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Bynum v. Mayor and Township Committee of Township of Winslow

Decided: September 25, 1981.

RANDALL J. BYNUM, PLAINTIFF-APPELLANT,
v.
MAYOR AND TOWNSHIP COMMITTEE OF THE TOWNSHIP OF WINSLOW AND THE COUNTY OF CAMDEN, STATE OF NEW JERSEY AND JEAN DI BLASI, CLERK OF THE MUNICIPAL COURT, TOWNSHIP OF WINSLOW, COUNTY OF CAMDEN, AND STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Bischoff, King and Polow. The opinion of the court was delivered by Polow, J.A.D.

Polow

Plaintiff is an amateur radio operator duly licensed by the Federal Communications Commission. In a prerogative writ action the trial court rejected his attack on a municipal ordinance restricting his right to transmit. On appeal from that decision plaintiff attacks the ordinance as ultra vires , not within the power of municipal government and, in any event, an invalid attempt to regulate in a field entirely preempted by federal statute. We reject those arguments and affirm.

The amended ordinance under attack provides:

Section 50-10.2 Interference by Radio Transmitter.

It shall be unlawful for any person to transmit, continue or cause to be transmitted or continued any radio emission, signal, or transmission, which either causes or creates electrical visual or audible interference, or, by said transmission annoys, disturbs or endangers the comfort, repose, health, peace, safety or general well being of others within the limits of the Township. Examples of violations of this Ordinance, though not limited to the below, would be radio emissions, signals and transmission interference as follows:

(1) The transmission of radio signals and/or emissions causing any interference upon the visual and/or auditory operation of television in such a manner as to disturb the peace, quiet and comfort of the neighboring inhabitants;

(2) The transmission of radio signals and/or emissions causing any interference upon the visual and/or auditory operation of receiving sets, musical instruments, phonographs or other machine or device designed for the production or reproduction of sound in such a manner as to disturb the peace, quiet and comfort of the neighboring inhabitants.

Complaints were received by municipal officials from area residents charging that plaintiff's transmissions interfered with their enjoyment of television reception, stereos, and other electronic devices. After several summonses had been issued charging violation of the amended ordinance and its predecessor, plaintiff sought to prevent prosecution by way of the prerogative writ suit which is the subject of this appeal. Upon agreement by the parties that there were no factual issues in dispute, the trial judge resolved the matter as if upon cross-motions for summary judgment.

We first deal with plaintiff's contention that the ordinance unlawfully interferes with federal regulation of radio communication. He argues that the ordinance violates the Supremacy Clause of the United States Constitution. He cites sections of the Federal Communications Act of 1934 in support thereof. The sections in question provide:

For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all people of the United States a rapid, efficient, Nation-wide and world-wide wire and radio communication service . . . and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication . . . . [47 U.S.C. ยง 151]

It is the purpose of this chapter, among other things, to maintain the control of the United States over all the channels of interstate and foreign radio transmission; and to provide for the use of such channels . . . under licenses granted by Federal authority . . . No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . except under and in accordance with ...


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