Blackburn v. Doubleday Broadcasting Co., Inc.

• Decision Date: 10 August 1984
• Docket Number: WLOL-F,No. C0-83-952,R,WAYL-FM,KQRS-FM,KDWB-FM,KEEY-FM,C0-83-952
• Citation: 353 N.W.2d 550
• Parties: Henry BLACKBURN, Frank Davis, Richard L. Doege, Francis Hyde, Gerald Kaplan, and Marjorie Thies, Appellants, v. DOUBLEDAY BROADCASTING COMPANY, INC.,; Malrite of Minnesota, Inc.,; Entertainment Communications, Inc.,; Hudson Broadcasting Corporation,; Emmis Broadcasting of Minnesota,espondents.
• Court: Minnesota Supreme Court

Page 550

353 N.W.2d 550

Henry BLACKBURN, Frank Davis, Richard L. Doege, Francis

Hyde, Gerald Kaplan, and Marjorie Thies, Appellants, v. DOUBLEDAY BROADCASTING COMPANY, INC., KDWB-FM; Malrite of

Minnesota, Inc., KEEY-FM; Entertainment Communications,

Inc., WAYL-FM; Hudson Broadcasting Corporation, KQRS-FM;

Emmis Broadcasting of Minnesota, WLOL-FM, Respondents.

No. C0-83-952.

Supreme Court of Minnesota.

Aug. 10, 1984.

Syllabus by the Court

1. The Federal Communications Act preempts plaintiffs' claim that defendants' radio transmissions constitute an actionable nuisance by distorting their reception of other desired radio signals.

2. Plaintiffs are not third-party beneficiaries under defendants' lease agreements.

Thomas P. Kane, Mark S. Olson, Rupert M. Mitsch, John Tunheim, St. Paul, for appellants.

Robert R. Weinstine, Steven C. Tourek, Darron C. Knutson, St. Paul, for respondents.

Heard, considered and decided by the court en banc.

SCOTT, Justice.

Plaintiffs appeal from a judgment entered in the Hennepin County District Court, dismissing their claims that defendants' radio transmissions constitute an actionable nuisance by distorting their reception of other desired radio signals and that defendants have breached their lease agreements by causing spurious radiation and emissions. The trial court ruled (1) that the Federal Communications Act, 47 U.S.C. §§ 151 et seq., preempted plaintiffs' nuisance claim because the Federal Communications Commission (FCC) has been delegated exclusive jurisdiction to regulate interference between radio stations, and (2) that plaintiffs were merely incidental beneficiaries of defendants' lease agreements and, therefore, they have no rights under those agreements. We affirm.

Plaintiffs are individuals who live and/or work in the Minneapolis area and who listen to radio stations WCCO-FM and KSJN-FM. Defendants are five radio stations which broadcast from a transmission facility atop the IDS tower in Minneapolis, Minnesota. They began broadcasting from that facility on October 13, 1979, pursuant to authorization granted by the FCC.

Shortly after the defendants began operating, the FCC received complaints that their transmissions interfered with or distorted the reception of broadcasts by WCCO-FM and KSJN-FM. As a result, the FCC ordered defendants to decrease the power of their transmissions from the 100-kilowatt level originally authorized to 50 kilowatts. Defendants were informed as follows by a telegraphic message dated November 21, 1979: "Due to numerous complaints of blanketing interference, necessary reduce effective radiated power to fifty kilowatts except from midnight to six A.M. Advise what action taken to resolve specific complaints and submit proposal for resolution of general problem with[in] thirty days." The FCC subsequently developed an extensive testing program to obtain data on the nature and extent of any interference. That testing was to be completed by the fall of 1982, and the matter was then to be submitted to the FCC for disposition. There is no indication in the record that the matter has been resolved.

Plaintiffs brought this action on June 24, 1982, claiming that defendants' transmissions have distorted their reception of WCCO-FM and KSJN-FM since October 12, 1979. ¹ Defendants' transmissions allegedly harm plaintiffs in two distinct ways. First, the transmissions allegedly constitute an actionable nuisance under Minnesota law. Second, plaintiffs claim they are third-party beneficiaries of lease agreements entered into by defendants and that defendants have breached those agreements by causing spurious radiation and emissions. They seek damages in excess of $50,000 and injunctive relief to prohibit defendants from transmitting atop the IDS tower and to prohibit them from causing distorted reception of broadcasts by WCCO-FM and KSJN-FM.

We need only address the following two issues in our disposition of this case:

(1) Assuming plaintiffs have stated an actionable nuisance claim, whether the Federal Communications Act preempts this claim.

(2) Whether the plaintiffs are third-party beneficiaries under defendants' lease agreements.

1. Plaintiffs essentially claim that defendants' signals distort their reception of WCCO-FM and KSJN-FM and that such distortion constitutes an actionable nuisance under state law. ² On appeal defendants contend, as they did below, that plaintiffs failed to state a cause of action because they have no property right in receiving a certain quality of signal from those two stations. The trial court did not rule on that issue. Rather, assuming plaintiffs stated an actionable nuisance claim, it ruled that the Federal Communications Act would preempt such a state law claim. We agree with the trial court.

The Federal Communications Act constitutes a plenary exercise of the federal government's power to occupy and regulate the broadcast industry. See generally Note, State Regulation of Radio and Television, 73 Harv.L.Rev. 386 (1959). Pursuant to that Act, Congress delegated comprehensive powers to the FCC to administer a "unified and comprehensive regulatory system for the industry." Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 137, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940); see also National Broadcasting Co. v. United States, 319 U.S. 190, 217, 63 S.Ct. 997, 1009, 87 L.Ed. 1344 (1943). Among its duties, the FCC grants licenses and allocates "frequencies, hours of operation and * * * power" to broadcasters "if public convenience, interest, or necessity will be served thereby." 47 U.S.C. § 307; see also Note, supra, at 387. In carrying out its duties, it is authorized to "[m]ake such regulations not inconsistent with law as it may deem necessary to prevent interference between stations." 47 U.S.C. § 303(f).

The trial court ruled that the Federal Communications Act would preempt the state law nuisance claim pled here, because the FCC has exclusive jurisdiction to regulate "interference" between stations. On appeal, plaintiffs contend that the trial court erred because (a) there is a genuine issue of material fact as to whether the FCC has jurisdiction to regulate the phenomena in question here, and (b) even if the FCC has jurisdiction over the matter, the Act expressly indicates an intent not to preempt state law claims.

(a) In their complaint, plaintiffs avoided using the term "interference." Instead, they alleged that defendants' transmissions "distorted" their reception of WCCO-FM and KSJN-FM. Rejecting plaintiffs' arguments that there is a factual difference between "interference" and "distortion" and that the FCC does not have jurisdiction to regulate the alleged "distortion" at issue here, the trial court concluded that this matter was ripe for summary judgment. ³ The trial court reasoned that the terms "interference" and "distortion" are synonymous, according to their ordinary meaning, and therefore ruled that the FCC had jurisdiction to regulate the phenomena in question.

We reject plaintiffs' initial claim that the trial court erred by resolving at the summary judgment stage the disputed factual issue of whether there is a difference between "interference" and "distortion." There is nothing in this record to substantiate their claim that a factual dispute exists. They put nothing in the record to evince any special industry meaning distinguishing between "distortion" and "interference." Nor have they pointed to any definition in the Federal Communications Act or the FCC's regulations to establish that the trial court erred by giving "interference" its common meaning in this context. Plaintiffs cannot create a genuine issue of fact merely by pleading that the phenomenon in question is "distortion." See Erickson v. General United Life Insurance Co., 256 N.W.2d 255, 259 (Minn.1977). Moreover, with respect to recent amendments to the Federal Communications Act, a House Conference Report stated that "[r]adio frequency interference (RFI) arises when a signal radiated by a transmitter is picked up by an electronic device in such a manner that it prevents the clear reception of another and desired signal * * *." 1982 U.S.Code Cong. & Ad.News 2237, 2265. Essentially, the gravamen of plaintiffs' complaint is that defendants' signals prevent them from clearly receiving other desired signals. Hence, we conclude that plaintiffs are alleging "interference" within the meaning of the Federal Communications Act.

We also reject plaintiffs' alternative argument that, even if "distortion" and "interference" are the same, the FCC does not have jurisdiction to regulate the type of "interference" here involved. Claiming that the "interference" is caused by blanketing, plaintiffs cite 47 C.F.R. § 73.315(e) (1983) in support of their position. That regulation provides:

Present information is not sufficiently complete to establish "blanket areas" of FM broadcast stations, which are defined as those areas adjacent to the transmitters in which the reception of other stations is subject to interference due to the strong signal from the stations * * *. The authorization of station construction in areas where blanketing problems appear to be excessive will be on the basis that the applicant will assume full responsibility for the adjustment of reasonable complaints arising from excessively strong signals of the applicant's station.

Even assuming that the alleged "interference" is caused by "blanketing," plaintiffs' argument fails because they confuse the failure to exercise jurisdiction with a lack of jurisdiction. While that regulation shows the FCC has not, as of yet, established technical rules with respect to FM "blanketing areas," it does not support plaintiffs' contention that the FCC has no jurisdiction to do so. Rather, it supports the opposite conclusion. In fact, the FCC has instituted a proposed rulemaking proceeding to examine requested rule changes "to define FM 'blanketed' areas and the...