Attorney General: Hon. Mortimer A. Gelston, Connecticut Siting Council, 1995-002 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

January 17, 1995

Hon. Mortimer A. Gelston
Chairman
Connecticut Siting Council
136 Main Street, Suite 401
New Britain, CT 06051-4225

Dear Chairman Gelston:

You have requested our opinion regarding the scope of the Connecticut Siting Council's (the "Council") jurisdiction over the placement of an FM radio station antenna on an existing community antenna television tower. Because the Council has jurisdiction over the modification of such towers and because the placement of an FM radio station antenna constitutes a modification, the Council has jurisdiction to regulate the placement of the antenna on the tower.

We understand the facts to be as follows: Eastern Connecticut Cable Television, Inc., ("Eastern Cable") owns and operates a tower located at 59 Westwood Avenue, New London, Connecticut. The tower was erected prior to the Council having been given authority to regulate the siting of such towers. A proposal has been submitted to the Council regarding the placement of an FM radio antenna on the tower. This proposal has generated complaints from neighboring residents regarding interference from the FM transmitter to be placed on the tower.

The Public Utility Environmental Standards Act ("PUESA") grants the Council jurisdiction over the siting of "such community antenna television towers and head-end structures, including associated equipment, which may have a substantial adverse environmental effect, as [the Council] shall, by regulation, prescribe...." Conn. Gen. Stat. 16-50i(a)(5). This jurisdiction extends not only to the original construction of such towers, but also to any modification of such towers. Conn. Gen. Stat. 16-50k(a). The Council has by regulation determined that, unless the construction or modification of a community antenna television tower falls within certain specific exemptions, all towers or modifications of towers may have a substantial adverse environmental effect and therefore require a certificate of public need and environmental compatibility from the Council. Conn. Agencies Regs. 16-50j-71. If, however, the tower or modification satisfies the requirements for exemption from this general rule, certification is not required.1

In enacting the PUESA, the General Assembly found that "community antenna television towers...have had a significant impact on the environment and ecology of the state of Connecticut; and that continued operation and development of such...towers, if not properly planned and controlled, could adversely affect the quality of the environment, the ecological, scenic, historic and recreational values of the state." Conn. Gen. Stat. 16-50g. The purposes of the PUESA, as it relates to community antenna television towers, include:

to provide for the balancing of the need for adequate and reliable public utility services at the lowest reasonable cost to consumers with the need to protect the environment and ecology of the state and to minimize damage to scenic, historic, and recreational values; to provide environmental quality standards and criteria for the location, design, construction and operation of facilities for the furnishing of public utility services at least as stringent as the federal environmental quality standards and criteria, and technically sufficient to assure the welfare and protection of the people of the state; ...to promote the sharing of towers for fair consideration wherever technically, legally, environmentally and economically feasible to avoid the unnecessary proliferation of towers in the state....

Id. The rules of statutory construction require that the PUESA be construed liberally to achieve these important legislative goals. See Okee Indus., Inc. v. National Grange Mut. Ins. Co., 225 Conn. 367, 374, 623 A.2d 483 (1993); Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 57, 441 A.2d 68 (1981).

The tower in question is owned and operated by a community antenna television company. Even though the tower was originally constructed prior to the Council having been granted authority over towers in 1977, the Council nonetheless has express jurisdiction over any modification to the tower. Conn. Gen. Stat. 16-50k(d). A modification, in turn, is defined as "a significant change or alteration in the general physical characteristics of a [tower]." Conn. Gen. Stat. 16-50i(d). As is always the case in interpreting statutory language, when the language of a statute as it applies in a particular context is plain and unambiguous, that language is to be given its plain meaning, and there is no need to look elsewhere for evidence of the legislature's intent. West Hartford Interfaith, Inc. v. Town Council, 228 Conn. 498, 508, --- A.2d --- (1994). The placement of an FM radio antenna on a tower would constitute a significant change or alteration in the general physical characteristics of the tower. Accordingly, the proposed change to the Eastern Cable tower would be a modification of the tower within the meaning of the PUESA and therefore falls within the jurisdiction of the Council.

The PUESA, by its own terms, does not apply to "any matter over which any agency, department or instrumentality of the federal government has exclusive jurisdiction, or has jurisdiction concurrent with that of the state and has exercised such jurisdiction, to the exclusion of regulation of such matter by the state." Conn. Gen. Stat. 16-50k(d). This provision is, in essence, a statutory restatement of the constitutional principle that federal law may, in certain circumstances, preempt state law. Specifically, federal law may preempt state law (1) when Congress has expressly or impliedly preempted state law in the language or structure of a federal statute, Jones v. Rath packing Co., 430 U.S. 519, 525 (1977), (2) when Congress has, despite the absence of explicit preemptive language, exhibited an intention to occupy an entire field of regulation by enacting a comprehensive regulatory scheme, Fidelity Federal Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153 (1982), or (3) when compliance with federal and state law is impossible because the two conflict or state law poses an obstacle to the achievement of the objectives of federal law, Pacific Gas & Elec. Co. v. Energy Resources Conservation & Development Comm'n, 461 U.S. 190, 204 (1983). Preemption is a question of congressional intent, and the presumption is that "'the historic police powers of the States [are] not to be superseded by [federal law] unless that [is] the clear and manifest purpose of Congress."' Cippollone v. Liggett Group, Inc., --- U.S. ---, 112 S.Ct. 2608, 2617 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

The Federal Communications Commission ("FCC") licenses radio broadcast stations, 47 U.S.C. 303, and, in particular, regulates the interference from radio transmission antennas. Specifically, the FCC's regulations require licensed radio stations to take certain actions to satisfy or resolve complaints of interference. 47 C.F.R. 73.88, 73.318. Although the regulations of a federal agency can have preemptive effect, City of New York v. FCC, 486 U.S. 57.64 (1988), there is nothing in the language or structure of the FCC's regulations, or of the Federal Communications Act of 1934, 47 U.S.C. 301 et seq., pursuant to which the regulations were promulgated, that suggests an intent to preempt the Council's regulation of the siting and modification of a community antenna television tower as permitted under the PUESA and the Council's regulations. Nor does the exercise of the Council's jurisdiction over such towers create a conflict with or obstacle to federal regulation of interference caused by radio transmissions. The PUESA and the Council's regulations do not contemplate state regulation of radio interference that would in any fashion be inconsistent with federal law. In the absence of any evidence of the intent to preempt state regulation of the siting and modification of community antenna television towers, the Council's exercise of its jurisdiction is not preempted by federal law.

The Council's jurisdiction under the PUESA, however, preempts local regulation of such towers. The PUESA expressly provides that the Council shall have exclusive jurisdiction over the siting and modification of community antenna television towers. Conn. Gen. Stat. 16-50x(a); see Town of Preston v. Connecticut Siting Council, 20 Conn. App. 474, 483, 568 A.2d 799, cert. denied, 214 Conn. 803, 573 A.2d 316 (1990). Therefore, the Council's authority to regulate the modification of the tower in question is exclusive and precludes local regulation.

In conclusion, the tower owned and operated by Eastern Cable is within the jurisdiction of the Council, and the Council has exclusive jurisdiction to regulate the modification of the tower. The placement of an FM antenna on the tower constitutes a modification of the tower, and although the FCC regulates radio interference connected with such an antenna, the Council may regulate placement of the antenna on the tower pursuant to Conn. Agencies Regs. 16-50j-72(b).

Very truly yours,

Richard Blumenthal
Attorney General

Mark F. Kohler
Assistant Attorney General

RB/MFK/js


1 In particular, a modification of an existing tower is exempted from certification if the changes to the existing tower site do not: (a) increase the tower height; (b) extend the boundaries of the tower site; (c) increase noise levels at the tower site boundary by six decibels, or (d) add radio frequency sending or receiving capability which increases the total radio frequency electromagnetic radiation power density measured at the tower site boundary to or above the standard adopted by the Department of Environmental Protection. Conn. Agencies Regs. 16-50j-72(b)(2). If these requirements are satisfied, the owner or operator of the tower is required to file only a written notice with the Council prior to construction detailing its reasons for claiming exemption. Conn. Agencies Regs. 16-50j-73.


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