Vernon Howard, Cross-Appellant v. City of Burlingame, Cross-Appellee

Vernon Howard, a federally licensed amateur or “ham” radio enthusiast, was denied permission to construct a 51-foot radio antenna in his back yard, and filed suit against the City. The district court found that the Federal Communications Commission (“F.C.C.”) had partially preempted the City’s zoning powers, and ordered the City to reconsider the application. Although the City then granted Howard’s permit, he unsuccessfully sought to reinstate his 42 U.S.C. § 1983 claim in an attempt to secure attorney fees. He now appeals the denial of his § 1983 and free speech claims, and the City cross-appeals the district court’s ruling on federal preemption.

FACTS

Howard holds an Amateur Extra class license, granted by the F.C.C. under authority delegated by Congress in the Federal Communications Act (“FCA”), 47 U.S.C. § 151 et seq., as amended. See 47 C.F.R. §§ 97 , App. 3, 97.7(e), 97.61. He resides in the City of Burlingame, California, which requires a special permit for ham radio antennas over 25 feet in height. See Bur-lingame City Code § 18.18.020 and § 25.1.040.

In June of 1987, Howard applied to the City Planning Commission to increase the height of his existing radio antenna to…