UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 1999

Argued: October 15, 1999 Decided: February 23, 2000

Docket No. 97-9141

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GRAEME FREEMAN, MARY BETH FREEMAN, FRANK ITTLE-

MAN, ELAINE ITTLEMAN, MIKE FOURNIER, HOLLY

FOURNIER, ELLEN LANE, WILLIAM PINNEY, JR., MARK

W. BOLLES, CLAUDIA MUCKLOW, DONNA A. WARK, IRIS

MUGGENTHALER, JAMES H. SQUIRES, LAWRENCE

HAMILTON, ROBERT CARMODY, MARK MUSIEL, MICHAEL

YANTACHKA, LORIE GADBOURY, CHRIS MCGEE, PETER

COLEMAN, BARBARA SANFORD FARRELL, AND WILLIAM

PINNEY, SR.,

Plaintiffs-Appellants,

v\.

BURLINGTON BROADCASTERS, INC., d/b/a WIZN,

CHARLOTTE FIRE & RESCUE SERVICES, INC., and

NYNEX MOBILE LIMITED PARTNERSHIP 1, d/b/a

BELL ATLANTIC NYNEX MOBILE,

Defendants-Appellees.

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Before: NEWMAN, WALKER and SOTOMAYOR, *Circuit Judges*.

Appeal from the August 11, 1997, judgment of the United States District
Court for the District of Vermont (William K. Sessions, III, Judge),
dismissing, for lack of subject matter jurisdiction, an administrative
appeal removed from the Vermont Environmental Court.

Affirmed as modified.

Gerald R. Tarrant, Tarrant, Marks & Gillies, Montpelier, VT, for
plaintiffs-appellants.

Brian J. Sullivan, Burak Anderson & Melloni, Burlington, VT., for
defendant-appellee NYNEX Mobile Limited Partnership 1.

John P. Cain, McCormick, Fitzpatrick, Kasper & Burchard, Burlington,
VT., for defendant-appellee Burlington Broadcasters, Inc.

(Senator Patrick Leahy, Senator James Jeffords, U.S. Senate, Washington,
D.C., Congressman Bernie Sanders, U.S. House of Representa-tives,
Washington, D.C. submitted a brief for *amici* *curiae* in support of
plaintiffs-appellants).

(Christopher J. Wright, Gen. Counsel, Daniel M. Armstrong, Assoc. Gen.
Counsel, Joel Marcus, Federal Communications Commission, Washington,
D.C.; Joel I. Klein, Asst. Atty. Gen., Robert B. Nicholson, Marion L.
Jetton, U.S. Department of Justice, Washington, D.C., submitted a brief
for *amicus* *curiae* Federal Communications Commission).

JON O. NEWMAN, *Circuit Judge*:

This appeal raises a preemption issue pitting federal authority in the
field of radio communications against local zoning authority. The
precise issue is whether the Federal Communications Act of 1934, as
amended (FCA), and regulations promulgated by the Federal Communications
Commission (FCC) preempt a local zoning board\'s power to enforce a
condition of a permit to construct and use a communications tower; the
permit condition requires the permittees to remedy any radio frequency
interference (\"RF interference\" or \"RFI\") from tower signals with
appliances and devices in local homes. Appellees Burlington Broadcasters
(\"WIZN\"), Charlotte Volunteer Fire & Rescue Services (\"CVFRS\"), and
NYNEX Mobile Limited Partnership 1 dba Bell Atlantic NYNEX Mobile
(\"BANM\") transmit radio signals from a tower in Charlotte, Vermont.
The Appellants, homeowners living near the tower (\"Homeowners\"),
appeal from a judgment by the United States District Court for the
District of Vermont (William K. Sessions, III, District Judge),
dismissing, after removal from the Vermont Environmental Court, their
appeal from a decision of the Town of Charlotte\'s Zoning Board of
Adjustment (\"ZBA\") that held the condition unenforceable. *See* *In re
Freeman*, 975 F. Supp. 570 (D. Vt. 1997). We agree with both the local
agency and the District Court that federal law preempts enforcement of
the permit condition, but we conclude that the appropriate disposition
is not to dismiss the removed appeal, but to affirm the ZBA\'s decision
on the preemption issue.

Background

*Facts*. The underlying facts are largely undisputed. Appellee WIZN
operates a radio station under an FCC license, which authorizes WIZN to
broadcast from a 199-foot tower in Charlotte. Appellee BANM transmits
cellular telephone calls from four 13-foot \"whip\" antennas mounted on
the tower. Appellee CVFRS uses tower transmitters intermittently in
connection with providing fire and ambulance services to the Town of
Charlotte.

In late 1986, WIZN and CVFRS sought a permit from the Town of Charlotte
to build a tower on Pease Mountain and to transmit radio signals from
it. At a hearing to discuss the matter, a WIZN representative assured
concerned townspeople that there would not be any RF interference with
their home electronic devices, and that if such interference occurred,
WIZN would \"trap it out.\" The phenomenon of RF interference is
explained in the legislative history of the 1982 Amendments to the FCA:
\"Radio frequency interference \... arises when a signal radiation by a
transmitter is picked up by an electronic device in such a manner that
it prevents the clear reception of another and desired signal or causes
malfunction of some other electronic device.\" H.R. Conf. Rep. No.
97-765, at 21 (1982), *reprinted in* 1982 U.S.C.C.A.N. 2261, 2265.

In January 1987, the Town of Charlotte\'s Zoning Board of Adjustment
(\"ZBA\") issued WIZN and CVFRS a permit to construct and use the tower
on the express condition that \"any interference with reception in homes
in the area because WIZN began broadcasting will be remedied by WIZN.\"
After the tower was built, WIZN conveyed ownership to CVFRS. In April
1987, WIZN began broadcasting from space on the tower leased to it by
CVFRS. In 1991, BANM\'s predecessor and CVFRS received approval from the
ZBA to mount four whip antennas on the tower for the purpose of cellular
phone signal transmission. Although a representative of CVFRS orally
assured the ZBA that the antennas would cause no interference, BANM was
not required to agree to any conditions concerning RF interference.

*State administrative proceedings*. On April 5, 1996, in response to a
considerable number of RF interference complaints by the Appellants and
other Charlotte residents, the Charlotte Zoning Administrator issued a
notice of violation to WIZN, BANM, CVFRS, and the landowner. The notice
alleged that the facility caused long-term and continuous RF
interference in violation of the condition of WIZN\'s permit.

The cited parties appealed the notice of violation to the ZBA, which
conducted public hearings in May 1996 pursuant to Vt. Stat. Ann. tit.
24, § 4467 (1992 & Supp. 1999). The Homeowners, the Appellants in the
pending appeal, appeared as \"interested persons\" under *id.* § 4464(b)
and identified various RF interference problems with their household
electrical and electronic devices. On July 11, 1996, the ZBA issued its
Notice of Decision. The ZBA found that

WIZN has caused continuous and widespread RFI that has impaired the
ability of Charlotte residents to communicate, transact business, and
experience the peaceful enjoyment of their homes and property. In
addition, the Board finds that these individuals have expended
substantial amounts of money in their attempts to remedy interference
problems.

Notice of Decision at 5. The ZBA also commented on WIZN\'s sluggishness
in responding to complaints. The ZBA noted that \"\[w\]hile WIZN
successfully reduced and/or eliminated RFI in some cases, other
Charlotte residents continue to experience annoying, costly, and
burdensome interference problems.\" *Id.* However, the ZBA found \"no
credible evidence\" demonstrating that any of the other cited parties
\-- CVFRS, BANM, and the landowner \-- caused RF interference. *Id.*

Although the ZBA found that WIZN was in violation of the condition of
its permit, the ZBA also concluded that its authority to enforce the
permit condition was preempted by the federal government\'s occupation
of the field of RF interference regulation. The ZBA also noted that
Vermont law provides that, under some circumstances, co-permittees and
property owners are jointly liable for violations, but found that any
such co-permittee liability was also subject to preemption.

The Homeowners and the Town of Charlotte appealed the decision of the
ZBA to the Vermont Environmental Court pursuant to Vt. Stat. Ann. tit.
24, § 4471 (1992 & Supp. 1999). In addition to challenging the
preemption decision concerning enforceability of the permit condition,
the parties argued that state or local jurisdiction existed over claims
of fraud, deceit, or misrepresentation against WIZN, BANM, and CVFRS,
and that Charlotte residents had been denied unspecified consumer
rights. The Homeowners also challenged the ZBA\'s factual finding that
only WIZN, and not CVFRS, BANM, and the property owner, caused the RF
interference.

*District Court proceedings*. Before decision by the Vermont
Environmental Court, the Appellees removed the case to the District
Court. [^1] BANM moved to dismiss, pursuant to Rule 12(b)(1), for lack
of subject matter jurisdiction, and, pursuant to Rule 12(b)(6), for
failure to state a claim. WIZN also moved to dismiss for failure to
state a claim. CVFRS joined both motions. The thrust of all the
Appellees\' arguments was that pervasive federal regulation preempted
enforcement of the locally imposed condition. The District Court
recognized its obligation to consider subject matter jurisdiction, but
did so primarily by inquiring whether local regulation of RF
interference was federally preempted. The Court concluded that federal
law conferred exclusive jurisdiction on the FCC to regulate RF
interference. Turning to the Homeowners\' allegation of fraud and
deceit, based on the Appellees\' promise to the ZBA either to avoid RF
interference with home devices or eliminate it, the Court distinguished
between the Homeowners\' possible remedies; to the extent that they
sought the remedy of eliminating RF interference, the Court ruled that
such a remedy was preempted, and to the extent they were seeking (or
even had standing to seek) any other relief, their claims \"were not
part of the proceeding from which they appealed, and are not properly
before this Court.\" *Freeman*, 975 F. Supp. at 576. Based on its
preemption ruling and its ruling that any non-preempted remedy for fraud
and deceit was outside the scope of the state court appeal, the District
Court dismissed the removed case for lack of subject matter
jurisdiction.

Discussion

I. Subject Matter Jurisdiction

A. Jurisdiction Based on the Preemption Issue

Although neither party has questioned the District Court\'s subject
matter jurisdiction, the matter is not self-evident, and we are obliged
to consider it. *See* *Fax Telecommunicaciones Inc. v. AT&T*, 138 F.3d
479, 485 (2d Cir. 1998). And, although an objection to the propriety of
removal is forfeited by failure to assert it, *see* *id.* at 487-88,
subject matter jurisdiction must exist, if not at the time of removal,
then at least at the time the District Court entered judgment, *see*
*Grubbs v. General Electric Credit Corp*., 405 U.S. 699, 705 (1972);
*Fax Telecommunicaciones*, 138 F.3d at 488.

The Appellees removed from the Vermont Environmental Court a civil
action brought to that court by the appeal of the Homeowners from the
administrative ruling of the ZBA. An appeal of an administrative ruling
to a state court is removable to a federal district court so long as the
complaint to the state court presents a well-pleaded claim arising under
federal law. *See* *City of Chicago v. International College of
Surgeons*, 522 U.S. 156, 163-64 (1997).

Whether the pending case satisfies the standard of *City of Chicago*
merits careful consideration. *City of Chicago*, although involving
review of an agency decision, presented a traditional federal-question
case: the state court plaintiff\'s complaint alleged that the action of
the defendant (a city agency) and the ordinance under which the
defendant acted violated the plaintiff\'s constitutional rights. As the
Supreme Court explained, even though state law (Illinois\'s
Administrative Review Law) created the plaintiff\'s cause of action,
that cause of action nonetheless arose under federal law because the
plaintiff\'s \"\'right to relief under state law require\[d\] resolution
of a substantial question of federal law.\'\" *Id.* at 164 (quoting
*Franchise Tax Board of California v. Construction Laborers Vacation
Trust for Southern California*, 463 U.S. 1, 13 (1983)).

The pending case differs from *City of Chicago* in three respects.
First, unlike the state court plaintiff in *City of Chicago*, who filed
a complaint, the Homeowners invoked the jurisdiction of the Vermont
Environmental Court by filing a notice of appeal. That technical
difference is irrelevant for purposes of determining the district
court\'s removal jurisdiction. District courts have original
jurisdiction over federal claims seeking review of an administrative
decision, whether the court case is initiated by a complaint, *see*,
*e.g.*, 42 U.S.C. § 405(g) (authorizing action to \"review\" final
decision of Commissioner of Social Security), or a petition for review,
*see*, *e.g.*, 28 U.S.C. § 2344 (authorizing action to \"review\" final
order of various federal agencies).

Second, the plaintiff\'s initial pleading in the state court in *City of
Chicago* set forth a cause of action, whereas the Homeowners presented
their issues to the Vermont Environmental Court by a Statement of
Questions, pursuant to the required local procedure. *See* Vt. R. Civ.
P. 76(e)(4)(B) (Supp. 1999). Although a \"Statement of Questions\" does
not present a claim that may be examined to determine if it arises under
federal law in quite the same manner as a \"complaint\" asserting a
cause of action, this technical difference also provides no basis for
rejecting federal subject matter jurisdiction. The well-pleaded
complaint rule is concerned with the existence of a federal question on
the face of the document invoking a state court\'s jurisdiction, not
whether that document bears the label \"complaint.\"

Arguably more significant is a third distinction: the issue tendered to
the Illinois state court in *City of Chicago* was whether the local
agency\'s ordinance or action violated the Constitution, whereas the
issue tendered to the Vermont Environmental Court was whether federal
law preempted enforcement of the condition of the Appellees\' permit.
The preemption issue was initially tendered in this case when it was
asserted by the Appellees before the ZBA as a defense to the Zoning
Administrator\'s notice of violation. Under the \"well-pleaded
complaint\" rule, *see* *Franchise Tax Board*, 463 U.S. at 9; *Gully v.
First National Bank*, 299 U.S. 109, 113 (1936) (\"\[T\]he controversy
must be disclosed upon the face of the complaint, unaided by the answer
or by the petition for removal.\"), a state law complaint, filed in a
state trial court, that tries to anticipate a defense of federal
preemption will not support federal question removal jurisdiction, *see*
*Caterpillar Inc. v. Williams*, 482 U.S. 386, 393 (1987); *Gully*, 299
U.S. at 116 (\"By unimpeachable authority, a suit brought upon a state
statute does not arise under an act of Congress or the Constitution of
the United States because prohibited thereby.\"), unless the limited
doctrine of \"complete preemption\" applies, *see* *Metropolitan Life
Insurance Co. v. Taylor*, 481 U.S. 58, 63-64 (1987). Under that
doctrine, the plaintiff\'s state law claim, recharacterized pursuant to
the \"artful pleading\" rule, *see* *Travelers Indemnity Co. v.
Sarkisian*, 794 F.2d 754, 758 (2d Cir. 1986), is said necessarily to
arise under federal law, regardless of how the plaintiff has pled the
claim, *see* *Metropolitan Life*, 481 U.S. at 63-64. In the FCA context,
we have ruled that the \"complete preemption\" doctrine does not apply
with respect to state law billing claims and other business practice
claims. *See* *Fax Telecommunicaciones*, 138 F.3d at 486; *Marcus v.
AT&T Corp.*, 138 F.3d 46, 53 (2d Cir. 1998). It is arguable, however,
that the complete preemption defense applies to state law claims that
concern technical aspects of electronic transmissions, and we might well
support subject matter jurisdiction in this case on that basis. We need
not do so, however, because of an alternative basis for satisfying the
well-pleaded complaint rule.

Although the preemption issue was initially asserted defensively by the
Appellees at the administrative level, later, when the Homeowners
invoked the jurisdiction of the Vermont Environmental Court, they did so
by tendering the preemption issue affirmatively as the initial question
to be decided in their effort to reverse the decision of the ZBA. After
explaining that the ZBA had ruled that the condition of WIZN\'s permit
was void because of federal preemption, the Homeowners\' Statement asked
as a first question, \"Does federal law preempt state and local
jurisdiction over interference?\" Although it is arguable that the
defensive nature of the preemption issue when first injected into the
case at the agency level should govern throughout the litigation, at
least for purposes of determining federal question jurisdiction, we
think the better approach is to permit removal when a litigant\'s
initial entrance to a state court seeks a decision that an
administrative ruling upholding a federal preemption defense is
erroneous. [^2] Our view rests on the reason why the well-pleaded
complaint rule has been fashioned to bar anticipation of a federal
defense.

The well-pleaded complaint rule is usually justified as a protection
against the undue expansion of federal court jurisdiction that would
occur if a plaintiff with only a state law claim could invoke federal
jurisdiction simply by speculating that the defendant might assert a
federal defense. *See*, *e.g.*, Richard H. Fallon *et al.*, *Hart and
Wechsler\'s The Federal Courts and the Federal System* 910-11 (4th ed.
1996) (\"*Hart and Wechsler*\") (well-pleaded complaint rule \"designed
to avoid making original jurisdiction turn on speculation as to what
issues will be decisive in the litigation\") (footnote omitted).
However, after a state or local agency has considered a federal defense,
such as preemption, tendered by a defendant, and ruled that the defense
is valid, the reason for the well-pleaded complaint rule has been
substantially diminished: the federal defense is no longer merely a
matter of speculation. [^3] Thus, when the Homeowners sought judicial
review of the ZBA\'s preemption ruling, the federal defense had been
adjudicated, and the Homeowners entered the state court to obtain
judicial review of the agency ruling. They were not merely seeking a
declaratory judgment from the Vermont Environmental Court, which might
well not have been removable, [^4] but rather exercising their state law
right to obtain judicial review of agency action, the same procedural
route that justified removal in *City of Chicago*. And, as in *City of
Chicago*, the state court suit, though authorized by state law, arose
under federal law because of the nature of the federal question on which
the outcome depended.

The logic of permitting removal once a federal defense has been
adjudicated could arguably be invoked to justify removal of a state
court appeal from a state trial court decision adjudicating a federal
defense.[^5] However, removal of such an appeal would encounter the
obstacle of the *Rooker*/*Feldman* doctrine, prohibiting a federal
district court from exercising appellate jurisdiction over a state
court. *See* *District of Columbia Court of Appeals v. Feldman*, 460
U.S. 462, 474 (1983); *Rooker v. Fidelity Trust Co.*, 263 U.S. 413, 416
(1923). Since this case involves removal of a case pending in a state
court of first instance, seeking review of an agency decision
adjudicating a federal issue, it could have been brought originally in a
district court, and is therefore properly removable. *See* 28 U.S.C. §
1441(a) (1994). We also observe that had the state agency adjudicated
the federal issue adversely to the Appellees, they could have brought an
action in the District Court to enjoin enforcement of the condition of
the zoning permit. *See* *Shaw v. Delta Air Lines, Inc.*, 463 U.S. 85,
96 n.14 (1983).

B. Jurisdiction Based on Other Issues

In addition to tendering the preemption issue to the Vermont
Environmental Court, the Homeowners also raised other issues: (1)
whether BANM and CVFRS have caused RF interference? (2) Whether BANM and
CVFRS bear joint liability with WIZN as co-permittees? (3) Whether WIZN,
BAMN, and CVFRS are subject to state or local jurisdiction for fraud,
deceit, and misrepresentation arising from the promises made when the
permit was issued? (4) Whether WIZN, BAMN, and CVFR have violated some
unspecified consumer rights?

These issues raise only state law questions.[^6] *City of Chicago*
instructs that, where a removal petition properly invokes a district
court\'s subject matter jurisdiction over matters initially presented to
an administrative agency, that court\'s authority to consider other
issues turns on traditional considerations applicable to the exercise of
supplemental jurisdiction under 28 U.S.C. § 1367(a). *See* *City of
Chicago*, 522 U.S. at 164-65. Since the federal claim (that the ZBA\'s
preemption ruling is erroneous) failed at the outset in the District
Court, it would be inappropriate to exercise supplemental jurisdiction
with respect to the state law claims, especially in a removed case like
this one, where a federal court would be obliged to consider the extent
to which such claims had been sufficiently tendered to the ZBA to make
them available for review in the Vermont Environmental Court. We
consider in Part III the consequence of not exercising such
jurisdiction.

II\. Federal Preemption

This Circuit has not yet confronted the issue whether federal law
preempts state and local regulation of RF interference. Of the various
forms of federal preemption, the most pertinent to the pending inquiry
is so-called \"field preemption\": state law is preempted when the
\"scheme of federal regulation \[is\] so pervasive as to make reasonable
the inference that Congress left no room for the States to supplement
it.\" *Rice v. Santa Fe Elevator Corp.*, 331 U.S. 218, 230 (1947). As is
always the case in preemption analysis, Congressional intent is the
\"ultimate touchstone.\" *Cippolone v. Liggett Group, Inc.*, 505 U.S.
504, 516 (1992) (internal quotation marks and citations omitted).
Consistent with this view of the importance of congressional intent, the
Supreme Court has explained that \"field pre-emption may be understood
as a species of conflict pre-emption: a state law that falls within a
pre-empted field conflicts with Congress\' intent (either express or
plainly implied) to exclude state regulation.\" *English v. General
Electric*, 496 U.S. 72, 79 n.5 (1990); *see also* 1 *Laurence H. Tribe,
American Constitutional Law* § 6-31 (3d ed. 1999).

For the reasons below, we conclude that federal law has preempted the
field of RF interference regulation.

*The FCC\'s Statutory Authority to Regulate Radio Broadcasting*. Several
statutory provisions indicate the extent of the FCC\'s authority and
responsibility to regulate radio broadcasting. 47 U.S.C. § 151 states
the purposes of the FCA, among them to \"centraliz\[e\] authority
heretofore granted by law to several agencies\" in the FCC, and to
\"grant\[\] additional authority with respect to interstate and foreign
commerce in wire and radio communication\" to the FCC. Section 301[^7]
provides that \"it is the purpose of this chapter, among other things,
to maintain the control of the United States over all the channels of
radio transmission\" under licenses granted by the FCC in accordance
with the FCA. Subsection 307(b) requires the FCC to \"make such
distribution of licenses, frequencies, hours of operation, and of power
among the several States and communities as to provide a fair,
efficient, and equitable distribution of radio service to each.\"

Moreover, under subsection 302a(a)(1), the FCC has power to \"make
reasonable regulations \... governing the interference potential of
devices which in their operation are capable of emitting radio frequency
energy by radiation, conduction, or other means in sufficient degree to
cause harmful interference to radio communications.\" Section 303 grants
extensive powers to the FCC to regulate radio broadcasting technology
and RF interference phenomena. Among other powers, subsection 303(d)
empowers the FCC to \"\[d\]etermine the location of classes of stations
or individual stations.\" Subsection 303(e) empowers the FCC to
\"\[r\]egulate the kind of apparatus to be used with respect to its
external effects and the purity and sharpness of the emissions from each
station and from the apparatus therein.\" Subsection 303(f) allows the
FCC to \"\[m\]ake such regulations not inconsistent with law as it may
deem necessary to prevent interference between stations and to carry out
the provisions of this chapter.\" Subsection 303(h) confers \"authority
to establish areas or zones to be served by any station.\"

These statutory provisions make it clear that Congress intended the FCC
to possess exclusive authority over technical matters related to radio
broadcasting. *See* *Head v. New Mexico Board of Examiners in
Optometry*, 374 U.S. 424, 430 n.6 (1963); *Broyde v. Gotham Tower,
Inc.*, 13 F.3d 994, 997 (6th Cir. 1994). This authority is embedded in
the FCC\'s broad authority to develop a comprehensive national
regulatory system governing telecommunications. *See*, *e.g.*, *National
Broadcasting Co. v. United States*, 319 U.S. 190, 219-20 (1943); *FCC v.
Pottsville Broadcasting Co.*, 309 U.S. 134, 137 (1934).

Moreover, the legislative history of the 1982 Amendments to the FCA,
Pub. L. No. 97-259, 96 Stat. 1087 (1982), supports the conclusion that
Congress\'s grant of authority to the FCC was intended to be exclusive
and to preempt local regulation. The House Conference Report states with
respect to enacting section 302a, which empowers the FCC to set
manufacturing standards for home electronic equipment to minimize the RF
interference effects of signals from nearby transmitters:

The Conference Substitute is further intended to clarify the reservation
of exclusive jurisdiction to the Federal Communications Commission over
matters involving RFI. 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 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.

H.R. Conf. Rep. No. 97-765, at 33 (1982), *reprinted in* 1982
U.S.C.C.A.N. 2261, 2277. This statement from the legislative history is
consistent with our inference of complete preemption from Congress\'s
comprehensive legislation in the field and Congress\'s explicit
delegation of authority to the FCC to regulate the instrumentalities of
radio broadcasting throughout the United States.

*The FCC\'s Regulation of RF Interference Through Rule-making.* Federal
regulations have the same preemptive force as federal statutes. *See*
*Fidelity Savings and Loan Ass\'n v. de la Cuesta*, 458 U.S. 141, 153-54
(1983). The FCC has exercised its rule-making power to extensively
regulate the technologies involved in FM broadcasting. *See, e.g.*, 47
C.F.R. §§ 73.201-73.333 (1998). These rules govern, among other things,
the power and height of antennas, *see* *id.* § 73.211, the use of
common antenna sites, *see* *id.* § 73.239, and FM transmitter
locations, *see* *id.* § 73.315. Most significantly, the FCC regulates
\"FM blanketing interference,\" which is the sort of interference
complained of by the Homeowners. *See* *id.* § 73.318. The FCC first
defines the area assumed to be blanketed by radio emissions as a
function of the effective radiated power of the antenna. Notably, the
FCC imposes a requirement that licensees remedy the RF interference
occurring in that area: \"\[P\]ermittees or licensees who \... are
issued a new construction permit must satisfy all complaints of
blanketing interference which are received by the station during a
one-year period. \... Resolution of complaints shall be at no cost to
the complainant.\" *Id.* § 73.318(b).[^8] Following the one-year period,
the licensee or permittee must provide technical information or
assistance to complainants concerning remedies for interference. *See*
*id.* § 73.318(d). Finally, pursuant to an explicit grant of authority
under subsection 302a(a)(1), the FCC has promulgated extensive
regulations governing devices that emit either intentional or incidental
RF interference. *See* 47 C.F.R. pt. 15 (1998).

In light of our conclusion that Congress intended that the FCC enjoy
exclusive jurisdiction to regulate RF interference phenomena, the FCC\'s
regulations cannot be said to be anything other than reasonable
interpretations of the scope of FCC authority, and thus are entitled to
deference under *Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc.*, 467 U.S. 837, 842-43 (1984).

*The FCC\'s Interpretation of the Scope of Preemption*. An agency\'s
interpretation of an ambiguous statute it is charged with administering
is entitled to *Chevron* deference not only when the agency interprets
through rule-making, but also when it interprets through adjudication.
*See* *Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and
Construction Trades Council*, 485 U.S. 568, 574 (1988). To whatever
extent any ambiguity exists in the FCA, the FCC has resolved this
ambiguity in favor of federal preemption of RF interference issues.
*Cf.* *City of New York v. FCC*, 486 U.S. 57, 64 (1988) (\"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.\") (citation and internal quotation marks
omitted). In *In re Mobilecomm of New York, Inc.*, 2 F.C.C.R. 5519
(Common Carrier Bureau 1987), the FCC examined two sections of the Code
of the Town of Wilton, Connecticut, that purported to regulate RF
interference. Wilton\'s Code required that a paging signal transmitter
notify the Town\'s Planning and Zoning Commission when it changed the
power and/or frequency of its transmission, and provided that \"\[n\]o
operation shall be permitted which produces any perceptible
electromagnetic interference with normal radio or television reception
in any area within or without the town.\" *Id.* ¶ 3 n.3. The FCC
determined that Wilton\'s rule was preempted by federal law, *see* *id.*
¶¶ 8-11, and rejected Wilton\'s argument that its zoning regulations
were \"reasonably tailored police powers necessarily enacted for the
protection of town residents.\" *Id.* ¶ 5. *See also* *In re 960 Radio,
Inc.*, FCC 85-578 ¶ 3, 1985 WL 193883 (1985) (holding that FCC\'s
exclusive jurisdiction over RF interference between two radio stations
preempted enforcement of use permit conditioned on station\'s \"not
operat\[ing\] \[its\] new facility so as to produce electronic
interference to existing facilities\").

*The Homeowners\' Arguments That Federal Law Authorizes Local Regulation
of RF Interference*. The Homeowners make three arguments that federal
law expressly or impliedly exempts from preemption state and local
regulations like the permit condition at issue. We disagree with these
arguments.

First, the Homeowners rely on the 1982 Amendments, which, among other
things, grant the FCC authority to promulgate performance standards for
consumer electronic equipment. *See* 47 U.S.C. 302a(a)(2). The
Appellants argue that this limited grant of authority reflects a
conscious decision by Congress to confer on the FCC exclusive power to
set standards for *consumer* electronic equipment but not *business*
electronic equipment, leaving RF interference affecting *business*
electronic equipment available for local regulation. Because the ZBA
found that the WIZN signal interfered with equipment used for business,
the argument continues, the condition on WIZN\'s permit is not preempted
by federal law or regulations.

This argument is untenable. Although Congress limited the FCC\'s
standard-setting authority to consumer electronic equipment, this
limited grant of authority concerns devices that *receive* RF
interference, not devices that *emit* radio signals. Thus, were we to
infer from the statute\'s inclusion of consumer electronic equipment the
exclusion of business electronic equipment, we would conclude at most
that Congress did not intend the FCC to have power to set standards (for
the manufacture of business electronic devices) that would minimize
malfunctions caused by the *receipt* of RF interference.[^9] This is an
altogether different matter from the regulation of radio transmitters
*emitting* radio signals that are the source of RF interference in
recipient devices. In fact, Congress explicitly granted the FCC
authority to regulate RF *emissions* causing interference. *See* 47
U.S.C. § 302a(a)(1). Finally, we note that the provision relied upon by
the Homeowners was passed as part of the 1982 Amendments. The Conference
Report for these amendments, quoted above, explicitly states Congress\'s
intent to preempt any local or state attempts to regulate or remedy RF
interference.

Second, the Homeowners argue that the 1996 Amendments \"preserve\" local
zoning authority over RF emissions. They point to two provisions: one
provision concerns wireless telephones (and thus implicates the
Homeowners\' claim against BANM) and the other concerns common carrier
regulations.

The Homeowners argue that the wireless telephone provisions in the 1996
Amendments affect the analysis whether the ZBA has the authority to
regulate RF interference attributable to BANM.[^10] They point to
subsection 332(c)(7)(A), entitled \"Preservation of local zoning
authority,\" which states:

Except as provided in this paragraph, nothing in this chapter shall
limit or affect the authority of a State or local government or
instrumentality thereof over decisions regarding the placement,
construction, and modification of personal wireless services facilities.

Thus, Congress did preserve some local zoning authority over the
placement of wireless services transmitters like BANM\'s. However, we
conclude that Congress did not intend by this provision to repeal the
FCC\'s exclusive jurisdiction over RF interference complaints. The
statute\'s preservation of local power extends only to \"placement,
construction and modification\" of \"facilities.\" In light of the
FCC\'s pervasive regulation of broadcasting technology, this provision
is most reasonably understood as permitting localities to exercise
zoning power based on matters not directly regulated by the FCC. *Cf.*
*AT&T Wireless PCS, Inc. v. City of Virginia Beach*, 155 F.3d 423, 427
(4th Cir. 1998) (upholding under this provision city\'s denial of
building permit to wireless services provider, when that denial rested
on \"traditional bases of zoning regulation: preserving the character of
the neighborhood and avoiding aesthetic blight\"). Moreover, this
interpretation is supported by the express provision in the 1996
Amendments forbidding implied repeal:

\(c\) Federal, state, and local law. \--

\(1\) No implied effect. \-- This Act and the amendments made by this
Act shall not be construed to modify, impair, or supersede Federal,
State, or local law unless expressly so provided in such Act or
amendments.

Pub. L. No. 104-104, § 601, 110 Stat. 56, 143 (1996) (codified in notes
to 47 U.S.C. § 152 (1994 & Supp. 1997)). It would contravene this
provision to find that subsection 332(c)(7) impliedly repeals the FCC\'s
exclusive authority to regulate RF interference. We note also that the
legislative history indicates that this preservation of authority
\"relate\[s\] to local land use regulations and \[is\] 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.R.
Conf. Rep. No. 104-458, at 209 (1996), *reprinted in* 1996 U.S.C.C.A.N.
124, at 223.

The *amicus* brief of the Vermont Senators and Congressman also cites
subsection 332(c)(7) in arguing against the ZBA\'s preemption ruling.
Their point is that no provision similar to this subsection, which
concerns personal wireless service, can be found regarding the
\"siting\" of radio broadcast towers. Brief of *Amicus Curiae* Leahy *et
al.* at 4. However, the preexisting pervasive federal regulation of RF
interference suffices to resist any negative implication that might
otherwise be drawn from subsection 332(c)(7). Moreover, local authority
over siting of broadcast towers, based on considerations not within the
exclusive regulatory authority of the FCC, remains unimpaired.

The Homeowners also point to the 1996 Amendments\' common carrier
regulations, codified in section 253 and reading in part:

\(a\) In general. No State or local statute or regulation, or other
State or local legal requirement, may prohibit or have the effect of
prohibiting the ability of any entity to provide any interstate or
intrastate telecommunications service.

\(b\) State regulatory authority. Nothing in this section shall affect
the ability of a State to impose, on a competitively neutral basis and
consistent with section 254 of this section, requirements necessary to
preserve and advance universal service, protect the public safety and
welfare, ensure the continued quality of telecommunications services,
and safeguard the rights of consumers.

The Homeowners argue that these provisions, particularly subsection (b),
\"preserve\" the right of a state to impose RF interference conditions
because those conditions \"protect the public safety and welfare.\" This
argument is unavailing. The section at issue is contained in the
statutory subchapter entitled \"Common Carriers\" and the part entitled
\"Development of Competitive Markets.\" The section concerns the
provision of local telephone service and the impermissibility of
state-created barriers to competitive markets. It has nothing to do with
RF interference. Moreover, the legislative history indicates that
\"\[b\]y \'public safety and welfare,\' the Committee means, among other
things, making certain that emergency services, such as 911, are
available to the public.\" H.R. Rep. No. 104-204, at 75 (1995),
*reprinted in* 1996 U.S.C.C.A.N. 10, at 41.

Third, the Homeowners argue that the FCC has expressly declined to
regulate or to preempt local regulation of radio frequency matters
affecting safety. They point to the following explanatory portions of an
FCC proposed rule, and argue that it establishes that the FCC intended
to preserve state and local regulations affecting health and safety:

164\. In the past, parties have requested that the Commission preempt
state and local authority over RF exposure matters. To date the
Commission has declined to preempt on health and safety matters.
However, the Commission has noted that should non-Federal RF radiation
standards be adopted that adversely affect a licensee\'s ability to
engage in Commission-authorized activities, the Commission would
consider reconsidering whether Federal action is necessary.

\...

166\. *Decision*. In the past the Commission has hesitated to intrude on
the ability of states and localities to make regulations affecting
health and safety. Many of the comments indicate that a patchwork of
divergent local and State regulations could pose a burden on interstate
communications. However, since these comments were filed, Congress has
passed the Telecommunications Act of 1996. \... Section 704 of the
Telecommunications Act amends the Communications Act by providing for
federal preemption of state and local regulation of personal wireless
service facilities on the basis of RF environmental effects. The
Telecommunications Act also provides for resolution of conflicts related
to the regulation of RF emissions by the courts or by petition to the
Commission. Accordingly, we are amending § 1.1307 of our rules to
incorporate the provisions of Section 704 of the Telecommunications Act.

Guidelines for Evaluating the Environmental Effects of Radiofrequency
Radiation, 58 Fed. Reg. 19,393 (1993) (codified at 47 C.F.R. pt. 1, 2,
15, 24, 97) (adopted Aug. 5, 1996) (footnotes omitted).

The Homeowners misunderstand the meaning of \"health and safety\" in
this context. This term is used in conjunction with the term
\"environmental effects,\" which is not defined in the statute but most
likely refers to the already-existing requirement that the FCC prepare
an Environmental Assessment in connection with the grant of a license.
*See* 47 C.F.R. § 1.1307 (1998). The environmental effects specified by
the regulations do not include RF interference, but rather focus on
degradation of the natural environment, effects on historical landmarks,
and the biological effects of RF radiation. Consequently, the FCC\'s
adoption or rejection of a position with respect to that issue has no
relevance to the issue of RF interference.

We conclude that allowing local zoning authorities to condition
construction and use permits on any requirement to eliminate or remedy
RF interference \"stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress,\" *Fidelity
Savings & Loan Ass\'n*, 458 U.S. at 152 (quoting *Hines v. Davidowitz*,
312 U.S. 52, 67 (1941)) (internal quotation marks omitted), in
delegating regulatory power to the FCC for uniform regulation of
broadcast technologies. At least one other court has agreed with this
view with respect to local zoning permits. *See* *Southwestern Bell
Wireless Inc. v. Board of County Commissioners*, 199 F.3d 1185, 1193
(10th Cir. 1999). Other courts have reached the same conclusion when
faced with the question whether federal law preempts state common law
nuisance actions purporting to regulate RF interference. *See* *Broyde*,
13 F.3d at 998; *Still v. Michaels*, 791 F. Supp. 248, 252 (D. Ariz.
1992) (alternate holding); *Still v. Michaels*, 803 P.2d 124, 125 (Ariz.
Ct. App. 1990); *Helm v. Louisville Two-Way Radio Corp.*, 667 S.W.2d
691, 693 (Ky. 1984); *Blackburn v. Doubleday Broadcasting Co.*, 353
N.W.2d 550, 556-57 (Minn. 1984); *Smith v. Calvary Educational
Broadcasting Network*, 783 S.W.2d 533, 536-37 (Mo. Ct. App. 1990);
*Monfort v. Larson*, 693 N.Y.S.2d 286, 289 (N.Y. App. Div. 1999);
*Fetterman v. Green*, 689 A.2d 289, 294 (Pa. Super. Ct.), *appeal
denied*, 695 A.2d 786 (1997); *cf.* *Goforth v. Smith*, 991 S.W.2d 579,
583-84 (Ark. 1999) (state law action to remedy environmental effects of
RF emissions preempted).

As the ZBA noted, *see* Notice of Decision at 8 n.2, preemption of the
permit condition does not leave the Homeowners without a remedy. Federal
regulations impose a continuing duty on WIZN to provide technical
assistance to residents within the blanketing interference area to
resolve RF interference problems. *See* 47 C.F.R. § 73.318(d) (1998). In
the first year of any new or upgraded transmitter\'s operation, the
transmitting station must satisfy all complaints of blanketing
interference with most common devices at no cost to the complainant.
*See* *id.* § 73.318(b). In addition, the Homeowners may file informal
requests for action with the FCC. *See* *id.* § 1.41. They may also ask
the FCC to deny renewal of WIZN\'s license on the ground that the
interference is so severe that it violates the public interest. *See* 47
U.S.C. § 307(c)(1); *Broyde*, 13 F.3d at 998. Judicial review of FCC
decisions and orders is available in the United States Court of Appeals
for the District of Columbia Circuit. *See* 47 U.S.C. § 402(b).

III\. Consequence of Preemption

The District Court ruled that, because local enforcement of the
condition of WIZN\'s permit was preempted, the Court lacked subject
matter jurisdiction. Though the Court lacked jurisdiction to grant any
relief with respect to the Homeowners\' claim to remedy the RF
interference, it did not lack jurisdiction to rule, as it correctly did,
that the permit condition was preempted and that any attempt to obtain a
federal or state law remedy that regulates RF interference was
preempted. Having made that ruling, the proper disposition in the
removed case was to affirm the ruling of the ZBA, which had also ruled
the permit condition preempted. Although the preemption issue was raised
by motions to dismiss pursuant to Rules 12(b)(1) and (6), the resolution
of the issue in favor of the Appellees, after full consideration, left
nothing further to be done on the federal issue, and at that point at
least a partial summary judgment for the Appellees was warranted. We
need not consider whether the state law issues should have been remanded
to the Vermont Environmental Court, because the Homeowners have not
sought that relief on this appeal. The only relief sought by the
Homeowners in this Court is reversal of the District Court\'s preemption
ruling.

Conclusion

For the foregoing reasons, the ruling of the District Court on the
preemption issue is affirmed, and the judgment dismissing the removed
case is modified to reflect that the decision of the ZBA on the
preemption issue is affirmed. The Appellees may recover their costs.

[^1]: The Town of Charlotte sought and received permission to withdraw
    from the case.

[^2]: The procedural posture of this case is to be distinguished from
    that of a plaintiff entering state court to seek a declaratory
    judgment that a defendant\'s anticipated preemption defense to the
    plaintiff\'s state law claim is unavailing. That would be the
    classic anticipation of a federal defense that the well-pleaded
    complaint rule bars. In the pending case, a local governmental
    agency has ruled that the preemption defense is valid. The state
    court plaintiffs want not only a decision on the preemption defense;
    they want a court to reverse an adverse administrative ruling that
    is grounded on federal law.

[^3]: The *Hart and Wechsler* treatise pointedly queries, \"\[D\]id it
    make sense to apply the rule where, as in \[*Louisville & Nashville
    R. Co. v.\] Mottley*\[, 211 U.S. 149 (1908)\] itself, the
    jurisdictional issue arose for the first time on appeal, at a time
    when both parties and the court below agreed that the case turned
    entirely on federal issues?\" *Hart and Wechsler* at 911 n.5.

[^4]: Removal of a declaratory judgment action normally turns on whether
    the coercive action as to which a declaration is sought would have
    stated a federal claim on the face of the complaint. *See*
    *Franchise Tax Board*, 463 U.S. at 17-22 (rule of *Skelly Oil Co. v.
    Phillips Petroleum Co.*, 339 U.S. 667 (1950), applies to state court
    declaratory judgment actions). Attempted removal of a state court
    declaratory judgment action in the pending case would have
    encountered the objection that the coercive enforcement action to
    which the declaratory judgment action related would have been the
    enforcement suit by the Zoning Enforcement Officer, a suit that
    would not have included a federal claim.

[^5]: Adjudication of a federal defense in a suit not otherwise within
    the jurisdiction of a federal court (where no party challenges
    federal jurisdiction) does not create federal question jurisdiction.
    *See* *Mottley*, 211 U.S. at 152.

[^6]: In presenting the fourth issue, denial of unspecified consumer
    rights, to the Vermont Environmental Court, the Homeowners made a
    passing reference to federal law by citing a provision of the
    Telecommunications Act of 1996, Pub. L. 104-104, § 101(a), 110 Stat.
    56, 70 (1996) (codified at 47 U.S.C. § 253(b) (Supp. 1997)), which
    provides: \"Nothing in this section shall affect the ability of a
    State to impose . . . requirements necessary to . . . safeguard the
    rights of consumers.\" The \"section\" to which subsection 253(b)
    refers concerns access to the provision of telecommunications
    service. *See* 47 U.S.C. § 253(a). It has nothing to do with radio
    transmissions. The Appellants wisely do not pursue on appeal any
    claim that subsection 253(b) creates subject matter jurisdiction. We
    consider in Part II the effect of section 253 on the merits of the
    preemption issue.

[^7]: Unless otherwise indicated, all statutory sections cited are in
    Title 47.

[^8]: The FCC excludes complaints resulting from malfunctioning or
    improperly used receivers and antenna systems, mobile receivers,
    tape recorders and phonographs, and high gain antennas or antenna
    booster amplifiers. *See* 47 C.F.R. § 73.318(b).

[^9]: The legislative history reveals that Congress was responding to
    increasing complaints concerning RF interference with home
    electronic equipment. However, Congress determined that business
    equipment manufacturers were already adequately safeguarding their
    electronic equipment from RF interference, and that FCC
    standard-setting was not necessary to resolve that problem. *See*
    H.R. Conf. Rep. No. 97-765, at 32-33, 1982 U.S.C.C.A.N. at 2275-76.

[^10]: We note that the ZBA found none.