204 F.3d 311 (2nd Cir. 2000), 97-9141, Freeman, et al v Burlington Broadcasters

Docket Nº:Docket No. 97-9141
Citation:204 F.3d 311
Party Name:GRAEME FREEMAN, MARY BETH FREEMAN, FRANK ITTLEMAN, ELAINE ITTLEMAN, MIKE FOURNIER, HOLLY FOURNIER, ELLEN LANE, WILLIAM PINNEY, JR., MARK W. BOLLES, CLAUDIA MUCKLOW, DONNA A. WARK, IRIS MUGGENTHALER, JAMES H. SQUIRES, LAWRENCE HAMILTON, ROBERT CARMODY, MARK MUSIEL, MICHAEL YANTACHKA, LORIE GADBOURY, CHRIS MCGEE, PETER COLEMAN, BARBARA SANFORD FARREL
Case Date:February 23, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
FREE EXCERPT

Page 311

204 F.3d 311 (2nd Cir. 2000)

GRAEME FREEMAN, MARY BETH FREEMAN, FRANK ITTLEMAN, ELAINE ITTLEMAN, MIKE FOURNIER, HOLLY FOURNIER, ELLEN LANE, WILLIAM PINNEY, JR., MARK W. BOLLES, CLAUDIA MUCKLOW, DONNA A. WARK, IRIS MUGGENTHALER, JAMES H. SQUIRES, LAWRENCE

HAMILTON, ROBERT CARMODY, MARK MUSIEL, MICHAEL YANTACHKA, LORIE GADBOURY, CHRIS MCGEE, PETER COLEMAN, BARBARA SANFORD FARRELL, AND WILLIAM PINNEY, SR.,

Plaintiffs-Appellants,

v.

BURLINGTON BROADCASTERS, INC., d/b/a WIZN, CHARLOTTE FIRE & RESCUE SERVICES, INC., and NYNEX MOBILE LIMITED PARTNERSHIP 1, d/b/a BELL ATLANTIC NYNEX MOBILE, Defendants-Appellees.

Docket No. 97-9141

United States Court of Appeals, Second Circuit

February 23, 2000

Argued: October 15, 1999

Appeal from the August 11, 1997, judgment of the United States District Court for the District of Vermont (William K. Sessions, III, Judge), dismissing, for lack of subject matter jurisdiction, an administrative appeal removed from the Vermont Environmental Court.

Affirmed as modified.

Page 312

[Copyrighted Material Omitted]

Page 313

[Copyrighted Material Omitted]

Page 314

Gerald R. Tarrant, Tarrant, Marks & Gillies, Montpelier, VT, for plaintiffs-appellants.

Brian J. Sullivan, Burak Anderson & Melloni, Burlington, VT., for defendant-appellee NYNEX Mobile Limited Partnership 1.

John P. Cain, McCormick, Fitzpatrick, Kasper & Burchard, Burlington, VT., for defendant-appellee Burlington Broadcasters, Inc.

(Senator Patrick Leahy, Senator James Jeffords, U.S. Senate, Washington, D.C., Congressman Bernie Sanders, U.S. House of Representa-tives, Washington, D.C. submitted a brief for amici curiae in support of plaintiffs-appellants).

(Christopher J. Wright, Gen. Counsel, Daniel M. Armstrong, Assoc. Gen. Counsel, Joel Marcus, Federal Communications Commission, Washington, D.C.; Joel I. Klein, Asst. Atty. Gen., Robert B. Nicholson, Marion L. Jetton, U.S. Department of Justice, Washington, D.C., submitted a brief for amicus curiae Federal Communications Commission).

Before: NEWMAN, WALKER and SOTOMAYOR, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal raises a preemption issue pitting federal authority in the field of radio communications against local zoning authority. The precise issue is whether the Federal Communications Act of 1934, as amended (FCA), and regulations promulgated by the Federal Communications Commission (FCC) preempt a local zoning board's power to enforce a condition of a permit to construct and use a communications tower; the permit condition requires the permittees to remedy any radio frequency interference ("RF interference" or "RFI") from tower signals with appliances and devices in local homes. Appellees Burlington Broadcasters ("WIZN"), Charlotte Volunteer Fire & Rescue Services ("CVFRS"), and NYNEX Mobile Limited Partnership1 dba Bell Atlantic NYNEX Mobile ("BANM") transmit radio signals from a tower in Charlotte, Vermont. The Appellants, homeowners living near the tower ("Homeowners"), appeal from a judgment by the United States District Court for the District of Vermont (William K. Sessions, III, District Judge), dismissing, after removal from the Vermont Environmental Court, their appeal from a decision of the Town of Charlotte's Zoning Board of Adjustment ("ZBA") that held the condition unenforceable. See In re Freeman, 975 F.Supp. 570 (D. Vt. 1997). We agree with both the local agency and the District Court that federal law preempts enforcement of the permit condition, but we conclude that the appropriate disposition is not to dismiss the removed appeal, but to affirm the ZBA's decision on the preemption issue.

Background

Facts. The underlying facts are largely undisputed. Appellee WIZN operates a radio station under an FCC license, which authorizes WIZN to broadcast from a 199-foot tower in Charlotte. Appellee BANM transmits cellular telephone calls from four 13-foot "whip" antennas mounted on the tower. Appellee CVFRS uses tower transmitters intermittently in connection with providing fire and ambulance services to the Town of Charlotte.

In late 1986, WIZN and CVFRS sought a permit from the Town of Charlotte to build a tower on Pease Mountain and to transmit radio signals from it. At a hearing to discuss the matter, a WIZN representative assured concerned townspeople that there would not be any RF interference with their home electronic devices, and that if such interference occurred, WIZN would "trap it out." The phenomenon of RF interference is explained in the legislative history of the 1982 Amendments to the FCA: "Radio frequency interference ... arises when a signal radiation by a transmitter is picked up by an electronic device in such a manner that it prevents

Page 315

the clear reception of another and desired signal or causes malfunction of some other electronic device." H.R. Conf. Rep. No. 97-765, at 21 (1982), reprinted in 1982 U.S.C.C.A.N. 2261, 2265.

In January 1987, the Town of Charlotte's Zoning Board of Adjustment ("ZBA") issued WIZN and CVFRS a permit to construct and use the tower on the express condition that "any interference with reception in homes in the area because WIZN began broadcasting will be remedied by WIZN." After the tower was built, WIZN conveyed ownership to CVFRS. In April 1987, WIZN began broadcasting from space on the tower leased to it by CVFRS. In 1991, BANM's predecessor and CVFRS received approval from the ZBA to mount four whip antennas on the tower for the purpose of cellular phone signal transmission. Although a representative of CVFRS orally assured the ZBA that the antennas would cause no interference, BANM was not required to agree to any conditions concerning RF interference.

State administrative proceedings. On April 5, 1996, in response to a considerable number of RF interference complaints by the Appellants and other Charlotte residents, the Charlotte Zoning Administrator issued a notice of violation to WIZN, BANM, CVFRS, and the landowner. The notice alleged that the facility caused long-term and continuous RF interference in violation of the condition of WIZN's permit.

The cited parties appealed the notice of violation to the ZBA, which conducted public hearings in May 1996 pursuant to Vt. Stat. Ann. tit. 24, § 4467 (1992 & Supp. 1999). The Homeowners, the Appellants in the pending appeal, appeared as "interested persons" under id. § 4464(b) and identified various RF interference problems with their household electrical and electronic devices. On July 11, 1996, the ZBA issued its Notice of Decision. The ZBA found that

WIZN has caused continuous and widespread RFI that has impaired the ability of Charlotte residents to communicate, transact business, and experience the peaceful enjoyment of their homes and property. In addition, the Board finds that these individuals have expended substantial amounts of money in their attempts to remedy interference problems.

Notice of Decision at 5. The ZBA also commented on WIZN's sluggishness in responding to complaints. The ZBA noted that "[w]hile WIZN successfully reduced and/or eliminated RFI in some cases, other Charlotte residents continue to experience annoying, costly, and burdensome interference problems." Id. However, the ZBA found "no credible evidence" demonstrating that any of the other cited parties -- CVFRS, BANM, and the landowner -- caused RF interference. Id.

Although the ZBA found that WIZN was in violation of the condition of its permit, the ZBA also concluded that its authority to enforce the permit condition was preempted by the federal government's occupation of the field of RF interference regulation. The ZBA also noted that Vermont law provides that, under some circumstances, co-permittees and property owners are jointly liable for violations, but found that any such co-permittee liability was also subject to preemption.

The Homeowners and the Town of Charlotte appealed the decision of the ZBA to the Vermont Environmental Court pursuant to Vt. Stat. Ann. tit. 24, § 4471 (1992 & Supp. 1999). In addition to challenging the preemption decision concerning enforceability of the permit condition, the parties argued that state or local jurisdiction existed over claims of fraud, deceit, or misrepresentation against WIZN, BANM, and CVFRS, and that Charlotte residents had been denied unspecified consumer rights. The Homeowners also challenged the ZBA's factual finding that only WIZN, and not CVFRS, BANM, and the property owner, caused the RF interference.

Page 316

District Court proceedings. Before decision by the Vermont Environmental Court, the Appellees removed the case to the District Court. 1 BANM moved to dismiss, pursuant to Rule 12(b)(1), for lack of subject matter jurisdiction, and, pursuant to Rule 12(b)(6), for failure to state a claim. WIZN also moved to dismiss for failure to state a claim. CVFRS joined both motions. The thrust of all the Appellees' arguments was that pervasive federal regulation preempted enforcement of the locally imposed condition. The District Court recognized its obligation to consider subject matter jurisdiction, but did so primarily by inquiring whether local regulation of RF interference was federally preempted. The Court concluded that federal law conferred exclusive jurisdiction on the FCC to regulate RF interference. Turning to the Homeowners' allegation of fraud and deceit, based on the Appellees' promise to the ZBA either to avoid RF interference with home devices or eliminate it, the Court distinguished between the Homeowners' possible remedies; to the extent that they sought the remedy of eliminating RF interference, the Court ruled that such a remedy was preempted, and to the extent they were seeking (or even had standing to seek) any other relief, their claims "were not...

To continue reading

FREE SIGN UP