING ......-.............2.... ii

I cri ince sp isadssides nea usieas 1

I a etn te Vanesa ues eh ck 1

aE REN SRRS Se n e reCDRrn eee 6

1. The Federal Communications Commission Has

Only That Power Which Congress Has Granted to

Re PR AE ban edd Eva's ky UN bu Mikes ee 8 oa 5 7

A. The FCC Has Traditionally Recognized Local

UE Cain bs ous) va bcewken ves Setevis sacs 10

2. The Preemption Inquiry Must Focus On The Par-

ors Ce OP TO CORO wc ccc ccc ceseesi 11

3. The Courts Have Not Previously Addressed This

oc Ee Oe EE TE PEE Oe ee Oe arene ee 12

4. Local Siting Based On RFI Would Not Conflict

| i PRN os i ive vn has sdune varie 19

ie ka iia a We haa nas bess vreee rye 20

50a

TABLE OF AUTHORITIES

CASES

Allen B. Dumont Laboratories v. Carroll, 86 Fed.

Supp. 813, aff’d 184 F.2d 153, cert. denied 340

US. S29, FS Le OO, 72 SA. GG. cv kac cs cesnaccass 18

Appeal of Graeme and Mary Beth Freeman et al., 975

Pi, SPO CER Fhe TGS oo ec ase cen eansdaeaaneke soe 14

Blackburn v. Doubleday, 353 N.W.2d 550....... 14, 15, 16

Broyde v. Gotham Tower, Inc., 13 F.3d 997 ......... ka, 385

Brown v. North Carolina Division of Motor Vehicles,

Ot Cee. We OI cos sees esas ss 9

Fetterman v. Green, et al., 689 A.2d 289 (Pa. Sup. Ct.

PO Oy BOG ck a vnc skenesbes tana dkasenceecereeets 16

Great Lakes Wireles Talking Machine Company d/b/a

WZSH 95 FM v. David Hayes, et.al., No.

Para, CUO aRe De SUE suka voce nckn dan tcdsecans 13

Gregory v. Ashcroft, 501 U.S. 452 (1991).............. 10

Head v. New Mexico Board of Examiners in Optome-

oe eS Se 8). ewer erry eee re rT 11

Helm v. Loutsville Two-Way Radio Corp., 667 S.W.2d

a A ee re errr er ne eee re en 15

In the Matter of 960 Radio, Inc., 1985 FCC Lexis

Ee SGPC 2, RNs ke 0 bx a dn nese ckaweekaas 17

In the Matter of Mobilecomm of New York, Inc., 2

ee A et ee ere Pe eco ee TS rer rrr 17

Keene Co. v. United States, 508 U.S. 200 (1993) ........ 2

Marshall v. Gordon, 243 U.S. 521, 37 S.Ct. 448, 61

SR et, +: Srey pre rennin rt eoere ern ane 9

5la

McCullough v. State of Maryland, 17 U.S. 316, 4

L.d. 579, 4 Wheat 316 (1619) oo... ccc cs cccsnsvevn 9

Schroeder v. Municipal Court of Los Cerritos Judicial

District, 73 Cal. App. 3d 841, 141 Cal. Rptr. 85

DPF 04 in cneeathbn ban ceweupererahiesy ice 18

Smith v. Calvary Educational Broadcasting Network,

763 S.W. 2d 533 (Mo. App. 1990) ........06055065. 15

Southwestern Bell v. Board of County Commissioner,

17 FSupp.2d 1221 (D. Kan. 1998)....... S, 12, 14, 15

South Carolina v. U.S., 26 S.Ct. 110, 199 U.S. 448, 55

hoeee. ek, © PA, am, Fa Cs ooo i i ha oak 9

Standard Television Co. v. Chronicle Pub. Co., 182 Ca.

App: GO Bre, BLM BOE. DOB. oa 5 esc akdistioae en 18

Still v. Michaels, 791 F.Supp. 248 (D. Ariz. 1992)..14, 16

United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624,

Roe Mees Ge OD CRW ooo ks ok ccs bod cLecansas 9, 10

United States v. Southwestern Cable C4.,.202 US.

Say, ee Tse. ek ek, Ce ee. Eo cove yodcs 18

Winfield Village Cooperative v. Ruiz, 537 N.E. 2d 331

FO PI send oddone bckdentnce oa eekd iat 17, 18

STATUTES AND RULES

ORT Ws ce a ee 1

CUsl Aw. «os. cc. i, 2, 5, 7, 8, 12, 13. 8, 19

OUse 49. 1. 5,7%,12.%

CUS CMe. ee 3

PUSS 636.6 ee 13

52a

OTHER AUTHORITIES

The Federalist No. 45 (C. Rossiter ed. 1961).......... 8

INTRODUCTION

Pursuant to Fed. R. App. P. 28(c) Appellant Neigh-

bors submit this Reply Brief to address arguments pre-

sented by Burlington Broadcasters, Inc., d/b/a WIZN

(“WIZN”) and NYNEX Mobile Limited Partnership 1

d/b/a Bell Atlantic Mobile (“BAM”), as well as the Fed-

eral Communications Commission (the “FCC” or the

“Commission”), as amicus curiae.

Summary

Congress has been careful and deliberate in carving

out the Commission’s jurisdictional authority over radio

frequency interference (RFI). Congress has not granted

the FCC complete and unfettered jurisdiction over the

telecommunications industry.! Congress has taken an

active role in directing the FCC to areas Congress

1 In 1982 the Conferees intended that “the Commission’s

authority apply only to ‘home electronic equipment and

systems’ likely to be found in a private residence and intended

for residential use, as distinguished from devices intended for

office and business use.” App. at 195. The reference in the

Conferees Report to exclusive FCC jurisdiction over such

interference refers to home electronic interference when the

reference cited by the Appellees and amicus curiae is read in

context to what Congress was doing when it elected to extend

authority to the FCC on home electronic equipment and not

extend it on business equipment. Appendix (“App.”) at 195, 240

and 255.

53a

believed the Commission should regulate focusing pri-

marily on interference between stations and devices

which are capable of emitting radio frequency radiation

in sufficient degree to cause interference to radio commu-

nications. See e.g. 47 U.S.C. Sections 302a (a) (1) and

303(f).

The FCC has jurisdictional authority to promulgate:

regulations relating to interference between radio signals

and according to some courts the FCC may have

“implied” authority to regulate interference to home elec-

tronic equipment based on the authority to establish min-

imum performance standards for home electronic

equipment contained in 47 U.S.C. Section 302a (a) (2).

WIZN and the FCC agree the FCC does not have any

authority to regulate interference to business electronic

equipment. WIZN at 35 and FCC at 11.

To extend the limited statutory language contained in

the Telecommunications Act (“Act”) to areas withheld by

Congress ignores not only Congress’ intent as expressed

in the Act, but ignores the rule that “where 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 dispa-

rate inclusion and exclusion.” Keene Co. v. United States,

508 U.S. 200, 212 (1993). To overcome this presumption

applied to statutory construction and the further pre-

sumption against federal preemption (Neighbors at

18-19) this Court must find that the state or local law

actually conflicts with federal law or that federal law

preoccupies the field. Id.

54a

A preemption analysis must focus on the facts. Pre-

emption cannot be guided by broad statements about the

“comprehensive nature” of federal regulation under the

Act. WIZN at 13, BAM at 9-10, FCC at 4-5, and ARGU-

MENT at I and II, below.

WIZN fails to understand the implications of Con-

gress’ 1996 amendments to the Act. WIZN at 7-8. The

FCC erroneously relies upon the 1996 amendments to the

Act for the proposition that Congress did not intend to

interfere with the FCC’s centralized control over radio

communications.? FCC at 15. Congress elected to preempt

local authority over radiation emissions only with respect

to “personal wireless facilities” and then only to the

extent they comply with Commission regulations. 47

U.S.C. Section 332(c) (7) (iv).3 In 1996 the FCC declined to

preempt local regulation regarding the effects of radia- |

tion emissions by broadcasters. App. at 200.

Since there are no FCC rules governing the regulation

of RFI to business electronic equipment there can be no

irreconcilable conflict. Since Congress has gone to great

? See App. at 181. Section 108 of $.652 (10/12/95) contained

a provision preempting state and local control of facility siting.

Similarly, Section 107 (a) (7) of the House bill, H. 1555, included

preemptive language stating the FCC should adopt guidelines

regulating the placement, construction, modification or

operation of facilities if commercial mobile carriers. (H. 1555 at

5/3/95) App. At 189-90. The preemptive provisions were

removed from the final version of the 1996 amendments.

3 App. at 199-200. According to the FCC it was only

addressing “one of the environmental factors” from radiation

emissions and was not adopting regulations relative to RFI.

App. at 196.

55a

lengths to provide states and local governments with

sufficient authority to regulate the siting of a telecommu-

nications tower there cannot be any legitimate claim that

the FCC occupies the field or that local siting of a tower

will pose an obstacle to the federal scheme.

The Court must appreciate how limited and local the

issue of radio frequency interference really is. RFI results

from signal radiation (BAM at 2) and is confined to a

limited area that is defined by the radiation pattern as it

rapidly dissipates from the antenna. RFI results from too

strong a signal being located too near a community or

business. It is first and always a local siting issue.4

+ WIZN erroneously asserts that this case does not involve

a “siting decision.” WIZN at 7 and 30. It ignores that it obtained

a zoning permit to site its tower on the representations that it

would not impose any interference and if it did it would “trap it

out.” App. at 119. BAM’s objections that representations made

during hearings that are not explicitly incorporated into

conditions in a permit are not binding is too narrow a reading of

Vermont law. BAM at 3, n.3. BAM cannot complain that WIZN

or BAM’s predecessor did not have notice of the concerns or

that it was unaware that it would be held to answer when the

information appears in the permit itself. App. at 119, 121, 124.

The Charlotte zoning board is a lay body and it is clear that the

zoning board of adjustment relied on WIZN’s representations

regarding interference in reaching the conclusions about siting

the tower. The Vermont Supreme Court has not been troubled

by findings that are conclusions or conclusions that are really

findings. The most important issue is whether the parties were

aware of the facts. Gramatan National Bank and Trust Company v.

Pierce, 121 Vt. 406, 413 (1960) [“While to a large extent these

particular findings are conclusions, they are however sustained

by facts previously found and supported by the evidence, and

no clear error can be predicated thereon. (citations omitted)”]

This matter was raised at the District Court and accepted by it

56a

The FCC’s claim that allowing local communities the

power to site telecommunication antennas based on RFI

concerns would also give towns authority to “order

changes in the power or location of stations” or “change

its technical operating parameters” doesn’t just exagge-

rate the issue, it misdirects the Court. FCC at 11. Pro-

viders can calculate where they believe their signal can be

safely sited. They do this to meet FCC guidelines on RFR

and perhaps as the FCC contends on the basis of “good

faith.” Id. Either the FCC does not understand the author-

ity surrounding the siting of a tower or it is prone to

drastically overstating its case.

WIZN, BAM and the FCC have pointed this court to

decisions that preempt states and localities in nuisance

and zoning matters involving interference between sta-

tions and different transmitters and devices (such as

radio and police transmitters) that are explicitly pre-

empted under 47 U.S.C. Sections 302a (a)(1) and 303(f).°

without any objection or cross-appeal by BAM or WIZN. There

should be no dispute what WIZN represented to the Town in

1986 at this stage of the appeal.

5 See also 47 U.S.C. Sections 301 (FCC grants licenses for

radio communications and stations who shall not interfere with

other stations); 303m(1)(E) (FCC has authority to suspend

license of operator who willfully or maliciously interferes with

other radio signal); 305(a) (radio stations belonging to U.S.

government shall not interfere with radio stations and shall

comply with FCC regulations); 306 (a signal of a foreign ship

within the jurisdiction of the U.S. shall comply with FCC

regulations to prevent interference); 320 (radio stations shall not

interfere with the transmission or reception of distress signals of

ships); 321 (ship radio stations may be adjusted to produce the

maximum of radiation, irrespective of interference, which may

PRE, Ceca cAL bit neat dts Ke

Ser Ob A Giclees NRT GIRO Ry EAE ME Sy Tak ae PS gS aah

ae Ite egy we ree

‘ ain hits Sinibagtd By Sed rie edad

57a

They point to decisions that involve interference of home

electronic interference where courts have assumed FCC

jurisdiction over this type of electronic equipment

because Congress had authorized the Commission to

establish minimum performance standards of home elec- -

tronic equipment.

WIZN and BAM point to decisions that recite limited

language from the 1982 Conferees Report that indicates

that Congress intended the FCC to have exclusive juris-

diction over the type of interference it was discussing in

its report - which was over home electronic equipment.

They fail to explain that the courts which cite this con-

gressional history were doing so with respect to interfer-

ence between signals and home equipment. See WIZN at

18-19 and BAM at 8-9.

Without any factual support, the FCC joins

WIZN® and BAM in alleging “chaos,” “confusion” and

be caused when ship is sending distress signals.); 323

(interference between government and commercial stations is

regulated); 354 (b) and (c) (technical requirements of radio

equipment on ships).

® WIZN objects to the reliance of the Neighbors on

affidavits filed with the District Court. WIZN at 10. The zoning

board hearings did not have a court reporter and no formal

transcript was made. The purpose of affidavits was to add

structure to the appeal. Moreover, the zoning administrator and

the zoning board each found interference to business electronic

equipment based on extensive testimony. App. at 16, 21-22. The

District Court found interference based on the testimony

presented below. WIZN and BAM agree that extensive

testimony was taken and that at least WIZN continues to cause

interference throughout the town. WIZN at 16-17; BAM at 4-5.

The harm to the businesses, the school and the church is real.

58a

“impossibility” in performing their duties if the Neigh-

bors prevail. BAM claims that uniform quality of service

would be impossible if the industry faced “inconsistent

and conflicting technical standards.” BAM at 10; FCC at

10. It is the hobgoblin at work. The FCC has not adopted

any technical standards relative to interference to busi-

ness electronic equipment as each meekly acknowledges

in its brief. See e.g. FCC 11; also App. 207.7

ARGUMENT

Each form of “telecommunications” has different fre-

quencies and power levels, different audiences and pur-

poses but each also has at least one thing in common - a

radiation signal. Radiation manifests itself in three ways

— its creates the telecommunication signal; it is the cause

for health concerns and it can cause electronic interfer-

ence. BAM at 2; App. at 208. Congress has had knowl-

edge of these phenomena and has acted to grant

authority to the FCC where its oversight is necessary or

appropriate. The authority it granted to the FCC over

interference matters had been restricted almost exclu-

sively to interference to radio communication signals. It

was not until 1982 when Congress decided to expand the

App. at 128-136, 146-147. These affidavits were before the

District Court, and to the best of our knowledge and belief were

accepted and relied upon by the Court. No cross-appeal of that

issue was taken by WZIN or BAM.

7 This is a reference to WIZN’s engineer’s report which

acknowledges the very limited regulations that apply to

interference over home electronic equipment under Rule 73.318.

See App. 186-7 for the rule.

tie tie ine a aw

eat indent tot ea _

or ee es

ns ee me oa

59a

FCC authority to regulate the performance standards of

home electronic equipment that courts began to extend

that statutory authority to cover interference to all home

electronic equipment. There is no statutory authority gov-

erning interference to business electronic interference and

not surprisingly no regulations have been promulgated

by the FCC to govern these matters. FCC at 11.

I. THE FEDERAL COMMUNICATION COMMISSION

HAS ONLY THAT POWER WHICH CONGRESS HAS

GRANTED TO IT.

BAM, WIZN and the FCC openly accept those enu-

merated powers governing interference explicitly granted

by Congress and then assert additional powers not

granted by Congress to the FCC on the basis that what

wasn't granted to them must have been “implied.” In

doing so, they concede, as they must, that Congress did

not authorize the FCC to regulate interference to business

equipment. WIZN at 35.

The FCC discredits the authority contained in Section

302a (a) and falls back to its mantra that “allowing states

and localities to regulate radio stations to eliminate inter-

ference with business devices would undermine the cen-

tralized federal control of radio that Congress had sought

to achieve.” FCC at 13. The FCC and BAM prefer the

theory that the FCC has authority over all “technical”

matters.

This is not a case where there is statutory silence on

the issue of interference and the FCC has asserted juris- —

diction because there was a need to fulfill its other statu-

tory responsibilities. Congress has acted carefully and

60a

deliberately and spoken both affirmatively and nega-

tively with respect to regulating RFI. The Act was

amended in 1982 to grant the FCC to make regulations

governing the interference from devices emitting suffi-

cient levels of radiation to cause harmful interference to

radio communications and to regulate the establishment

of minimum performance standards for home electronic

equipment. 47 U.S.C. Section 302a (a) (1) and (2). Its

enabling legislation vests the FCC with the power to

“[mJake such regulations not inconsistent with law as it

may deem necessary to prevent interference between sta-

tions and to carry out the provisions of the [Act].” 47

U.S.C. Section 303(f). See Southwestern Bell, infra at 1225.8

8 The regulations cited by the court relate to interference

between or to FCC licensed or controlled stations or to

residential areas. For instance:

1. 47 C.F.R. Section 0.111 (e) concerns the

Compliance or enforcement division of the FCC and

relates to interference to “authorized communi-

cations.”

2. 47 C.F.R. Section 0.131(h) relates to cellular

communications and pertains to interference over

other cellular services.

3. 47 C.F.R. Section 22.353 concerns public mobile

services and regulates blanketing interference similar

to 47 C.F.R. Section 73.318. In both instances, the

licensees are not only responsible for certain limited

types of home electronic devices. The FCC represents

that this covers radios and televisions but it would

appear to be more limited than that. See FCC at 11.

4. 47 C.F.R. Section 24.237 concerns personal

communications services and again only relates to

interference between stations. -

6la

The FCC refers to section 73.318 of federal regulations

which is nothing more than a limited provision to protect

a few home appliances. FCC at 11; see App. at 186-7. It

prefers unfettered discretion.

Under our constitutional system, administrative

agencies are subject to the same checks and balances that

apply to the other branches of -government. An agency

must operate for the purposes and within the bounds

authorized by its enabling legislation.

Government can exercise only the powers granted to

it has been recognized by our courts since our earliest

days. Chief Justice Marshall wrote:

5. 47 C.FR. Section 90.173(b) relates to assignment

of frequencies and requires those licensees with

assignments to cooperate to reduce interference

among themselves. It provides licensees of stations

suffering or causing harmful interference are

expected to cooperate and resolve this problem by

mutually satisfactory arrangements.” Section 90

defines “harmful interference” in Section 90.7 as

follows: “Harmful Interference. For the purposes of

resolving conflicts between stations operating under

this part, any emission, radiation, or induction which

specifically degrades, obstructs, or interrupts the

service provided by such stations.”

6. 47 C.F.R. Section 90.403(e). This section also

speaks of licensees taking precautions to avoid

causing harmful interference which is defined in

Section 90.7, above, to mean interference between

stations.

7. 47 C.F.R. Section 73.318 is the blanketing

interference rule for broadcasters. See FCC at ll;

App. at 186-7. It is limited to certain “common”

receivers in the home.

62a

The [federal] government is acknowledged by

all to be one of enumerated powers. The princi-

ple, that it can exercise only the powers granted

to it should seem too apparent to require

enforcement by ali those arguments which its

enlightened friends, while it was depending

before the people, found it necessary to urge;

that principle is now universally admitted. But

the question respecting the extent of the powers

actually granted, is perpetually arising, and will

probably continue to arise, as long as our sys-

tem shall exist.

McCulloch v. State of Maryland, 17 U.S. 316, 4 L.Ed. 579, 4

Wheat. 316 (1819); South Carolina v. U.S., 26 S.Ct. 110, 199

U.S. 448, 55 L. Ed. 261, 4 Ann. Cas. 737 (1905); see also

Marshall v. Gordon, 243 U.S. 521, 537, 37 S.Ct. 448, 61 L.

Ed. 881 (1917); United States v. Lopez, 514 U.S. 549, 565,

115 S.Ct. 1624, 1633, 131 L.Ed. 2d 626 (1995); Brown v.

North Carolina Division of Motor Vehicles, 987 F. Supp. 451,

456 (1997).

Administrative agencies exercise only those powers

granted them by the elected branches of government and

those others powers reasonably ancillary to the effective

performance of their statutory responsibilities. This is the

very meaning of a democratic republic. It matters little

whether the FCC or its regulated industry believe the

statutory powers granted in a particular case are inade-

quate to do what the regulated providers of the service

may feel justice or efficiency would dictate. Administra-

tive agencies are as much bound by the law as are the

courts and other instrumentalities of government. As the

Court in Lopez concluded, quoting James Madison, “The

powers delegated by the proposed Constitution to the

63a

federal government are few and defined. Those which are

to remain in the State governments are numerous and

indefinite.” Lopez, 514 U.S. at 552, 115 S.Ct. at 1626, The

Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). The

United States Supreme Court has characterized the

“healthy balance of power between the States and the

Federal Government will reduce the risk of tyranny and

abuse from either front.”? Lopez, 5145 U.S. at 552 quoting

Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).

A. The FCC Has Traditionally Recognized Local

Control.

The FCC has recognized the need to defer to local

control over siting issues. It has found in the recent past

that the Act does not preempt state or local control relat-

ing to environmental effects of radio frequency emissions

from telecommunications facilities that do not fall within

® Neighbors challenge the FCC’s claim that the federal

agency has the power to make “centralized” policy decisions

that Charlotte businesses must accept interference to their

business equipment. The FCC makes this claim without citing

any statutory authority granting it such authority and is blind to

the fact that simply moving an antenna (or siting it properly in

the first instance) would remedy the problem. See FCC at 10 and

11. The FCC’s reference to 47 U.S.C. 302a (a) (1) as support for

its claim is not on point and does not grant the FCC authority to

regulate non-radiating equipment or even those pieces of

equipment that emit minor radiation or conduction. The

purpose of that section is to regulate devices that may emit

sufficient energy by radiation or conduction to cause harmful

interference to radio communications.

64a

the definition of “personal wireless facilities.” App. at

199-200.

In 1996 the FCC addressed “one of the environmental

factors” associated with radiation which focused on

health impacts. App. 196. The FCC expressly limited its

oversight to health impacts relative to personal services

communications because of the limited statutory author-

ity granted it by Congress. App. at 199-200.

In doing so, the FCC has explicitly found that it did

not have exclusive jurisdiction over these technical mat-

ters but indicated if the industry “could prove” that local

and state jurisdiction constituted an obstacle to the

scheme of federal control of radio facilities that the indus-

try would have to 1.) factually prove that factual allega-

tion; and 2.) present the FCC with the legal basis which

could justify FCC preemption. App. 200.

Il. THE PREEMPTION INQUIRY MUST FOCUS ON

THE PARTICULAR FACTS OF THE CASE.

The Appellees’ arguments of “implied” authority,

their generalities of FCC jurisdiction over all “technical

matters” and their contentions that the FCC has “exclu-

sive and plenary jurisdiction” all suffer from the same

problem. Such generalities require more than mere asser-

tions to overcome the presumption against preemption. In

Head v. New Mexico Bd. of Optometry, 374 U.S. 424, 429-30,

83 S.Ct. 1759, 10 L.Ed. 2d 983 (1963) the court held that

preemption “cannot be judged by reference to broad

statements about the ‘comprehensive’ nature of federal

= Soy Te) OO tome COL ee, Be

65a

regulation under the Federal Communications Commis-

sion.” The preemption inquiry must focus on the particu-

lar facts of the case. Id. at 40, 83 S.Ct. 1759; also

Southwestern Bell v. Board of County Commissioner, 17 F.

Supp. 2d 1221, 1224 (D.Kan. 1998).

In Southwestern the Town had concerns relating to its

public safety communications being interfered with by

the wireless telecommunications provider. A legitimate

concern but one which is preempted under 47 U.S.C.

Sections 303(f) and 302a (a) (1). Head and Southwestern

reveal the distinctions that must be made when evaluat-

ing this area of the law. |

III. THE COURTS HAVE NOT PREVIOUSLY

ADDRESSED THIS ISSUE.

WIZN and BAM have listed a string of cases they

believe confirm the intent of Congress to preempt the

Town from enforcing its zoning permit. WIZN at 1320;

BAM at 25. The FCC adopts many of the same cases. It is

instructive to distinguish these holdings on their facts.

(Below we follow BAM’s format. BAM at 20).

United States Court of Appeals

1. Broyde v. Gotham Tower, Inc., 13 F. 3d 994 (6th Cir.

1994), cert. denied, 511 U.S. 1128, 114 S. Ct. 2137, 128

L.Ed. 2d 866 (1994). WIZN and BAM claim Broyde

stands for the proposition that FCC has “exclusive

jurisdiction” over RFI. BAM at 20; WIZN at 13. This

case was an action on nuisance in which residents

alleged that the defendants’ radio signals interfered

66a

with the operation of home electronic equipment. It

is not on point.

United States District Courts.

y

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). BAM asserts Great Lakes stands for the

proposition that all claims that would obstruct FCC’s

ability to regulate RFI are preempted. BAM at 20-1.

WIZN claims the case is virtually identical to the

instant case. It refers the Court to App. at 256-69.

WIZN at 16. The complaint in Great Lakes was based

on interference to home electronic equipment. App.

at 257-8. The Court found that despite broad author-

ity of local governments over their quality of life,

“where the Congress has enacted a statute which pre-

empts a state or local law, the state or local govern-

ment is without the authority to act within that area.

(citation omitted.)” (emphasis added.) Id. at 261.

Again, the Court referred back to the 1982 Conferees

Report which the Court correctly found “stated their

intent in amending section 302 of the Act.” Id. at 264.

It quoted the same portion of the Conferees Report

referenced in Broyde, supra. including the passage

that “(t)he Conferees believe that radio transmitter

operators should not be subject to fines

. imposed by any local or state authority as a

result of interference appearing in home quipment

or systems. Rather, Conferees intend that regulation

of RFI phenomena shall be imposed only by the

Commission.”?0 Id.

10 Compare this last sentence with the earlier statements by

the Conferees that the Commission’s authority does not extend

to business equipment. See App. 195. (“Tne Conferees intend

that the Commission’s authority apply only to home electronic

67a

3. Still v. Michaels, 791 F.Supp. 248 (D.Ariz. 1992). Both

WIZN and BAM argue that this case stands for fed-

eral preemption. BAM at 20-1; WIZN at 14. The

homeowner was asking for an injunction on interfer-

ence to home electronic equipment. Still at 249-50.

The court gave preclusive effect to an earlier state

court's ruling (See case # 9, below). Id. at 250-1. The

court based its decision on two FCC administrative

determinations (nos. 11 and 12, below) in which the

FCC determined that it had exclusive jurisdiction

over interference between two radio stations and the

holding in Blackburn (no. 6, below) which have noth-

ing to do with interference to either home or busi-

ness equipment.

i

- 2

3g

i

4. In re Appeal of Graeme and Mary Beth Freeman, et al.,

975 F. Supp. 570 (D.Vt. 1997). This is the decision

from which this appeal was taken.

5. Southwestern Bell Wireless, Inc. v. Board of County

Comm'rs of Johnson County, Kansas, 17 F. Supp. 2d

1221 (D. Kan. 1998). BAM states that not only does

this case cite Freeman but it “specifically reject(s)

contentions that 1996 amendments to 1934 Act alter

FCC’s exclusive jurisdiction over RFI.” BAM at 21.

WIZN acknowledges that this case holds that “inter-

ference of public safety communications are pre-

empted by the Act. WIZN at 14. This case deals with

claimed interference between two signals — the local

public safety communication signals and the signals

of a cellular company. Southwestern at 1222. See 47

U.S.C. Sections 303 (f) and 303 m (1) (E).

equipment . . . as distinguished from devices intended for office

and business use.”)

See

68a

State Courts.

6.

Blackburn v. Doubleday Broad. Co., 353 N.W. 2d 550

(Minn. 1984). BAM represents that this case stands

for the proposition that “subject matter of RFI lies

within FCC’s exclusive jurisdiction.” BAM at 21.

WIZN acknowledges this decision deals with inter-

ference between radio-station signals. WIZN at 15.

The decision is based on statutory authority con-

tained in 47 U.S.C. Section 303(f). Blackburn at 552.

Helm v. Louisville Two-Way Radio Corp., 667 S.W.2d

691 (Ky. 1984). Both BAM and WIZN concede that

this case stands for the proposition that states cannot

regulate radio transmission over FCC signals. BAM

at 21-2; WIZN at 15. WIZN claims that the police

communication signals are really business electronic

equipment. WIZN 23-4. Section 302a (a) (1). This

decision is based on 47 U.S.C. Section 303(f).

Smith v. Cavalry Educational Broadcasting Network, 783

S.W. 2d 533 (Mo. App. 1990). This is the one case in

which the introductory language to the decision

refers to interference to equipment in homes and

businesses. As previously discussed in Neighbors’

Brief, except for its reliance on the Blackburn deci-

sion, the Missouri court failed to undertake a tho-

rough analysis of the authorities or analyze the

distinction between home and business equipment.

Rather, the Court relies almost exclusively upon the

1984 Minnesota state decision in Blackburn, supra.

Neighbors’ at 30-2. Both WIZN and BAM character-

ize this case as precedent for the proposition that the

FCC has exclusive jurisdiction over complaints of

RFI to all electronic equipment. BAM at 22; WIZN at

15.

Still v. Michaels, 803 P.2d 124 (Ariz. Ct. App. 1990),

review denied (Ariz. 1991). This is the state court’s

decision that ultimately found its way to federal

th ta he

10.

69a

court and is listed as no. 3, above. Both BAM and

WIZN claim this decision stands for the proposition

that the FCC has exclusive jurisdiction over RFI.

BAM at 22; WIZN at 14. The court held that an

amateur radio operator’s interference with home

electronics was exclusively regulated by the FCC.

Still relied on 47 U.S.C. Section 302a (a) (2). Still, at

125.

Fetterman v. Green, 455 Pa. Super. 639, 689 A. 2d 289

appeal denied, 695 A.2d 786 (Pa. 1997). Both BAM

and WIZN claim that this decision upholds the fed-

eral preemption after the enactment of 1996 amend-

ments to 1934 Act. BAM at 22; WIZN at 15. This is a

case where one licensee brought an action against

another licensee alleging interference by the other

station. Fetterman involves the interpretation of 47

U.S.C. Section 333 (malicious interference with

transmission) in which two competing radio stations

collided with each other over the use of a particular

channel. 47 U.S.C. Section 303(f).

FCC Administrative Rulings

11.

In the Matter of 960 Radio, Inc., 1985 FCC LEXIS 2342,

at *78-85 (October 29, 1985.)!1 Both BAM and WIZN

claim this decision stands for the proposition that

the FCC has preempted local and state governments

over RFI. BAM at 22; WIZN at 14, 19. WIZN

acknowledges that this involves preemption over an

attempt by a state to regulate two communication

stations. This is an FCC decision that held that an

11 There were two different citations to this case. BAM

refers to a decision dated October 29, 1985. WIZN refers to a

decision of the same name dated November 4, 1985. It appears

the two citations are to the same decision. The decision we

reviewed was dated October 29, 1995.

70a

Klamath Falls, Oregon permit regulating specific dis-

putes between an FM and a TV station was void due

to preemption. WIZN at 19-20. See FCC at 7.

12. In the Matter of Mobilecomm of New York, Inc., 2

F.C.C.R. 5519 (1987). Both WIZN and BAM claim this

decision stands for the proposition that the Act com-

prehensively regulates RFI and occupies that field.

WIZN at 14; BAM at 22-3. The FCC in Mobilecomm

ruled that the Town of Wilton, Connecticut’s regula-

tions of interference between FM radio stations was

preempted by federal law. See FCC at 7.

In addition, BAM cites in a footnote Winfield Village

Cooperative v. Ruiz, 537 N.E. 2d 331 (Ill. App.), appeal

denied, 545 N.E.2d 135 (Ill. 1989). BAM at 21; FCC at 4. In

Winfield an Illinois appellate court reversed the trial court

and allowed a landlord to maintain a conviction action

against tenant/amateur radio operator who caused inter-

ference to other tenants. The court held that the matter

was a local matter, similar we submit to a local permit

matter involving the Town of Charlotte. Winfield at 333.

In addition, WIZN cites the pre-1982 case Schroeder v.

Municipal Court of Los Cerritos Judicial District, 73 Cal.

App. 3d 841, 141 Cal. Rptr. 85, 87 (1978), appeal dis-

missed, 435 U.S. 990 (1978) for the proposition that

“unquestionably, federal legislation has preempted local

regulation of radio transmission, including assignment of

frequencies, interference phenomena and the content of

broadcast material.” WIZN at 14-5. This is a correct, but

limited, representation of that portion of Schroeder. See

Schroeder at 846 citing Allen B. Dumont Laboratories v.

Carroll (E.D. Pa. 1949) 86 Fed. Supp. 813, aff’d 184 F.2d

153, cert. denied 340 U.S. 929, 95 L.Ed. 670, 71 S.Ct. 490

(state censorship of television invalid); United States v.

7la

Southwestern Cable Co., (1968), 392 U.S. 157, 20 L. Ed 2d

1001, 88 S.Ct. 1994 (cable television industry is under

FCC regulation); and Standard Television Co. v. Chronicle

Pub. Co. (1960), 182 Ca. App. 2d 293, 6 Cal Rptr. 246

(allegations of “inferior signals” and conflicts between

stations are regulated by FCC). It should be noted that

Schroeder upheld local regulation of the height of a

licensee’s antenna. Schroeder at 848-9. The court found

that an antenna at 40 feet would create interference 4,000

times stronger than as if the antenna were at 70 feet. Id. at

845.

IV. LOCAL SITING BASED ON RFI WOULD NOT

CONFLICT WITH FCC REGULATIONS.

The FCC claims that local siting of towers would

conflict with the federal regulatory scheme. FCC at 8-12.

That scheme is based on a claim that Section 302a (a) (1)

grants the FCC power to regulate “all of the devices at

issue in this case.”12 The FCC doesn’t explain itself fur-

ther except to say that as a general condition of operation

of these devices, they are subject to the condition “that

interference must be accepted that may be caused by the

operation of an authorized radio station, by another

12 Many pieces of business equipment such as dictation

equipment, intercoms, audio and tape equipment, binding and

laminating machines, calculators, clocks, date and time

stampers, entry notification equipment, public address systems

and audio headsets are not capable of emitting any radiation

much less radiation sufficient to cause harmful interference to

the FCC’s regulated companies.

72a .

intentional or unintentional device. . . . or by an inciden-

tal radiator.” FCC at 10. It then contends that it has made

the judgment that public policy requires electronic

“devices” must accept interference from radio stations.

This policy must be compared with the authority actually

granted to the FCC by section 302a (a) (1). That section

authorizes the FCC to regulate devices which are capable

of causing “harmful interference to radio communica-

tions.” (emphasis added.) The FCC exaggerates its

authority.

V. CONCLUSION.

The Neighbors respectfully request the Honorable

Court reverse the District Court and remand this matter

to the Vermont Environmental Court for it to remand it to

the Charlotte Zoning Board with instructions that it has

jurisdiction to enforce its zoning permit relating to inter-

ference matters affecting local businesses.

Dated at Montpelier, Vermont, this 14th day of Janu-

ary, 1999.

APPELLANTS

By: /s/ Gerald R. Tarrant

Gerald R. Tarrant, Esq.

P.O. Box 1440

Montpelier, VT 05601

Federal Bar I.D. #000381706

73a

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

FREEMAN

—_ Docket No.

97-9141

BURLINGTON BROADCASTERS,

ET AL

ee Oe eee eee Se”

COURT HEARING

As recorded on October 15, 1999

-before-

THE HONORABLE JUDGE WALKER

THE HONORABLE JUDGE NEWMAN

THE HONORABLE JUDGE SOTOMAYOR

APPEARANCES:

GERALD TARRANT, ESQUIRE, representing the Appel-

lants;

BRIAN SULLIVAN, ESQUIRE, representing Bell Atlantic,

Mobile;

JOHN CAIN, ESQUIRE, representing Radio Station

WIZN.

COURT REPORTERS ASSOCIATES

117 Bank Street

Burlington, Vermont

[2] OCTOBER 15, 1999

JUDGE WALKER: Freeman against Burlington

Broadcasters.

74a

MR. TARRANT: May it please the Court, my

name is Gerald Tarrant and I represent the Appellants in

this matter.

The appeal concerns severe interference at the local

level in the Town of Charlotte, Vermont, and we are

appealing a District Court decision which ruled against

us on a motion claiming that there was no subject matter

jurisdiction. Interference when properly understood is a

local siting issue if it is raised properly and in a timely

manner. The issue of interference affects local interests; it

does not affect the spectrum, it does not affect the man-

agement or administration of the FCC’s duties in the

context of how -

JUDGE SOTOMAYOR: I’m not sure how that

statement is accurate. The FCC is charged with figuring

out ways of having transmitters not interfere, it’s charged

with insuring that transmitters are put up because we

need them. Why is it a purely state court siting matter

then?

MR. TARRANT: Because the analysis [3] must

begin with the statutes. Once we understand that the

concern by Congress and it is tracked in the regulations

that that concern relates to interference between stations,

between FCC services -

JUDGE SOTOMAYOR: The problem with your

argument is that the legislative history is completely con-

trary to your position. I mean, I have looked at the

legislative history on the very provisions you rely on, and

Congress repeatedly says We are not interfering with the

FCC’s regulation of interference. They raised the issue of

whether to pass a commercial device provision and

75a

decided they don’t need to do it. I mean, I don’t know

how I read that legislative history and come to the con-

clusion that your definition of what their intent was

should govern.

MR. TARRANT: I’m not familiar with any refer-

ence to an FTC oversight, but the Conferees’ Report, if

that is what Your Honor is referring to, which is cited at

the appendix page 242 and 252 does contain a statement

that the FCC has exclusive jurisdiction over RFI, radio

frequency interference. On page 242 of the appendix, it

specifically says that that jurisdiction is [4] exclusive as

referred to in this section, and that section refers only to

home electronic equipment. Similarly, if you go to -

JUDGE SOTOMAYOR: I’m not sure - the fact

that they chose to mention one receiving device which is

the home device, and those are receivers, not transmit-

ters, the fact that they chose to pass a provision with

respect to that, how does that lead me to the conclusion

that they were foregoing their broader statement in the

House Conference Report saying that they expected the

FCC to have jurisdiction over transmitters, which is what

is at issue here?

MR. TARRANT: The authorization given to the

FCC over interference relates to interference between sta-

tions, licensees, ships, government authorities, and so on.

Those sections are stated in my reply brief. They are

specific and they are discreet. When we go to the Con-

ferees’ Report, that is dealing with a discreet item that

was added in 1982 because there mere complaints about

interference to home electronic equipment. It is abso-

lutely essential for this court to understand that Section

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302(a) of U.S. Code 47 deals with two aspects that are an

exception to the statutory [5] authority that has been

delegated to the FCC. The first one deals with RF devices.

Those are the type of device that emit radio frequency,

and again Congress has come out to say they are con-

cerned and they are delegating authority to the FCC only

with respect to the RF devices that have sufficient energy

to interfere with radio communications. Again they are

only -

JUDGE SOTOMAYOR: This tower is not an RFI

transmitter?

MR. TARRANT: It’s a — It transmits three differ-

ent types of services: One is a radio service, an FM radio

service; one is a Bell Atlantic cellular service and another

is a local service.

JUDGE SOTOMAYOER: Is it an RFI transmitter?

MR. TARRANT: Well, it does emit interference

radiation, that’s correct.

JUDGE WALKER: Then it’s a transmitter.

MR. TARRANT: It’s a transmitter.

JUDGE WALKER: I thought that the legislative

history in 1982 also pointed out that the conference sub-

stitute is intended to clarify the reservation of exclusive

jurisdiction to the Federal [6] Communications Commis-

sion, and I’m reading, “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.”

77a

Why doesn’t that language cover this situation?

MR. TARRANT: You are probably either refer-

ring to page 242 or 255 of the appendix. On page 255, I

believe, maybe it’s 254, there is explicit statement -

JUDGE WALKER: My reference is to the U.S.

Code Annotated, 2277.

MR. TARRANT: Right. Well my reference that I

have at this moment, Your Honor, is the Conferees’

Report that we laid out in our appendix, and it speci-

fically states -

JUDGE WALKER: What page is that?

MR. TARRANT: 250 - |

JUDGE WALKER: Of the appendix?

MR. TARRANT: I believe it’s 255.

JUDGE WALKER: Okay.

MR. TARRANT: It might be 254, and this is

important.

JUDGE WALKER: Yes. That is the same [7] lan-

guage.

MR. TARRANT: Okay. It’s the same one. If you

go to 254 -

JUDGE NEWMAN: Yeah. Where on that page?

It’s a pretty crowded page.

MR. TARRANT: 254. It’s right in the middle of

the page, beginning with the word “authority” and then

it continues: “Acquisition is well within the technical

78a

expertise of the Agency. The Conferees intend that the

Commission’s authority apply only to home electronic

equipment and systems likely to be found in a private

residence and intended for residential use as distin-

guished from a device intended for office and business

”

use.

JUDGE WALKER: But aren’t they referring

essentially there to the equipment that - they are not

talking about transmitters. Transmitters, exclusive juris-

diction over radio transmitters had been established ear-

lier, and I think what a later section is saying is that

nothing alters that. Are you arguing that somehow the

FCC does not have jurisdiction over radio transmitters

now, that somehow it’s abrogated the long-term authority

of the Federal Communications Commission over radio

transmitters?

[8] MR. TARRANT: Not at all, except that you

have to understand that what Congress and the FCC have

been working for is to oversee the transmitters in, terms

of the spectrum, to allocate the spectrum so that each

transmitter would have a frequency and that they would

not interfere with one another. If you look at the sections

in my reply brief that are laid out in the U.S. Code, they

specifically deal with interference in terms of interference

between FCC services and licensees and governmental

services and signals and licensees. There is nothing that

speaks to interference to devices until you get to 302(a).

When you get to 302(a) there are twa sub parts that are

critical to this analysis because they go then to the regula-

tions. The regulations by the FCC follow 302(a), one — Sub

(a)(1) deals with RF devices. Those are devices, sophisti-

cated devices that have radio frequency emissions that

79a

are capable of interfering with radio signals. That was the

concern by Congress. Sub 2 is a second section but that

doesn’t deal specifically with interference; it deals with

establishing standards for minimum performance of

home electronic devices.

JUDGE SOTOMAYOR: Counsel, that is my [9]

problem. Your argument doesn’t make any sense. Subdi-

vision (a) deals with the transmitters. The issue here is

the siting of a transmitter. The Conference Report says

very clearly we are going to deal with transmitters

through the FCC. The (b) section, the home device is a

receiver, not a transmitter. Whether that receiver is at

home or in a business, (a) covers it because the issue has

to do with the transmission of the interference, not with

its receipt.

MR. TARRANT: I beg to differ. My understand-

ing of 302(a)(1), if you read that and the reference to

devices deals with the sophisticated electronic devices

like computers and even televisions that operate with

some radio frequency, either conduction or radiation, and

it could either escape unintentionally and it might inter-

fere with a radio signal. Those are the -

JUDGE SOTOMAYOR: Counsel, read (a). (a)(1)

says “governing the interference potential, “the potential

of devices which in their operation are capable of remit-

ting radio frequency energy.” The towers at issue here,

are they or are they not devices which in their operation

are capable of emitting radio frequency, yes or no?

[10] MR. TARRANT: They are not the type of

devices we have heard in 302(a) and 302(a)(1). They are -

80a

JUDGE SOTOMAYOR: Where in the language

are they not that type of device? I mean, this is a very

broad statement. Any devices which in their operation

are capable of emitting radio frequency energy; answer

my question of why this tower is not capable of emitting

radio frequency energy.

MR. TARRANT: It is capable and it does. Every

signal and - every signal has radiation coming out and it

has three effects: The signal, the radiation, health con-

cerns and interference, those are the three effects. What

I’m saying in my argument is that Congress over the

prior forty or fifty years has dealt with the devices, the

transmitters, the signals. They are the transmitters that

are covered in the sections that I point out on page 5 of

my reply brief, And therefore Congress has always, as

you read the cases, prior to 1982 found that it exclusively

regulates interference between towers, between radio sta-

tions. Those they always refer to them as radio stations.

You go back to the Blackburn case that is [11] cited. They

don’t have to wait for 302(a), they already have that

authority under 47 USC. That authority is under Section

301 and 303. And it wasn’t until 302 when home elec-

tronic devices and other kinds of devices that could emit,

we were starting to see sophisticated home electronic

devices, home electronic devices that could emit radio

frequency energy. They were not towers, they were not

radio stations or licensees, but the radiation could emit -

could be emitted and it might theoretically interfere with

a radio signal.

JUDGE SOTOMAYER: So they used home

devices in (a)(2)-but didn’t use it at (a)(1). Don’t we have

8la

Statutory principles that if Congress knows what it

intends that it should use the same word in both?

MR. TARRANT: That’s correct. That’s correct.

JUDGE SOTOMAYOR: But it tends to limit

(a)(1) to the type of devices that you are talking about,

why didn’t it say? They used broader language.

MR. TARRANT: Your Honor, remember that

what it’s speaking of in sub one is interference to radio

signals. They are not talking [12] about interference to

electronic devices. They are still concerned with interfer-

ence to the radio signal; that is its ultimate and only

responsibility in terms of administering the spectrum.

They want to make sure that ham operators and taxicab

drivers and oil dispatching companies do not interfere

with radio signals, and those radio Signals are all in some

form or another regulated and overseen by the FCC. Its

only when you get to (a)(2) that they talk about home

electronic devices as opposed to business devices, and

that is where you have to read page 254 of the appendix

to understand that Congress explicitly states: “We do not

want the FCC to meddle into business electronic equip-

ment.” They state that. And that is critical to our argu-

ment.

JUDGE WALKER: Okay. We have your argu-

ment. Your time is up and we'll hear the other side now.

MR. SULLIVAN: Thank you. Good morning,

Your Honors. I’m Brian Sullivan, and I’m here on behalf

of Bell Atlantic Mobile.

I think the Court’s questions really basically are the

central issue of this appeal, and that is when you look at

82a

radio frequency interference it’s absolutely crucial to dis-

tinguish between the [13] transmitter that causes the

interference and the receiving device that experiences it.

Once that distinction is made and understood, I think the

very laborious process that the Appellants have gone

through becomes unnecessary. The legislative history is

entirely clear, the authority over transmitting devices has

existed from the inception of the Federal Communica-

tions Act. In no way is Congress attempting to limit that

aspect of the FCC’s jurisdiction in 1982. Instead, after

having identified a particular problem_and a particular

class of receiving devices that were susceptible to inter-

ference, Congress was broadening the jurisdiction of the

FCC. So now in the wake of the 1982 amendments, the

transmitters, such as the services that Mr. Tarrant referred

to that operate from this tower, continue to be subject

only to the FCC in terms of interference they emit. How-

ever, with those amendments, manufacturers of receiving

devices now may also be subject to FCC jurisdiction if

those are consumer devices. Yes, the Congressional com-

mittee that looked at this stated the reason for distin-

guishing in 1982 between the consumer and non-

consumer was that the consumer devices which is not

built to adequate RFI rejection [14] standards, and that is

why they created that distinction. But in no way, in no

way does that abrogate the authority that the FCC has

always had with the transmitters. Congress said that

exclusively in the passages that Your Honor is referring

to. Indeed, the cases of which there are about 12 or 13

that we cited all come down the same way with the

exception of that one wrongly decided case we cited. All

of those courts, state, federal, trial courts, appeal courts

piers

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83a

and FCC administrative decisions all focus in on that

language, and despite the characterization of those deci-

sions that the Appellants have made, most of those deci-

sions don’t involve interference between radio

transmitters. Most of them involve the same types of

interference complaints that we have in this case, that a

radio station or other transmitter is interfering with a

home or a business receiving device, That is what is at

Stake in this case; that is what has been decided in all

those other cases. Because those cases are so clear,

because the legislative history is so clear, I think at this

point, Your Honors, I would just refer you to our briefs

and thank you for your time.

JUDGE WALKER: Very well. Do we have [15]

anybody else?

MR. CAIN: Good morning, Your Honor. My

name is John Cain, I represent WIZN.

We ask the Court to affirm the judgment down below,

and the issue before the Court is really whether federal

law preempts state law when it comes to regulating RFI.

Before we get too far afield, I'd lile to point out to the

Court what the matter concerns here. The Town of Char-

lotte is attempting to regulate RFI. They issued a zoning

violation against WIZN, Bell Atlantic and Charlotte Fire

and Rescue. That is what this matter is about. Every

single time in the reported decisions that we briefed that

that has been happened, the court has ruled that there is

total preemption and only the Commission can regulate

RFI. The entire situation started back, passing the Federal

Communications Act of 1934, and they sought to make

some order out of the chaos that was happening with FM

84a

radio. Before the passage of the Federal Communications

Act, FM radio broadcasters were broadcasting on any

frequency they wanted, there was no regulation, there

was a lot of interference. So when the Federal Communi-

cations Act came along, the decision was made to central-

ize authority over the technical [16] aspects of radio

broadcasting. And it has been held with uniformity that

local and state organizations could not regulate RFI

because total preemption so that the Commission can

regulate the technical aspects of radio broadcast, and that

is why w

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