Broyde v. Gotham Tower, Inc.

• Decision Date: 14 January 1994
• Docket Number: No. 92-2395,92-2395
• Citation: 13 F.3d 994
• Parties: , 1994 Fed.App. 7P Beryl BROYDE; Mirel Broyde; David Cohen; Judith Cohen; Nathan Cohen; Milton Duchan; Marion Duchan; Philip D. Haack; Diane Hochberg; Icek Kuperman; Helen Kuperman; Jerry J. Novetsky; Elliot Shoenig; Sarah Shoenig; Sharon K. Teasley; Robert L. Tilden; Samuel Tron; and Doris Tron, Plaintiffs-Appellants, v. GOTHAM TOWER, INC.; Bell Broadcasting Company; Hoker Broadcasting, Inc.; Marlin Broadcasting Company; and Viacom International, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 994

13 F.3d 994

28 Fed.R.Serv.3d 227, 1994 Fed.App. 7P

Beryl BROYDE; Mirel Broyde; David Cohen; Judith Cohen Nathan Cohen; Milton Duchan; Marion Duchan; Philip D Haack; Diane Hochberg; Icek Kuperman; Helen Kuperman Jerry J. Novetsky; Elliot Shoenig; Sarah Shoenig; Sharon K. Teasley; Robert L. Tilden; Samuel Tron; and Doris Tron, Plaintiffs-Appellants, v. GOTHAM TOWER, INC.; Bell Broadcasting Company; Hoker Broadcasting, Inc.; Marlin Broadcasting Company and Viacom International, Inc., Defendants-Appellees.

No. 92-2395.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 4, 1993.

Decided Jan. 14, 1994.

Donnelly W. Hadden, Ann Arbor, MI (argued and briefed), Mark A. Richardson, Troy, MI (briefed), for plaintiffs-appellants.

Kenneth B. Morgan (briefed), Bruce S. Kahn, Seyburn, Kahn, Ginn, Bess & Howard, Southfield, MI, for Gotham Tower, Inc.

Stewart L. Mandell, Kathleen McCree Lewis, Dykema & Gossett, Detroit, MI, Mark H. Sutton, Dykema, Gossett, Spencer, Goodnow & Trigg, Bloomfield Hills, MI (argued and briefed), for Bell Broadcasting Co., and Marlin Broadcasting Co.

Herschel P. Fink, Honigman, Miller, Schwartz & Cohn, Detroit, MI (briefed), for Viacom Intern., Inc.

Before: MARTIN and BOGGS, Circuit Judges; and HULL, District Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

In this action predicated on common law nuisance, the plaintiffs, all residents of Oak Park, Michigan, allege that the defendants' radio signals interfere with the operation of home electronic equipment, thereby disrupting the plaintiffs' use and enjoyment of their property. Plaintiffs now appeal from an order of the district court dismissing their complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. For the following reasons, we affirm the district court.

Defendant Gotham Tower, Inc. operates an eight-hundred-foot tall radio tower in Oak Park from which defendants Bell Broadcasting Company, Marlin Broadcasting Company, and Viacom International, Inc. transmit FM radio signals. The Federal Communications Commission granted the defendants licenses to broadcast from this location and now regulates the frequency, timing, and power of the defendants' transmissions.

The plaintiffs, residents of a nearby neighborhood, claim that the radio signals broadcast from Gotham Tower cross their property, leaving behind a wake of malfunctioning household appliances. The plaintiffs allege that these signals interfere with television and radio reception, activate garage door openers, and render certain telephones, stereos, and recording devices unusable. Maintaining that the intensity of the defendants' signals "regularly exceed[s] the federal standard for F.M. blanketing interference," the plaintiffs filed suit on common law nuisance grounds in Oakland County Circuit Court on July 7, 1992. In their complaint, the plaintiffs sought both injunctive relief and damages.

On July 27, the defendants removed the case to federal district court and, shortly thereafter, moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Specifically, the defendants contended that the Federal Communications Act of 1934, 47 U.S.C. Secs. 151-613, preempts the plaintiffs' nuisance claim.

In reaching its decision, the district court first noted the consistent finding of preemption by all courts that have considered the interaction of common law nuisance claims and the Federal Communications Act. See Still v. Michaels, 791 F.Supp. 248 (D.Ariz.1992) (nuisance action preempted by Federal Communications Act); Still v. Michaels, 166 Ariz. 403, 803 P.2d 124 (1990) (FCC has exclusive jurisdiction over resolution of radio signal interference nuisance claims); Smith v. Calvary Educational Broadcasting Network, 783 S.W.2d 533 (Mo.Ct.App.1990) (Federal Communications Act preempts state nuisance action based on radio signal interference with electrical appliances); Blackburn v. Doubleday Broadcasting Co., Inc., 353 N.W.2d 550 (Minn.1984) (radio transmission nuisance claims under exclusive jurisdiction of FCC). The district court then held that judicial resolution of the plaintiffs' nuisance claim would be inconsistent with the FCC's exercise of exclusive jurisdiction over the broadcast industry. On October 21, the district court dismissed the plaintiffs' case. The plaintiffs, in turn, filed this timely appeal.

In this Court, a "motion under Rule 12(b)(6) tests whether a claim has been adequately stated in the complaint. The basic requirements for a pleading are set out in Rule 8(a) and call for 'a short and plain statement of the claim showing that the pleader is entitled to relief.' In considering a Rule 12(b)(6) motion, the court must accept as true all factual allegations in the complaint." Nishiyama v. Dickson County, Tenn., 814 F.2d 277, 279 (6th Cir.1987) (en banc) (citations omitted). A Rule 12(b)(6) motion should only be granted if "it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 746, 96 S.Ct. 1848, 1853, 48 L.Ed.2d 338 (1976). Here, the plaintiffs assert that the Supreme Court's recent opinion in Cipollone v. Liggett Group, Inc., --- U.S. ----, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), alters federal preemption analysis, authorizes their common law nuisance suit, and mandates reversal of the district court's grant of defendant's Rule 12(b)(6) motion. We are not persuaded.

Initially, plaintiffs note correctly that Cipollone reaffirms the presumption against federal preemption of state law. The Court's opinion, limited to consideration of the Federal Cigarette Labeling and Advertising Act and the Public Health Cigarette Smoking Act of 1969, held that the legislation did not preempt certain state law damage actions. Cipollone, --- U.S. at ----, 112 S.Ct. at 2625. In reaching this conclusion, the Court emphasized that Congress' enactment of provisions in the legislation explicitly defining the preemptive reach of the statutes meant that "matters beyond that reach are not pre-empted." Cipollone, --- U.S. at ----, 112 S.Ct. at 2618. The Court noted, however, that absent such a specific preemption provision, it would turn to an implied preemption analysis. Id. As the Court's opinion recognized, "[i]n the absence of an express congressional command, state law is pre-empted 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. at ----, 112 S.Ct. at 2617 (citations omitted).

Such an implied preemption analysis is appropriate here. The Federal Communications Act does not contain an explicit provision defining the legislation's preemptive scope that limits this Court's inquiry. Rather, this Court is required to determine whether the plaintiffs' state law nuisance action actually conflicts with the Act or if plaintiffs' claim is necessarily displaced because the Act fully occupies the field.

The plaintiffs raise four challenges to the district court's judgment that the Federal Communications Act preempts common law actions to remedy a nuisance caused by radio signals. First, the plaintiffs assert that there is no language in the Act that expressly preempts state nuisance suits. Next, the plaintiffs claim that the Act's savings clause, 47 U.S.C. Sec. 414, demonstrates clear congressional intent to preserve state claims and, thus, that the Act does not occupy the field. Third, the plaintiffs maintain that there is no actual conflict between the provisions of the Act and their common law nuisance action. Finally, the plaintiffs contend that they are entitled to bring their nuisance action to enforce state standards that exceed the obligations imposed...