TRUSTEES OF WASHINGTON TOWNSHIP, APPELLEES, v. DAVIS ET AL., APPELLANTS.
Nos. 2001-0847 and 2001-0981
SUPREME COURT OF OHIO
Submitted February 27, 2002—Decided May 15, 2002.
95 Ohio St.3d 274 | 2002-Ohio-2123
Townships—Zoning—Limitations on zoning power—Telecommunications towers—Broadcast radio station does not meet the requirements necessary for classification as a public utility for purposes of R.C. 519.211(A), when.
SYLLABUS OF THE COURT
A broadcast radio station does not meet the requirements necessary for classification as a public utility for purposes of
COOK, J.
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{¶3} Citicasters holds a Federal Communications Commission (“FCC“) license to operate its broadcast station that is statutorily conditioned upon Citicasters’ compliance with certain technical requirements and adherence to certain programming regulations.
{¶4} In an effort to increase its coverage area, Citicasters leased property in Washington Township from appellant, Kenneth Davis, with the intention of building eight new transmission towers. After construction began, appellees, the Washington Township Trustees (the “township“), petitioned the Pickaway County Court of Common Pleas to issue a permanent injunction to prevent any further construction on the towers and to require Citicasters to remove all existing structures. Citicasters’ construction of these towers, the township contended, violated local zoning regulations. Appellants (Citicasters, Kenneth Davis, and Clear Channel Communications, Inc., hereinafter collectively, “Citicasters“) responded that Citicasters is exempt from compliance with zoning ordinances as a public utility.
{¶5} The cause proceeded to trial to determine whether Citicasters was indeed a public utility and therefore exempt from the township‘s zoning requirements. The trial court ruled that the radio station was not a public utility and that in any event, even if it were,
{¶6} Citicasters appealed the trial court‘s decision to the Fourth District Court of Appeals, which affirmed the trial court on the basis that Citicasters was not a public utility. In so doing, the court recognized its disagreement with the Tenth District Court of Appeals’ decision in Collins v. Swackhamer (1991), 75 Ohio App.3d 831, 600 N.E.2d 1079, which held that an entity seeking to build an FM radio tower met the definition of a public utility. The appellate court declined to address the issue of whether Washington Township was authorized to restrictively zone the tower under
{¶7} Citicasters moved to certify a conflict between the Tenth and Fourth Districts on the issue of whether a radio station is a public utility for purposes of
{¶8} Resolution of this controversy rests upon the meaning of the term “public utility” for purposes of the zoning exemption contained in
{¶9}
{¶10}
{¶11} Presenting a rather circular argument, it is Citicasters’ position that the language of
{¶12} We reject this proposition, however, as not only circular, but contrary to the language of the statute. Clearly, the “telecommunications towers” exception in
{¶13} We also reject Citicasters’ contention that Campanelli v. AT & T Wireless Serv., Inc. (1999), 85 Ohio St.3d 103, 706 N.E.2d 1267, offers support for its reading of
{¶14} Citicasters, however, contends that the Campanelli decision necessarily categorized all wireless telecommunications providers as public utilities. In so arguing, Citicasters focuses upon the following statement: “By enacting
{¶15} The statement at issue, however, when viewed in context, did not create a category of public utilities under
{¶16} Having so rejected Citicasters’ statutory argument, we turn now to the multifactored analysis established in A & B Refuse, supra. To determine “public utility” status for purposes of the
{¶17} An entity must first demonstrate what is often considered the most important attribute of a public utility, “a devotion of an essential good or service to the general public which has a legal right to demand or receive this good or service.” A & B Refuse, 64 Ohio St.3d at 387, 596 N.E.2d 423. Associated with this public service requirement, the entity must demonstrate that it provides its good or service to the public “indiscriminately and reasonably.” Id.
{¶18} The entity must also show that it “conducts its operations in such a manner as to be a matter of public concern.” Id. at 388, 596 N.E.2d 423. Factors considered for this purpose are goods or services provided, competition in the local marketplace, and the existence and degree of regulation by governmental authority. Id.
{¶20} We also recognize that Citicasters, as an FCC license holder, is charged with serving the “public interest, convenience and necessity.”
{¶21} Courts in other jurisdictions, in fact, limit the importance placed upon FCC licensing with respect to the public utility inquiry. In Mammina v. Cortlandt Zoning Bd. of Appeals (1981), 110 Misc.2d 534, 442 N.Y.S.2d 689, a New York court rejected a radio station‘s reliance upon FCC licensing to prove public utility status. As that court explained: “The basis and nature of such regulation [do] not parallel [those] of businesses ordinarily accepted as public utilities.” Id. at 537, 442 N.Y.S.2d 689. Likewise, a Pennsylvania court in Pennsylvania Pub. Util. Comm. v. WVCH Communications, Inc. (1976), 23 Pa.Cmwlth. 292, 297, 351 A.2d 328, declined to label a radio broadcasting station a public utility, observing that “[t]he fact that WVCH serves the public interest and is regulated to some extent by the FCC does not make it a ‘public utility corporation.‘”
{¶22} Beyond these factors, we observe minimal evidence that Citicasters possesses attributes typical of a public utility. Most notably, the service provided
{¶23} Also noteworthy is the fact that the public has no right to demand or receive radio services, as it cannot require a radio station to serve its market or to broadcast in any particular format. Moreover, Citicasters presented no evidence beyond its FCC licensing to demonstrate that its operations are conducted as a matter of public concern.
{¶24} Based on all of the foregoing, we conclude that Citicasters lacks the necessary characteristics to categorize it as a public utility within the meaning of the statute. Accordingly, we hold that a broadcast radio station does not meet the requirements necessary for classification as a public utility for purposes of
{¶25} The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.
Taft, Stettinius & Hollister L.L.P., R. Joseph Parker, John B. Nalbandian and David L. Johnson, for appellants.
P. Eugene Long II, Pickaway County Prosecuting Attorney, and Judy C. Wolford, Assistant Prosecuting Attorney, for appellees.