November 12, 2010 - The New Hampshire Supreme Court on Wednesday reversed a $6.7 million verdict against a wireless communications provider, saying its advertising campaign against a competitor was protected as free speech.
Fifth Estate Tower waged the postcard and advertising campaign to defeat a bid by Green Mountain Realty Corporation to install communications towers in Wolfeboro. Wolfeboro voters defeated the proposal in a special town meeting in 2005.
The cards allegedly 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 cards referred to the proposed communications tower as an "eyesore" and unnecessary.
In the months preceding the special town meeting, in addition to sending the postcards, Fifth Estate also ran a series of advertisements, newspaper pieces, radio announcements and mass mailings that included statements that the tower to be erected on Poor Farm Hill would destroy the town's picturesque skyline; for the water tank site alone, Green Mountain would take more than $1 million from town taxpayers; Green Mountain's personal wireless service facilities would cause residents to suffer from cancer, Alzheimer's disease and other serious illnesses; and that the leases would cost taxpayers between $200,000 and $600,000 over their respective terms.
Green Mountain sued, eventually winning the jury verdict against Fifth Estate.
In its unanimous ruling, the Supreme Court ruled that Fifth Estate's campaign was political speech and exempt from the state Consumer Protection Act. It rejected Green Mountain's argument that the campaign contained false claims and, therefore, violated the act.
The justices noted that even if Fifth Estate's campaign involved unfair or deceptive practices, the act does not apply because Fifth Estate's conduct occurred in a political setting. Its campaign against Green Mountain Realty, the court wrote, used public media "for the purpose of influencing political decisions of the general electorate."
"The CPA, like the Federal Trade Commission Act, is tailored for the business arena, not the political arena," wrote Senior Associate Justice Linda S. Dalianis, who authored the opinion for the Court
"We assume, without deciding, that Fifth Estate’s conduct constituted an unfair or deceptive practice, within the meaning of the [Consumer Protection Act]," the court wrote. "Nonetheless, we conclude that the [act] does not apply because Fifth Estate’s conduct occurred in a political setting."
The Court also concluded that Fifth Estate's "mere attempts to influence" the passage of the warrant articles does not violate the act, even if, as Green Mountain alleges, Fifth Estate's sole motive was to eliminate Green Mountain as a competitor.
Also, the Court was not persuaded by Green Mountain's assertion that the special town meeting at issue didn't involve the passage or enforcement of laws.
"As Green Mountain acknowledges, the town of Wolfeboro has a town meeting form of government, and "it is well understood that, within the limits of the power of legislation conferred upon it, a town meeting is a legislative body," Dalianis wrote for the court.
At the lower level, the court had instructed jurors that Fifth Tower's claims were commercial in nature and not protected by the First Amendment. Each of the 3,337 postcards mailed by Fifth Tower were counted as individual violations in arriving at the award.
During the election, Fifth Estate prepared and mailed the community's registered voters a postcard purportedly depicting one of the proposed towers, to illustrate its concern that the tower would be an eyesore.
At trial, Green Mountain’s expert testified that the image of the proposed tower was approximately twice the size of an accurate rendering.
