[Scan-DC] Re: [NEXTEL-1] Nextel Whines to the FCC concerning Anne Arundel County,
Maryland's antenna siting & zoning count ordiance.
Marcel
[email protected]
Mon, 24 Mar 2003 14:45:27 -0500
Here is an interesting case involving Public Safety Interference..........................
I like this part:
<SNIP>
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.
-----------------------------------------------------------------------
It should have read:
"In addition, he advised Mr. Kroh of the USELESS FCC procedures currently in place to
handle public safety interference
complaints, including a INEFFECTIVE twenty-four hour emergency FCC contact number.
Marcel wrote:
> Nextel Whines to the FCC concerning Anne Arundel County, Maryland's antenna siting &
> zoning count ordinance.
>
>
>
> Unfortunately the County will probably lose this one in the long run but it was a good
> try.
--------------------------------------------------------------------------------------------------------------------------------
FILED
United States Court of Appeals
Tenth Circuit
DEC 27 1999
PATRICK FISHER
Clerk
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
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.
No. 98-3264
JOHNSON COUNTY BOARD OF COUNTY
COMMISSIONERS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. CV97�2481-GTV)
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.
ANDERSON, Circuit Judge.
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.
I. BACKGROUND
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.
II. DISCUSSION
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.
A. Preemption
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)
(considering
preemption of local zoning ordinance) (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.
1. Express Preemption
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) (finding no express preemption of RFI
regulation).
Thus, we next examine whether the Interference Amendment is impliedly preempted by
exclusive federal
occupation of the RFI field.
2. Field Preemption
�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 to supplement it or if an Act of
Congress touches a field in which the federal interest is so dominant the federal system
is
assumed to prohibit enforcement of state laws on the same issue.
Id. at 487 (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). We examine
three aspects
of federal communications law to determine whether and to what extent federal law preempts
local
regulation of RFI issues: Congressional legislation, agency regulation, and agency
adjudication.
Congress, in the Communications Act of 1934, created a �unified and comprehensive
regulatory
system for the [broadcasting] industry.� National Broad. Co. v. United States, 319 U.S.
190, 214
(1943). Congress stated that a purpose of the act was �to maintain the control of the
United States over
all the channels of radio transmission.� 47 U.S.C. � 301. The Act created the FCC and
empowers it to
regulate radio communications including �technical and engineering aspects.�3 National
Broad. Co., 319
U.S. at 215; see also Head v. New Mexico Bd. of Exam�rs, 374 U.S. 424, 430 n.6 (1963)
(noting FCC�s
exclusive jurisdiction over technical matters regarding radio signal transmission). The
Communications
Act applies to �all interstate and foreign transmission of energy by radio, which
originates and/or is
received within the United States.� 47 U.S.C. � 152(a).
In 1982, and again in 1996, Congress significantly amended the Act. In the Communications
Amendments Act of 1982, Congress gave the FCC the explicit authority to regulate home
electronic
equipment with the potential to cause RFI. See 47 U.S.C. � 302a(a). The House Conference
Report that
accompanied the 1982 Amendments clarified that �exclusive jurisdiction over RFI incidents
(including
pre-emption of state and local regulation of such phenomena) lies with the FCC.� H.R.
Conf. Rep. No.
97-765, at 23 (1982), reprinted in 1982 U.S.C.C.A.N. 2261, 2267. It stated further that:
[s]uch matters [involving RFI] shall not be regulated by local or state law, nor shall
radio
transmitting apparatus be subject to local or state regulation as part of any effort to
resolve an RFI complaint. The Conferees believe that radio transmitter operators should
not be subject to fines, forfeitures or other liability imposed by any local or state
authority as a result of interference appearing in home electronic equipment or systems.
Rather, the Conferees intend that regulation of RFI phenomena shall be imposed only by
the Commission.
Id. at 33, 1982 U.S.C.C.A.N. at 2277. Although this discussion addressed the specific
statutory provision
over home electronic equipment RFI, it evidences Congress�s intent that the FCC have
exclusive
jurisdiction over RFI complaints. See In re Freeman, 975 F. Supp. at 574.
The BOCC argues that the amendments in the Telecommunications Act of 1996 altered the
FCC�s
authority such that the Interference Regulation is permissible under the section entitled
�Preservation of
local zoning authority.� 47 U.S.C. � 332(c)(7). However, section 332(c)(7) only
preserves local
�decisions regarding the placement, construction, and modification of personal wireless
service facilities.�
Id. The Conference Report on the Telecommunications Act of 1996 explains that �[t]he
limitations on
the role and powers of the Commission under [� 332(c)(7)] relate to local land use
regulations and are not
intended to limit or affect the Commission�s general authority over radio
telecommunications, including
the authority to regulate the construction, modification and operation of radio
facilities.� H. Rep. No.
104-458, at 209 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 223 (emphasis added). Thus,
the 1996
amendments did not alter the FCC�s general authority over radio transmissions granted by
earlier
communications legislation. The BOCC Interference Regulation extends beyond traditional
zoning
authority (placement, construction, and modification) and into radio telecommunications,
an area of FCC
authority.
We also reject the BOCC�s contention that its Interference Regulation is permissible under
47 U.S.C.
� 253(b), added by the Telecommunications Act of 1996, that states: �Nothing in this
section shall affect
the ability of a State to impose, on a competitively neutral basis . . . requirements
necessary to preserve
and advance universal service, [and] protect the public safety and welfare . . . .� Id.
We agree with the
district court that:
Section 253, by its very title [�Removal of barriers to entry�], is designed to deal only
with barriers to market entry. It is not a mechanism by which states and municipalities
can regulate RFI . . . . Nothing in � 253(b) casts any doubt on federal RFI preemption.
At most, the section merely preserves certain existing rights of local governing
authorities
which are not inconsistent with federal law.
Southwestern Bell Wireless, Inc. v. Board of County Comm�rs, No. 97-2481-GTV, slip op. at
12 (D.
Kan. Aug. 28, 1998); Appellant�s Br. at 404. Also, section 253(b) applies only to state,
not local,
regulation, since, in the remainder of section 253, Congress clearly says �State or local�
when it so
intends. See 47 U.S.C. � 253(a), (c), (d). Thus, the BOCC cannot rely on section 253(b)
for any
authority for its Interference Amendment.
We next examine FCC regulations regarding RFI issues. The Supreme Court has �held
repeatedly
that state laws can be pre-empted by federal regulations as well as by federal statutes.�
Hillsborough
County v. Automated Med. Lab., Inc., 471 U.S. 707, 713 (1985). The FCC has authority to
promulgate
regulations �as it may deem necessary to prevent interference between stations.� 47 U.S.C.
� 303(f).
FCC�s regulations show its broad authority over RFI issues. A function of the FCC
Compliance and
Information Bureau is to �[r]educe or eliminate interference to authorized
communications,� 47 C.F.R.
� 0.111(e), with assistance from the Wireless Telecommunications Bureau, see 47 C.F.R. �
0.131(h).
The FCC has promulgated rules to resolve interference disputes in various contexts. See
e.g., 47 C.F.R.
�� 22.353, 24.237, 27.58, 90.173(b), 90.403(e). The FCC can assess a fine (�forfeiture�)
for failure to
comply with an FCC permit or license. See 47 C.F.R. � 1.80(a)(1), (b)(4) (suggested
forfeiture amount
for interference is $7000 per violation).
Finally, we look to agency decisions that address preemption of local regulation of RFI
issues. As the
Supreme Court stated:
If the agency�s choice to pre-empt �represents a reasonable accommodation of conflicting
policies that were committed to the agency�s care by the statute, we should not disturb it
unless it appears from the statute or its legislative history that the accommodation is
not
one that Congress would have sanctioned.
City of New York v. FCC, 486 U.S. 57, 64 (1988) (upholding FCC�s choice to preempt state
technical
standards over cable television signals) (citation omitted). In challenges to local
zoning ordinances or
permit conditions that would regulate RFI, the FCC has ruled that it has exclusive
jurisdiction over RFI.
See In re Mobilecomm of New York, Inc., 2 F.C.C.R. 5519 (1987) (invalidating local zoning
ordinance
regulating RFI, finding �Congress undoubtedly intended federal regulation to completely
occupy [the RFI]
field to the exclusion of local and state governments�); In re 960 Radio, Inc., FCC
85-578, 1985 WL
193883 (Nov. 4, 1985) (finding local zoning board preempted from imposing RFI requirement
on radio
station in conditional use permit). The statutes and legislative history indicate that
Congress does sanction
FCC preemption of RFI issues. RFI is a federal interest and requires a national approach
to regulate the
field. See Fetterman v. Green, 689 A.2d 289, 294 (Pa. Super. Ct. 1997) (holding RFI
�involves the
resolution of technical matters ceded to the FCC due to the need for national uniformity
and consensus�).
This analysis is consistent with decisions of virtually all courts considering RFI
preemption. See In re
Freeman, 975 F. Supp. at 574 (finding local zoning RFI permit conditions preempted �given
the FCC�s
pervasive regulation in this area�); Helm v. Louisville Two-Way Radio Corp., 667 S.W.2d
691, 693 (Ky.
1984) (holding that police chief�s remedy for interference with police broadcasts is with
the FCC because
power to �control, regulate, or prohibit radio transmissions� is preempted by Congress);
see also Broyde
v. Gotham Tower, Inc., 13 F.3d 994, 997 (6th Cir. 1994) (affirming dismissal of nuisance
suit regarding
interference with home electronic equipment because RFI fell within FCC's exclusive
jurisdiction over
radio transmission technical matters); Still v. Michaels, 791 F. Supp. 248, 252 (D. Ariz.
1992) (dismissing
nuisance suit claiming interference from radio transmissions because �obstruction[s] to
the FCC�s ability
to regulate radio frequencies are preempted�); Monfort v. Larson, 693 N.Y.S.2d 286, 288
(N.Y. App.
Div. 1999) (holding tort claims preempted and �claims of radio frequency interference must
be brought to
the FCC . . . which has exclusive jurisdiction�); Fetterman, 689 A.2d at 294 (holding
Congress preempted
state common law claims involving RFI); Smith v. Calvary Educ. Broad. Network, 783 S.W.2d
533, 535
(Mo. Ct. App. 1990) (upholding dismissal of injunction action as preempted finding �that
interference
caused by radio transmission is . . . a technical matter and that the FCC�s control
thereof is exclusive�);
Still v. Michaels, 803 P.2d 124, 125 (Ariz. Ct. App. 1990
) (finding exclusive FCC regulation of RFI precludes nuisance action); Blackburn v.
Doubleday Broad. Co., 353 N.W.2d 550, 556 (Minn. 1984) (affirming dismissal of
nuisance suit against radio stations because Congress delegated to the FCC
exclusive jurisdiction over RFI regulation and preempted the claims). But cf.
Winfield Village Coop. v. Ruiz, 537 N.E.2d 331, 333 (Ill. App. Ct. 1989) (finding
no preemption of breach of contract action between landlord and tenant based on
RFI claim because no state RFI regulation was involved and �dispute is private in
nature�).
We agree with these courts and the district court in this case that based on statutes and
agency
regulations and adjudications, Congress intended federal regulation of RFI issues to be so
pervasive as to
occupy the field. Thus, the Interference Amendment and Interference Stipulation are void
as preempted.1
Because we find field preemption, we need not address whether the Interference Amendment
actually
conflicts with federal law.
B. Tenth Amendment
The BOCC argues that preemption of the Interference Regulation violates the
Tenth Amendment and federalism principles because zoning and public safety are
traditional powers reserved to the states. Although the BOCC relies on
Hillsborough County v. Automated Med. Lab., Inc., 471 U.S. 707 (1985), the case
does not support their argument. The Supreme Court in Hillsborough upheld a
county ordinance regulating health�an area of traditional state power�despite
federal regulation in the area. However, the Court found no implied preemption
because the federal agency explicitly stated its intention not to preempt state and
local regulations. See id. at 714, 716. Thus, Hillsborough is inapplicable here
because the FCC has explicitly stated its intention to preempt local regulations on
RFI, see In re Mobilecomm, 2 F.C.C.R. 5519; In re 960 Radio, FCC 85-578, 1985
WL 193883, and the statutes and legislative history support Congress�s intent to
occupy the field of RFI issues.
�[H]istoric police powers of the States� are not to be preempted by federal law
�unless that was the clear and manifest purpose of Congress.� Mortier, 501 U.S. at
605 (quoting Rice, 331 U.S. at 230). However, as the Supreme Court has noted,
preemption principles apply even to a �matter of special concern to the States:
�The relative importance to the State of its own law is not material when there is a
conflict with a valid federal law, for the Framers of our Constitution provided that
the federal law must prevail.�� Fidelity Fed. Sav. & Loan Ass�n v. de la Cuesta,
458 U.S. 141, 153 (1982) (evaluating preemption of state real property law)
(quoting Free v. Bland, 369 U.S. 663, 666 (1962)). Although the BOCC
characterizes the issue as local police power, RFI regulation is not a traditional local
interest but a national interest preempted by federal legislation. Congress can
regulate communications pursuant to the Commerce Clause. See FCC v. League of
Women Voters, 468 U.S. 364, 375 (1984). Indeed, as the BOCC concedes, the
local police and fire departments obtain their communication licenses from the
FCC. A patchwork of varied local regulations across the country would prevent a
functional national telecommunications network. Thus, federal preemption of RFI
regulation does not violate the Tenth Amendment.
C. Limit of District Court�s Order
We reject the BOCC�s contention that the district court erred by concluding that
federal law preempted the entire zoning regulation rather than limiting its ruling to
specific provisions. The district court order is limited to the specific relief sought in
SW Bell�s Complaint and Motion for Summary Judgment, i.e. that the Interference
Amendment, art. 23, � 6(B)(4)(f), and the Interference Stipulation, OL-CU-1714,
Stipulation No. 15, are void. Contrary to the BOCC�s suggestion, the court could
not read the Interference Regulation narrowly so as to be consistent with federal
law because the field of RFI regulation is entirely preempted by federal legislation.
D. Issue of Material Fact
Also, we reject the BOCC�s assertion that the district court erred by finding no
genuine issue of material fact. The BOCC argues discovery was incomplete, the
court failed to consider issues of material fact, and �the Court clearly drew
inferences of fact favorably for SW Bell rather than the County as the nonmoving
party.� Appellant�s Br. at 10. �As to materiality, the substantive law will identify
which facts are material. Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary
judgment.� Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On the
determinative issue of preemption, the material facts regarding the Interference
Amendment, Interference Stipulation, and federal communications laws and
regulations are not in dispute and, thus, no further discovery is necessary.
III. CONCLUSION For the reasons stated above, the judgment of the district court is
AFFIRMED.
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