Belluso v. Turner Communications Corp.

• Decision Date: 22 December 1980
• Docket Number: No. 79-1799,79-1799
• Citation: 633 F.2d 393
• Parties: 6 Media L. Rep. 2355 Nick BELLUSO, Plaintiff-Appellant, v. TURNER COMMUNICATIONS CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 393

633 F.2d 393

6 Media L. Rep. 2355

Nick BELLUSO, Plaintiff-Appellant, v. TURNER COMMUNICATIONS CORPORATION, Defendant-Appellee.

No. 79-1799.

United States Court of Appeals Fifth Circuit.

Dec. 22, 1980.

Lloyd E. N. Hall, Atlanta, Ga., for plaintiff-appellant.

J. Kirk Quillian, Alan E. Lubel, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY, HILL and FAY, Circuit Judges.

RONEY, Circuit Judge:

This appeal presents two issues which have not previously been addressed by this Court. We are asked to decide, first, whether a gubernatorial candidate who is denied the use of broadcast facilities in violation of the equal opportunity provisions of the Federal Communications Act (Act), 47 U.S.C.A. § 315(a), has an implied private cause of action for damages under the statute and, second, whether such a denial of access to the broadcast media constitutes an actionable violation of the First Amendment. Because both inquiries must be answered negatively, we affirm the district court's dismissal of the complaint.

FACTS

Because the action was dismissed for failure to state a claim upon which relief can be granted, the facts as alleged in the complaint must be accepted as true on this appeal. Plaintiff Belluso was a legally qualified candidate for governor of Georgia in the 1978 Democratic primary. He contacted television station WTCG-TV in Atlanta seeking commercial broadcast time for political advertising before the primary. Although he did not so allege, we assume the facts would disclose that other legally qualified candidates for governor were sold broadcast time by this commercial station. Belluso informed the station, however, that he planned to use hypnotic techniques in his advertisement.

WTCG, concerned about the use of such techniques, sought to obtain from the Federal Communications Commission (Commission) an exemption from any obligation to provide the airtime requested. The Commission refused to rule on the question, indicating the station would have to make the initial decision whether to allow Belluso to use its broadcast facilities. The station determined not to air the proposed commercial. Its decision received considerable local and national media attention and was followed by several other television stations.

Without pursuing any administrative remedies or equitable relief, Belluso, alleging injury to his candidacy and reputation, filed an action for damages against defendant Turner Communications Corporation, the licensee of station WTCG, for violation of 47 U.S.C.A. § 315(a) and the First Amendment. On defendant's motion, the district court dismissed the suit, holding that section 315(a) creates no private cause of action for damages and that no governmental action was involved which would give rise to a First Amendment violation.

Action Based on Statute

Section 315(a) essentially requires that all qualified candidates for public office shall be given equal opportunity for use of broadcasting facilities. The statute provides in relevant part:

If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate.

47 U.S.C.A. § 315(a).

On the motion to dismiss the complaint, the court must assume without deciding, first, that defendant was required under the statute to air plaintiff's political advertisement; second, that the use of hypnotic techniques did not take the advertisement outside the protection of the statute; and, third, that plaintiff could prove monetary damages with the requisite degree of certainty. Because Belluso has only sought damages in this suit, we do not decide whether, assuming a violation, a candidate could obtain equitable relief from the courts and, if so, whether exhaustion of administrative remedies would be required as a prerequisite to relief.

The Federal Communications Act does not expressly authorize suits to recover damages for violations of section 315(a) by broadcast licensees. The question, then, is whether such a private damages remedy can be implied under the Act. To our knowledge, the majority of courts to consider the question have held that no such remedy can be inferred from the Act. See Daly v. Columbia Broadcasting System, Inc., 309 F.2d 83 (7th Cir. 1962); Smothers v. Columbia Broadcasting System, Inc., 351 F.Supp. 622 (D.C.Cal.1972); Ackerman v. Columbia Broadcasting System, Inc., 301 F.Supp. 628 (S.D.N.Y.1969); Gordon v. National Broadcasting Co., 287 F.Supp. 452 (S.D.N.Y.1968); but compare Reitmeister v. Reitmeister, 162 F.2d 691 (2d Cir. 1947) (implying a private cause of action for unauthorized publication of a telephone conversation in violation of 47 U.S.C.A. § 605); Lorentz v. Westinghouse Electric Corp., 472 F.Supp. 946 (W.D.Pa.1979) (implying a private cause of action for violation of the personal attack rule, 47 C.F.R. § 73.123). The case is one of first impression in this Circuit.

In determining whether plaintiff has an implied private cause of action, we are guided by a series of Supreme Court cases which outline the role of the courts in inferring private remedies under federal statutes. The collective teaching of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), and its progeny, Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), is that the task before the Court is a limited one. The Court is not to determine whether allowing a private remedy to redress a statutory violation would be practical or desirable, but only to determine, as a matter of statutory construction, whether Congress intended at the time it enacted the statute to create the private remedy asserted. Cannon, 441 U.S. at 688, 99 S.Ct. at 1953; Transamerica Mortgage Advisors, Inc., 444 U.S. at 15-16, 100 S.Ct. at 245; Rogers v. Frito-Lay, Inc., 611 F.2d 1074, 1078 (5th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 246, 66 L.Ed.2d 115 (1980). It is assumed without examination, in light of a broadcaster's First Amendment rights, that Congress could have provided a damage remedy if it had chosen to do so.

The basis for inferring a private right of action from a statute not expressly providing one is a finding by the court that Congress intended to create such a remedy. Touche Ross & Co., 442 U.S. at 568, 99 S.Ct. at 2485; United States v. Capeletti Brothers, Inc., 621 F.2d 1309, 1312 (5th Cir. 1980). "(T)he fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person." Cannon, 441 U.S. at 688, 99 S.Ct. at 1953.

In Cort v. Ash, the Supreme Court outlined four considerations which are relevant in determining whether a private remedy is implicit in a statute not explicitly providing one. These are (1) whether the statute creates a federal right in favor of the plaintiff; (2) whether there is any indication of legislative intent, explicit or implicit, either to create or deny such a remedy; (3) whether it would be consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff; and (4) whether the cause of action is one traditionally relegated to state law. 422 U.S. at 78, 95 S.Ct. at 2088. Subsequent cases make clear that these factors are not to be applied in a rigid or mechanical manner. They are merely guides which may shed light on what Congress intended. In any given case one or more factors may point in favor of implication of a private cause of action, yet another may be so persuasive of legislative intent to deny such a remedy as to be dispositive. See Smith v. Cotton Brothers Baking Co., 609 F.2d 738 (5th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 79, 66 L.Ed.2d 23 (1980).

With these considerations in mind, we begin our analysis with the language of the statute in question. An examination of this language provides answers regarding two of the factors outlined in Cort. Section 315(a) imposes certain obligations on broadcast licensees as part of a comprehensive scheme regulating the broadcast industry. The field is pre-empted by federal law and the cause of action clearly is not one traditionally relegated to state law. Moreover, although the Federal Communications Act was enacted primarily for the protection of the public interest in telecommunications, and not to create new private rights, Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 14, 62 S.Ct. 875, 882, 86 L.Ed. 1229 (1942), the obvious thrust of section 315(a) is to protect bona fide candidates for public office from discrimination and unfair advantage in the use of broadcast facilities. Flory v. FCC, 528 F.2d 124 (7th Cir. 1975); Paulsen v. FCC, 491 F.2d 887 (9th Cir. 1974). By imposing an affirmative duty on broadcast licensees to afford equal opportunities to all qualified candidates in the use of broadcast facilities, the statute can be read as conferring a federal right in favor of candidates in plaintiff's position.

While the existence of a federal right in favor of the plaintiff is some evidence of congressional intent, it normally is not conclusive evidence that Congress intended to provide the specific remedy asserted by the plaintiff to vindicate that right. Therefore, it is necessary to look for other clues of legislative intent. Here, as in most cases where the statute neither expressly creates nor...