Morrisseau v. Mt. Mansfield Television, Inc.

• Decision Date: 23 August 1974
• Docket Number: Civ. No. 74-212.
• Citation: 380 F. Supp. 512
• Parties: Dennis J. MORRISSEAU v. MT. MANSFIELD TELEVISION, INC., and Federal Communications Commission.
• Court: U.S. District Court — District of Vermont

380 F. Supp. 512

Dennis J. MORRISSEAU v. MT. MANSFIELD TELEVISION, INC., and Federal Communications Commission.

Civ. No. 74-212.

United States District Court, D. Vermont.

August 23, 1974.

Dennis J. Morrisseau, pro se.

Paul D. Sheehey, Burlington, Vt., for Mt. Mansfield Television, Inc.

David Reed, Asst. U. S. Atty., Rutland, Vt., for Federal Communications Commission.

OPINION and ORDER

OAKES, Circuit Judge, Sitting by Designation.

This case, on an application for a temporary restraining order, was heard before the undersigned as acting United States District Judge for the District of Vermont on August 22, 1974, at Brattleboro, Vermont, with the plaintiff appearing pro se and defendants represented by counsel. Evidence was presented by plaintiff, certain stipulations were entered into, and a motion to dismiss for lack of jurisdiction was made orally at the time of hearing by defendants jointly. The motion for a temporary restraining order is denied, and the motion to dismiss for lack of jurisdiction is granted, with leave to plaintiff to amend his complaint within ten days from the date hereof, if he so desires.

Plaintiff's complaint, filed in the United States District Court on August 19, 1974, in its own words "arises under the United States Constitution and under the laws of the United States," including particularly 47 U.S.C. §§ 312(a)(7) and 315(a), the so-called equal time provisions of the Federal Communications Act. Plaintiff makes no claim of violation of the "fairness doctrine," so-called, as that doctrine was upheld in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L. Ed.2d 371 (1969), in that he does not say that there have been editorials or personal attacks against him to which he would be entitled to reply on WCAX-TV free time. Nor does he claim that WCAX-TV must provide coverage to the primary campaign. Rather, plaintiff claims that political campaigns are controversial per se and that once a station accepts an advertisement from one candidate it must provide some amount of "balancing" exposure to those candidates who cannot afford television advertisements. Such coverage might take the form, he suggested, of offering free time to all candidates, thus avoiding favoring only a few candidates with free time.

Under the § 312(a)(7) or § 315 equal time sections of the Communications Act, 47 U.S.C. §§ 312(a)(7), 315, the constitutionality of which was upheld in Farmers Educational & Cooperative Union v. WDAY, Inc., 360 U.S. 525, 79 S. Ct. 1302, 3 L.Ed.2d 1407 (1959), plaintiff does not claim that he has been denied access to paid advertising time or that any of his several opponents has been provided access to free time. Rather, repeating the reasoning above, the gist of his complaint is that because plaintiff is without the means to afford paid advertising, he (and other candidates) should be given free time, perhaps in a forum type format, to offset advantages accruing to his opponents better able than he to pay for advertising. So saying he attacks in this action the station's refusal to provide him (and other candidates) with free time and the FCC staff's refusal — still subject to appeal to the full Commission — to order the station to do so.

As such for the reasons stated below in Part I, he has brought his action before exhausting administrative remedies and in the wrong court. His complaint also contains a prayer for a temporary restraining order against the defendants "to prevent the broadcast over WCAX of paid-for political advertisements of candidates for Representative to Congress until such time as Defendants shall make available to all candidates for said office such air time as will fairly balance said paid-for advertisements, said time to take whatever form and to be made available in whatever amounts as to this Court shall seem appropriate." Because there is no jurisdiction in this court it might be unnecessary to decide this motion, but in the interests of judicial economy, in the event the dismissal for lack of jurisdiction is appealed, or a restraining order pending appeal is sought, the motion is denied and the reasons for denial are set forth in Part II.

PART I. LACK OF JURISDICTION.

The oral motion to dismiss the action is granted. First, the action is untimely. Plaintiff has not exhausted his administrative remedies. The full Commission has yet to act. Plaintiff was advised by letter from the FCC staff dated August 13, 1974 (Ex. 6) that application for review of staff action refusing to order the station to provide time by the full Commission was available and could be made within 30 days. While plaintiff urges that there is but short time to the primary, his application to the FCC could have been made some time ago. The full Commission is quite capable of acting quickly, when called upon to do so. Failure to exhaust administrative remedies precludes judicial relief. Spanish International Broadcasting Co. v. FCC, 128 U.S.App. D.C. 93, 385 F.2d 615 (1967).

Presumably plaintiff would argue that such an appeal to the full Commission would be futile, so that such exhaustion is unnecessary. Ibid. See 3 K. Davis, Administrative Law Treatise § 20.03. The futility argument would be based on the Commission's own ruling in In re Spock, 44 F.C.C.2d 12 (1973), which affirmed a position previously taken in the public notice of March 16, 1972, entitled "Use of Broadcast and Cablecast Facilities by Candidates for Public Office," 37 Fed.Reg. 5796, that the provisions of § 312(a)(7) of the Communications Act, 47 U.S.C., require commercial stations "either to provide reasonable amounts of free time or to permit the purchase of reasonable amounts of time; they are under no obligation to afford both . . . . Legislation designed to require licensees to provide candidates with free time has not been enacted." 44 F.C.C.2d at 20. This position is not, plaintiff would argue, a new one with the Federal Communications Commission, but is one that it basically adopted in the so-called Zapple ruling, FCC letter to Nicholas Zapple, Communications Counsel, Senate Committee on Commerce, 23 F.C.C.2d 707 (1970), where in effect it was said that an imbalance in the financial resources of candidates could, in the public interest, give rise to an imbalance in their use of broadcast facilities. See generally Columbia Broadcasting System, Inc. v. FCC, 147 U.S.App.D.C. 175, 454 F.2d 1018, n. 22 (1961) and accompanying text. The full Commission, however, might be persuaded to change its mind — it has done so often before, as for example in connection with the rules relating to prime time access. In any event, it should be able to give him prompt review of the staff action.

But even if plaintiff's application for review would be futile and the exhaustion of remedies doctrine hence inapplicable, there is no jurisdiction in the federal district court to hear this case. Any proceeding to enjoin, set aside, annul or suspend any order of the Federal Communications Commission must under 47 U.S.C. § 402 be taken either to the Court of Appeals for the District of Columbia or the Court of Appeals in which one of the parties resides (here the Second Circuit Court of Appeals) in accordance with the provisions of that section and with the provisions of 28 U.S.C. § 2342. Under § 2342 "The court of appeals has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of (1) all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47; . . . ." (emphasis supplied). Thus even though plaintiff alleges that his claim is based on the United States Constitution, it is an order of the Commission (here of its staff, as aforesaid) denying him relief of which he complains. Here he does not complain of the lack of validity or constitutionality of the equal time or other underlying statutes governing the Commission: Paragraph 10 of his complaint, for example, alleges that "the hereinbefore described acts, actions, rulings, and ommissions sic of Defendants WCAX and the FCC are, all of them, contrary to law and the United States Constitution . . ." because they "establish, in effect, a means test for achieving federal office . . . ."

PART II. DENIAL OF MOTION FOR TEMPORARY RESTRAINING ORDER.

But even if this court had jurisdiction, it would deny a temporary restraining order. Temporary relief is an extraordinary...