Landowners' FCC Dilemma: Rereading the Supreme Court's Armstrong Opinion After the Third Circuit's DePolo Ruling

Abstract

In Armstrong v. Exceptional Child Ctr., Inc., the Supreme Court took a turn in its refusal to provide avenues for relief to private actors against the state in federal court, finding that the Supremacy Clause does not provide for an implied right of action to sue to enjoin unconstitutional actions by state officers. Many critics of that decision, including the four dissenting Justices, question the wisdom of the ruling generally. However, from a property rights perspective, the decision sheds light on a dilemma unforeseen by many scholars and made most apparent by a recent Third Circuit decision, Jeffrey DePolo v. Board of Supervisors Tredyffrin Township, et al. The Armstrong decision extends beyond foreclosing private parties from invoking equitable powers of the federal courts to require states to comply with portions of the Medicaid Act. The decision also forecloses an inconspicuous subset of private landowners — amateur radio enthusiasts desiring to construct amateur radio towers on their property — from pursuing equitable relief where local zoning ordinances directly conflict with federal regulation 47 C.F.R. § 97.15(b) and Federal Communications Commission (FCC) declaratory ruling, PRB-1. This short essay brings to light an uncomfortable result for private landowners seeking relief in federal court against local government actions that violate federal regulations.

Keywords: property rights, private cause of action, civil liberties, preemption, Supremacy Clause, implied right of action