Monfort v. Larson

• Decision Date: 08 July 1999
• Citation: 693 N.Y.S.2d 286,257 A.D.2d 261
• Parties: , J. Taylor MONFORT et al., Appellants, v. Brian A. LARSON et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 286

693 N.Y.S.2d 286

257 A.D.2d 261, J. Taylor MONFORT et al., Appellants, v. Brian A. LARSON et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

July 8, 1999.

Gerard C. De Cusatis, Amsterdam, for appellants.

William Reynolds, Schuylerville, for respondents.

Before: MIKOLL, J.P., MERCURE, CREW III, YESAWICH JR. and SPAIN, JJ.

SPAIN, J.

Appeal from an order of the Supreme Court (Best, J.), entered September 21, 1998 in Montgomery County, which, inter alia, dismissed the complaint for lack of subject matter jurisdiction.

Plaintiff GEM Associates Limited Partnership is the owner and licensee of WBKK-FM 97.7, a radio station located in the City of Amsterdam, Montgomery County. Plaintiff MEG Company Inc. is the general partner of GEM and plaintiff J. Taylor Monfort is the president and sole shareholder of MEG, with full authority to act on behalf of MEG and GEM. Defendant Brian A. Larson is the sole owner and licensee of radio station WNGN-FM 97.5 located in rural Rensselaer County. Both radio stations are licensed by the Federal Communications Commission (hereinafter FCC). Plaintiffs purchased WBKK in November 1994. In December 1996, the FCC notified Larson that WNGN was not in compliance with FCC rules and regulations in that its modulation was in excess of that allowed.

Plaintiffs subsequently commenced this action in April 1998 seeking damages as well as to enjoin defendants from operating Larson's radio station--WNGN--in excess of the limits imposed by the FCC. Plaintiffs asserted tort causes of action sounding in negligence, nuisance and intentional tort, all of which are based on the alleged radio interference by WNGN. Plaintiffs also asserted a breach of contract cause of action in their complaint based on alleged oral representations by Larson to sell WNGN to Monfort. Plaintiffs maintain that in January 1997, the radio interference from WNGN ceased, but that it eventually resumed in September 1997 and continued through the commencement of this action. Plaintiffs specifically contend that during the relevant period the signal from WNGN was "frequently broadcast at power and modulation levels in excess of the power and modulation levels authorized by [F]ederal laws and regulations" and, as a result, WNGN's signal could be heard on radios tuned to WBKK, and that this radio interference has resulted in plaintiffs' loss of listeners, advertisers, and profits.

Defendants answered, denying any radio interference and the existence of any form of contract. In addition, defendants counterclaimed alleging intentional interference with a pending contract of sale for WNGN by Larson to a third party. Defendants also set out an affirmative defense of lack of subject matter jurisdiction. Plaintiffs moved for a preliminary injunction and, in opposition, defendants argued that plaintiffs' common-law tort causes of action were within the exclusive jurisdiction and regulatory authority of the FCC. Supreme Court agreed with defendants and dismissed the entire complaint. Plaintiffs appeal.

The issue of whether a state court has subject matter jurisdiction to entertain tort causes of action based upon radio frequency interference appears to be a question of first impression in the courts of New York. The regulation of radio communication is governed by the Federal Communications Act (hereinafter FCA) (47 USC § 151 et seq.). In section 151 of the FCA, Congress set forth its purposes and created the FCC, indicating that "there is created a commission to be known as the 'Federal Communications Commission' * * * which shall execute and enforce the provisions of this chapter" (47 USC § 151). Furthermore, the FCA states that "[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government" (47 USC § 333).

It is undisputed that plaintiffs based their tort claims on the alleged radio signal interference by Larson. Defendants contend that, by virtue of the above Federal statutory provisions, plaintiffs' common-law tort claims are preempted by Federal law. Plaintiffs assert that their claims are not preempted, relying on the FCA's saving clause, which states that "[n]othing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies" (47 USC § 414).

Congressional preemptive intent is discernible in three alternate ways: "(1) expressly in the language of the Federal statute; (2) implicitly, when the Federal legislation is so comprehensive in scope that it is inferable that Congress intended to fully occupy the 'field' of its subject matter; or (3) implicitly, when State law actually 'conflicts' with Federal law" (Drattel v. Toyota Motor Corp., 92 N.Y.2d 35, 42, 677 N.Y.S.2d 17, 699 N.E.2d 376). We agree with plaintiffs that the FCA contains no express preemption provision; however, we reject their contention that the quoted FCA saving clause demonstrates the absence of implied preemption by Congress.

It has been recognized that an "[e]xamination of the [FCA], the legislative history and case law compels the conclusion that the FCC has exclusive jurisdiction over complaints involving radio frequency interference" (Matter of Graeme, 975 F.Supp. 570, 575; accord, Still v. Michaels, 166 Ariz. 403, 404, 803 P.2d 124, 125; see also, Blackburn v. Doubleday Broadcasting Co., 353 N.W.2d 550 [Minn]; Southwestern Bell Wireless v. Board of County Commrs. of Johnson County, Kan., 17...