Son Broadcasting, Inc. v. United States

52 Fed. Cl. 815, 2002 U.S. Claims LEXIS 165, 2002 WL 1495395
CourtUnited States Court of Federal Claims
DecidedJuly 11, 2002
DocketNo. 98-115C
StatusPublished
Cited by10 cases

This text of 52 Fed. Cl. 815 (Son Broadcasting, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Son Broadcasting, Inc. v. United States, 52 Fed. Cl. 815, 2002 U.S. Claims LEXIS 165, 2002 WL 1495395 (uscfc 2002).

Opinion

OPINION

WILSON, Judge.

This case is before the Court on defendant’s supplemental motion to dismiss and cross-motions for summary judgment pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (RCFC). For the reasons discussed below, defendant’s motion to dismiss and for summary judgment is denied. Plaintiff’s cross-motion for summary judgment, more accurately styled a motion for partial summary judgment, is granted.

BACKGROUND

This case involves an alleged contract between plaintiff, Son Broadcasting, Inc., a television broadcasting company based in Santa Fe, New Mexico, and defendant, the United States, through the Forest Service of the Department of Agriculture. The dispute concerns the development of mountain-top broadcasting towers in Santa Fe National Forest.

On April 27, 1983, Forest Supervisor James Perry approved an “Electronic Site Management Plan” (Site Plan) for the Peral-ta Ridge Communications Site in Santa Fe National Forest, New Mexico. The Site Plan set out specifications for the development of two broadcasting towers and accompanying facilities on Peralta Ridge. The Forest Service expressed its goal in the Site Plan to “[mjaximize the number of compatible electronic uses on a minimum site area by authorizing ... two antennae towers initially, with an option for a third tower upon approval by the Forest Supervisor.” (Def.’s App. at 3.)1 Accordingly, the Site Plan provides that “[a] third antenna tower which may be self supporting may be authorized when the technical capacity of the intial [sic] two towers is reached.” (Def.’s App. at 5.) The Site Plan authorized a permit allowing plaintiff to construct one of the two initial towers up to a height of 300 feet, and a building to house related equipment. (Def.’s App. 5, 6.) Plaintiff was required to construct a tower and building capable of accommodating plaintiff’s antenna and equipment and the additional antennae and equipment for two or more FM radio stations. (Def.’s App. at 6; Def.’s Proposed Findings of Material Fact at 1.) Plaintiff was also required to help finance construction of an access road, power line, and other developments on the site. (Def.’s App. at 6.) The Forest Service reserved the right “to authorize additional users on the site, building, or antennae tower of the holder provided that such use does not unreasonably interfere with the holders [sic ] operations.” (Def.’s App. at 3.) A permittee whose improvements were so used was entitled to reasonable compensation. (Def.’s App. at 3, 8.)

On October 8, 1982 (prior to the formal adoption of the Site Plan), Forest Supervisor Perry sent a letter to Philip Green, a representative of the Peralta Ridge Users Association, of which plaintiff was and continues to be a member. The letter responded to concerns the Association had expressed regarding the Site Plan. Perry’s letter explained that towers on the Peralta Ridge Site “must be structurally capable of handling other user’s [sic] facilities as specified in this letter and the site management plan.” (Def.’s App. at 35). Perry also reinforced the Forest Service’s “intention ... to maximize use of a single building complex and two antenna tow[818]*818ers,” and explained that “[a] third tower for additional FM’s will only be considered when placement on the first two towers is technologically infeasible and economically unreasonable as compared to the cost and impacts of a third tower.” (Def.’s App. at 35.)

On August 25,1983, in accordance with the Site Plan, the Forest Service issued a “Special Use Permit” (1983 Permit) authorizing plaintiff to construct, maintain, and rent space on its antenna tower. The 1983 Permit was signed by Robert Quade, Acting Forest Supervisor at the time. “In consideration for this use,” the 1983 Permit required plaintiff to pay an annual fee based on the value of its structures and a percentage of its income received in rent from additional users. (Def.’s App. at 13.) The 1983 Permit also stated that the Forest Service agreed not to issue authorizations to additional users until arrangements for payment of a fair share of the original development costs were made. (Def.’s App. at 20.)

The 1983 Permit was renewed in 1994 in a separate document entitled “Special-Use Permit for Communications Uses” (1994 Permit), and signed by John Peterson on behalf of Forest Supervisor Alan Defier. Both the 1983 and 1994 Permits incorporate the Site Plan by reference. The 1994 Permit states that it “is issued for the purpose of managing and operating communications uses on the site in accordance with the conditions of this authorization and communications site plan which is attached to and made part of this authorization.” (Pl.’s App. at 1.) The 1994 Permit further states that “[a]ll development, operation, and maintenance ... shall be in accordance with the communications site plan specifications and stipulations approved by the authorized officer prior to beginning such activity.” (Pl.’s App. at 4.)

The 1983 Permit provides that it is revocable and “may be terminated upon breach of any of the conditions herein or at the discretion of the regional forester or the Chief, Forest Service.” (Def.’s App. at 11, 12.) However, the terms of the 1994 Permit no longer reserved the right of the Forest Service to terminate the Permit solely at its discretion. Rather, the 1994 Permit provides that the Permit may be terminated only for “(1) noncompliance with applicable statues, regulations, or terms and conditions of the authorization; (2) for failure of the holder to exercise the rights and privileges granted; (3) with the consent of the holder; and (4) when, by its terms, a fixed agreed upon condition, event, or time occurs.” (Pl.’s App. at 2.) Both the 1983 and 1994 Permits also state that they are “not transferable.” (Def.’s App. at 11,12; Pl.’s App. at 2.)

In June 1996, a third party, Plaza Mountain Broadcasting, Inc. (Plaza), applied to the Forest Service for a permit to place two FM antennae on plaintiffs tower and entered into negotiations with plaintiff. An expert hired by Plaza concluded that plaintiffs tower was “adequate for the proposed loading changes” and would “meet the design criteria specified.” (Pl.’s App. at 30.)2 Plaza filed a Special Use Application with the Forest Service seeking permission to place antennae on plaintiffs tower. One month later, however, Plaza ended negotiations with plaintiff after learning that the Forest Service was willing to authorize construction of a third tower at the Site. Plaza made arrangements to place its antennae on a third tower to be constructed by Journal Broadcasting, Inc., the owner of the second of the original two towers. The Forest Service approved construction of the third tower, over plaintiffs objections, in October 1996. The Forest Service Decision Memo concluded that “current space is not available on Journal Broadcasting’s tower for additional antennas, a new tower will have to be constructed to accommodate the demand, as provided in the Peralta Ridge Electronic Site Management Plan,” and later, that construction of the third tower “would provide space currently not available at the site for additional FM broadcasting.” (Def.’s App. at 33.) Shortly after issuing the Decision [819]*819Memo, the Forest Service dismissed plaintiffs formal appeal.

When construction of the third tower began, plaintiff filed suit in the United States District Court for the District of New Mexico and unsuccessfully sought an injunction.

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Bluebook (online)
52 Fed. Cl. 815, 2002 U.S. Claims LEXIS 165, 2002 WL 1495395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/son-broadcasting-inc-v-united-states-uscfc-2002.