Amicus Curiae Brief — Freeman v. Burlington Broadcasters, Inc.

MOTION FILED

JUN 2 3 2000 LY

NO. 99-1880

IN THE

Supreme Court of United States

GRAEME FREEMAN, et al.,

Petitioner,

v.

BURLINGTON BROADCASTERS, Inc., dba WIZN, et al.,

Respondent.

On Petition For a Writ Of Certiorari

To The United States Court of Appeals

For the Second Circuit

MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE

AND BRIEF OF AMICI CURIAE JAMES M. JEFFORDS,

PATRICK LEAHY AND BERNARD SANDERS,

OF THE STATE OF VERMONT

SENATOR JAMES M JEFFORDS

Counsel of Record

SENATOR PATRICK LEAHY

United States Senate

Washington, D.C. 20510

(202) 224-3121

CONGRESSMAN BERNARD SANDERS

U.S. House of Representatives

Washington, D.C. 20515

(202) 225-4115

i

QUESTION PRESENTED

Is local zoning preempted by the Federal Communi-

cations Act and regulations promulgated by the Federal

Commications Commission when radio or telecommunica-

tions facilities cause interference with local electrical and

electronic devices used by local businesses and

institutional services?

1

MOTION OF JAMES M. JEFFORDS, et al.,_

FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

TO THE HONORABLE COURT:

COMES NOW, JAMES M. JEFFORDS, and files this

Motion for Leave to File Brief as Amici Curiae on his behalf

and that of other Amici.

JAMES M. JEFFORDS is a resident of Vermont who

seeks to inform this Honorable Court of the impact this case

has on the power of local Vermont officials acting under au-

thority of state law to protect the health and safety of citizens

of Vermont and to influence the placement of radio and tele-

communications facilities within Vermont’s borders.

Under Supreme Court Rule 37, the Vermont Congres-

sional Delegation consisting of Senator Jeffords, Senator Leahy,

and Congressman Sanders, as residents of Vermont, seek to

present the interests of residents of Vermont in the exercise of

local control over health, public safety and land use matters

regarding land located in Vermont and regarding residents of

the Town of Charlotte, Vermont. A decision in this matter would

have significant national implications for thousands of com-

munities throughout the Nation.

The following parties have consented to the filing of

this brief Amici Curiae: Petitioners ~ Gerald R. Tarrant, Esq.

representing petitioners; Graeme Freeman, Mary Beth Free-

man, Frank Ittleman, Elaine Ittleman, Mike Fournier, Holly

Fournier, Ellen Lane, William Pinney, Jr., Mark W. Bolles,

Claudia Mucklow, Donna A. Wark, Iris Muggenthaler, James

H. Squires, Lawrence Hamilton, Robert Carmody, Mark Musiel,

Michael Yantachka, Lorie Gaboury, Chris McGee, Peter

2

Coleman, Barbara Sanford Farrell, and William Pinney, Sr.; Re-

spondents — Brian J. Sullivan, Esq. representing NYNEX Mo-

bile Limited Partnership 1 d/b/a Verizon Wireless, Robert E.

Fletcher, Esq. representing the Town of Charlotte, and John P.

Cain, Esq. representing Burlington Broadcasters d/b/a WIZN.

The following has not responded ~ Thomas Heilmann, Esq.

JAMES M. JEFFORDS therefore moves this Court for

leave to file a brief Amici Curiae, with Patrick Leahy and Ber-

nard Sanders, and asks this Court to accept for filing the at-

tached brief in support of the petition for Writ of Certiorari on

this the 23" day of June, 2000.

Respectfully submitted,

James M. Jeffords,

United States Senator

United States Senate

Washington, D.C. 20510

Phone: (202) 224-3121

Fax: (202) 228-0776

Patrick Leahy,

United States Senator

Bernard Sanders,

Member of Congress

i

TABLE OF CONTENTS

Page

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INTEREST OF AMICI CURIAE ......scssssssossscsscsscecoscessscseesees 1

SUMMARY OF ARGUMENT .............csssscsscssssosssccsccssesssees 2

I. Industry’s Attempts to have Congress and the FCC

Preempt Local Siting Authority Have Been Rejected .... 4

II. Industry Reliance on Local Control ...........ccsscssssssssseeeees 8

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TABLE OF AUTHORITIES

Page

Cases

AT&T Wireless PCS, Inc. v. City of Virginia Beach,

155 F.3d 423 (4% Cir. 1998) ..........ccccccscssrsossccsseecsesecseesees 6

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

975 F. Supp. 570 (D. Vt. 1997) (Appendix D, in Petition

Bese Wikt OF Central) ..a.aca.acsacusessnnscsconvinssonerosecnonsesnens 48

Head v. New Mexico Board of Optometry,

374 U.S. 424 (1963) ............csscccccorcsccecseeserscsessessscnsssscseoee 8

Pacific Gas and Electric Company v. State Energy Resources

Conservation and Development Commission,

OE I I oiiiiie ectrnccecccenenmade 9

Statutes:

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1

BRIEF OF AMICI CURIAE

JAMES M. JEFFORDS AND OTHERS IN

SUPPORT OF THE PETITION

Pursuant to Rule 37.2 of the Rules of this Court, amici curiae

submit this brief in support of the Petitioners."

INTEREST OF AMICI CURIAE

James M. Jeffords is a resident of Vermont and represents

that state in the Senate of the United States of America, along

with Senator Patrick Leahy. Congressman Bernard Sanders

also represents Vermont as a resident and as a Member of the

United States House of Representatives. The members of the

Congressional delegation from Vermont are residents of Ver-

mont and have an interest in the proper application of federal

law in Vermont and thus seek to provide guidance in this mat-

ter as friends of this Honorable Court. The Charlotte Zoning

Board of Adjustment notified respondents in a notice dated April

5, 1996, and set forth in Appendix I (Petition for Writ of Cer-

tiorari)’, in part, that:

The operation of the [tower] has caused long-term and

continuous interference with electrical devices in homes

and businesses through out the town. Transmission from

this tower continue to interfere with devices including,

but not limited to, telephones, answering ,stereos and tape

machines, public address systems, televisions and VCRs,

baby monitors, and computers and security systems. . . .

[and] other stations on the FM diai.”

"No counsel for either party authored this brief amici curiae, either in

whole or in part. Furthermore, no persons other than amici curiae contrib-

uted financially to the preparation of this brief.

7All future references to “Appendices” are references to the Appendi-

ces found in the Petition for Writ of Certiorari.

2

The above-quoted text demonstrates a significant problem

in a Vermont community which local communities, such as

Charlotte, Vermont, are able to address consistent with the

United States Constitution, federal laws and federal regulations.

We are lodging with this Honorable Court a Federal Commu-

nications Commission document published this month which

articulates the important role that local communities have re-

garding the siting and uses of towers.

SUMMARY OF ARGUMENT

Amici respectfully submit this brief to urge the Court to

grant the Petition for Writ of Certiorari. We respectfully urge

that the Court of Appeals decision, affirming the decision of

the District Court regarding the scope of federal preemptive

authority regarding local authority over health and safety, and

regarding local authority over land use, is not consistent with

specific language set forth in the Federal Communications Act

of 1934, as amended (FCA). We urge that federal law does not

preempt state and local regulation of the siting and use of the

radio tower in question under the facts set forth in this matter.

There are specific federal statutes granting the Federal Com-

munications Commission precise authority to regulate interfer-

ence among licensed radio stations, radio operators, govern-

ment stations and ships at sea but that explicit language does

not imply, and should not be read to imply, that the Congress

granted that authority in all other situations.

In general, amici urge that this issue is of great impor-

tance because of the dramatic increase in the siting, construc-

tion and use of telecommunications and radio towers in com-

munities throughout the United States. The location of such

towers near homes, schools, farms, churches, hospitals, airports,

highways, and the whole host of work and home environments

Y)

3

is of great importance to the States, to local governments and

citizens, and well as to the federal policy of enhancing access

to communications. Amici urge that federal law establishes a

balancing system within which States, and local governments,

through the exercise of local health and safety powers, and cer-

tain powers over the use of land, have a significant role in the

iocation, construction and use of these towers except in certain

circumstances where Congress has specifically provided oth-

erwise in a manner consistent with the United States Constitu-

tion. In this matter the respondents agreed to the conditions set

by the local zoning authority such that the tower in question

would not interfere with the operation of electronic devices in

the town.

Amici further urge that federal law carefully delineates in

many instances the respective roles of the federal government,

the States, or the people.

More specifically, amici support the argument of petition-

ers that the town of Charlotte, Vermont, has the authority to

require Burlington Broadcasters, d/b/a/ WIZN, and its co-per-

mittees, to enforce a local permit to remedy the interference to

local electrical and electronic devices used by local businesses

and institutional services or be held in violation of its 1987

permit. They correctly argue that the town in question retains

the authority to structure a reasonable solution, including the

possible relocation of this tower or antennas, to provide for

both radio and cellular telecommunication services as well as

addressing community needs for the proper operation of elec-

trical and electronic devices. Of course, the town’s judgments

in this regard are subject to judicial oversight.

4

This particular tower siting and use was approved by the

town zoning board on the assurance and under the condition

that interference with business and institutional electronic equip-

ment would not occur, or would be rectified if it did occur where

such interference with business and institutional electronic

equipment continues to exist. District Court, Appendix C, pages

34a, at 38a through 39a. Amici urge that federal law, and the

powers retained by the States, permit the town of Charlotte,

Vermont, to enforce its reasonable conditions imposed on re-

spondents and agreed to by respondent operator of the tower.

District Court Opinion, Appendix C, at 37a and 38a.

ARGUMENT

I. Industry’s Attempts to have Congress and the FCC

Preempt Local Siting Authority Have Been Rejected.

In 1995 and 1996, the broadcast and wireless industries pro-

posed bills to the Congress which would have granted broad

preemptive authority to the FCC regarding the siting of broad-

cast and wireless facilities, including towers. Those proposals

were expressly rejected by Congress in 1996 when Congress

passed the Telecommunications Act of 1996 (“TCA 1996”).

110 Stat. 56 (1996), codified in scattered sections of 47 U.S.C.

While Congress did pass some preemptive language for mo-

bile wireless facilities, it expressly rejected the broad sweeping

language the industry proposed. The limited language that Con-

gress did pass preempted towns and localities from regulating

“the placement, construction and modification of personal wire-

less facilities on the basis of the environmental effects of radio

5

frequency emissions to the extent that such facilities comply

with the Commission’s regulations concerning such regula-

tions.” 47 U.S.C. § 332(c)(7)(B)(iv). (Emphasis added.)? Con-

gress rejected attempts to preempt local government authority

over the siting of radio broadcast towers and other facilities.

No provision similar to section 332(c)(7), regarding per-

sonal wireless service, can be found in the Communications

Act of 1934, as amended, regarding the siting of radio broad-

cast towers.

After enactment of the TCA 1996, members of Congress

have seen additional unsuccessful attempts by the broadcast

and telecommunications industry to preempt local and state

authority to regulate the siting of towers and to preempt the

general police powers our communities have enjoyed for the

past 65 years over the siting of telecommunications facilities.

Local governments continue to have significant authority over

the siting of radio broadcast towers and the case law certainly

*With respect to “mobile services” Congress also enacted in 47 U.S.C.

332(¢7) provisions protecting local and state authority over the “place-

ment, construction, and modification of personal wireless service facilities,”

but prohibited local and state governments from discriminating among pro-

viders and from prohibiting “the provision of personal wireless service”

among other requirements for personal wireless service. See, Appendix N,

pages 120a though 122a, of the Petition for Writ of Certiorari filed in this

matter.

6

supports the FCC position.* Indeed, even with respect to mobile

telecommunications towers where Congress has granted the FCC

some preemptive authority, as just discussed, it is clear that local

governments also retain a great deal of authority over the siting

of those towers. AT&T Wireless PCS, Inc. v. City of Virginia

Beach, 155 F. 3d 423 (4th Cir. 1998). The decisive opinion in

AT&T Wireless PCS applies with much greater force to radio

broadcast towers since Congress has not attempted to preempt

local siting authority for such towers. Indeed, the Tenth Amend-

ment to the United States Constitution in part provides that pow-

ers “not delegated to the United States, nor prohibited to the States,

are reserved to the States or to the people . . .”

Local control over some aspects of telecommunications

facilities has been reinforced this month in an FCC publica-

tion produced to help local planners determine what are appro-

priate siting policies. This guide is called “A Local Govern-

ment Official’s Guide to Transmitting Antennae RF Emission

Safety: Rules, Procedures, Practical Guidance,” (“Local Guide’’)

and is dated June 2, 2000. The opening page of this guide was

transmitted by William E. Kennard, Chairman, Federal Com-

munications Commission, and Kenneth S. Fellman, Chair, Lo-

cal and State Government Advisory Committee.

‘In 1996, shortly after Congress passed the TCA 1996, the FCC did not

adopt a request from the broadcast industry that the Commission preempt

state and local communities over the placement, construction and modifica-

tion of broadcast facilities on the basis of the health effects from radiation.

The FCC, in part, noted:

167. The Telecommunications Act does not preempt state or local

regulations relating to RF emissions of broadcast facilities or other

facilities that do not fall within the definition of personal wireless

facilities. FCC 96-326, Appendix Y, pages 181a and 182a.

7

The guide, written by the FCC’s “Local and State Govern-

ment Advisory Committee” includes the following language*

regarding the FCC’s own interpretation of the 1996 Telecom-

munications Act:

[This document] does not address other issues such as

construction, siting, permits, inspection, zoning, envi-

ronmental review, and placement of antenna facilities

within communities. Such issues fall generally under

the jurisdiction of states and local governments, within

the limits imposed for personal wireless service facili-

ties by Section 332(c)(7) of the Communications Act

.... Section 332(c)(7) generally preserves state and lo-

cal authority over decisions regarding the placement,

construction, and modification of personal wireless ser-

vice facilities, subject to specific limitations set forth

in Section 332(c)(7). Among other things, Section

332(c)(7) provides that “[n]o State or local government

or instrumentality thereof may regulate the placement,

construction, and modification of personal wireless ser-

vice facilities on the basis of the environmental effects

of radio frequency emissions to the extent that such fa-

cilities comply with the [FCC’s] regulations concern-

ing such emissions.”

The guide’s authors further explain that state and local gov-

ernments and the FCC may “differ regarding the extent of state

and local legal authority under Section 332(c)(7) and other pro-

‘Footnote numbers from the original document are omitted. We will lodge

the full text of this document with the Clerk of this Honorable Court.

visions of law.... Rather than address these legal questions, this

document recognizes that, as a practical matter, state and local

governments have a role to play in ensuring compliance with

the FCC’s limits . . .”

This is the clearest language to date from the FCC explain-

ing the rights of local and state governments to regulate tele-

communication facilities in their communities and reinforces

the arguments being made by the petitioners from Charlotte.

Il. Industry Reliance on Local Control.

For decades the industry has relied on landowners and lo-

cal communities to accept radio towers. Radio towers have

been constructed on private land with the approval of, and un-

der conditions set by, local town zoning boards. This system

protects homeowners, controls aesthetic blight, allows commu-

nities to use their police powers, and promotes planned com-

munity growth while protecting private investment in radio

broadcast facilities which in turn can benefit communities rather

than “impair” them as the Charlotte Zoning Board of Adjust-

ment found had occurred in this matter. District Court Opin-

ion, Appendix C, at 38a and 39a.° Indeed, the FCC Local Guide

published this month and discussed earlier, describes such a

system of local and federal partnership.

“Indeed, the case law on preemption regarding the FCC “cannot be judged

by reference to broad statements about the ‘comprehensive’ nature of fed-

eral regulation .. ..” Head x New Mexico Board of Optometry, 374 U.S.

424. 429-30 (1963). Also see, notes 2 and 3.

9

Iil. Limits on FCC Authority.

The FCC is authorized to regulate the telecommunications

industry and ensure that telecommunications signals and other

devices do not interfere with radio communications. However,

Congress has not granted the FCC unlimited powers. First,

section 302a(a)(1) states in pertinent part:

(a) The Commission may, consistent with the public

interest, convenience and necessity make reasonable

regulations (1) governing the interference potential of

devices which in their operation are capable of emitting

radio frequency energy by radiation, conduction, orother

means in sufficient degree to cause harmful interfer-

ence to radio communications.

That section provides the FCC with the authority to regu-

late devices that create spurious signals in sufficient degree to

interfere with a radio station or other communication signal.

It does not provide, on its face, authority for the FCC to pro-

mulgate rules to regulate the machinery of our local businesses

and institutions.

Indeed, federal and local regulatory approaches can coexist

and pursue different objectives allowing for local adjustments

for local health, safety and land use reasons. Pacific Gas &

Electric Company v. State Energy Resources Conservation and

Development Commission, 461 U.S. 190 (1983).

Finally, it is Congress that promulgates broad policies on

who must accept interference and sets the rules for the FCC to

follow. In the past, Congress has been concerned that signals

and devices might have sufficient strength to interfere with other

10

radio communications. 47 U.S.C. §§ 302a(a)(1) and 303(f).

Congress has very artfully and at times very gingerly granted

the FCC authority over radio frequency interference.

It has not granted the FCC exhaustive authority in this area.

Congress has been deliberate, not extravagant, in delegating to

the FCC authority in these matters. The authority to make broad

public policy decisions remains with Congress not the FCC.

Moreover, reasonable local and state review of siting issues

including local interference issues does not have any measur-

able impact on the federal scheme.

CONCLUSION

For the foregoing reasons, the amici curiae strongly urge

this Court to grant the requested Petition for Writ of Certioriari.

Respectfully Submitted,

JAMES M. JEFFORDS

United States Senator

United States Senate

Washington, D.C. 20510

202 224-3121