Levitch v. Columbia Broadcasting System, Inc.

• Decision Date: 23 July 1980
• Docket Number: No. 78 Civ. 4264 (KTD).,78 Civ. 4264 (KTD).
• Citation: Levitch v. Columbia Broadcasting System, Inc., 495 F.Supp. 649 (S.D. N.Y. 1980)
• Parties: Joel LEVITCH et al., Plaintiffs, v. COLUMBIA BROADCASTING SYSTEM, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

495 F. Supp. 649

Joel LEVITCH et al., Plaintiffs, v.COLUMBIA BROADCASTING SYSTEM, INC., et al., Defendants.

No. 78 Civ. 4264 (KTD).

United States District Court, S. D. New York.

July 23, 1980.

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Rabinowitz, Boudin, Standard, Krinsky & Lieberman, New York City, for plaintiffs; Eric M. Lieberman, Jules Lobel, Ellen J. Winner, Emily M. Bass, New York City, of counsel.

Lewis Kornhauser, Cravath, Swaine & Moore, New York City, for defendant, CBS, Inc.; Robert S. Rifkind, Robert D. Joffe, Jeffrey S. Facter, John D. Appel, Ralph E. Goldberg, Allen Y. Shaklan, Francesca Macartney Beale, New York City, of counsel.

Cahill Gordon & Reindel, Jay E. Gerber, Associate Gen. Counsel, Stephen F. Stander, Asst. Gen. Atty., New York City, for defendantNational Broadcasting Co., Inc.; Floyd Abrams, Robert Usadi, Dean Ringel, New York City, of counsel.

Hawkins, Delafield & Wood, New York City, for defendantAmerican Broadcasting Companies, Inc.; Philip R. Forlenza, W. Cullen MacDonald, June R. Grasso, New York City, of counsel.

Bergson, Borkland, Margolis & Adler, Washington, D. C. for defendantAmerican Broadcasting, Inc. & WABC-T.V.

OPINION

KEVIN THOMAS DUFFY, District Judge:

This action was commenced by 26 independent film producers and directors against the three national broadcasting networks, Columbia Broadcasting System, Inc."CBS", the National Broadcasting Company, Inc."NBC", and the American Broadcasting Companies, Inc."ABC", hereinafter collectively referred to as the "network defendants", and their New York licensed television stations, WCBS, WNBC and WABC, hereinafter collectively referred to as the "station defendants".The complaint, as amended, charges the network and station defendants with various antitrust as well as fundamental constitutional violations and seeks monetary and injunctive relief.

I.Parties and Background of this Action

The network defendants have been denominated by plaintiffs as the sole "national broadcasting systems" operating in the United States.In fact, the network defendants own and operate commercial television stations in only five of the nation's major cities—New York, Los Angeles, Chicago, Philadelphia and St. Louis—and collectively reach only 23 percent of the television viewing public.¹

In order to reach the balance of the national viewing public, each of the network defendants depends upon the transmission of their programs, and advertisement messages, over local television stations.These local stations are independent television stations in that they are neither owned nor operated by any of the network defendants.They are located in cities other than those in which the network defendants own and operate stations.In part, these local stations air local programs, including locally produced news and documentaries, throughout their limited viewing area.However, through affiliation agreements with the network defendants, these local or affiliate stations have access to those programs, entertainment, news and documentaries, transmitted by CBS, NBC and ABC.In return, the network defendants have a national network of affiliates through which they are able to air their programs and, more importantly to them, the advertising messages of those sponsoring these programs.

Each of the network defendants have adopted a policy whereby they produce their own news and documentary programs.Only these in-house productions are aired by their own stations and offered by the network defendants to their affiliates for transmission.

The plaintiffs, a group of independent documentary producers-directors, take exception to the networks' policies of only using documentary programs which have been produced in-house.They charge that this policy of in-house production was the result of an agreement among the network defendants and/or their affiliates which was calculated to freeze the independent producers-directors out of the documentary film market and thereby monopolize this lucrative market for themselves.In addition, plaintiffs allege numerous other antitrust violations resulting from defendants' policy of in-house production.Finally, plaintiffs charge that by denying the independents access to the network—owned stations, as well as to their affiliates, the defendants have unconstitutionally abridged plaintiffs' First Amendment rights.

The defendants have moved, pursuant to Fed.R.Civ.P. 12(b), to dismiss the amended complaint in its entirety on the ground that it fails to state a claim upon which relief can be granted.In the alternative, the defendants have requested that I stay the instant proceedings and order the parties to litigate their differences before the Federal Communications Commission—an administrative and regulatory body legislatively charged with general supervisory powers over the broadcasting industry, hereinafter referred to as the "FCC" or the "Commission".Plaintiffs, quite predictably, oppose the motion to dismiss as well as any stay of the instant proceeding pending FCC action.

By order dated April 14, 1980, I informed the parties that due to the nature of the claims before me, I intended to treat defendants' motion as one to dismiss or, in the alternative, as one for summary judgment.The parties were granted an opportunity to submit additional papers with respect to the motion for summary judgment.

Plaintiffs' amended complaint purports to state seven independent claims for relief.Upon closer analysis, however, it is quite apparent that plaintiffs have woven numerous theories of recovery into each claim.For example, plaintiffs' second claim charges defendants with violating § 2 of the Sherman Act,15 U.S.C. § 2,§ 3 of the Clayton Act,15 U.S.C. § 14, as well as combining to infringe plaintiffs' First Amendment rights in violation of 42 U.S.C. § 1985.

As a result of this hopeless jumble of claims and theories of recovery, I am unable to treat each claim separately.Rather, I must address each of plaintiffs' theories of recovery in order to bring a semblance of cohesion to this otherwise confused and rambling complaint.

II.Plaintiffs' First Amendment Claims

I turn first to consider the constitutional claims asserted by plaintiffs.When stripped of its hyperbole, plaintiffs' First Amendment claim, inextricably woven into their antitrust claims, charges that by virtue of defendants' concerted efforts to exclude them from the lucrative documentary film market, defendants have denied them "access" to the national broadcasting systems.As part and parcel of this claim, plaintiffs charge that by denying them access to the national networks, the defendants have conspired to interfere with plaintiffs' civil rights in violation of 42 U.S.C. § 1985(3).

Although far from a novel legal theory, see, e. g., Columbia Broadcasting Systems, Inc. v. Democratic National Committee,412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772(1973), plaintiffs have added a new twist to their "denial of access" claim by simultaneously charging a host of antitrust allegations.Nonetheless, I will endeavor to keep my sights fixed upon the First Amendment claim and not succumb, at least at this juncture, to the tangled antitrust web plaintiffs have attempted to weave around it.

In response to plaintiffs' denial of access claim, defendants charge that their conduct, even if accurately alleged, is itself protected by the First Amendment.In particular, they urge that the decisions of the network defendants to produce their own news and documentary programs in-house, is the very essence of a broadcaster's editorial prerogative.That is to say, it is one of many methods employed by the networks to pick and choose which news and documentary programs are to be transmitted over the necessarily limited air time allocated to these types of programs.They conclude that by requiring defendants to accept plaintiffs' documentary programs, which is in essence the relief plaintiffs seek, this Court will not only be usurping defendants' fundamental editorial authority, but will also be conducting a wholesale restructuring of the concept of broadcast journalism —a task properly left, in the first instance, to the FCC.

There can be no doubt that competing First Amendment rights obtain in the case at bar.On the one hand, the network defendants should be free to transmit the news and documentary programs they choose, despite the fact that these programs may have been created exclusively in— house.Likewise, plaintiffs must certainly be free to produce, direct and offer for sale, their own "public affairs" or documentary programs.However, the question remains whether a court, absent action by the FCC, should compel the purchase of independently produced documentary programs by the national networks.

I think this question demands a negative response.To be sure, a contrary result would indeed twist the First Amendment beyond recognition.

The First Amendment's guarantee of free speech is certainly one of the cornerstones of our free society.Thus, when faced with competing First Amendment rights, a court must tread carefully in balancing the competing interests—ever guarding against the infringement of genuine and concrete fundamental constitutional interests at the expense of vindicating abstract interests.

The courts have long recognized that "the broadcast media pose unique and special problems not present in the traditional free speech case."Columbia Broadcasting v. Democratic Committee, supra, at 101, 93 S.Ct. at 2086, citing, Red Lion Broadcasting Company v. FCC,395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371(1969).To be sure, the broadcasting media, unlike other medias, is subject to certain limitations by virtue of the paucity of broadcasting frequencies available in relation to those desirous of broadcasting.And, as a result, "there is also present an unusual order of First Amendment values."Columbia...