Howard v. City of Burlingame

• Decision Date: 19 June 1991
• Docket Number: Nos. 90-15048,90-15050,s. 90-15048
• Parties: Vernon HOWARD, Plaintiff-Appellee, Cross-Appellant, v. CITY OF BURLINGAME, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1376

937 F.2d 1376

Vernon HOWARD, Plaintiff-Appellee, Cross-Appellant, v. CITY OF BURLINGAME, Defendant-Appellant, Cross-Appellee.

Nos. 90-15048, 90-15050.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 1991.

Decided June 19, 1991.

Natalie E. West, Meyers, Nave, Riback & West, San Leandro, Cal., for defendant-appellant-cross-appellee.

Harold D. Caplener, San Jose, Cal., for plaintiff-appellee-cross-appellant.

Appeal from the United States District Court for the Northern District of California.

Before HUG, POOLE and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

Vernon Howard, a federally licensed amateur or "ham" radio enthusiast, was denied permission to construct a 51-foot radio antenna in his back yard, and filed suit against the City. The district court found that the Federal Communications Commission ("F.C.C.") had partially preempted the City's zoning powers, and ordered the City to reconsider the application. Although the City then granted Howard's permit, he unsuccessfully sought to reinstate his 42

U.S.C. Sec. 1983 claim in an attempt to secure attorney fees. He now appeals the denial of his Sec. 1983 and free speech claims, and the City cross-appeals the district court's ruling on federal preemption.

FACTS

Howard holds an Amateur Extra class license, granted by the F.C.C. under authority delegated by Congress in the Federal Communications Act ("FCA"), 47 U.S.C. Sec. 151 et seq., as amended. See 47 C.F.R. Secs. 97, App. 3, 97.7(e), 97.61. He resides in the City of Burlingame, California, which requires a special permit for ham radio antennas over 25 feet in height. See Burlingame City Code Sec. 18.18.020 and Sec. 25.1.040.

In June of 1987, Howard applied to the City Planning Commission to increase the height of his existing radio antenna to 51 feet. Although the Commission conditionally approved the permit, and the City building inspector approved the proposed structure, Howard's neighbors appealed the decision to the City Council. After a hearing, the Council questioned Howard's need for the new antenna and denied the permit on the grounds of safety, aesthetic concerns, and potential disruption of radio and television signals.

Howard then filed this lawsuit, claiming that the City's ordinance and its decision were preempted by an F.C.C. ruling known as PRB-1. ¹ He also claimed that the City had violated the First Amendment and 42 U.S.C. Sec. 1983, inter alia. On cross-motions for summary judgment, the district court held that PRB-1 preempted the City's decision-making powers and required it to "reasonably accommodate" Howard's request. It found the City's grounds pretextual, ordered the City to reconsider the matter and suggested some avenues for compromise. It also granted summary judgment to the City on Howard's other seven claims, which it termed "makeweight."

On reconsideration, the City granted Howard's permit as requested. Even so, Howard subsequently moved to reinstate his Sec. 1983 claim in an attempt to secure attorney fees under 42 U.S.C. Sec. 1988. The district court denied the motion, reasoning that no statutory or constitutional rights were violated, and that Howard's earlier victory rested on the supremacy clause which does not guarantee individual rights. Howard timely appeals the denial of his Sec. 1983 and Sec. 1988 claims, and the City cross-appeals the court's ruling on PRB-1 preemption.

I. Statutory Rights

The essence of Howard's claim on appeal is that his F.C.C. license, F.C.C. regulations, and/or the Federal Communications Act of 1934, 47 U.S.C. Sec. 151 et seq., confer rights on him which are enforceable through 42 U.S.C. Sec. 1983. On appeal, the only relief he seeks is a declaration to that effect and reimbursement of his attorney fees as authorized by 42 U.S.C. Sec. 1988.

The Supreme Court has recently clarified the law in this area, establishing a three-part test for determining whether a federal statute creates rights under Sec. 1983. In Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 110 S.Ct. 444, 448, 107 L.Ed.2d 420 (1989), the Court explained:

In deciding whether a federal right has been violated, we have considered whether the provision in question creates obligations binding on the governmental unit or rather 'does no more than express a congressional preference for certain kinds of treatment.' The interest the plaintiff asserts must not be 'too vague and amorphous' to be 'beyond the competence of the judiciary to enforce.' We have also asked whether the provision in question was 'inten[ded] to benefit' the putative plaintiff.

Id. (citations omitted). See also Wilder v. Virginia Hosp. Ass'n, --- U.S. ----, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (1990).

In addition, even if a federal right does exist under this test, Congress may foreclose the availability of Sec. 1983 relief by express language in the substantive statute. Id. 110 S.Ct. at 2523. ²

To determine whether Howard has any enforceable federal rights to the antenna of his choice, then, we first consider whether "the provision[s] in question creates any binding obligations" on the City. Howard offers three distinct sources for such obligations: (1) the Federal Communications Act itself, (2) his F.C.C. Extra class license and/or the F.C.C. regulations which authorize and define the license requirements, 47 C.F.R. Sec. 97 et seq., or (3) PRB-1, the F.C.C. ruling which partially preempts local zoning authority to prohibit radio antennas. We reject each contention.

The text of the Federal Communications Act nowhere mentions any right to erect antennas for ham radio transmissions, nor does it purport to create binding obligations on local governments to allow antennas of any particular height. In the statute, Congress defined its intended beneficiaries as "all the people of the United States," and described its purposes as promoting national defense, safety of life and property, and centralizing regulatory authority over the airwaves. 47 U.S.C. Sec. 151. As the district court correctly found, the Act is thus intended to benefit the general public, as opposed to any individual operator.

Section 303 of the Act also states that its goal is to further the public interest in radio communications, and especially to facilitate emergency transmissions. It authorizes the F.C.C. to test and license amateur operators and amateur stations, but does not expressly confer any rights on amateur radio operators such as Howard or create any binding obligations upon local governments. Similarly, the other sections cited by Howard merely establish categories of amateur radio operators and stations, and several expressly limit any purported rights they may enjoy. See, e.g., 47 U.S.C. Secs. 153(q) (defining amateur station), 154(f) (authorizing licensee-volunteers), 309, 310, 313 (expressly limiting "rights" available to licensees). ³

In fact, the most significant section of the FCA forecloses rather than supports Howard's claim: "no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license." 47 U.S.C. Sec. 301. Such language is evidence that no enforceable right exists under Sec. 1983, and that Congress intended to foreclose claims such as Howard's. See Golden State, 110 S.Ct. at 449; Wilder, 110 S.Ct. at 2523. Cf. Wright, 479 U.S. at 430, 107 S.Ct. at 773. The Act thus grants no Sec. 1983 right to licensees to erect antennas.

A long line of cases, stretching back to F.C.C. v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656 (1940) and before, supports this conclusion. As the Supreme Court emphasized in that case, though the Act may confer standing to appeal, it "is not designed primarily as a new code for the adjustment of conflicting private rights though adjudication." Id. "The Communications Act of 1934 did not create new private rights. The purpose of the Act was to protect the public interest in communications.... private litigants have standing only as representatives of the public interest." Scripps-Howard Radio, Inc. v. F.C.C., 316 U.S. 4, 14, 62 S.Ct. 875, 882, 86 L.Ed. 1229 (1941). See also National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943); F.C.C. v. Sanders Bros. Radio Station, 309 U.S. 470, 475, 60 S.Ct. 693, 697, 84 L.Ed. 869 (1940); Comtronics, Inc. v. Puerto Rico Tel. Co., 409 F.Supp. 800, 811-12 (D.P.R.1975). Howard's attempt to distinguish these cases on the grounds that none of them As for Howard's second argument, it is true that federal regulations do have the force of law and may define legal obligations enforceable under Sec. 1983. Wright, 479 U.S. at 431, 107 S.Ct. at 774. ⁴ However, the F.C.C. regulations proffered by Howard, 47 C.F.R. Sec. 97.1 et seq., do not help his case. The closest match is 47 C.F.R. Sec. 97.111, which authorizes holders of the Amateur Extra class license, like Howard, to operate their stations and communicate world-wide. However, the relationship between Howard's authorized transmission power, the height of his antenna, and Burlingame's local zoning ordinance is too "vague and amorphous" to allow judicial enforcement. See Golden State, 110 S.Ct. at 448. Unlike the successful plaintiffs in Wright, Howard can point to no regulation which spells out benefits "sufficiently specific and definite to qualify as enforceable rights under ... Sec. 1983." Id., 479 U.S. at 432, 107 S.Ct. at 774.

deal with antennas is beside the point; each rejects the contention that the FCA confers private rights on licensees. While PRB-1 may create a cause of action for Howard, the statute does not.

The F.C.C. declaratory ruling entitled PRB-1 is the only regulation which addresses the conflict between ham operators' need for effective (i.e., tall) antennas and a municipality's enforcement of its local zoning ordinances. However, as the district court held below, the language of PRB-1 itself confers...