676 F.3d 869 (9th Cir. 2012), 09-17311, Minority Television Project, Inc. v. F.C.C.

Docket Nº:09-17311.
Citation:676 F.3d 869
Opinion Judge:BEA, Circuit Judge:
Party Name:MINORITY TELEVISION PROJECT, INC., Plaintiff-Appellant, v. FEDERAL COMMUNICATIONS COMMISSION; et al., Defendants-Appellees, and Lincoln Broadcasting Company, Intervenor.
Attorney:Walter E. Diercks, Rubin, Winston, Diercks, Harris & Cooke LLP, Washington, DC, for the plaintiff-appellant. Mark B. Stern, United States Department of Justice, Civil Division, Appellate Staff, for the defendants-appellees.
Judge Panel:Before: JOHN T. NOONAN, RICHARD A. PAEZ, and CARLOS T. BEA, Circuit Judges. Opinion by Judge BEA; Concurrence in Judgment by Judge NOONAN; Dissent by Judge PAEZ. NOONAN, Circuit Judge, concurring in the judgment: PAEZ, Circuit Judge, dissenting:
Case Date:April 12, 2012
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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676 F.3d 869 (9th Cir. 2012)

MINORITY TELEVISION PROJECT, INC., Plaintiff-Appellant,

v.

FEDERAL COMMUNICATIONS COMMISSION; et al., Defendants-Appellees,

and

Lincoln Broadcasting Company, Intervenor.

No. 09-17311.

United States Court of Appeals, Ninth Circuit.

April 12, 2012

Argued and Submitted Nov. 1, 2010.

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[Copyrighted Material Omitted]

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Walter E. Diercks, Rubin, Winston, Diercks, Harris & Cooke LLP, Washington, DC, for the plaintiff-appellant.

Mark B. Stern, United States Department of Justice, Civil Division, Appellate Staff, for the defendants-appellees.

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Appeal from the United States District Court for the Northern District of California, Elizabeth D. Laporte, Magistrate Judge, Presiding. D.C. No. 3:06-cv-02699-EDL.

Before: JOHN T. NOONAN, RICHARD A. PAEZ, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge BEA; Concurrence in Judgment by Judge NOONAN; Dissent by Judge PAEZ.

OPINION

BEA, Circuit Judge:

A federal statute, 47 U.S.C. § 399b prohibits public broadcast radio and television stations 1 from transmitting over the public airways: 1) advertisements for goods and services on behalf of for-profit entities, 2) advertisements regarding issues of public importance or interest (" public issues" ), and 3) political advertisements. 47 U.S.C. § 399b(a). The statute is therefore a content-based ban on speech: public broadcasters may transmit many types of speech, but, unlike most other stations, they may not transmit those three classes of advertising messages. Plaintiff-Appellant Minority Television Project, a public broadcaster, contends that this ban violates the First Amendment. Applying intermediate scrutiny, we uphold the ban on the transmission of advertisements for goods and services by for-profit entities, but we strike down as unconstitutional the ban on public issue and political advertisements.2

I. Facts and Prior Proceedings

Appellant Minority Television Project is a nonprofit California corporation which operates the San Francisco television station KMTP-TV. KMTP-TV focuses on what it describes as " multicultural programming," and it airs a wide variety of non-English language television shows. KMTP-TV is licensed as a public broadcast station by the FCC, which sets aside certain broadcast frequencies for public radio and television stations which transmit educational programming. Unlike commercial stations, public broadcast stations are expected not to rely on paid advertising, but on federal and state subsidies, individual donors, special events, foundation grants, and corporate contributions. See generally 47 C.F.R. § 73.621. KMTP-TV is one of the few public broadcast stations in the United States which does not receive funding from the Corporation for Public Broadcasting (a private, non-profit corporation created by Congress in 1967 to invest in educational programming on public broadcast stations). See 47 U.S.C. § 396(g)(2)(B).

However, because of its status as a public broadcast station, Minority is nonetheless subject to 47 U.S.C. § 399b, which prohibits public broadcast stations from transmitting any " advertisements." Under § 399b, an " advertisement" is defined as: (1) a paid promotional message from a for-profit entity, (2) a paid message on any

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matter of public importance, or (3) a paid message in support of a political candidate. The relevant portion of the statute reads:

(a) " Advertisement" defined. For purposes of this section, the term " advertisement" means any message or other programming material which is broadcast or otherwise transmitted in exchange for any remuneration, and which is intended—

(1) to promote any service, facility, or product offered by any person who is engaged in such offering for profit;

(2) to express the views of any person with respect to any matter of public importance or interest; or

(3) to support or oppose any candidate for political office.

47 U.S.C. § 399b.

On August 9, 2002, pursuant to a complaint filed by another broadcaster, the FCC determined that Minority had violated § 399b approximately 1,900 times between the years 1999 and 2002. 7 FCC Rcd 15646 (2003). The FCC found that Minority had " willfully and repeatedly" violated § 399b when it broadcast paid promotional messages on KMTP-TV from for-profit corporations such as State Farm, Chevrolet, and U-Tron Computers.3 7 FCC Rcd 15646 (2003). Minority was fined $10,000 by the FCC. 7 FCC Rcd 15646 (2003). Minority paid its $10,000 fine, but also filed a complaint in federal district court for the Northern District of California in which it sought both reimbursement of the $10,000 and declaratory relief. In relevant part, Minority alleged that § 399b violates the First Amendment because its restriction on advertising was not narrowly tailored to the government's interest in preserving the educational programs on public broadcast stations. Minority alleges that it has declined to broadcast public issue and political advertisements and would do so but for the fear of FCC fines and forfeitures similar to those previously imposed and paid. Minority contended § 399b is an unconstitutional content-based restriction on speech, because it bans all paid public issue and political speech while permitting paid promotional messages by non-profits.

In response, the government contended § 399b's restrictions on advertising are necessary to preserve the educational nature of public broadcast programming. The government contended that because advertisers naturally wish to reach the largest possible audience, advertisers are more likely to buy commercials on television programs with high numbers of viewers. Thus, the government contended, advertiser-supported television and radio stations have an incentive to broadcast programs with mass-market appeal. According to the government, if public television and radio stations became financially dependant on advertising, such stations would replace their niche educational programs with more popular programs which have greater mass-market appeal, thus endangering

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the broadcast of the educational programs for which public broadcast stations exist. See supra p. 872, n. 1.

After discovery, Minority and the FCC filed cross-motions for summary judgment on Minority's facial challenges to § 399b. The district court applied intermediate scrutiny to § 399b, and determined the prohibitions on advertising were narrowly tailored to meet the substantial government interest in maintaining educational programming on public stations.

Minority timely appealed the district court's grant of summary judgment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's grant of summary judgment. United States v. Alisal Water Corp., 431 F.3d 643, 651 (9th Cir.2005).

II. Determining What Level of Scrutiny Applies

As in all First Amendment cases, we must first determine the correct standard of scrutiny to apply to the challenged statute. Because First Amendment doctrine and the media landscape have changed substantially in recent years, this is no simple matter.

A. The Nature of the Restriction

At the threshold of the inquiry, we must determine whether this restriction is content based or content neutral. We have previously held that " whether a statute is content neutral or content based is something that can be determined on the face of it; if the statute describes speech by content, then it is content based." G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1071 (9th Cir.2006). Here, § 399b imposes clear content-based restrictions on the station's speech.

First, Minority may broadcast a wide variety of content for a wide variety of purposes, but the station may not air the three types of advertisements banned by § 399b. That is a content-based restriction, since it plainly restricts Minority's speech based on the speech's content.

Second, and equally important, § 399b discriminates within the class of speech it defines as " advertisements." Public broadcast stations may not broadcast most types of advertising speech, but these stations may broadcast paid promotional messages for products and services of nonprofit corporations. See 47 U.S.C. § 399b(a)(1). For example: the record shows that the FCC allowed a public broadcast station in Indiana to broadcast a paid message which promoted Planned Parenthood's " confidential, affordable reproductive health services" because Planned Parenthood " is a non-profit organization." Nonetheless, a public broadcast station may not broadcast a paid message " to express the views of any person with respect to any matter of public importance" or " to support or oppose any candidate for political office" regardless whether the sponsoring entity is an individual, a nonprofit corporation, or a for-profit corporation. 47 U.S.C. § 399b(a)(2) and (a)(3). Thus, had Planned Parenthood sought to air a paid message in support of Presidential candidates who favored abortion rights, or sought to broadcast an " issue ad" on the importance of sex education in schools, a public broadcast station would have been prohibited from airing it under § 399b(a)(2) and (a)(3). Indeed, in its letter to Planned Parenthood, the FCC specifically stated that its proposed message did not violate § 399b because it did not support any candidate for political office, nor express any views with respect to a matter of public importance. But, as shown, Planned Parenthood could advertise to promote itself.

Thus, § 399b prohibits a public broadcast station from broadcasting any advertisement

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which expresses views on a matter of public importance or on behalf of a political candidate regardless who...

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