Argued: December 7, 2017
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:15-cv-13363-Gerald E.
Rosen, District Judge.
Rhodes Victor, KUS RYAN, PLLC, Auburn Hills, Michigan, for
A. Anderson, JOHNSON, ROSATI, SCHULTZ & JOPPICH, P.C.,
Farmington Hills, Michigan, for Appellee.
Rhodes Victor, KUS RYAN, PLLC, Auburn Hills, Michigan, for
A. Anderson, Michael E. Rosati, JOHNSON, ROSATI, SCHULTZ
& JOPPICH, P.C., Farmington Hills, Michigan, Randall A.
Pentiuk PENTIUK, COUVREUR & KOBILJAK, P.C., Wyandotte,
Michigan, for Appellee.
Before: CLAY, GIBBONS, and COOK, Circuit Judges.
SMITH GIBBONS, Circuit Judge.
appeal concerns a dispute over whether Superior
Communications can significantly expand and upgrade its radio
broadcast equipment located on a telecommunications tower
owned by the City of Riverview, Michigan. Though Superior
alleges violations of the Telecommunications Act and of its
constitutional rights, this case in fact turns on the
interpretation of a straightforward licensing agreement
between the parties. Because this agreement prohibits
Superior from expanding its equipment without approval from
the City, we affirm the district court.
Communications ("Superior"), doing business as
Smile FM, is a nonprofit corporation that operates 21 radio
broadcast stations throughout the State of Michigan. The City
of Riverview (the "City") owns and operates a
320-foot telecommunications broadcast tower on City-owned
property in Riverview, Michigan. Having received its permit
from the FCC to operate a low-powered FM radio broadcast
station, Superior entered into a "Telecommunication Site
Access License Agreement" (the "License
Agreement") with the City on October 20, 2010, to locate
and operate certain radio broadcasting equipment on the
City-owned telecommunications tower. Thereafter, and pursuant
to the License Agreement, Superior installed one FMEC/1
single-bay antenna on the tower at a height of 300 feet and
one 1, 000-watt transmitter in the City's equipment
shelter. The antenna and transmitter broadcasted a 700-watt
station in accordance with Superior's original FCC permit
and the License Agreement. The License Agreement placed
strict limitations on future modifications to Superior's
broadcast equipment and made future upgrades subject to the
City's prior approval.
April 2011, without the City's knowledge, Superior
applied to the FCC for a modification to its FCC permit to
allow for a significant increase in its broadcast power. In
August 2012, the FCC issued Superior a permit to operate at
50, 000 watts. In September 2012, Superior first approached
the City regarding upgrading its equipment to allow it to
broadcast at this increased power when Superior's
President Ed Czelada e-mailed the City's Land Preserve
Sales Manager John Menna that Superior "received
permission from the FCC to replace [Superior's]
antenna." DE 21-11, E-mails, Page ID 762. At the
City's request, Superior then provided details of its
proposed new equipment.
in assessing Superior's request, the City hired Russell
Harbaugh, an electrical engineer, to conduct an engineering
evaluation of the proposed upgrade. He produced two reports
(the "Harbaugh Reports"), which identified several
issues to consider in determining whether to grant
Superior's proposed equipment upgrade. The reports made
clear that Superior's request to replace its single-bay
antenna with a four-bay antenna would cause Superior's
equipment to occupy thirty feet of space on the tower instead
of its current three feet of space. They also expressed
concern that the equipment upgrade would expose individuals
around the tower to unsafe levels of radiofrequency
electromagnetic radiation and that Superior's
transmissions might create radio interference with other
on November 12, 2013, the City denied Superior's request
to expand its broadcasting equipment located on the tower.
Following this denial, Superior commissioned its own report
attacking the Harbaugh Reports' conclusions, but in April
2015, the City reaffirmed its denial of Superior's
request via a formal letter from the City Attorney. Superior
then commenced this suit in state court, alleging that the
City breached the License Agreement and violated
Superior's due process and equal protection rights by
denying Superior's request to upgrade its equipment. The
City removed the case, and following this removal, Superior
added an additional claim under the federal
Telecommunications Act ("TCA"), 47 U.S.C. §
151 et seq.
City moved for summary judgment on all grounds, which the
district court granted. The district court concluded that the
License Agreement was unambiguous and that it granted the
City a contractual right to refuse Superior's requested
upgrade, which the City had properly exercised. It also
concluded that the City had not violated the
Telecommunications Act, as the City had not enacted a
"regulation" within the meaning of the Act but had
instead acted in its proprietary capacity in denying
Superior's request under the terms of the License
Agreement. Finally, the court held that the City had a
rational basis for its actions and, therefore, that
Superior's constitutional claims were without merit.
agree that Superior's claims are without merit and hold
that the district court correctly granted summary judgment
for the City.
court reviews a district court's grant of summary
judgment de novo. Kalich v. AT&T Mobility,
LLC, 679 F.3d 464, 469 (6th Cir. 2012) (citing
Int'l Union v. Cummins, Inc., 434 F.3d 478, 483
(6th Cir. 2006)). Summary judgment is appropriate "if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). In considering a
motion for summary judgment, the court must "draw all
reasonable inferences in favor of the nonmoving party."
Int'l Union, 434 F.3d at 483 (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)). In doing so, this court asks
"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,
first challenges the district court's grant of summary
judgment for the City on Superior's claim for breach of
the License Agreement. We hold that the district court
correctly concluded that Superior did not breach the
unambiguous terms of the License Agreement.
first argues that the License Agreement was ambiguous and
therefore that summary judgment was improper.
the License Agreement contains a choice-of-law clause
designating it be construed in accordance with the laws of
the State of Michigan and Superior's breach of license
claim arises under state law, this court uses Michigan law to
interpret the License Agreement. See Johnson v. Ventra
Grp., Inc., 191 F.3d 732, 738-39 (6th Cir. 1999);
Super Sulky, Inc. v. U.S. Trotting Ass'n, 174
F.3d 733, 741 (6th Cir. 1999). Under Michigan law, whether a
contract is ambiguous is a question of law, which is reviewed
de novo on appeal. Klapp v. United Ins. Grp.
Agency, Inc., 663 N.W.2d 447, 451 (Mich. 2003) (citing
Farm Bureau Mut. Ins. Co. v. Nikkel, 596 N.W.2d 915
(Mich. 1999)). In interpreting the contract, a court must
"honor the intent of the parties" by giving meaning
to the agreement as written. Rasheed v. Chrysler
Corp., 517 N.W.2d 19, 29 n.28 (Mich. 1994); see Rory
v. Cont'l Ins. Co., 703 N.W.2d 23, 30-31 (Mich.
2005) (stressing unambiguous contract terms "must be
enforced as written"). Thus, the contract
should be read as a whole, "giving harmonious effect, if
possible, to each word and phrase." Wilkie v.
Auto-Owners Ins. Co., 664 N.W.2d 776, 781 n.11 (Mich.
2003) (citing Singer v. Goff, 54 N.W.2d 290, 292
(Mich. 1952)). If the contract's provisions "may
reasonably be understood in different ways, " the
contract is ambiguous, and its interpretation is a question
of fact for the jury. Universal Underwriters Ins. Co. v.
Kneeland, 628 N.W.2d 491, 494 (Mich. 2001) (citing
Farm Bureau, 596 N.W.2d at 919); Klapp, 663
N.W.2d at 454. If, however, the agreement is "clear and
unambiguous, it is to be construed according to its plain
sense and meaning" and summary judgment is appropriate.
City of Grosse Pointe Park v. Mich. Mun. Liab. &
Prop. Pool, 702 N.W.2d 106, 113 (Mich. 2005) (quoting
New Amsterdam Cas. Co. v. Sokolowski, 132 N.W.2d 66,
68 (Mich. 1965)). "[W]e will not create ambiguity where
the terms of the contract are clear." Id.
argues that various provisions of the License Agreement are
in conflict, and therefore, the contract is ambiguous.
See Klapp, 663 N.W.2d at 453 ("[I]f two
provisions of the same contract irreconcilably conflict with
each other, the language of the contract is
ambiguous."). Specifically, Superior contends that
paragraphs 9(a), 11, and 16(a)(2) of the License Agreement
supply conflicting information regarding Superior's
ability to upgrade its equipment. We ...