Superior Communications, d/b/a Smile FM v. Riverview City of

Filing 23

OPINION and ORDER granting Defendant's 18 Motion for Summary Judgment. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SUPERIOR COMMUNICATIONS,
d/b/a SMILE FM,
Case No. 15-13363
Hon. Gerald E. Rosen

Plaintiff,
v.
CITY OF RIVERVIEW,
Defendant.
___________________________________/

OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
January 30, 2017
PRESENT: Honorable Gerald E. Rosen
United States District Judge
I. INTRODUCTION
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
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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.
II. FACTUAL AND PROCEDURAL BACKGROUND
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,

1

Defendant also argues in its motion that Plaintiff is not entitled to the award of
punitive damages sought in its complaint. In response, Plaintiff states that it conceded
this point when Defendant sought concurrence in its motion. Thus, this issue has been
resolved and the Court need not address it further.
3

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

2

In the very first sentence of its brief in response to Defendant’s summary
judgment motion, Plaintiff chides Defendant for referring to the broadcast facility
approved by the FCC as “low power,” asserting that this characterization “demonstrat[es]
that [the Defendant City] does not understand the technical aspects of radio
broadcasting.” (Plaintiff’s Response Br. at 1.) Defendant can perhaps be forgiven for
this description, however, considering that Plaintiff itself states in its complaint that the
approval granted by the FCC “was to operate a 700 Watt channel of effective radiated
power, which is considered low-powered and of limited reception range.” (Amended
Complaint at ¶ 8 (emphasis added).)
Regrettably, this inauspicious beginning to Plaintiff’s response brief is indicative
of the lengths to which the parties and their counsel are willing to go in their briefing to
squabble over immaterial matters. Defendant, for example, suggests early in its initial
brief that Plaintiff acted contrary to “FCC rules[] and practice in the industry” by applying
for FCC approval without first securing the Defendant City’s permission to locate its
broadcasting equipment on the City’s telecommunications tower. (Defendant’s Motion,
Br. in Support at 2.) This, in turn, devolves into a dispute over the precise date when
Defendant acquired ownership of the tower. Yet, neither of these matters has any bearing
whatsoever on the disposition of Defendant’s motion, and neither party contends
otherwise in its briefing. Such petty quarrels are unbecoming of the experienced counsel
representing the parties in this case.
4

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:

3

The Agreement defined “Antennae Facilities” as “directional antennae,
connecting cables and appurtenances.” (Id. at ¶ 1(a).)
5

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.)

6

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

7

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,

8

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

4

As noted by Plaintiff, Mr. Harbaugh testified at his deposition that the fourth
concern raised in his report — i.e., the need for a larger antenna — was no longer valid,
once he determined the particular type of antenna that Plaintiff proposed to use. (See
Defendant’s Motion, Ex. 12, Harbaugh Dep. at 59-60.)
9

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.

10

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
evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512
(1986).
In deciding a motion brought under Rule 56, the Court must view the
evidence “in a light most favorable to the party opposing the motion, giving that
11

party the benefit of all reasonable inferences.” Smith Wholesale Co. v. R.J.
Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir. 2007). Yet, the nonmoving
party may not rely on bare allegations or denials, but instead must support a claim
of disputed facts by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1)(A). Moreover, any supporting or opposing
affidavits “must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Finally, “[a] mere scintilla
of evidence is insufficient” to withstand a summary judgment motion; rather,
“there must be evidence on which the jury could reasonably find for the nonmoving party.” Smith Wholesale, 477 F.3d at 861 (internal quotation marks and
citation omitted).
B.

Defendant Did Not Breach the License Agreement by Denying
Plaintiff’s Request to Upgrade Its Broadcasting Equipment in a
Manner That Would Have Increased the Number, Size, and Power
Output of Plaintiff’s Antennae Facilities.
In Count III of its amended complaint, Plaintiff has asserted a state-law

breach of contract claim, alleging that Defendant breached the parties’ License

12

Agreement when it denied Plaintiff’s request to upgrade its broadcasting
equipment and increase the strength of its broadcast signal to 50,000 watts.
Defendant now seeks summary judgment in its favor on this claim, arguing that its
denial of Plaintiff’s request rested upon the proper exercise of a right expressly
granted to the City under the License Agreement. As discussed below, the Court
agrees.
The Court’s analysis of Plaintiff’s breach of contract claim necessarily
begins with the language of the License Agreement itself, and this inquiry is
guided by certain basic tenets of Michigan contract law.5 “The primary goal in the
construction or interpretation of any contract is to honor the intent of the parties.”
Rasheed v. Chrysler Corp., 445 Mich. 109, 517 N.W.2d 19, 29 n.28 (1994).
Where possible, this intent must be ascertained through “the words used in the
instrument,” as the Court “does not have the right to make a different contract for
the parties or to look to extrinsic testimony to determine their intent when the
words used by them are clear and unambiguous and have a definite meaning.”
Sheldon-Seatz, Inc. v. Coles, 319 Mich. 401, 29 N.W.2d 832, 834-35 (1947)

5

As noted earlier, the License Agreement itself expressly provides that it “shall be
construed in accordance with . . . the laws of the State of Michigan,” (License Agreement
at ¶ 48), and the parties likewise agree that Michigan law governs the interpretation of the
Agreement.
13

(internal quotations and citation omitted). Similarly, the Michigan Supreme Court
has emphasized that a court is not at liberty to disregard the unambiguous terms of
a contract on the ground that this plain meaning would defy the supposed
“reasonable expectations” of the parties. Wilkie v. Auto-Owners Insurance Co.,
469 Mich. 41, 664 N.W.2d 776, 782 (2003). Finally, the Court must “construe
[the License Agreement] as a whole and give harmonious effect, if possible, to
each word and phrase.” Singer v. Goff, 334 Mich. 163, 54 N.W.2d 290, 292
(1952).
In arguing that it acted in accordance with the License Agreement when it
denied Plaintiff’s request to upgrade its broadcasting equipment, Defendant relies
principally on paragraph eleven of the Agreement, which provides in pertinent
part:
[Plaintiff] 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.
(License Agreement at ¶ 11 (emphasis added).) While Defendant acknowledges
that other provisions in the License Agreement address the process for approving

14

any proposed changes to Plaintiff’s equipment on the City’s telecommunications
tower, it contends that none of these other terms supersede the limitations imposed
under paragraph eleven. Because it is undisputed that Plaintiff’s proposed
upgrade would have entailed (i) the addition of three antennas to the one currently
installed on the City’s tower, and (ii) an increase in the strength of Plaintiff’s
broadcast signal from its current 700 watts to 50,000 watts, Defendant argues that
paragraph eleven of the License Agreement expressly granted it the authority to
refuse Plaintiff’s requested upgrade to antennae facilities that were greater in both
number and power output than Plaintiff’s existing facilities.
Plaintiff suggests two grounds for avoiding this result, but neither carries
the day. First, Plaintiff contends that the License Agreement is rendered
ambiguous by its multiple, allegedly conflicting provisions addressing the issue of
equipment upgrades. In particular, apart from the above-quoted language in
paragraph eleven, another provision of the Agreement grants 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).) Plaintiff also
points to language in paragraph nine authorizing it to “erect and operate one
15

FMEC/1 antenna,” and to “expand but only with [Defendant’s] consent and only
after [Defendant] has 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).)
In Plaintiff’s view, this language in paragraphs nine and sixteen of the
License Agreement cannot be reconciled with a reading of paragraph eleven as
flatly prohibiting upgraded facilities that reflect an increase in number, size, or
power output over Plaintiff’s existing antennae facilities. Plaintiff reasons that the
right of expansion conferred in paragraph nine would be rendered illusory if any
such expansion were subject to paragraph eleven’s prohibition against increases in
the number, size, or power output of Plaintiff’s antennae facilities. Plaintiff
further contends that Defendant’s proposed reading of paragraph eleven cannot be
squared with the language in paragraph sixteen mandating that Defendant may not
“unreasonably withh[o]ld” its approval of proposed “changes to the size, type, and
quality of [Plaintiff’s] Equipment.” (Id. at ¶ 16(a)(2).)
While the Court recognizes the force of Plaintiff’s argument on this point, it
cannot accept Plaintiff’s conclusion that there are ambiguities in the License
Agreement that a trier of fact must resolve. The provisions cited by Plaintiff,
16

while overlapping and perhaps somewhat in tension with one another when
considered in isolation, may be reconciled by resort to the mandate of Michigan
law that the License Agreement must be construed as a whole. See Singer, 54
N.W.2d at 292. Whether under paragraph nine or sixteen, Plaintiff is expressly
required to secure Defendant’s “consent,” (id. at ¶ 9(a)), or “approv[al],” (id. at ¶
16(a)(2)), before it may upgrade its broadcasting equipment. Viewed against this
backdrop, paragraph eleven qualifies Defendant’s right of approval, and alerts
Plaintiff that this requisite consent will not be forthcoming if Plaintiff’s proposed
replacement facilities are “greater in number or size or power output than [its]
existing facilities.” (Id. at ¶ 11.) While this surely limits the changes or
expansions that would be available to Plaintiff under a License Agreement that
lacked the restrictive language of paragraph eleven, the Court cannot say that the
opportunities for modification referenced in paragraphs nine and sixteen
—subject, as explained, to Defendant’s approval — are rendered wholly illusory
in light of this restrictive language.
Defendant’s reading of the License Agreement finds further support in the
principle that specific contract provisions ordinarily govern over more general
ones. See Royal Property Group, LLC v. Prime Insurance Syndicate, Inc., 267
Mich. App. 708, 706 N.W.2d 426, 434 (2005). While paragraph nine references
17

certain criteria Defendant will consider in determining whether to grant a request
for an expansion, and paragraph sixteen states more generally that Defendant’s
approval of a requested change will not be “unreasonably withheld,” paragraph
eleven specifically identifies the types of upgrades that Defendant will not approve
— namely, those that entail replacement facilities that are “greater in number or
size or power output” than Plaintiff’s existing facilities. Indeed, if the Court were
to accept Plaintiff’s claim of ambiguity, this would open the door for a trier of fact
to conclude that Defendant’s assessment of Plaintiff’s proposed upgrade should be
governed by the criteria listed in paragraph nine or the general standard of
“reasonableness” set forth in paragraph sixteen, rather than the more specific
language of paragraph eleven. This would not only elevate general contract
provisions over a more specific one, but would create the precise dilemma that
Plaintiff has identified in support of its claim of ambiguity — namely, it would
render illusory the language in paragraph eleven that expressly limits the types of
equipment upgrades that Defendant will approve. Accordingly, the Court rejects
Plaintiff’s contention that the terms of the License Agreement give rise to one or
more ambiguities that a trier of fact must resolve.6

6

In light of this conclusion that the relevant terms of the License Agreement are not
ambiguous, the Court need not address the extrinsic evidence produced by Plaintiff to
illustrate these purported ambiguities and shed light on the alleged intentions of the
18

Next, Plaintiff contends that Defendant waived its right to invoke paragraph
eleven of the License Agreement through its consistent failure to reference this
provision when stating its reasons for denying Plaintiff’s request to upgrade its
broadcasting equipment. As Plaintiff observes, Defendant’s initial November 12,
2013 denial letter explained that Plaintiff’s proposed upgrade posed a “heightened
risk . . . to other tower tenants and the surrounding community in relationship to
interference, health and safety issues.” (Defendant’s Motion, Ex. 15, 11/12/2013
Denial Letter.) Similarly, the April 21, 2015 letter from Defendant’s counsel
affirming this denial stated that this decision “best suits the City’s interests in
several aspects but primarily in minimizing safety, nuisance and technical risks.”
(Plaintiff’s Response, Ex. 13, 4/21/2015 Letter at 2.) In Plaintiff’s view,
Defendant’s stated reliance on an increased risk of interference and health, safety,
and technical concerns operated as a waiver of any right conferred under
paragraph eleven of the License Agreement to deny any equipment upgrade that
entailed more antennas or an increase in size or power output.
As Defendant points out in response, however, Plaintiff’s claim of waiver
cannot withstand scrutiny under the governing Michigan law. The leading
Michigan case on this subject is Quality Products & Concepts Co. v. Nagel
contracting parties.
19

Precision, Inc., 469 Mich. 362, 666 N.W.2d 251, 254 (2003), in which the parties
entered into a written contract calling for the plaintiff to serve as a sales
representative for the defendant. Although the contract expressly excluded the
payment of commissions for sales to machine tool suppliers, and also included
clauses requiring that contract modifications be made in writing and providing that
delays, omissions, or failures by the defendant in exercising its contractual rights
did not constitute a waiver of those rights, the plaintiff nonetheless cited the
defendant’s course of conduct as reflecting its implied consent to modify the
parties’ agreement and pay commissions for sales to machine tool suppliers. See
Quality Products, 666 N.W.2d at 254-55, 259.
At the threshold of its analysis, the court recognized that there is a “tension
between the freedom to enter into a contract concerning the same subject matter as
a previous contract and provisions in the previous contract restricting the manner
in which original contract terms may be modified or waived.” 666 N.W.2d at 257.
Because contracting parties “never cease to possess[] the freedom to contract[,]
even after the original contract has been executed,” the court found that “contracts
with written modification or anti-waiver clauses can be modified or waived
notwithstanding their restrictive amendment clauses.” 666 N.W.2d at 257. The
court emphasized, however, that “the freedom to contract does not authorize a
20

party to unilaterally alter an existing bilateral agreement,” and that “a party
alleging waiver or modification must [therefore] establish a mutual intention of the
parties to waive or modify the original contract.” 666 N.W.2d at 257-58
(emphasis in original).
The court next explained that this requisite showing of mutual intention to
modify a contract or waive one of its terms is subject to a heightened standard of
proof:
The mutuality requirement is satisfied where a modification is
established through clear and convincing evidence of a written
agreement, oral agreement, or affirmative conduct establishing mutual
agreement to waive the terms of the original contract. In meeting this
clear and convincing burden, a party advancing amendment must
establish that the parties mutually intended to modify the particular
original contract, including its restrictive amendment clauses such as
written modification or anti-waiver clauses.
666 N.W.2d at 258 (emphasis in original). In addition, where a party “relies on a
course of conduct to establish modification,” the court held that this conduct must
demonstrate “by clear and convincing evidence that a contracting party, relying on
the terms of the prior contract, knowingly waived enforcement of those terms.”
666 N.W.2d at 258. Finally, in cases where the parties’ original contract includes
written modification or anti-waiver clauses that reflect the parties’ “express
mutual statement” as to the manner in which the terms of this contract may be

21

amended or waived, the court emphasized that “[a]ny clear and convincing
evidence of conduct must overcome not only the substantive portions of the
previous contract allegedly amended, but also the parties’ express statements
regarding the ground rules for modification or waiver as reflected in any restrictive
amendment clauses.” 666 N.W.2d at 259.
Applying these standards to the case before it, the court found that the
plaintiff had not shown by clear and convincing evidence that the parties mutually
intended to modify their agreement for the payment of sales commissions:
Plaintiff’s proofs rest on the mere fact that defendant knew
about plaintiff’s activity inconsistent with the contract and remained
silent. Plaintiff has submitted no evidence of representations or
affirmative conduct by defendant that it was intentionally and
voluntarily relinquishing its right to confine the parties’ relationship
to the terms of the contract and thus demand strict adherence to the
sales-commissions and sales-territory provisions in the contract.
Plaintiff has forwarded no evidence that defendant affirmatively
accepted plaintiff’s sales activity that was inconsistent with the
contract as a modification of the contract.
Defendant’s mere silence, regardless whether defendant
possessed knowledge of plaintiff’s sales activity outside the contract,
does not here amount to an intentional relinquishment of the salesterritory and sales-commissions limitations in the contract or the
contract’s restrictive amendment clauses . . . . Accordingly, plaintiff
has failed to establish waiver of the original contract by any evidence,
much less clear and convincing evidence.
666 N.W.2d at 260.

22

The principles articulated in Quality Products lead to the same conclusion
here. Plaintiff has not produced any evidence, let alone clear and convincing
evidence, of representations or affirmative conduct by Defendant indicating that it
was intentionally and voluntarily relinquishing its right under paragraph eleven of
the License Agreement to deny any request for an equipment upgrade that entailed
replacement facilities greater in number, size, or power output than Plaintiff’s
existing facilities. Nor has Plaintiff produced evidence of representations or a
course of conduct reflecting Defendant’s willingness to forgo the Agreement’s
ground rules regarding modification and waiver — i.e., its provisions (i)
mandating that any modification must be made in writing and signed by all parties,
(see License Agreement at ¶ 51),7 and (ii) stating that Defendant’s failure to insist
on strict performance of the terms of the Agreement or to exercise any of its rights
under the Agreement did not operate as a waiver, (id. at ¶ 43).
Rather, Plaintiff relies solely on Defendant’s willingness to consider and
discuss Plaintiff’s proposed equipment upgrade over the course of several months,
even after it was apparent that this proposal would entail the replacement of

7

Notably, Plaintiff points out that the parties agreed in a written addendum to
modify a paragraph of the License Agreement that set forth Plaintiff’s obligation to pay
rent for its use of the City’s tower. (See Plaintiff’s Response, Ex. 9, First Addendum.)
This presumably evidences the parties’ mutual understanding that the License Agreement
could be modified only in writing.
23

Plaintiff’s existing broadcast facilities with equipment that included more antennas
and produced a far stronger broadcast signal. As Plaintiff correctly observes, there
is no evidence that Defendant or its representatives ever invoked paragraph eleven
of the License Agreement as a basis for denying Plaintiff’s proposed upgrade,
whether during the parties’ discussions or in the letters informing Plaintiff that its
requested upgrade had been denied.
Nonetheless, under Quality Products, 666 N.W.2d at 260, a finding of
waiver cannot rest upon the mere fact that Defendant remained silent despite its
knowledge that Plaintiff’s proposed upgrade was inconsistent with the terms of
paragraph eleven of the Agreement. This is particularly so where, as here and in
Quality Products, the parties’ agreement includes “written modification” and
“anti-waiver” clauses that restrict the manner in which the parties’ contractual
rights and obligations may be altered. Because the evidence produced by Plaintiff
shows nothing more than Defendant’s knowing silence in the face of Plaintiff’s
effort to upgrade its broadcast equipment beyond the parameters established in the
License Agreement, the Court finds no basis for concluding that Defendant waived
its right under the Agreement to deny this requested upgrade. It follows as a
matter of law that Plaintiff cannot go forward with its claim that Defendant
breached the parties’ License Agreement by refusing to allow this requested
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upgrade.
Finally, apart from alleging that Defendant breached the License Agreement
by denying Plaintiff’s request for an equipment upgrade, Plaintiff also asserts that
Defendant breached a different provision of the Agreement that establishes
procedures for the resolution of disputes. In particular, the License Agreement
mandates that the parties engage in a “mediation process” in the event of a dispute
“arising out of this [Agreement] or breach thereof,” (License Agreement at ¶
45(a)), and the first step in this process is a “meeting [to] be held promptly
between the parties to attempt in good faith to negotiate a resolution of the
dispute,” (id. at ¶ 45(b)). According to Plaintiff, while its counsel requested
meetings in correspondence dated February 11, June 17, and July 16, 2015, this
meeting did not occur until August 21, 2015, and Plaintiff contends that this
“delay of six months” constituted a breach of Defendant’s obligation under
paragraph 45(b) of the License Agreement to meet “promptly” after a dispute
arises. (See Plaintiff’s Response Br. at 6-7.)
As a threshold matter, the record fails to support Plaintiff’s claim of a sixmonth delay before Defendant agreed to meet with Plaintiff to discuss the parties’
dispute. Although Plaintiff, through its then-attorney Mark J. Makoski, sent a
February 11, 2015 letter requesting a “brief meeting” between himself and
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Defendant’s representatives, Mr. Makoski enclosed an expert report from Edward
De La Hunt with this letter and asked Defendant to “review the report” prior to the
requested meeting. (See Defendant’s Motion, Ex. 18, Makoski 2/11/2015 Letter.)
In a response dated April 21, 2015, counsel for the Defendant City stated that Mr.
De La Hunt’s report “included no new or additional information that would impact
[Defendant’s] decision-making,” and he informed Mr. Makoski that the City had
“affirm[ed] its decision to decline” Plaintiff’s request to upgrade its broadcasting
equipment. (Plaintiff’s Response, Ex. 13, 4/21/2015 Letter from Defendant’s
counsel at 2.)
So far as the record discloses, Plaintiff took no immediate action upon
receiving this April 21, 2015 letter affirming the denial of its requested upgrade.
Rather, in a letter dated June 17, 2015, Plaintiff’s counsel in this suit, Cindy
Rhodes Victor, informed Defendant that she had been retained to represent
Plaintiff, and she took issue with various aspects of Defendant’s decision and
requested a meeting within ten days “to discuss reconsideration of” this decision.
(Plaintiff’s Response, Ex. 15, 6/17/2015 Letter from Plaintiff’s counsel.)
Although there evidently was no immediate face-to-face meeting as a result of this
June 17 letter, Plaintiff’s counsel stated in a subsequent July 16, 2015 letter that
she had participated in a “telephone conference” with Defendant’s counsel, who
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“requested the legal authority on which [she] relied” in her June 17 letter.
(Plaintiff’s Response, Ex. 16, 7/16/2015 Letter from Plaintiff’s counsel.) The
parties then held a meeting on August 21, 2015 to discuss a possible resolution of
their dispute.
Under this record, the Court cannot say that Defendant breached its duty to
meet “promptly” following the parties’ dispute. This duty presumably arose, at the
earliest, when Plaintiff’s counsel sent her June 17, 2015 letter stating that she had
been retained by Plaintiff, challenging the grounds for Defendant’s decision, and
requesting that the parties meet to discuss this decision. The parties’ counsel then
participated in a telephone conference at some point between June 17 and July 16,
when Plaintiff’s counsel sent another letter to Defendant and again requested a
meeting. Even assuming this telephone conference between counsel did not
qualify as the requisite “meeting” called for under paragraph 45(b) of the License
Agreement, there was roughly a two-month delay between Plaintiff’s counsel’s
June 17, 2015 letter and the parties’ August 21, 2015 meeting. This is not
suggestive of a breach of the parties’ obligation to meet “promptly” in an effort to
resolve their dispute, particularly given the correspondence exchanged between
the parties and the telephone conference held during this two-month period.
In any event, Plaintiff fails to suggest what relief would be appropriate to
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address Defendant’s alleged breach of the “prompt meeting” obligation imposed
on the parties under paragraph 45(b) of the License Agreement. In its amended
complaint, Plaintiff seeks (i) an order enjoining the Defendant City and its
representatives from taking any action to prevent Plaintiff from implementing its
proposed upgrade of its broadcasting equipment, and (ii) an award of damages to
compensate Plaintiff for the losses it has suffered as a result of Defendant’s denial
of this requested upgrade. Even assuming that Defendant failed to comply with
one or more aspects of the dispute resolution process set forth in paragraph 45 of
the License Agreement, neither form of relief sought by Plaintiff here could be
deemed an appropriate remedy for any such breach. Rather, the proper remedy
presumably would be an order directing the parties to pursue to completion the
dispute resolution process called for under their Agreement. Yet, Plaintiff has
requested no such relief; to the contrary, it abandoned this dispute resolution
process by commencing this suit.8 Accordingly, the Court finds that Plaintiff has
failed to identify a basis for awarding relief arising from Defendant’s alleged
breach of the “prompt meeting” obligation set forth in paragraph 45(b) of the

8

As Defendant suggests in the brief in support of its motion, (see Defendant’s
Motion, Br. in Support at 13-14), it could well be argued that Plaintiff waived its right to
insist upon this contractual dispute resolution process when it chose to pursue judicial
remedies rather than the nonbinding mediation called for in the License Agreement.
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License Agreement.
C.

Plaintiff Has Failed to State a Viable Claim for Relief Under the
Federal Telecommunications Act or Its Implementing Regulations.
In Count II of its amended complaint, Plaintiff has asserted a claim under

the federal Telecommunications Act (“TCA”), 47 U.S.C. § 151 et seq., and its
implementing regulations, alleging that the Defendant City’s denial of its request
to upgrade its broadcasting equipment ran afoul of the exclusive authority of the
Federal Communications Commission (“FCC”) to regulate the matters cited by the
City as the grounds for this denial. In seeking summary judgment in its favor on
this claim, Defendant contends (i) that no private cause of action is available to
Plaintiff to challenge Defendant’s alleged violation of the TCA or the relevant
FCC regulations, and (ii) that even if such a cause of action exists, the Defendant
City acted as an ordinary property owner, and thus was not subject to the TCA or
the FCC regulations, when it entered into the License Agreement with Plaintiff
and invoked the terms of this Agreement to deny Plaintiff’s request to upgrade its
broadcasting equipment. The Court is persuaded by the second of these
arguments, and therefore need not address the first.
As the legal basis for its claim under the TCA, Plaintiff cites a provision in
this enactment stating that “[n]o State or local statute or regulation, or other State

29

or local legal requirement, may prohibit or have the effect of prohibiting the ability
of any entity to provide any interstate or intrastate telecommunications service.”
47 U.S.C. § 253(a). Although this statute preserves the rights of states and local
governments to engage in certain forms of regulation, see § 253(b), (c), it
authorizes the FCC to “preempt the enforcement of [a state or local] statute,
regulation, or legal requirement” that violates this TCA provision “to the extent
necessary to correct such violation or inconsistency,” § 253(d). As Plaintiff
observes, the Sixth Circuit has held that § 253 confers an implied right of action,
at least under some circumstances. See TCG Detroit v. City of Dearborn, 206 F.3d
618, 622-24 (6th Cir. 2000).
Even assuming, however, that such a private right of action is available to
Plaintiff in this case, Defendant correctly observes that this claim must rest upon
an action by the City that may properly be characterized as a “regulation” within
the meaning of the TCA. In arguing that this prerequisite to a viable TCA claim is
lacking here, Defendant points to the Second Circuit’s ruling in Sprint Spectrum
L.P. v. Mills, 283 F.3d 404, 417-21 (2d Cir. 2002), as recognizing an important
distinction between a local government’s regulatory and proprietary actions.
While the Court acknowledges that Sprint Spectrum is not binding here, it
nonetheless elects to follow this decision, particularly in the absence of any basis
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for believing that the law of this Circuit warrants a different outcome.
In Sprint Spectrum, 283 F.3d at 407-08, the plaintiff telecommunications
provider, Sprint, entered into a lease with the defendant school district that
authorized Sprint to place a cellular telephone antenna on the roof of the district’s
high school, and the parties later agreed to amend the lease to establish maximum
levels for the radio frequency (“RF”) emissions generated by Sprint’s equipment.
Due to changes in available equipment, Sprint subsequently sought to modify its
original installation plan, and one of its proposed changes would have increased
the levels of RF emissions above the maximum levels authorized under the
parties’ lease, “although the levels nonetheless would remain in compliance with
federal safety standards.” 283 F.3d at 410. The school district refused to allow
this modification, even after Sprint pointed out that the maximum levels stated in
the parties’ lease were “13,000 times below the maximum levels set by the
applicable federal safety standards,” and despite Sprint’s assertion that
“technological advances had made Sprint’s originally planned equipment
obsolete.” 283 F.3d at 410. In light of this refusal, Sprint sought a court order
compelling the school district to allow it to install its proposed antenna.
Although the Second Circuit recognized under its precedents — including a
case upon which Plaintiff heavily relies here, Freeman v. Burlington
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Broadcasters, Inc., 204 F.3d 311 (2d Cir. 2000) — that the TCA grants fairly
broad preemptive authority to the FCC with regard to state and local regulation of
wireless service facilities, the court emphasized that “[n]ot all actions by state or
local government entities . . . constitute regulation, for such an entity, like a
private person, may buy and sale or own and manage property in the marketplace.”
Sprint Spectrum, 283 F.3d at 416-17. In addition, the court found that “the
language and structure of the TCA implicitly recognize that some governmental
decisions are not regulatory,” and thus are not within the ambit of TCA
preemption. 283 F.3d at 420.
Applying these principles to the case before it, the court held that the
defendant school district’s enforcement of the RF emissions limits in its lease with
Sprint did not constitute “regulation” governed by the TCA:
. . . [W]e view the actions of the School District in entering into
the Lease agreement as plainly proprietary. There is no state or local
statute or ordinance or guideline with respect to the RF Emissions
levels at issue here. The School District entered into a single lease
agreement with respect to a single building. The District did not
purport to punish Sprint for any past conduct or to impose any
condition with respect to any Sprint tower other than that to be
located on the High School . . . . We see in this record no basis for an
inference that the School District sought to establish any general
municipal policy.
. . . [A] private individual, if approached by Sprint for
permission to erect a cellular tower on his private property, would
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plainly have the right simply to refuse to enter into such a contract.
The School District has the same right in its proprietary capacity as
property owner to refuse to lease the High School roof for the
construction of such a facility . . . .
Further, a private party who has the right to refuse outright to
lease his property also has the right to decline to lease the property
except on agreed conditions (assuming those conditions would not
violate law or public policy). Since, so far as we are aware, nothing
in the law requires a communications company to operate at the FCC
Guidelines maximum permissible radiation exposure levels, the
private owner could elect not to grant a communications company a
lease for the construction and operation of a cellular tower unless the
company agreed to limit its RF emissions to a lower level. To the
same extent, the School District as a public entity, sought out by the
company only in the District’s capacity as property owner, is
permitted to do the same. And if the property owner, public or
private, declines to enter into a lease without such a condition, the
communications company is faced with a choice: the company may
agree to the requested condition, or, if it is unwilling to do so, it may
seek a lease elsewhere from a property owner who does not insist on
such a condition. There is nothing in the conduct of the School
District here that prevents Sprint from negotiating a lease on other
property whose owner does not request conditions on emissions.
Finally, a lessee who agreed to the lease conditions requested
by the owner of private property could not thereafter compel
performance of the lease agreement by the private owner while the
lessee refused to perform the agreed conditions. We see no indication
that Congress meant the TCA to apply any different set of principles
to a telecommunications company’s negotiated agreement with a
public property owner.
In sum, we conclude that the Telecommunications Act does not
preempt nonregulatory decisions of a local governmental entity or
instrumentality acting in its proprietary capacity; that the School
District acted in a proprietary capacity, not a regulatory capacity, in
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entering into the Lease agreement with Sprint; that the conditions to
which Sprint agreed at the request of the District are conditions that a
private property owner would be free to demand; and that such a
private owner would not be compelled to perform obligations
imposed on him by the contract if the communications company
refused to perform the conditions agreed to by it in the contract.
Accordingly, the School District’s attempt to enforce the RF
Emissions provisions in the Lease agreement, as the District interprets
those provisions, is not preempted by the Telecommunications Act.
283 F.3d at 420-21.
The material facts of this case are indistinguishable from those presented in
Sprint Spectrum, and the Court is persuaded that the Second Circuit’s analysis
should apply with full force here. Like the school district in Sprint Spectrum,
Defendant here plainly acted in a proprietary rather than regulatory capacity when
it entered into the License Agreement with Plaintiff. This Agreement concerned a
single telecommunications tower owned by the Defendant City, and granted space
on this tower to a single tenant, subject to various conditions. Nothing in the
circumstances surrounding the negotiation and execution of the License
Agreement suggests that Defendant meant to establish municipal policy through
this transaction, as opposed to setting the terms of a single landlord/tenant
relationship. As explained by the Second Circuit, just as a private party who
owned the telecommunications tower could elect to lease space on this tower only
if the lessee agreed to certain conditions, the Defendant City could insist upon
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similar conditions in its License Agreement with Plaintiff without thereby
engaging in governmental “regulation” within the meaning of the TCA.
Finally, it is noteworthy that Plaintiff does not even address Sprint Spectrum
in its response to Defendant’s motion, much less attempt to distinguish it.
Accordingly, just as the Second Circuit determined in Sprint Spectrum that the
defendant school district could enforce the terms of its lease with Sprint without
running afoul of TCA preemption, this Court likewise finds that Defendant’s
enforcement of paragraph 11 of the License Agreement to deny Plaintiff’s request
to upgrade its broadcasting equipment does not give rise to a viable claim under
the TCA or its implementing regulations.
D.

The Record Fails as a Matter of Law to Establish a Violation of
Plaintiff’s Federal Constitutional Rights to Due Process or Equal
Protection of the Laws.
Turning, finally, to the federal 42 U.S.C. § 1983 claims asserted in Count II

of Plaintiff’s amended complaint, Plaintiff alleges in support of these claims that
the Defendant City’s denial of its request to upgrade its broadcasting equipment
violated its rights to due process and equal protection of the laws as guaranteed by
the Fourteenth Amendment to the U.S. Constitution. The Court finds it
unnecessary to engage in a lengthy analysis of these claims, because it agrees with
Defendant that the proper disposition of these claims is largely governed by the
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Court’s rulings on Plaintiff’s breach of contract claim.
As Defendant observes, Plaintiff’s claim of a due process violation cannot
succeed absent a showing, among other elements, that Plaintiff possessed a
constitutionally protected property interest. See Thomas v. Cohen, 304 F.3d 563,
576 (6th Cir. 2002). In this case, Plaintiff attempts to establish the requisite
property interest by pointing to the language in paragraph 16(a) of the License
Agreement that (i) grants Defendant or its designated representative to right to
“approve any changes to the size, type and quality of [Plaintiff’s] Equipment,” but
(ii) dictates that this “approval shall not be unreasonably withheld.” (License
Agreement at ¶ 16(a).) Plaintiff contends that Defendant unreasonably withheld
its approval of Plaintiff’s proposed equipment upgrade “for no reason at all, or
simply because it wanted to deny the request,” and thereby deprived Plaintiff of a
“legitimate claim of entitlement,” conferred under the License Agreement, to
expect that the Defendant City would reasonably exercise its purportedly limited
discretion in evaluating Plaintiff’s proposed upgrade. (Plaintiff’s Response Br. at
27.)
As discussed earlier, however, the above-quoted provision of the License
Agreement must be construed in light of the more specific language in paragraph
11 stating that Plaintiff may update its antennae facilities with Defendant’s “prior
36

written approval,” provided that “the replacement facilities are not greater in
number or size or power output than [Plaintiff’s] existing facilities.” (License
Agreement at ¶ 11.) Because Plaintiff’s requested upgrade fell squarely within
this provision as a proposal to increase the number of antennas and the power
output of Plaintiff’s broadcasting facilities, the terms of the License Agreement
preclude Plaintiff from claiming a legitimate entitlement to this upgrade. Thus,
Plaintiff has failed to identify a constitutionally protected property interest that
could support its due process claim.
As for Plaintiff’s claim of an equal protection violation, Plaintiff does not
contend that it is a member of a suspect class, nor does it claim that Defendant
burdened a fundamental right. Rather, Plaintiff proceeds under a “class of one”
theory, which entails a showing that it was “intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in
treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073,
1074 (2000); see also Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th
Cir. 2005). In support of this theory, Plaintiff points to evidence that two other
tenants of the Defendant City’s telecommunications tower, AT&T and T-Mobile,
were permitted to expand their equipment on the tower in a manner that increased
the number of antennas and the power output of their facilities. (See Plaintiff’s
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Response Br. at 29-30.)
Yet, while Plaintiff maintains that it is similarly situated to these two other
tenants, the record does not disclose the contractual terms of the Defendant City’s
relationship with these tenants. There is no evidence, in particular, that Defendant
entered into a contract with either AT&T or T-Mobile that permitted equipment
upgrades only on the condition that replacement antennae facilities were “not
greater in number or size or power output” than the company’s existing facilities.
Absent evidence that these other tenants faced contractual constraints similar to
those imposed on Plaintiff under its License Agreement with the Defendant City, it
cannot be said that Plaintiff and these other tenants were similarly situated and yet
treated differently without any rational basis. This lack of evidence is fatal to
Plaintiff’s claim of an equal protection violation.

38

IV. CONCLUSION
For the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s June
10, 2016 motion for summary judgment (docket #18) is GRANTED.

s/Gerald E. Rosen
United States District Judge
Dated: January 30, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on January 30, 2017, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

39