# Opposition Brief — Freeman v. Burlington Broadcasters, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1089%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2000 - **Citation:** 531 U.S. 917 ## Text 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 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 c [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1089%3A3. Public record. Not legal advice.