Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Superior Communications v. City of Riverview

United States District Court, E.D. Michigan, Southern Division

January 30, 2017


          PRESENT: Honorable Gerald E. Rosen United States District Judge




         Plaintiff Superior Communications, doing business as Smile FM, commenced this suit in state court on or around August 13, 2015, alleging that the Defendant City of Riverview breached a license agreement executed by the parties and violated Plaintiff's federal constitutional rights to due process and equal protection of the law when the Defendant City denied Plaintiff's request to upgrade radio broadcast equipment installed on a telecommunications tower owned by the City. Defendant removed the case to this Court on September 24, 2015, citing Plaintiff's assertion of federal claims under 42 U.S.C. § 1983. See 28 U.S.C. §§ 1441(a), 1331. Following this removal, Plaintiff amended its complaint to assert an additional claim under the federal Telecommunications Act (“TCA”), 47 U.S.C. § 151 et seq.

         Through the present motion filed on June 10, 2016, Defendant seeks an award of summary judgment in its favor as to Plaintiff's federal and state-law claims. Regarding Plaintiff's state-law claim that Defendant breached the parties' license agreement, Defendant contends that this claim is defeated by express language in the agreement that precludes Plaintiff from upgrading its broadcast equipment in a manner that would increase the number, size, or power output of Plaintiff's existing antenna facilities. Next, Defendant argues that Plaintiff has no private right of action under the TCA arising from any alleged violation of the implementing regulations issued by the Federal Communications Commission (“FCC”), and that Defendant did not violate these regulations in any event. Finally, Defendant contends that the terms of the parties' license agreement preclude Plaintiff from establishing any property interest that could support a federal due process claim, and that Plaintiff's equal protection claim fails for lack of evidence that Plaintiff was treated differently from any other, similarly situated tenant that has installed equipment on Defendant's telecommunications tower.[1]

         Defendant's summary judgment motion has been fully briefed by the parties. Having thoroughly reviewed the parties' briefs in support of and in opposition to Defendant's motion, as well as the exhibits accompanying these briefs, the Court finds that the relevant facts, legal issues, and authorities are sufficiently presented in these written submissions, and that oral argument would not aid the decisional process. Accordingly, the Court will decide Defendant's motion “on the briefs.” See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. This opinion and order sets forth the Court's rulings on this motion.


         A. The Parties

         Plaintiff Superior Communications, doing business as Smile FM, is a Michigan non-profit corporation that operates 21 radio broadcast stations in the State of Michigan. At all relevant times, the Defendant City of Riverview has owned a telecommunications tower located on Grange Road in Riverview, Michigan.

         B. The Pertinent Terms of the Parties' License Agreement

         In December of 2007, Plaintiff applied to the FCC for a permit to operate a low-powered FM radio broadcast station with equipment mounted on Defendant's Grange Road tower, and the FCC ultimately issued this permit on February 1, 2010.[2] On October 20, 2010, Plaintiff entered into a “Telecommunication Site Access License Agreement” (the “License Agreement”) with Defendant that allowed Plaintiff to locate and operate its radio broadcasting equipment on the City's tower. (See Defendant's Motion, Ex. 1, License Agreement.)

         The License Agreement had an initial term of one year, but allowed for renewal for up to seven additional one-year terms. (See Id. at ¶ 3(a).) Plaintiff agreed to pay $550 per month in rent to Defendant for its use of the tower to operate its broadcast equipment. (See Id. at ¶ 5(a).)

         Under paragraph nine of the License Agreement, entitled “Use of Premises, ” Plaintiff was authorized to use its designated space on Defendant's tower and in a nearby equipment shelter “for the installation, operation, and maintenance of Antennae Facilities . . ., and for no other purpose.” (Id. at ¶ 9(a).)[3] Plaintiff was permitted under this provision to “erect and operate one FMEC/1 antenna, ” and to “expand but only with [Defendant's] consent and only after [Defendant] ha[d] obtained, at [Plaintiff's] expense, a certified evaluation indicating that each additional antenna will not interfere with existing antennae or proposed antennae, and the Tower can structurally support the additional antennae.” (Id. at ¶ 9(a).)

         Another provision in the License Agreement also addressed the parameters and procedures for Plaintiff to upgrade its broadcast equipment, stating in relevant part:

Licensee may update or replace the Antennae Facilities from time to time with the prior written approval of [Defendant], provided that the replacement facilities are not greater in number or size or power output than the existing facilities and that any change in their location on the Tower is satisfactory to [Defendant]. [Plaintiff] shall submit to [Defendant] a detailed proposal for any such replacement facilities and any supplemental materials as may be requested, for [Defendant's] evaluation and approval.

(Id. at ¶ 11.) In addition, a provision in paragraph sixteen of the Agreement granted to Defendant or its “designated representative(s)” the “sole right initially and during the Term of this License Agreement to . . . approve any changes to the size, type and quality of [Plaintiff's] Equipment, . . . and any repairs or replacements thereto, which approval shall not be unreasonably withheld.” (Id. at ¶ 16(a)(2).)

         In the event of a dispute under the License Agreement, the parties were required to meet “promptly . . . to attempt in good faith to negotiate a resolution of the dispute.” (Id. at ¶ 45(b).) The Agreement further provided that “[i]f within twenty (20) days after such meeting the parties have not succeeded in resolving the dispute, they will, within twenty (20) days thereafter[, ] submit the dispute to a mutually acceptable third party mediator who is acquainted with dispute resolution methods.” (Id.) Although the parties agreed to “participate in good faith” in the mediation process, the mediation was deemed “nonbinding.” (Id.)

         The License Agreement included an “Entire Agreement” clause providing that the Agreement “constitutes the entire understanding between the parties hereto and shall supersede all prior offers, negotiations and agreements between the parties relative to the subject matter herein.” (Id. at ¶ 46.) In addition, the parties agreed that “[t]his License Agreement may not be changed, modified, amended or altered except by an agreement in writing and signed by all of the parties to [the] change, modifications, amendment or alteration.” (Id. at ¶ 51.) As to the issue of waiver, the License Agreement provided (i) that the “[f]ailure of [Defendant] to insist on strict performance of any of the conditions, covenants, terms or provisions of this Agreement or to exercise any of its rights hereunder shall not waive such rights, ” (id. at ¶ 43), and (ii) that “[n]o modification or waiver of any of the terms hereof shall be valid unless in writing and signed by the parties hereto, ” (id. at ¶ 52). Finally, the parties stipulated that the License Agreement “shall be construed in accordance with, and subject to, the laws of the State of Michigan.” (Id. at ¶ 48.)

         C. Defendant's Denial of Plaintiff's Request to Upgrade Its Broadcasting Equipment

         In April of 2011, Plaintiff applied to the FCC for a permit to upgrade its broadcasting equipment on Defendant's tower and increase the wattage of its broadcast signal to 50, 000 watts, and the FCC issued the requested permit on August 31, 2012. During this same time period, representatives of Plaintiff and the Defendant City began discussions about modifying Plaintiff's equipment on the City's tower to carry out the upgrade authorized by the FCC.

         In connection with Plaintiff's request to upgrade its equipment, the City sought the opinion of Russell Harbaugh, an electrical engineer who specializes in radio frequency engineering. In a report dated September 23, 2013, Mr. Harbaugh identified four issues that Defendant should consider as it decided whether to approve Plaintiff's proposed equipment upgrade: (i) that measurements would be required upon completion of the upgrade to determine the extent of the increased radio frequency radiation (“RFR”) exposure to workers and the general public, (ii) that the increased signal strength from Plaintiff's upgraded equipment might produce blanketing interference with other signals in the vicinity of the tower, resulting in complaints that the City might have to handle, (iii) that Plaintiff's upgraded equipment might interfere with the equipment of other tenants on the tower, and (iv) that in order to achieve a 50, 000 watt signal, Plaintiff would need a larger antenna than indicated in its proposal, which would require more space on Defendant's tower and demand more power. (See Defendant's Motion, Ex. 14, Harbaugh 9/23/2013 Report.)[4]

         On November 12, 2013, a representative of the Defendant City, John Menna, sent a letter to Plaintiff's president, Ed Czelada, stating that Plaintiff's request to modify its broadcasting equipment had been denied. (See Defendant's Motion, Ex. 15, 11/12/2013 Denial Letter.) Mr. Menna explained in this letter that Defendant had denied Plaintiff's request “based on the heightened risk the project would pose to other tower tenants and the surrounding community in relationship to interference, health and safety issues.” (Id.) Mr. Menna further stated that the Defendant City “would be happy to work with you on a smaller scale improvement at the current tower site, ” or that Plaintiff could instead “pursue relocation of equipment to [a] new or another existing tower if your project is not approved at the current site.” (Id.)

         After this denial, the parties continued their discussions concerning Plaintiff's requested equipment upgrade. In support of its proposed upgrade, Plaintiff provided the City with a report from Edward De La Hunt, a telecommunications engineering consultant and former FCC deputy chief of engineering, opining that “[t]here appears to be no substantial evidence that [Plaintiff's] proposal would pose a health, safety or interference threat to tower workers, tenants or the general public.” (Defendant's Motion, Ex. 17, De La Hunt 12/30/2014 Report at 11; see also Ex. 18, 2/11/2015 Letter from Plaintiff's counsel forwarding De La Hunt report.) Following the parties' discussions and Defendant's review of Mr. De La Hunt's report, counsel for the City informed Plaintiff's counsel in an April 21, 2015 letter that the City had “affirm[ed] its decision to decline [Defendant's] request to change the equipment authorized on [the City's] tower at the time of contract execution.” (Plaintiff's Response, Ex. 13, 4/21/2015 Letter from Defendant's counsel at 2.) Defendant's counsel explained that “[i]nsofar as [the City] owns the tower any decision as to customer, equipment and changes are solely its own, ” and that the City's decision to deny Plaintiff's request “best suits the City's interests in several aspects but primarily in minimizing safety, nuisance and technical risks.” (Id.)

         At the request of Plaintiff's counsel, representatives of the parties met in August of 2015 to address their dispute concerning Plaintiff's requested equipment upgrade. The parties failed to resolve their differences at this meeting, and this suit followed shortly thereafter.

         III. ANALYSIS

         A. The Standards Governing Defendant's Motion

         Through its present motion, Defendant seeks an award of summary judgment in its favor on Plaintiff's state-law breach of contract claim and its two federal claims. Under the Federal Rule governing this motion, summary judgment is proper “if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As the Supreme Court has explained, “the plain language of Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). The central issue under Rule 56 is “whether the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.