League of Women Voters of California v. FCC, CV-79-1562-MML.

Decision Date05 August 1982
Docket NumberNo. CV-79-1562-MML.,CV-79-1562-MML.
Citation547 F. Supp. 379
CourtU.S. District Court — Central District of California
PartiesLEAGUE OF WOMEN VOTERS OF CALIFORNIA, et al., Plaintiffs, v. FEDERAL COMMUNICATIONS COMMISSION, Defendant.

Center for Law in the Public Interest by Frederic D. Woocher, Lucas Guttentag, John R. Phillips, Los Angeles, Cal., for plaintiffs.

U. S. Atty. by Stephen S. Trott, Stephen D. Petersen, Asst. U. S. Atty., Los Angeles, Cal., J. Paul McGrath, Asst. Atty. Gen., Dept. of Justice by Paul Blankenstein, Judith F. Ledbetter, Washington D. C., for defendant.

ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS

LUCAS, District Judge.

This action presents a constitutional challenge to that portion of 47 U.S.C.A. § 399 (West Supp. 1982) ("§ 399") which prohibits certain noncommercial educational television and radio stations1 from editorializing in their broadcasts. Before turning to the issues raised by this challenge it will be useful to set out the rather complex history of this litigation.

A milestone in the history of public broadcasting in the United States was reached with the enactment of the Public Broadcasting Act of 1967, Pub. L. No. 90-129, 81 Stat. 368 (1967) (codified at 47 U.S.C. §§ 390 et seq.) The Act provided federal financial assistance for public broadcasting and established a non-profit, private corporation, the Corporation for Public Broadcasting ("CPB"), to oversee distribution of this funding and to assist and encourage the development of public television and radio stations in the United States. The Public Broadcasting Act also contained a provision prohibiting all public broadcasting stations from editorializing and from supporting or opposing any candidate for political office. This provision was codified at 47 U.S.C. § 399.2

The instant suit, challenging the constitutionality of § 399, was filed on April 30, 1979 against the Federal Communications Commission ("FCC"). Plaintiffs argued that prohibiting all public television and radio stations from editorializing and from supporting or opposing any political candidates violated both the First Amendment's guarantee of free speech and the Equal Protection Guarantee embodied in the Due Process Clause of the Fifth Amendment. Because this challenge presented primarily legal issues rather than factual disputes, plaintiffs were able to move for summary judgment several months after filing the complaint.

Rather than file opposition papers to this motion, the United States Department of Justice, acting as attorney for defendant, notified the Court that it would not defend the constitutionality of § 399. Plaintiffs' motion for summary judgment was continued by stipulation to enable defendant to present the matter to Congress so that it could consider the matter and take whatever action within its power it deemed proper.

On January 17, 1980 the Senate Legal Counsel, acting on behalf of the United States Senate, moved for leave to appear as amicus curiae in this action.3 On that same date, the Senate also noticed a motion to dismiss the complaint on the alternate grounds that this action did not present a ripe case or controversy between adverse parties and that plaintiffs had failed to exhaust mandatory administrative procedures. Plaintiffs subsequently moved to disallow the filing of the Senate's motion to dismiss. Concurrent briefing schedules were established for these two motions as well as for the Senate's motion to appear as amicus curiae and oral argument of all three of the motions was heard on March 3, 1981. On March 10, 1981 the Court granted the Senate's motion for leave to appear as amicus curiae and denied plaintiffs' motion to disallow the filing of the Senate's motion to dismiss. The Court then granted the Senate's motion to dismiss. League of Women Voters of California v. FCC, 489 F.Supp. 517 (C.D.Cal.1980). In ordering the dismissal of the action, the Court held that, in light of evidence that the FCC would not enforce § 399 and the refusal by defendant's counsel to defend the constitutionality of the statute, there was no justiciable case or controversy. As a result, the Court was without jurisdiction to decide the issues presented and dismissal was required.

Plaintiffs appealed this order of dismissal. Pending argument of the appeal, on April 9, 1981, the Department of Justice under the new Attorney General notified the Court of Appeals that it would defend the constitutionality of § 399 on behalf of defendant. The Court of Appeals remanded the action to this Court for consideration of the effect of this development. On June 18, 1981 this Court vacated its order of dismissal holding that "the Executive Branch's decision to enforce the statute has eliminated any uncertainty about the existence of an actual case or controversy." The appeal was subsequently dismissed and the Senate was granted leave to withdraw from this litigation.

Plaintiffs' original motion for summary judgment, which had been continued by stipulation pending resolution of the Senate's motion to dismiss, was thus again before the Court. Oral argument of this motion was set for August 3, 1981 and the parties were given an opportunity to file supplemental briefs.

Several days prior to the scheduled oral argument, however, Congress amended § 399 in a significant respect. The Court, therefore, continued oral argument of the plaintiffs' motion. On August 13, 1981 the President signed the Public Broadcasting Amendments Act of 1981, Pub.L.No. 97-35, 95 Stat. 725-36 (1981). This Act limited the scope of § 399's prohibition of editorializing to apply only to those public television and radio stations which receive grants from the federal government through CPB. No change was made in that portion of § 399 which prohibited all public broadcasters from supporting or opposing any candidate for political office.4

The parties were given an opportunity to file supplemental papers discussing the effect of this amendment, and plaintiffs were given leave to file an amended complaint to reflect this change. In the amended complaint, filed on October 2, 1981, plaintiffs altered the scope of this litigation in an important respect by dropping their challenge to that portion of § 399 which prohibits public broadcasting stations from supporting or opposing political candidates. Plaintiffs focused their attack instead solely on the statutory ban on editorializing by public broadcasters receiving federal grants from CPB.

Defendant moved to dismiss the amended complaint specifically basing its motion to dismiss on grounds identical to those raised in opposition to plaintiffs' original motion for summary judgment insofar as they were still applicable to the new complaint. In light of the long and convoluted procedural history of this case, the Court deemed plaintiffs' original motion for summary judgment to be before the Court as a motion for summary judgment on the amended complaint and treated defendant's motion to dismiss as a cross motion for summary judgment.

Oral argument of these motions was heard by this Court, the Honorable Malcolm M. Lucas, District Judge, presiding, on November 9, 1981 and taken under submission. After careful consideration of all of the papers filed and of the oral arguments of counsel, the Court grants summary judgment in favor of plaintiffs.

The material facts underlying this action are not disputed. Plaintiff League of Women Voters of California (the "League") is a non-profit, non-partisan organization incorporated in the State of California. One of the purposes of the League is to promote political responsibility through informed and active citizen participation in government. Plaintiff Henry Waxman ("Waxman") is a United States Congressman. Waxman is also a regular listener and a viewer of public radio and television.

Plaintiff Pacifica Foundation ("Pacifica") is a non-profit educational corporation which owns and operates noncommercial educational broadcasting stations in five major markets in the United States. Pacifica and its stations have received and presently receive grants from CPB and come, thus, within the scope of § 399's prohibition on editorializing.

Defendant FCC is an administrative agency created pursuant to the Communications Act of 1934, ch. 652, § 1, 48 Stat. 1064 (1934) (current version at 47 U.S.C. § 151 (1976)) for the purpose of regulating radio and wire communication. The FCC is charged with executing and enforcing the provisions of the Communications Act of 1934, 47 U.S.C. §§ 151 et seq. (1976) which includes § 399 as amended.

This Court's order of June 18, 1981 vacating the Court's previous order of dismissal, makes clear that plaintiff Pacifica has standing to bring this action. As the Court noted in that order, Pacifica now faces "a very realistic threat of severe administrative and penal sanctions" if it violates § 399. Thus, Pacifica has a sufficient stake in the outcome of this litigation even without violating § 399 to warrant its invocation of federal court jurisdiction and to justify exercise of the Court's remedial powers on its behalf. Babbitt v. United Farmworkers, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895 (1979); Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975).

Plaintiffs League and Waxman seek no relief independent of the declaratory and injunctive relief sought by Pacifica. Thus, resolution of Pacifica's claims will effectively dispose of the claims raised by the League and Waxman. Under these circumstances, it is not necessary at this time to consider separately the question of whether the League and/or Waxman would have standing to maintain this action absent Pacifica. Cf. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264 n. 9, 97 S.Ct. 555, 562 n. 9, 50 L.Ed.2d 450 (1977) (not necessary to examine the standing of all of the plaintiffs where one plaintiff had standing to raise the legal issues presented on appeal); ...

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  • Federal Communications Commission v. League of Women Voters of California
    • United States
    • United States Supreme Court
    • July 2, 1984
    ...activities, and, more importantly, it is barred from using even private funds to finance its editorial activity. Pp. 399-401. 547 F.Supp. 379 (D.C.Cal.1982), Samuel A. Alito, Jr., Asst. U.S. Atty., Newark, N.J., for appellant. Fredric D. Woocher, Los Angeles, Cal., for appellees. Justice BR......
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    • September 2, 1986
    ...sought attorneys' fees following the district court's original ruling in their favor. League of Women Voters of California v. Federal Communications Commission, 547 F.Supp. 379 (C.D.Cal.1982). The district court denied the request, holding that the government's position was "substantially j......
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    • July 5, 2016
    ...to examine the standing of all appellees so long as one had standing to secure the requested relief."); League of Women Voters of Cal. v. F.C.C., 547 F.Supp. 379, 383 (C.D. Cal. 1982) ("Under these circumstances, it is not necessary at this time to consider separately the question of whethe......
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    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
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    ...47 U.S.C. Sec. 399, violated the First Amendment to the United States Constitution. League of Women Voters of California v. Federal Communications Commission, 547 F.Supp. 379 (C.D.Cal.1982). The Federal Communications Commission ("FCC") timely filed a notice of appeal from the holding of un......
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