# Amicus Curiae Brief — Freeman v. Burlington Broadcasters, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1089%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2000 - **Citation:** 531 U.S. 917 ## Text 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 COTES TIC PI TO iseticccsevcnconisssnninotnacsanisnsaniinsiescbpiats i » ERT Ce Ae sarc ccessnnsasssesenstnenaninns sincnacintannens ii 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 TEE, Edemniee cae PROS ONO ccssescscnrssscscccniacisinnssamenisionsninanans 9 COURIC ATION wissisnsashcsncsenisinnnensnniannenncienansacamnanatnniaainies 10 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: ee ee 9 I ics nics cane mien 9 I is csddeinimsiioniemunnions 5,7 A I oi iinncsisitensctiessnitehonrana 5 OO 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1089%3A4. Public record. Not legal advice.