**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | Facility ID No. 60575        |
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| John P. Stokes                   | ** |                              |
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| Petition for Declaratory Ruling  | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: October 24, 2007 Released: October 25, 2007**

By the Chief, Audio Division, Media Bureau:

**I. INTRODUCTION**

1\. We have before us the November 15, 2006, "Emergency Petition for
Declaratory Ruling" ("Petition") filed by John Stokes ("Stokes") on
behalf of Station KGEZ(AM), Kalispell, Montana, seeking preemption of
the jurisdiction of the Eleventh Judicial District Court, Flathead
County, Montana, regarding zoning decisions impacting the property on
which the KGEZ(AM) transmission facilities are located.[^1] For the
reasons discussed below, we deny the Petition.

**II. BACKGROUND**

2\. Skyline Broadcasters, Inc. ("Skyline") is the licensee of KGEZ(AM).
Stokes is the owner and President of Skyline. The KGEZ(AM) transmission
facilities are located on U.S. Highway 93, south of Kalispell, Montana.
The station operates with a two-tower daytime and nighttime directional
antenna array.[^2] The 120 ground radials for each tower extend
approximately 500 feet from the towers. Douglas G. Anderson, Ruth M.
Anderson (as trustee of The Ruth M. Anderson Living Trust), Davar
Gardner and Todd Gardner (collectively, \"the Andersons\") are owners of
the property ("the Anderson Property") on which the KGEZ(AM)
transmission facilities have been constructed.[^3]

3\. The Anderson Property is encumbered by an easement which was granted
by the Andersons\' predecessors in interest, J.R. Anderson and Anna G.
Anderson ("J.R. and Anna Anderson"), to Stokes\' predecessor in interest
and then-owner of KGEZ(AM), Donald C. Treloar (\"Treloar\").[^4] The
easement was executed October 11, 1949, and was never amended in writing
by the parties.[^5] Treloar's easement allowed him to select a site for
the radio towers, provided that he bury "all wires and conduits capable
of such burial to a depth of not less than 12 inches so that the same
will not unduly interfere with the cultivation of said premises, and to
fence all towers and or guy wires for their protection against
livestock."[^6] Treloar subsequently built two towers, a ground system,
and associated transmission components in the early 1950s. The towers
and ground radial antennas have remained at that location since their
construction.[^7] The easement relates to a parcel approximately 160
acres in size which has been owned and farmed by the Anderson family for
more than 50 years.[^8] Neither Stokes nor any of his predecessors in
interest have expanded the radio facility beyond its original location
on the Anderson Property.[^9]

4\. Stokes purchased KGEZ in April 2000.[^10] Shortly thereafter, he
advised the Andersons that he intended to enlarge or relocate the radio
towers. In Stokes\' view, the easement granted by J.R. and Anna Anderson
covered all of the land described in the grant (160 acres). By contrast,
the Andersons believed that the easement covered only the specific
portion of land that on which the radio towers ultimately were built
(roughly 31 of the 160 acres). In addition to this disagreement as to
the location and scope of the easement, the Andersons requested that
Stokes bury the existing wires and conduits to a depth of at least 12
inches, fence the towers and guy wires that were not currently fenced,
and repair the existing fences that were in disrepair.[^11] Until
January 12, 2001, the easement had never been subjected to judicial
interpretation.

5\. On January 12, 2001, the Andersons filed an action, Cause
DV-01-023(C), Montana Eleventh Judicial District Court, Flathead County
(the "Eleventh District Court"), seeking to extinguish the easement due
to Stokes' alleged failure to comply with the easement; alternatively,
they requested that the court clarify and interpret the location and
scope of the KGEZ(AM) easement.[^12] The Eleventh District Court entered
its final judgment in the proceeding on December 27, 2005, specifying
that the easement is limited in size and location to the historical
location of the present towers.[^13] The court held that KGEZ must
perform the necessary repairs to the improvements located upon the
easement so as to be in compliance with the terms of the easement. This
includes burying all wires, ground radials, conduits and transmission
lines to a minimum depth of 12 inches.[^14] Stokes appealed the District
Court's order and final judgment.[^15] The Supreme Court of Montana
affirmed on July 11, 2007.[^16]

6\. In the Petition, Stokes argues that the judicial interpretation of
the easement forces KGEZ to alter its transmission broadcast equipment
and that local governments "have absolutely no jurisdiction to order an
alteration, change, modify, remove, deny construction, deny placement,
or restrict use of any approved FCC radio station facilities."[^17] In
his Petition, Stokes therefore requests "an immediate emergency
intervention and FCC federal preemption and declaratory ruling denying
jurisdiction to Flathead County District Court Eleventh District for the
State of Montana."[^18]

**III. DISCUSSION**

7\. Under Section 1.2 of the Commission\'s Rules (the "Rules"), the
Commission \"may . . . issue a declaratory ruling terminating a
controversy or removing uncertainty.\"[^19] The Commission has broad
discretion whether to issue such a ruling.[^20] We conclude that no
declaratory ruling is warranted in this case, because there is no legal
controversy or uncertainty regarding the issue presented.

8\. Under Section 151 of the Communications Act of 1934, as amended,
(the "Act"), the Federal Communications Commission was created for the
purpose of regulating communication by wire and radio.[^21] Although by
virtue of the Act, Congress has preempted local regulation of radio
transmission, including assignment of frequencies to the states and
communities.[^22] The Act does not purport to regulate local land use
issues relating to the location of broadcast transmission
facilities.[^23] Thus, for example, the Commission has adopted no rules
preempting local zoning requirements affecting the construction of
broadcast towers.[^24] The Montana court rulings interpreting the terms
of the easement encumbering the Anderson Property do not conflict with
any federal law or regulation.

**IV. ORDERING CLAUSE**

9\. Accordingly, IT IS ORDERED that the November 15, 2006, "Emergency
Petition for Declaratory Ruling" filed by John P. Stokes IS DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Peter H. Doyle
>
> Chief, Audio Division
>
> Media Bureau

[^1]: Stokes filed a Supplement to his Petition on July 27, 2007. KGEZ
    operates with 5 kW daytime and 1 kW nighttime facilities.

[^2]: *See* BL-19810915AD, granted on January 28, 1982.

[^3]: *See Anderson v. Stokes*, 2007 MT 166U (2007), ¶4.

[^4]: *Id*.

[^5]: *See* *Stokes v. Montana*, No. CDV-2004-320, 2006 Mont. Dist.
    LEXIS 255 (1st Jud. Dist. Ct. of Mont., Lewis and Clark County Apr.
    27, 2006), ¶ 2.

[^6]: *See* Easement dated October 11, 1949 at 3.

[^7]: *See Anderson v. Stokes*, 2007 MT 166U (2007), ¶ 5.

[^8]: *See Stokes v. Montana***,** 2006 Mont. Dist. LEXIS 255, ¶ 2.

[^9]: *See Stokes v. Montana*, 2007 MT 169U (2007) ¶ 3.

[^10]: *See* File No. BTC-19991012AAU, granted on December 2, 1999
    (transfer of control of Skyline Broadcasters, Inc. from Ambrose G.
    Measure *et al.* to Z-600, Inc., of which Stokes is President,
    Director, and 100% shareholder). The transaction was consummated on
    April 27, 2000.

[^11]: *See Anderson v. Stokes*, 2007 MT 166U (2007) ¶ 7.

[^12]: *Id.*at ¶ 8.

[^13]: *Anderson v. Stokes*, No. DV-01-23(C), 2005 Mont. Dist. LEXIS
    1804 (11th Jud. Dist. Ct. of Mont., Flathead County Dec. 27, 2005),
    at ¶ 2.**  **

[^14]: *Id.*at ¶ 3.

[^15]: *Id.*

[^16]: *Anderson v. Stokes*, 2007 MT 166U (2007). It appears that Stokes
    refused to comply with the order to bury the ground radials and has
    been subject to contempt proceedings in Minnesota state court. In
    the July 27, 2007 supplement to the Petition, Stokes states that the
    Montana District Court "has now allowed developers to cut 90 feet
    off the length of all ground radial systems." Supplement, at 3. We
    have no confirmation that the KGEZ(AM) ground radials have in fact
    been severed.

[^17]: *Petition* at 3. *But see* *Anderson v. Stokes*, 2005 Mont. Dist.
    LEXIS 1796 (The court held that it was satisfied that it did have
    subject matter jurisdiction over the issues presented in the lawsuit
    and had the power to conclusively adjudicate this easement dispute,
    a matter of state law. The court stated that the power to regulate
    the broadcast license was not before the court and was not subject
    to any ruling by the court, and the issues involving the real
    property which the towers and antennae field may occupy is separate
    and distinct from the authority of FCC to regulate radio
    broadcasting.)

[^18]: *Id.*

[^19]: 47 C.F.R. § 1.2.

[^20]: *Telephone Number Portability,* Order, CC Docket No. 95-116, 19
    FCC Rcd 6800, 6810 20 (2004)*.* *See also* *Yale Broadcasting Co. v.
    FCC,* 478 F.2d 594, 602 (1973)*.*

[^21]: *See* 47 U.S.C. § 151.

[^22]: *See, e.g., Head v. New Mexico Board of Examiners in Optometry*,
    374 U.S 424 (1963); *960 Radio, Inc.*, Memorandum Opinion and Order,
    1895 WL 193883 (Nov. 4, 1985). *See also* 47 U.S.C. § 307(b).

[^23]: *See, e.g., Sleeper v. Old King's Highway Regional Historic Dist.
    Com*. (1981) 11 Mass App 571, 417 NE2d 987 (citations omitted). *See
    also Florida Lime & Avocado Growers, Inc.* v. *Paul*, 373 U.S. 132,
    141 (1963).

[^24]: *See Letter to Barry A. Friedman, Esq.*, 21 FCC Rcd 10747 (MB
    2006).