Before the FEDERAL COMMUNICATIONS COMMISSION Waahington. D.C. 20554 In the Hatter of ) ) 960 Rad io. Inc •• licensee of ) Station LJSN(FM). ) 1:1am. th Falls. Oregon ) ) Petition for Declaratory Ruling ) MEMORANDUM OPINION AND DECLARATORY BVLING MM· FCC 85-578 36257 Adopted: October 29. 1985 By the Commission: Released: !-1overnber 4, l.QR) 1. The Commission has before it the April 26, 1985 "Petition for Dec laratory Ruling ," filed by 960 Radio, Inc. ("960"), requesting that "the Commission declare void a requirement contained in a Conditional Use Permit issued by a local zoning authority that an FM facility must protect TV translators from interference••••" 2. In August of 1984, and in an effort to meet the Commission's requirements for FM facilities adopted in the omnibus Docket 80-90 proceedings, 960 filed an application to modify the facilities of station KJSN(FM), Klama th FaIls, Oregon (BMPH-840806AT). 960 proposed to relocate its antenna to St'ukel Mountain 80 that KJSN could achieve the minimum facilities required of Class C stations under Docket SO-90. In filing the application, 960 submitted that it would take steps to eliminate, if possib Ie, any interference to pre-existing facilities on Stukel Mountain. BMPH-840806AT, exhibit V-5. The application was granted by the Mass Media Bureau pursuant to delegated Euthority on February 4, 1985. 3. Contemplating that the CODllllission would grant its modification application, 960 filed for a Conditional Use Permit with the local zoning board in Klama th County, Oregon. Upon receipt of evidence and test imony from the involved parties, Hearing Officer James II. Uerlings graTlted KJSN a Conditional Use Permit subject to the f"llowing pertinent restrictions: lib) KJSN must not operate the new facility so as to produce el£'ctronic interference to existing facilities 011 Stukel Mountain; I I Six facilities are currently operDted from atop Stukel Mountain. _accord ing to the Hear ing Officer. KOTI-TV. licensed to Klamath Falls. and c) KJSN must not operate its new facility so as to cause electronic interference to established translator sites on Stukel Mountain, and must aid KSYS(TV) and KSOR(FM) in retuning or recrystallizing their facilities·"2 • Findinu of Fact. Conclusions ofL~wand DecisiQn Qf KlamathCQunty;. Oruon Hearin~Officer. C.U.P. 26-84, released October 24, 1984. 960 posits that conditions "b" and "c" contained in the Conditional Use Permit are void and unenforceab Ie because (i) the jurisdiction to control interference over the airwaves rests exclusively with the Federal COUllIlUnications COUUDission; and (ii) the zoning authority's attempt to protect existing translator facilities conflicts with the Commission's rules and policies. Thus. the is sue is whether or not the Communications Act has preempted the role of state and local governments in resolving specific interference disputes involving federally licensed broadcasting stations. For the reasons given below, we conclude that state and local governments are preempted in that area. 4. In general, state action may be preeulpted in the following c ircums tances: [FJirst. when Congress, in enacting a federal statute, has expressed a clear intent to preempt state law ••• ; second. when it is c lear despite the absence of explicit pre-emptive language, that Congress has intended by legislating cOIT,prehensively to occupy an entire field of regulation and has thereby "left no room for the states to supplement" federal IElw ••• ; and, finally, when cODlpliance with both state and federal l8w is impossible•••or when~tatelaw "stands as an obstacle to theaccompli~hmentandexecution of the full KSYS-TV, licensed to lotedford, Oregon, operate television translators on Channel 2 and 8 respectively; two two-way facilities are located on the mountClir,; KSOR-FM, licensed to Ashland. Oregon. operates an FM translator; and the FAA operLltes an aerial navigati0n facility on the nlountElin. KSYS 'lnd one of tile t1oJc-way operators claimed that the grant of a pernlit to KJSN would result in halt7lfu] interference to their operations.~Motion for Declaratory Ruling at p. 2 n. 1. 2 Two other conditions required KJSN to cODlply with FCC and FAA regulations. Since the permittee has not objected to these conditions. they need not be discussed further. KSYS(TV) and KSOR(FN). 8S shown in footnote 1.£~~a.are the operators of the translator stations and are not the translator stations themselves. 2 purposes and objectives of Congress." Capital Cities Cable, Inc. v. Crisp, __ U.S. __,104 S.Ct. 2694,2100 (1984) (citat ions omit ted). Under this third test, federa 1 regulat ions have the same preempt ive effect as federal statutes. See Fidelity Savings and Loan Assocication v. de la Cuesta, 458 U.S. 141,153 (1983). The second and third tests are re levant to the preempt ion quest ion before us. Because the Communications Act comprehensively regulates interference, Congress undoubtedly intended federal regulation to completely occupy that field to the exclusion of local and state governments. Additionally, even assuming state and local regulation is permitted, such regulation is preempted when, as in this instance, it conflicts with federal regulation. Under these circumstances, preempt ion is warranted. 5. We observe that exclusive jurisdiction to resolve questions involving interference has been assigned to the FCC.See,~,41 U.S.C. IS 152(a) 301, 303(c), (d), (e) and especially (f). While it has never been held that federal legislation in the field of broadcasting excludE'S every possible application o·f state law to radio stations 3 ,the Supreme· Court has stated that the FCC's jurisdiction "over technical matters" associated with the transmission of broadcast signals "is clearly exclusive." Head v. New Mexico Board of Examiners in Optometry, 314 U.S. 424, 430 n.6 (1963), See also National Broadcasting Co. v. United States, 319 U.S. 190, .211 (1943) (the Commission has "comprehensive powers to promote and realize the vast potentialities of radio"); and Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134,131 (1940) (the Commission is to design a "unified and comprehensive regulatory system for the industry,,).4 Moreover, assuming there was any doubt regard ing our jurisdict ion to regu late interference, Congress certainly removed such doubts when, in amending the Communications Act in 1982, it stated: The Conference Sub st itute is further intended to clarify the reservation of exclusive jurisdiction to the Federal Communicat ions Commission over matters involving RFI [radio 3 See,~,Rau 1 Sant iago Roman, 4 RR 2d 115 (1965) (state court may enjoin construction of broadcast facility based on enforceable covenant not to compete; federal regulation of interstate communication is not exc Ius ive). 4 Though these latter two pronouncements are not conclusive regarding the issue of preempt ion, they do provide some indication of the Supreme Court's perception of the plenary jurisdiction of the Commission over ma t t e r s re lat ing to broadcast ing. - 3 - frequency interference]. Such matters 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 reso lve an RFI complaint •••• [T]he Conferees intend that regulation of RFI phenomena shall be imposed only by the Comm~sion. H.R. Report No. 765, 97th Cong., 2d Sess.~3(1982), reprinted in 1982 U.S. Code Congo & Ad. News 2277, quoted in Blackburn V. Doubleday Broadcasting Co., 353 N.W. 2d 550, 556 (Minn. 1984). In Blackburn, the Minnesota Supreme Court affirmed the dismissal of a private nuisance complaint brought against five Minneapolis radio stations, holding that the FCC has exclusive jurisdiction to regulate interference between radio stations. In short, the House Report language indicates that the proposed federal regulatory scheme is so pervasive that it is reasonable to assume that Congress did not intend to permit states to supplement it. See Fidelity Federal Savings & Loan Association v. de la Cuesta, supra at 153 (1983). 6. In this same vein, the Commission ,itself has long recognized the breadth of its jur isd ict ion over cases invo lving interference: The delegation [in Section 303(f) of the Communications Act] is broad and leaves within the Commission's discretion, subject to the criterion of the-public interest, convenience and necessity, not only the determination of what degree of interference between stations shall be considered excessive but a Iso the methods by which such excessive interference shall be avoided. Roy Hofheinz, 9 RR 784c, 788 (1953). 7. Accord ing 1y, we find that federa 1 power in the area of radio frequency interference is exclusive; to the extent that any state or local government attempts to regulate in this area, their regulations are preempted. Add it ion.ally , a second basis exists for preempting in part the actions of Klamath County. The conditions in the Klamath County zoning authority's .Cond it iona 1 Use Permit concerning the trans lator stat ion are incons istent with federal policy. Conditions "b" and "c" of the.Conditional Use Permit conflict with estab Jished federal policy and rules governing radio frequency inter ference between broadcast ing services. ·8. The Commission has consistently held that FM and television translator stations (as well as booster stations and Low Power Television Stations) are licensed on a secondary basis and are not protected against interference from regular broadcast stations. See FM Channel Assignments (Claremore and Tulsa, Oklahoma), 55 RR 2d 1203, 1204 (Mass Media Bureau, 1984); FM Channel Assignment (Houghton, Michigan), MM Docket No. 84-461, Mimeo No. 2766, (Ma s s Med ia Bureau, 1985). In Low Power Te levision Service, 51 RR 2d - 4 - 476 (982), reconsideration granted on other grounds, FCC 83-129, 53 RR 2d 1267 (1983), the Commission stated its intention to "continue our present policy to protect full service reception from impairment of the signal by translators ••• [because] translators •••are secondary to full power stat ions." 51 II 2d at 493-4. See also Western Slope Communications! Ltd., Mimeo No. 4431 (Chief, Mass Media Bureau, May 31, 1983). Further, in Springfield Television of Utah v. FCC, 710 F.2d 620,627-8 (lOth Cir. 1983), the Court acknow ledged the Commiss ion's po licy that translators provide a secondary service and are required to accept the consequences of harmful interference from primary users of spectrum space. In effect, the allocation of an FM or TV broadcast channel to a C01IDIIlJDity "reserves" that channel for a fu ll-service stat ion; any broadcaster who constructs or re locates a trans lator (or other secondary service) to within interference distance of that reserved channel does so at its own risk. 5 5 We are fully cognizant that this policy can create significant dis wcat ions and in appropriate circumstances have fashioned measured relief.See,~,Third Report and Order in Docket 20735, FCC 84-515, released October 26, 1984, at fn. 17. However, Commission policy provides that broadcasters second in time are first in responsibility to resolve interference problems due to proximity of transmitters. Midnight Sun Broadcasting Co., 11 FCC 1119 (947). See also Sudbrink Broadcasting of Georgia, 65 FCC 2d 691 (977). While this "first in time" doctrine is generally inapplicable in situations involving translator stationp due to the secondary nature of translator service, the Commis s ion has accommodated the interests of exist ing translators in a few situations by conditioning the grant of a new full-service construction permit on the protection of existing translator stations. In Letter to George M. Skinner, (Chief, Audio Services Division, June 27, 1984), the Chief, Audio Services Division, modified the construction permit of an FM non-commercial educational station in Alamosa, Colorado to require "imp lementat ion 0 f effect ive measures to rect ify interference caused to other services ," which included several existing television translator stat ions. Beyond the fact that this was a Commission, not a local government, act ion, Skinner is dist inguishab Ie in at least two ways. First I the specific request by the licensee of the translators, i.e., that the Commis s ion issue an order to show cause why the construct ion permit of the FM station should not be rescinded or modified, was denied for a variety of pro cedura I and substant ive reasons. Second, the FM permittee in Skinner affirmatively indicated that it was "prepared to install equipment to eliminate any problems" and thus would readily accept the condition. Add it iona 11y, in Western Slope Communications, supra, at paragraph 15, the Commission conditioned the grant of a television permittee's application fer modification of construction permit on the elimination of harmful interference to the modulators of existing UHF translators located in close proximity to the permittee's antenna site. In so doing, the Chief, Mass - 5 - 9. As the above discussion indicates, the Commission considerstr~mslator stat ions, whether FM-based or TV-based, to be secondary services which must prov ide protect ion to fu ll-service broadcast facilit ies. Thus, the decis ion by the Klamath County zoning board to condit ion IUSN's use of the Stukel Mountain site on its protection of existing translators directly contravenes estab lisheq federa 1 po licy in the area of radio frequency interference between broadcast services. 10. In sum, 960 is correct that state or local regulation of interference by or to translator stations has been preempted by the Federal Communicat ions Commission and that Commission po licy does not mandate fu ll-service FM stat ions to protect the signals of pre-existing FM or TV trans lators. Under the circumstances presented here, the Commission will not require KJSN(FM) to protect any of the existing translator stations located at the Stukel Mountain Site, and state and local governing authorities are preempted from imposing such a requirement. FEDERAL COMMUNICATIONS COMMISSION WILLIAM J. TRICARICO SECRETARY Med ia Bureau op ined that "[w]hile trans lators are secondary in spectrum allocation, we believe that incidental radiation to them caused by the grant of a new facility at a nearby site does raise public interest concerns" when the new facility also seeks a waiver of the Commission's spacing rules for television facilities, 47 CFR § 610. Thus, the protection granted therein appears directly related to the public interest dimension created by the Commis s ion de c is ion to waive its short-spac ing ru les to accommodate the permit tee. Review of these cases leads to the conclusion that both these departures from the general policy here appear to support the wisdom of the federal supremacy principle in that they involve very specialized and technical issues best resolved using the expertise of the agency specifically charged with making such determinations. Local jurisdictions have neither the technical expertise nor the appropriate background to make those dec is ions which have profound impact on the nat ional pub lie interest po lie ies mandated by the Federal Communications Act and implemented by this Commission. - 6 -