Southwestern Bell Wireless Inc. v. Johnson
| Decision Date | 27 December 1999 |
| Docket Number | No. 98-3264,98-3264 |
| Parties | (10th Cir. 1999) SOUTHWESTERN BELL WIRELESS INC., fka Southwestern Bell Mobile Systems, Inc. as General Partner of Kansas City SMSA Limited Partnership and KANSAS CITY SMSA LIMITED PARTNERSHIP, Plaintiffs - Appellees, v. JOHNSON COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant - Appellant |
| Court | U.S. Court of Appeals — Tenth Circuit |
[Copyrighted Material Omitted] Donald D. Jarrett, Chief Counsel (Richard J. Lind, Deputy County Counselor, with him on the brief), Johnson County Legal Department, Olathe, Kansas, for appellant.
Diane P. Duvall (Curtis M. Holland with her on the brief), Polsinelli, White, Vardeman & Shalton, Overland Park, Kansas, for appellees.
Before ANDERSON, McWILLIAMS, and BALDOCK, Circuit Judges.
Plaintiffs, referred to collectively herein as SW Bell,1 brought this suit against the Board of County Commissioners of Johnson County, Kansas ("BOCC"), seeking a declaration that federal law preempts a county zoning regulation involving radio frequency interference2 ("RFI"), and an injunction against enforcement of the regulation. The district court granted summary judgment in favor of SW Bell, invalidating the regulation as impliedly preempted by federal law and implicitly rejecting the BOCC's contention that such preemption violates the Tenth Amendment's reservation of state powers. The BOCC challenges those conclusions, and also contends that the court's order is overbroad, and that issues of fact preclude summary judgment. For the reasons stated below, we agree with the district court and hold that (1) the BOCC's RFI regulation is impliedly preempted by federal law, (2) this preemption does not violate the Tenth Amendment, (3) the district court's order is not overbroad, and (4) the district court did not otherwise err. Accordingly, we affirm.
The BOCC exercises planning and zoning authority in the unincorporated portions of Johnson County, Kansas. SW Bell holds a license from the Federal Communications Commission ("FCC" or "Commission") to construct and operate a wireless telecommunications network in the Kansas City Metropolitan Area including Johnson County. Wireless communications are transmitted by radio at a frequency assigned by the FCC. Pursuant to its FCC license, SW Bell is obligated to provide wireless telecommunications services to its customers. The county public safety departments (including police and fire) also broadcast over emergency frequencies assigned by and under licenses from the FCC.
On March 21, 1997, SW Bell, acting on behalf of William L. and Marilyn M. Wolff, applied to the BOCC for a conditional use permit to construct a 150-foot monopole communications tower for use by SW Bell on the Wolffs' property in unincorporated Johnson County. On August 21, 1997, the BOCC approved the conditional use permit subject to certain restrictions including one entitled "Interference with Public Safety Communications" ("Interference Stipulation"). See OL-CU7714, Stipulation 15; Complaint, Appellant's App. Vol. 2 at 155. The Interference Stipulation nearly replicates a zoning regulation amendment adopted by the BOCC on June 26, 1997 ("Interference Regulation"). Under the Interference Regulation, communication towers and antennae cannot operate in a manner that interferes with public safety communications. See Johnson County Zoning & Subdivision Regs., art 23, 6(B)(4)(f). The Interference Regulation grants the county's zoning administrator authority to determine when interference exists and, after proper notice and opportunity for a hearing, to force the antenna site to cease operations. The Interference Regulation provides, in pertinent part, as follows:
2) [The permit holder] shall be responsible, immediately upon notification by the Zoning Administrator or the public safety agency, to investigate the cause of the interference, disruption, or degradation and to determine a method . . . to remedy the problem.
. . .
3) [The permit holder] shall, within 24 hours after receiving notice of the disruption, remedy the problem or show to the satisfaction of the Zoning Administrator that the tower or other site equipment is not the cause of the interference or disruption. If the interference . . . causing the functional interruption is not remedied within the 24 hours, then the Zoning Administrator may upon two days written notice to the [permit holder], set a hearing to show cause why the applicable Permit shall not be terminated and the site . . . shall not cease operation until the problem is remedied. The hearing shall be temporarily stayed [for two days], however, if the [permit holder] seeks immediate technical assistance and advice . . . from the FCC.
. . .
5) [The permit holder] shall be responsible for the payment of costs to cure the interference . . . including the fees of any experts retained to identify or correct the problem . . . .
Id. 6(B)(4)(f) (emphasis added).
Before adopting the Interference Regulation, the BOCC was aware of FCC authority and regulations in the RFI area. On June 1, 1997, county staff had a telephone conference with local FCC staff regarding the resolution of possible interference with public safety communications. Apparently, the county felt the FCC could not resolve interference issues as quickly as the county wanted. See Appellant's Br. at 5, 13. Additionally, on about June 18, 1997, after contact from SW Bell, an FCC representative from Washington, D.C., telephoned the Johnson County Legal Department and requested an opportunity to discuss the Interference Regulation. Further, SW Bell and other wireless communications providers participated in public hearings and provided written comments about the Interference Regulation and "argued that the BOCC was without authority to adopt such a regulation because, under federal law, the regulatory authority governing this aspect of wireless telecommunications services is exclusively reserved to the FCC, and pursuant to such authority, the FCC has already adopted regulations governing radio-frequency interference." Pls.' Compl. at 5, 24; Appellant's App. Vol. I at 6.
On July 2, 1997, after adoption of the Interference Regulation but prior to the BOCC approval of the SW Bell permit with the Interference Stipulation, David L. Furth, Commercial Wireless Division Chief of the FCC's Telecommunications Bureau, wrote to Roger Kroh, Johnson County Director of Planning and Development. Mr. Furth stated that the Interference Regulation was preempted by the Communication Act of 1934 as amended, 47 U.S.C. 151 et seq., citing legislative history and case law. In addition, he advised Mr. Kroh of the FCC procedures currently in place to handle public safety interference complaints, including a twenty-four hour emergency FCC contact number.
We review summary judgment rulings de novo, applying the same standard as the district court. See Bell v. United States, 127 F.3d 1226, 1228 (10th Cir. 1997). Summary judgment is proper under Fed. R. Civ. P. 56(c) if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Id.
The BOCC argues that the district court erred in determining that federal law preempts the Interference Regulation. Congress has the power to preempt state and local law under the Supremacy Clause, which states that "the Laws of the United States . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding," U.S. Const. art. VI, cl. 2. Congress's preemption power extends over both state and local ordinances. See Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 605 (1991). Federal law preempts state or local law in three situations:
(1) express preemption, which occurs when the language of the federal statute reveals an express congressional intent to preempt state law . . . ; (2) field preemption, which occurs when the federal scheme of regulation is so pervasive that Congress must have intended to leave no room for a State to supplement it; and (3) conflict preemption, which occurs either when compliance with both the federal and state laws is a physical impossibility, or when the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
Mount Olivet Cemetery Ass'n v. Salt Lake City, 164 F.3d 480, 486 (10th Cir. 1998) () (citing Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31 (1996)). The Interference Amendment (and thus the Interference Stipulation) is invalid if preempted by federal law.
To find express preemption, Congress must have explicitly stated by statute its intent to preempt state and local regulation of RFI issues. The district court found no express preemption of RFI issues but found both field and conflict preemption by federal communications law. We agree that federal communications legislation lacks any statement expressly preempting local regulation of RFI. See also In re Freeman, 975 F. Supp. 570, 573 (D. Vt. 1997) (). Thus, we next examine whether the Interference Amendment is impliedly preempted by exclusive federal occupation of the RFI field.
"In the absence of an express preemption provision, state or local law may be preempted if it attempts to regulate conduct in a field that Congress, by its legislation, intended to be occupied exclusively by the federal government." Mount Olivet, 164 F.3d at 487 (citing English v. General Elec. Co., 496 U.S. 72, 79 (1990)).
Field preemption may be inferred if a federal scheme of regulation is so pervasive that Congress must have intended to leave no room for a state...
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