In an interesting twist on town-meeting politics, this case involved two competing personal wireless companies. One company, Green Mountain, sought approval from the Wolfeboro town meeting to lease town-owned land to install radio communication facilities. The other company, Fifth Estate, distributed postcards to voters urging them to reject the warrant articles and claiming that Green Mountain was not being honest with the town about the need for the facilities. Fifth Estate also ran advertisements, newspaper pieces, radio announcements and mass mailings stating that the project would destroy the look of the town, cost taxpayers unnecessary money, cause disease and other claims. Voters rejected both warrant articles, and Green Mountain sued Fifth Estate for violating the New Hampshire Consumer Protection Act (CPA), RSA 358-A.
The CPA makes it "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. There are 15 categories of unlawful acts, including "disparaging the goods, services, or business of another by false or misleading representation of fact." Assuming, for the sake of argument, that Fifth Estate had engaged in an unfair or deceptive practice, the Court decided the CPA did not apply at all in this case because the conduct occurred in a political setting.
Applying reasoning adopted by the U.S. Supreme Court (the "Noerr-Pennington Doctrine") and used later by the U.S. District Court for the District of New Hampshire, the Court explained that when conduct is directed toward obtaining governmental action, it is not subject to antitrust or unfair trade practices statutes. Thus, a publicity campaign directed toward the general public seeking some governmental action or legislation is protected "even when the campaign employs unethical and deceptive methods." Also, "[J]oint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition." The reason is that antitrust and unfair competition laws are tailored for the business world, not for the political arena. While there are exceptions to this immunity when the government is acting in a proprietary capacity (such as soliciting sealed competitive bids for a project) or when a company resorts to a governmental process as a sham to cover an attempt to interfere directly with the business relationships of a competitor, neither of those exemptions applied here. The Court found that Fifth Estate's actions were a good-faith attempt to influence the outcome of legislative action and were entitled to immunity under the CPA even if those actions involved deceptive or unethical actions.