Appeal of Graeme

• Decision Date: 11 August 1997
• Docket Number: No. 2:96-CV-295.,2:96-CV-295.
• Parties: In re Appeal of GRAEME and Mary Beth Freeman, et al.
• Court: U.S. District Court — District of Vermont

975 F.Supp. 570

In re Appeal of GRAEME and Mary Beth Freeman, et al.

No. 2:96-CV-295.

United States District Court, D. Vermont.

August 11, 1997.

Gerald Roland Tarrant, Tarrant, Marks & Gillies, Montpelier, VT, for Appellants.

John Powers Cain, McCormick, Fitzpatrick, Kasper & Buchard, Burlington, VT, Thomas F. Heilmann, Heilmann, Ekman & Assoc., Burlington, VT, Brian J. Sullivan, Burak, Anderson & Melloni, PLC, Burlington, VT, for Appellees.

OPINION AND ORDER

SESSIONS, District Judge.

This action is an appeal from a decision by the Town of Charlotte Zoning Board of Adjustment ("ZBA") finding that it had no jurisdiction to enforce its requirement that the users of a telecommunications tower remedy any radio frequency interference ("RFI") experienced by the residents of the town. The users of the tower, Burlington Broadcasters, Inc., d/b/a WIZN-FM ("WIZN"), NYNEX Mobile Limited Partnership 1 d/b/a Bell Atlantic NYNEX Mobile ("BANM"), and Charlotte Volunteer Fire and Rescue Services, Inc. ("CVFRS"), seek dismissal of the action on the grounds that the Federal Communications Commission ("FCC") has exclusive jurisdiction over complaints involving RFI.

I. Factual Background

WIZN operates an FM radio station and is licensed by the FCC to broadcast from an approximately 199 foot radio transmission tower on Pease Mountain in Charlotte, Vermont. BANM transmits cellular calls from four thirteen foot "whip" antennas mounted halfway up the tower. CVFRS makes intermittent use of the tower in connection with providing fire and ambulance service for the town.

In 1986 WIZN and CVFRS received zoning approval from the Town of Charlotte to build the Pease Mountain tower. At a hearing in connection with the zoning permit to build the tower, community residents raised concerns about RFI.¹ According to the minutes of the meeting, WIZN's representative, Michael Calhoun, stated that there would not be any interference, and if there was, WIZN would "trap it out." (paper 19, att. B). WIZN and CVFRS received approval to construct the tower, on the condition that "[a]ny interference with reception in homes in the area because WIZN begins broadcasting will be remedied by WIZN. WIZN will broadcast 50,000 watts per day." Id.

After the tower was built, WIZN conveyed ownership of the tower to CVFRS. In April 1987 WIZN began broadcasting from the tower. In 1991 BANM (formerly Contel Cellular) and CVFRS received zoning approval from the ZBA to mount the whip antennas. The ZBA placed no conditions respecting RFI on the approval.

On April 5, 1996, the Charlotte Zoning Administrator issued a notice of violation to WIZN, BANM, CVFRS and the landowner. According to the notice, the operation of the broadcast facility had caused "long-term and continuous" interference with electronic devices and other appliances, in violation of the terms and conditions of ZBA approvals and permits, which required that any RFI would be remedied by the users.

WIZN, BANM, CVFRS, and the landowner appealed the notice of zoning violation to the ZBA. The ZBA conducted public hearings in May, 1996, pursuant to Vt. Stat. Ann. tit. 24, § 4467 (Supp.1996). A group of "interested persons" as defined in Vt. Stat. Ann. tit. 24, § 4464(b) (Supp.1996) ("the Freemans" or "the Neighbors") appeared and were heard at these proceedings. At the hearings, Charlotte residents identified RFI problems with "various electrical and electronic devices, including but not limited to telephones, answering machines, radios, stereos and tape machines, public address systems, televisions and VCRs, baby monitors, computers and security systems." Notice of Decision at 4 (paper 1, att. 2).

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." Id. It found no credible evidence that CVFRS, BANM or the landowner had caused RFI in Charlotte.

The ZBA concluded that WIZN had violated the terms of its conditional use approval and of its zoning permit. It concluded further, however, that the FCC has exclusive jurisdiction over RFI phenomena, and that the ZBA had no authority to enforce a permit condition requiring WIZN to remedy any interference problems. Accordingly, it dismissed the Notice of Violation.

The Neighbors appealed the ZBA decision to the Vermont Environmental Court pursuant to Vt. Stat. Ann. tit. 24 § 4471 (Supp. 1996). They raised the following issues on appeal: whether federal law preempts state and local jurisdiction over RFI; whether BANM or CVFRS caused RFI in Charlotte; whether BANM and CVFRS, as co-permittees of WIZN, bore responsibility for WIZN's permit violations; whether there is state or local jurisdiction over an allegation of fraud, deceit or misrepresentation; and whether Charlotte residents have been denied their rights as consumers.

WIZN, BANM, CVFRS and the landowner removed the case to this Court, asserting that the case concerned a claim arising under the Federal Communication Act of 1934 (as amended) ("FCA"), 47 U.S.C. §§ 151-613 (1991 and Supp.1997).

Before the Court are WIZN's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (paper 13), and BANM's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (paper 14).² Specifically, WIZN and BANM contend that the Federal Communications Act preempts the Neighbors' zoning appeal. The Neighbors oppose the dismissal, and seek a remand to the ZBA.³

II. Discussion

A. Subject matter jurisdiction standard

BANM has challenged this Court's subject matter jurisdiction over this zoning appeal. In ruling on a motion to dismiss under Fed. R.Civ.P. 12(b)(1), the allegations of the complaint are to be construed favorably to the pleader. The issue is not whether claimants will ultimately prevail, but whether they are entitled to offer evidence to support their claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). For the purposes of this motion to dismiss, therefore, the Court accepts the Neighbors' factual allegations as true.

B. Preemption

Congressional intent is the "ultimate touchstone" of preemption analysis. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992). That intent may be

explicitly stated in the statute's language or implicitly contained in its structure and purpose. In the absence of an express congressional command, state law is preempted 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.

Id. (citations omitted).

The Federal Communications Act of 1934 (as amended) does not contain an express provision preempting state or local regulation of radio frequency interference. Therefore, to determine whether preemption is implied, the Court must analyze whether Charlotte's zoning permit condition actually conflicts with federal law, or if federal law occupies the field of radio frequency interference so thoroughly that state or local regulation is precluded.

In enacting the Communications Act of 1934, Congress created a "unified and comprehensive regulatory system" for the broadcasting industry. National Broadcasting Co. v. United States, 319 U.S. 190, 214, 63 S.Ct. 997, 1008, 87 L.Ed. 1344 (1943). In Section 301 of the Act, Congress stated that the purpose of Act was "among other things, to maintain the control of the United States over all the channels of radio transmission." 47 U.S.C. § 301 `(1991).

In Section 151 of the Act, Congress created the FCC to "execute and enforce the provisions" of the Act. 47 U.S.C. § 151 (Supp.1997). Congress endowed the FCC with "comprehensive powers to promote and realize the vast potentialities of radio." National Broadcasting, 319 U.S. at 217, 63 S.Ct. at 1010. The Supreme Court made clear in National Broadcasting that the Commission is empowered to deal with "technical and engineering impediments" to the "effective use of radio in the public interest." Id. See also FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940) (Communications Act expressed Congress's desire to maintain, through administrative control, grip on dynamic aspects of radio transmission); Head v. New Mexico Bd. of Examiners, 374 U.S. 424, 430, n. 6, 83 S.Ct. 1759, 1763, n. 6, 10 L.Ed.2d 983 (1963) (FCC's jurisdiction over technical matters associated with transmission of radio signals is clearly exclusive).

The FCC has been given statutory authority to regulate the transmission of radio energy that creates interference in 47 U.S.C. § 301, § 302a(a)(1), and § 303(c), (d), (e) and (f) (1991 and Supp.1997). The Neighbors argue, however, that their complaints of RFI have interfered with business and institutional equipment in the town, and that the ZBA has the authority under 47 U.S.C. § 302a (1991) to regulate RFI that affects business and institutional electronic devices as opposed to home electronic devices.

Section 302a(a)(2) of Title 47 of the United States Code authorizes the FCC to make reasonable regulations "establishing minimum performance standards for home electronic equipment and systems to reduce their susceptibility to interference" from RFI. Section 302a(a)(1) authorizes the FCC to regulate any devices which are capable of transmitting radio frequency energy which could harm radio communications. The statute does not authorize the FCC to establish performance standards for commercial and business electronic equipment. From this statutory silence, the Neighbors have inferred that the regulation of RFI which affects commercial and business electronic equipment is within the purview of state and local authorities. Section 302a does not purport to regulate radio stations which may...