Green Mountain Realty Corp.. v. the Fifth Estate Tower

• Decision Date: 10 November 2010
• Docket Number: No. 2008–723.,2008–723.
• Citation: 13 A.3d 123,51 Communications Reg. (P&F) 1083,161 N.H. 78
• Parties: GREEN MOUNTAIN REALTY CORPORATION,v.The FIFTH ESTATE TOWER, LLC and another.
• Court: New Hampshire Supreme Court

161 N.H. 78

13 A.3d 123

51 Communications Reg. (P&F) 1083

GREEN MOUNTAIN REALTY CORPORATION,

v.The FIFTH ESTATE TOWER, LLC and another.

No. 2008–723.

Supreme Court of New Hampshire.

Argued: Sept. 8, 2010.Opinion Issued: Nov. 10, 2010.

Donahue Tucker & Ciandella PLLC, of Exeter (Robert M. Derosier and Keriann Roman on the brief, and Robert D. Ciandella orally), for the plaintiff.D'Amante Couser Steiner Pellerin, P.A., of Concord (Roy S. McCandless on the brief), Orr & Reno, P.A., of Concord (William L. Chapman on the brief and orally), Haughey, Philpot & Laurent, P.A., of Laconia (William Philpot, Jr. on the brief), and McCormick, Fitzpatrick, Kasper & Burchard, P.C., of Burlington, Vermont (Thomas P. Simon on the brief), for the defendants.Stephen M. Hoersting, of Alexandria, Virginia, on the brief, and Wadleigh, Starr & Peters, PLLC, of Manchester (Dean B. Eggert and Michael J. Tierney on the brief), for Center for Competitive Politics, as amicus curiae.Devine, Millimet & Branch, P.A., of Manchester (Matthew R. Johnson and Joshua M. Wyatt on the brief), for The New Hampshire Association of Realtors, as amicus curiae.Barbara Keshen, of Concord, by brief, for New Hampshire Civil Liberties Union, as amicus curiae.Ben Robbins and Martin J. Newhouse, of Boston, Massachusetts, on the brief, and Devine, Millimet & Branch, P.A., of Manchester (Matthew R. Johnson on the brief), for New England Legal Foundation, as amicus curiae.St. Hilaire & St. Hilaire, PLLC, of Concord (Daniel St. Hilaire on the brief), and Robert M. O'Neil and another, of Charlottesville, Virginia, on the brief, for The Thomas Jefferson Center for the Protection of Free Expression, as amicus curiae.DALIANIS, J.

The defendants, The Fifth Estate Tower, LLC and Jay Williams, individually and in his official capacity as manager of The Fifth Estate Tower, LLC(collectively, Fifth Estate), appeal a $6.7 million jury verdict in favor of the plaintiff, Green Mountain Realty Corporation(Green Mountain), on its claim that Fifth Estate violated the New Hampshire Consumer Protection Act (CPA), see RSA ch. 358–A(2009).Fifth Estate argues that the Superior Court( Fitzgerald, J.) erred by denying its summary judgment motion and motions for directed verdict and judgment notwithstanding verdict(JNOV).We reverse.

I.Background

The record evidences the following facts.Green Mountain and Fifth Estate both site, construct, own and operate personal wireless service facilities.This case arises out of a series of postcards that Fifth Estate designed, printed and distributed, which included statements that Green Mountain claims were misleading and/or false.The postcards were distributed to the general electorate of the Town of Wolfeboro in connection with a September 2005 special town meeting involving two warrant articles.The warrant articles asked whether town voters would authorize the town's board of selectmen to enter into long-term leases with Green Mountain, which would enable it to construct a radio communications tower on town property known as Poor Farm Hill and install radio communications antennas at the site of the town's existing water tank.

The postcards urged town voters to vote against the two warrant articles because the town did not need “to get better cellular service or emergency services” as it “already [had] existing structures to handle both.”The postcards referred to the proposed communications tower as an “[e]yesore” and unnecessary, and to the proposed leases as “no-bid, 30–year, [and] non-cancellable.”The postcards also told voters that they could save the view of the lake from the town docks “[a]nd get complete cell coverage” by voting “[n]o” on the warrant articles.

In the months preceding the special town meeting, in addition to sending the postcards, Fifth Estate ran a series of advertisements, newspaper pieces, radio announcements and mass mailings that included statements that: (1) the tower to be erected on Poor Farm Hill would destroy the town's picturesque skyline; (2) for the water tank site alone, Green Mountain would take more than $1 million from town taxpayers; (3) the tower on Poor Farm Hill was unnecessary because Fifth Estate provided “complete wireless coverage” to the town; (4) Green Mountain's personal wireless service facilities would cause town residents to suffer from cancer, Alzheimer's disease and other serious illnesses; and (5) the leases would cost town taxpayers between $200,000 and $600,000 over their respective terms.

Ultimately, the town electorate rejected both warrant articles.In January 2006, Green Mountain filed a writ against Fifth Estate alleging, among other causes of action, a claim that Fifth Estate violated the CPA because its “false and misleading statements” constituted “unfair and deceptive acts or practices.”

Fifth Estate moved for summary judgment, arguing that the CPA does not apply to its conduct because it took place in a political context, rather than a commercial one, and because its statements were political speech protected by the First Amendment to the Federal ConstitutionandPart I, Article 22 of the New Hampshire Constitution.The trial court denied the motion, and the claim proceeded to trial.Fifth Estate raised these same arguments in its motions for directed verdict and JNOV.The trial court rejected the arguments for the reasons articulated in its order denying Fifth Estate's summary judgment motion.This appeal followed.

II.Discussion

Fifth Estate argues that the trial court erred when it ruled that the CPA applied to Fifth Estate's conduct.It contends that the legislature did not intend the CPA to regulate conduct occurring in a political setting, rather than in a business setting.SeeRodgers v. F.T.C.,492 F.2d 228, 229–32(9th Cir.)(Federal Trade Commission Act did not apply to campaign activities of opponents to state anti-litter measure, which were directed to electorate at large), cert. denied,419 U.S. 834, 95 S.Ct. 60, 42 L.Ed.2d 60(1974);O'Connor v. Superior Court(Wyman),177 Cal.App.3d 1013, 223 Cal.Rptr. 357, 360(noting that “[f]ederal cases under the Federal Trade Commission Act and the Sherman Antitrust Act have uniformly held that the laws regulating business practices do not apply to political campaign activities”), review denied(Cal.1986).To address this argument, we must interpret the CPA, which is a question of law that we review de novo.SeeLaramie v. Stone,160 N.H. 419, 436, 999 A.2d 262, 276(2010).

In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole.LaChance v. U.S. Smokeless Tobacco Co.,156 N.H. 88, 93, 931 A.2d 571(2007).When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used.Id.We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.Id.To interpret the CPA, the legislature has directed that we“may be guided by the interpretation and construction given Section 5(a)(1) of the Federal Trade Commission Act ... by the Federal Trade Commission and the federal courts.”RSA 358–A:13;seeState v. Moran,151 N.H. 450, 452–53, 861 A.2d 763(2004);see alsoRousseau v. Eshleman,129 N.H. 306, 310, 529 A.2d 862(1987)(Thayer, J., concurring)(it is proper to consult cases decided under Sherman Antitrust Act to construe the CPA because lower federal courts view the Federal Trade Commission and Sherman Acts as involving the same subject matter).

A. CPA

The CPA provides, in relevant part: “It shall be unlawful for any person to use any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce within this state.”RSA 358–A:2.After this general proscription, the CPA lists fifteen representative categories of unlawful acts that the legislature has determined constitute unfair methods of competition or unfair or deceptive acts or practices.Simpson v. Young,153 N.H. 471, 476, 899 A.2d 216(2006).One category of unlawful acts involves “[d]isparaging the goods, services, or business of another by false or misleading representation of fact.”RSA 358–A:2, VIII;seeMortgage Specialists v. Davey,153 N.H. 764, 781, 904 A.2d 652(2006).Other categories include “[r]epresenting that goods or services have ... characteristics, ... uses, benefits, or quantities that they do not have,”RSA 358–A:2, V, and “[r]epresenting that goods or services are of a particular standard, quality, or grade, ... if they are of another,”RSA 358–A:2, VII.The CPA defines “[t]rade” and “commerce” as including “advertising, offering for sale, sale, or distribution of any services and property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situate.”RSA 358–A:1, II.The terms also “ include any trade or commerce directly or indirectly affecting the people of this state.”Id.

For the purposes of this appeal, we assume, without deciding, that Fifth Estate's conduct constituted an unfair or deceptive practice, within the meaning of the CPA.SeeRSA 358–A:2.Nonetheless, we conclude that the CPA does not apply because Fifth Estate's conduct occurred in a political setting.SeeRodgers,492 F.2d at 229–32.

B. Noerr–Pennington Doctrine

In reaching this conclusion, we rely upon the Noerr–Pennington doctrine, which was originally developed by the United States Supreme Court in Federal Sherman Antitrust Act(Sherman Act)cases, seeEastern R. Conf. v. Noerr Motor,365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464(1961);Mine Workers v. Pennington,381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626(1965), but since has been applied to Federal Trade Commission Actcases, seeRodgers,492 F.2d at 229–32, as well as to those brought under state unfair trade practices acts, see,...