Massachusetts Univ. Conv. v. Hildreth & Rogers Co., Civ. No. 8472.

• Decision Date: 22 December 1949
• Docket Number: Civ. No. 8472.
• Citation: 87 F. Supp. 822
• Parties: MASSACHUSETTS UNIVERSALIST CONVENTION v. HILDRETH & ROGERS CO.
• Court: U.S. District Court — District of Massachusetts

87 F. Supp. 822

MASSACHUSETTS UNIVERSALIST CONVENTION v. HILDRETH & ROGERS CO.

Civ. No. 8472.

United States District Court D. Massachusetts.

December 22, 1949.

Mayo Adams Shattuck, A. Ingham Bicknell, Hausserman, Davison & Shattuck, Boston, Mass., for plaintiff.

James A. Donovan, Lawrence, Mass., James Lawrence Fly, New York City, for defendant.

FORD, District Judge.

Plaintiff, a Massachusetts charitable corporation devoted to the diffusion of religious knowledge, brings this action for damages and an injunction against defendant, a Massachusetts corporation, engaged in the radio broadcasting business and duly licensed to operate a radio broadcasting station in Lawrence, Massachusetts, with the call letters WLAW.

The complaint alleges that the action arises under the Federal Communications Act of 1934, 47 U.S.C.A. § 151 et seq. It sets forth a contract under which defendant was to furnish its broadcasting facilities for a series of sermons prepared by plaintiff, the contract providing in paragraph 6(b) that "Broadcasts prepared by the agency are subject to the approval of the station both as to artists and to broadcast content." It is further alleged that pursuant to the contract plaintiff submitted to defendant the manuscript of one of these sermons to be given on Easter Sunday, April 17, 1949. This sermon expressed what is presumably the Universalist doctrine which does not accept the Resurrection of Christ as a physical and historical fact, but gives to the story of the Resurrection a purely metaphorical or spiritual significance. Plaintiff alleges that defendant refused to provide facilities for broadcasting this sermon, and that defendant in justification of its action claimed that the broadcast of this sermon on that particular day would, by reason of the religious views expressed, be shocking to general public sensibility, and that, therefore, the broadcasting of it would be a violation of defendant's duty under the Federal Communications Act to operate its station in the public interest. Plaintiff asks damages for the injury suffered by it and an order requiring defendant to provide facilities for the broadcast of the sermon on next Easter Sunday. Defendant has moved to dismiss for lack of jurisdiction and for failure to state a claim upon which relief can be granted.

It is clear that the complaint is not intended merely to assert a common law cause of action for breach of contract, over which this court would have no jurisdiction, since diversity of citizenship is not present here. Nor does it rely solely on the fact that the defendant may raise a defense to the action based on defendant's duty under the Federal Communications Act. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70. The claim made by the plaintiff is clearly predicated on the theory that, once its contract has been made, it has a positive right, arising under the Federal Communications Act and enforceable in this court, to have its sermon broadcast by the defendant. Whether or not the plaintiff's contention is correct, the complaint does squarely raise a question on the merits, the solution of which depends on the proper interpretation to be given a federal law. When such a question is thus raised by the complaint, and is not insubstantial and frivolous, nor immaterial and merely raised for the purpose of obtaining jurisdiction, then this court has jurisdiction over the action. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939. The complaint contains no allegation as to the amount in controversy, but this is not necessary since the case is one arising under a law regulating commerce. 28 U.S.C.A. § 1337. Weiss v. Los Angeles Broadcasting Co., 9 Cir., 163 F.2d 313, 314.

There remains the question of whether the complaint states a claim on which relief can be granted. Plaintiff's contention is that under the Communications Act the business of radio broadcasting is affected with a public interest and that, in consequence, contracts between the owner of a broadcasting station and persons seeking to broadcast are likewise affected with a public interest. Therefore, plaintiff urges that the Communications Act, in imposing on licensees a duty to broadcast in the public interest, by implication, confers on those contracting for broadcasting time a right, notwithstanding any contractual provisions for rejection of programs, to have their material broadcast except when the content of the broadcast is not in the public interest. This right, it is argued, is enforceable by an action in this court and it is for the court to decide whether or not a rejected program is in the public interest.

Such an interpretation of the Communications Act must be rejected. Certainly the Act does not expressly confer on anyone any right to broadcast any material at any time, whether or not it has a contract for such a broadcast. Nor does there seem to be any basis for an implication of such a right. There is nothing in the Act to indicate that the mere fact that one party to the contract is a licensee under the Act gives to...