Schroeder v. Municipal Court

• Citation: 73 Cal.App.3d 841,141 Cal.Rptr. 85
• Court: California Court of Appeals
• Decision Date: 03 October 1977
• Parties: John L. SCHROEDER, Petitioner and Appellant, v. The MUNICIPAL COURT OF the LOS CERRITOS JUDICIAL DISTRICT, Respondent; The PEOPLE of the State of California, Real Party in Interest and Respondent. Civ. 49806.

Page 85

141 Cal.Rptr. 85

73 Cal.App.3d 841

John L. SCHROEDER, Petitioner and Appellant, v. The MUNICIPAL COURT OF the LOS CERRITOS JUDICIAL DISTRICT, Respondent The PEOPLE of the State of California, Real Party in Interest and Respondent.

Civ. 49806.

Court of Appeal, Second District, Division 2, California.

Oct. 3, 1977.

As Modified Oct. 13, 1977.

Hearing Denied Dec. 1, 1977.

Frederick J. Lawson, Sherman Oaks, for appellant.

J. Kenneth Brown, Ebben & Brown, and Thomas F. Winfield III, Los Angeles, for City of Cerritos.

John K. Van De Kamp, Dist. Atty., Donald R. Wagner, Deputy Dist. Atty., for real party in interest.

FLEMING, Acting Presiding Justice.

Appeal from a judgment of the Superior Court denying a peremptory writ of prohibition directed against the Los Cerritos Municipal Court to enjoin prosecution of a municipal zoning ordinance violation. The ordinance in question prohibits in the RS (single family residential) zones any radio or television transmitting or receiving antenna over forty feet in height from the ground or fifteen feet from the roof, whichever is less. Appellant is an FCC licensed amateur radio station operator being prosecuted for having constructed at his home in the RS zone a seventy foot vertical antenna consisting of a crank-up tower encased in concrete. The ordinance in question provides:

"(21) Radio and Television Antennas: Radio or television transmission or receiving facilities shall conform to the following provisions:

"(a) The facilities shall not exceed forty feet in height from ground level or fifteen feet above the roof height, whichever is least, unless permitted by the planning commission, . . .."

The planning commission denied him a permit, stating that his antenna would be out of character with the aesthetics of the neighborhood, would be a visual and aesthetic blight, and would operate contrary to the performance standards of the City of Cerritos relative to electrical interference. Appellant testified that at the forty-foot height his antenna could communicate as far as New York or Hawaii, but that at the extended height it could reach anywhere in the world. He also testified that electrical interference would in fact be 4000 times stronger at forty feet than at the extended height of seventy feet. Appellant appeals the court's denial of a writ of prohibition, contending (1) the ordinance is void because federal regulation of radio transmission under the 1934 Communications Act (47 U.S.C. § 151 et seq.; 47 C.F.R. § 97 et seq.) has pre-empted the field of regulation of radio transmission; (2) the ordinance is an impermissible restriction or a prior restraint on free speech; (3) the ordinance is unreasonable and arbitrary and an impermissible exercise of the police power.

1. On pre-emption, those authorities directly in point dealing with regulation of antenna height hold that local land use regulation of antenna height is permissible and is not precluded by FCC regulation of radio transmission. (See Kroeger v. Stahl (3 Cir. 1957) 248 F.2d 121, permitting an absolute ban on FCC licensed mobile radio stations in residential zones; Presnell v. Leslie (1957) 3 N.Y.2d 384, 165 N.Y.S.2d 488, 144 N.E.2d 381, upholding the zoning board's denial of a permit to an FCC licensed amateur radio station operator to construct a forty-foot rotary beam antenna on his home premises; Note, 44 Cornell L.Q. 94, 102 (1958); Note, "State Regulation of Radio and Television," 73 Har.L.R. 386, 395 (1959).) "(L)ocal interest in these towers is maximized because they affect residential property values, aesthetic characteristics, and the physical safety of members of the community." (Note, supra, 73 Har.L.R. at 395.) Also, an opinion of the California Attorney General concludes that pursuant to its police powers, a chartered city may enact reasonable regulations as to height, location, and method of installation of amateur radio antennas. (Op. No. 71-79, 54 Ops.Atty.Gen. 102 (1971).) The request for that opinion was apparently precipitated by an accident in which one man was killed and four others were injured when they lost control of a 65-foot antenna they were attempting to install on a residential roof and allowed it to strike a high power line. The justification for permitting local regulation of antenna height is that antennas may be a safety hazard, may decrease property values, and may constitute "eyesores." (See Note, supra, 44 Cornell L.Q. at 102.)

In a pre-emption case the fundamental inquiry is whether local legislation will conflict with national policy; if the activity is of predominantly local interest then state action may be permissible, but if a uniform national rule is necessary then federal pre-emption will be implied. (California v. Zook (1949) 336 U.S. 725, 728, 69 S.Ct. 841, 93 L.Ed. 1005; R. E. Spriggs Co. v. Adolph Coors Co. (1974) 37 Cal.App.3d 653, 658, 112 Cal.Rptr. 585.) The fundamental rationale for the Communications Act of 1934 (47 U.S.C. §§ 151 et seq.) is based on the fact that the number of available radio frequencies is finite, and therefore, Congress must exercise its power over interstate commerce to allocate available frequencies and control their use. (Federal Communications Commission v. Sanders Brothers Radio Station (1940) 309 U.S. 470, 474, 60 S.Ct. 693, 84 L.Ed. 869.) Unquestionably, federal legislation has pre-empted local regulation of radio transmission, including assignment of frequencies, interference phenomena, and the content of broadcast material. (See, e. g., Allen B. Dumont Laboratories Inc. v. Carroll (E.D.Penna.1949) 86 F.Supp. 813, aff'd, 184 F.2d 153, cert. denied 340 U.S. 929, 71 S.Ct. 490, 95 L.Ed. 670; United States v. Southwestern Cable Co. (1968) 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001; Standard Radio and Television Co. v. Chronicle Publishing Co. (1960) 182 Cal.App.2d 293, 6 Cal.Rptr. 246.) As stated, existing authority regarding regulation of antenna height has found sufficient local interest to sustain local regulation. Also, the federal regulation of amateur radio operators (47 C.F.R. §§ 97 et seq.) reveals no detailed regulation of antenna height, but rather one blanket limitation on height to 200-foot (47 C.F.R. § 97.45), plus extensive height regulation of antennas in the vicinity of airports. The FCC has not exhibited concern over antenna height where airport safety is not involved. By contrast, many detailed regulations govern the assignment of frequencies and the prevention of interference phenomena (see e. g., 47 C.F.R. §§ 97.73, 97.131, 97.133), and there can be no doubt that federal regulation has pre-empted control in those areas.

Appellant's contention that the 1934 Act foreclosed all local regulation of radio communication is simply incorrect. Each case turns on whether local regulation has invaded the exclusively national sphere under the principles set forth above, or whether it involves a matter of local concern that does not require a uniform rule. In addition to authorities such as Kroeger v. Stahl, supra, (3 Cir. 1957) 248 F.2d 121, which uphold land use regulation of antenna height, local regulation of other aspects of radio communication has been sustained. For example, local authorities may regulate franchising and rate making for the cable television industry, provided the regulation is reasonable (Greater Fremont Inc. v. City of Fremont (N.D.Ohio 1968) 302 F.Supp. 652, 660); and they may regulate professional advertising on a local radio station (Head v. New Mexico Board of Examiners in Optometry (1963) 374 U.S. 424, 429-31, 83 S.Ct. 1759, 10 L.Ed.2d 983).

Appellant asserts that the only reasons given by the planning commission in denying him a permit were aesthetic considerations and the problem of electrical interference, and that the FCC has pre-empted the latter area. His assertion that the FCC's detailed regulation of interference phenomena has pre-empted that aspect of regulation of radio transmission is correct, and this ground does not constitute a valid reason to prevent him building an antenna more than forty feet high. But it is irrelevant to the reasonableness of an ordinance that the legislators had improper motives or purposes (McCarthy v. Manhattan Beach (1953) 41 Cal.2d 879, 894, 264 P.2d 932), and it is even less relevant that a member of the planning commission advanced an impermissible ground in denying a permit. The question is whether there is any rational justification for the ordinance, and because valid considerations to support local regulation of antenna height exist, the ordinance is not pre-empted by federal regulation by reason of the planning commission's misapprehension of its powers. ¹

2. We turn to the question whether the ordinance is an invalid regulation of appellant's freedom of speech and expression under the First and Fourteenth Amendments. The well-established rule is that reasonable, narrowly-drawn statutes may regulate the time, place, and manner of expression, but that blanket prohibitions of expression are invalid (Dillon v. Municipal Court (1971) 4 Cal.3d 860, 867-69, 94 Cal.Rptr. 777, 484 P.2d 945), as are overbroad statutes or those without clearcut standards (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 305, 138 Cal.Rptr. 53; Remer v. City of El Cajon (1975) 52 Cal.App.3d 441, 125...