881 F.3d 432
6th Cir.2018Background
- Superior Communications (Smile FM) held a 2010 license from the City of Riverview to operate one FMEC/1 antenna and a 1,000-watt transmitter on a City-owned 320-foot tower; the License Agreement limited future upgrades and required City approval for changes.
- Superior secretly applied to the FCC to increase power; the FCC issued a permit in August 2012 to operate at 50,000 watts.
- In Sept. 2012 Superior sought City approval to replace its single-bay antenna with a four-bay antenna (increasing occupied tower space from 3 to 30 feet and power from ~700W to 50,000W).
- The City retained an electrical engineer who produced reports raising RF-safety and interference concerns; the City denied the upgrade in Nov. 2013 and reaffirmed denial in Apr. 2015.
- Superior sued the City (breach of contract, due process, equal protection) and later added a Telecommunications Act (47 U.S.C. § 253) claim; the district court granted summary judgment to the City and the Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did City breach the License Agreement by denying Superior’s equipment upgrade? | Superior: license permits updates with City consent and approval "shall not be unreasonably withheld," so denial breached contract. | City: License unambiguously allows City to refuse replacement facilities that are greater in number, size, or power; denial was authorized. | Held for City — contract unambiguous; City could deny the proposed expansion. |
| Did City waive enforcement of Paragraph 11 (or modify agreement) by conduct or addendum? | Superior: City’s conduct and a 2012 addendum show waiver/modification permitting upgrades. | City: No clear-and-convincing evidence of mutual waiver; addendum addressed rent/late fees and reaffirmed negotiation for additional equipment. | Held for City — no waiver or modification shown. |
| Does § 253(a) of the Telecommunications Act provide a private right or prohibit the City’s action? | Superior: City’s denial effectively prohibited provision of telecom service within FCC parameters, so § 253(a) is violated. | City: § 253(a) targets statutes/regulations; the City acted in its proprietary capacity under a contract, and § 253(a) has no private right of action. | Held for City — no private cause under § 253(a); City action was proprietary (not a "regulation"). |
| Were Superior’s constitutional claims (due process and equal protection) valid? | Superior: Denial deprived a property interest under the license (due process); City treated Superior differently than AT&T/T-Mobile (equal protection). | City: License creates no entitlement to the upgrade; breach-of-contract remedy suffices for due process; Superior not similarly situated to other tenants and City has rational basis. | Held for City — due process claim fails (contract remedy); equal protection fails (not similarly situated; rational basis exists). |
Key Cases Cited
- Kalich v. AT&T Mobility, 679 F.3d 464 (6th Cir.) (summary judgment standard review)
- TCG Detroit v. City of Dearborn, 206 F.3d 618 (6th Cir.) (analysis of private causes under § 253)
- Sprint Spectrum L.P. v. Mills, 283 F.3d 404 (2d Cir.) (public owner acting in proprietary capacity is not regulation under TCA)
- Spectra Commc’ns Grp., LLC v. City of Cameron, 806 F.3d 1113 (8th Cir.) (§ 253(a) does not create private right of action)
- Kaminski v. Coulter, 865 F.3d 339 (6th Cir.) (procedural due process claim cannot rest on ordinary contract dispute)