United States FCC v. SUMMA CORP., ETC.

• Citation: 447 F. Supp. 923
• Decision Date: 22 March 1978
• Docket Number: Civil No. LV-76-53 BRT.
• Parties: UNITED STATES of America FEDERAL COMMUNICATIONS COMMISSION, Plaintiff, v. SUMMA CORPORATION, LAS VEGAS, NEVADA, Licensee of KLAS-TV, Defendant.
• Court: U.S. District Court — District of Nevada

447 F. Supp. 923

UNITED STATES of America FEDERAL COMMUNICATIONS COMMISSION, Plaintiff, v. SUMMA CORPORATION, LAS VEGAS, NEVADA, Licensee of KLAS-TV, Defendant.

Civil No. LV-76-53 BRT.

United States District Court, D. Nevada.

March 22, 1978.

Michael H. Cohn, Atty., Civ. Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff.

Hogan & Hartson, Edgar W. Holtz and Gardner F. Gillespie, Washington, D. C., for defendant.

ORDER

BRUCE R. THOMPSON, District Judge.

The government instituted this action to recover a $500.00 forfeiture assessed by the Federal Communications Commission (FCC) against Summa Corporation, licensee of KLAS-TV, Las Vegas, Nevada, for what the FCC found was a "repeated" violation of the equal opportunities provisions of the Communications Act of 1934. 47 U.S.C. §§ 315 and 503. Both parties have moved for summary judgment.

This case is set against the backdrop of the 1972 Democratic primary, in which James Bilbray defeated long-time Congressman Walter Baring's bid for re-election to the Nevada at-large Congressional seat. Election day was September 5, 1972. In July, Mr. Bilbray purchased a series of 30-second spots from KLAS-TV. Then, and at other times thereafter, Mark Smith, station manager of KLAS-TV, contacted James Rosner, Congressman Baring's advertising manager, urging him to purchase comparable spots. For strategy reasons, Rosner declined.

As the election approached, Rosner recanted his earlier position. On August 24th he called KLAS-TV, requesting spot availabilities to run from September 1st to September 4th, election eve. On August 25th, the station supplied its list of availabilities. Dissatisfied with the list submitted, Rosner met with station personnel on August 28th. Rosner requested additional time slots for August 31st. This request was honored and, in an effort to accommodate Rosner's other demands, the station agreed to preempt several of its commercial advertisers. Rosner was still dissatisfied and on August 29th he sent a telegram to Mr. Smith, formally demanding "equal opportunities as defined by the Federal Communications Commission under Section 315 of the Communications Act of 1934, in reference to James Bilbray."

After the election, Rosner complained to the FCC, which issued a Notice of Apparent Liability for "willful or repeated" violation of section 315. Summa protested and further proceedings were had. FCC regulations provide that "a request for equal opportunities must be submitted to the licensee within 1 week of the day on which the first prior use, giving rise to the right of equal opportunities, occurred." 47 C.F.R. § 73.657(e) (1976). Relying on this "Seven-Day Rule," the FCC concluded that Congressman Baring should have been granted as many spots as Mr. Bilbray had aired in the week preceding Rosner's August 29th demand. It further held that Congressman Baring was entitled, in addition, to as many spots as were scheduled to run on behalf of Mr. Bilbray from August 29 — September 4. Compare Use of Broadcast Facilities by Candidates for Public Office, 35 Fed.Reg. 13048, 13067 at Q & A IX. 5. (1970). Taking August 22 — September 4 as the critical period, the FCC found that Summa had "repeatedly" violated section 315 of the Act, affording Mr. Bilbray a total of twenty-seven class "A" and "AA" spots while giving Congressman Baring only twenty. The fact that, measured from August 31 — September 4, Congressman Baring received nine more spots than did Mr. Bilbray, was held immaterial.

A forfeiture of $500.00 was assessed. Summa refused to pay and the government instituted this action pursuant to 47 U.S.C. § 504, which provides for a trial de novo in district court in cases involving disputed FCC forfeiture orders. Jurisdiction is conferred by 28 U.S.C. § 1355.

It follows from the grant of trial de novo jurisdiction to the district courts that this court is not limited to a review of the administrative record before the FCC, nor do the findings and conclusions of the Commission in this case carry any weight whatsoever. Pleasant Broadcasting Co. v. F. C. C., 564 F.2d 496 (D.C.Cir.1977); United States v. Daniels, 418 F.Supp. 1074 (D.S.D. 1976). The words "de novo" mean that "the court should make an independent determination of the issues." United States v. First City National Bank of Houston, 386 U.S. 361, 368, 87 S.Ct. 1088, 1093, 18 L.Ed.2d 151 (1967). Cf. United States v. Daniels, supra. Such full de novo review is quite appropriate in this sort of case inasmuch as the Commission is both prosecutor and judge in forfeiture proceedings under 47 U.S.C. § 503.

In this case the issues were framed by a "written notice of apparent liability" served by the Commission. This is a lengthy letter dated August 21, 1973, which purports to state in detail the factual background for the charge and concludes that "it would appear that your failure to fully honor complainant's requests for `equal opportunities' on Mr. Baring's behalf constituted a willful or repeated violation of section 315a of the Communications Act of 1934 as amended." Thus the issues are: (1) did defendant fail to afford equal opportunities; (2) did the defendant do so willfully; or (3) did defendant do so repeatedly, and (4) was the penalty assessed appropriate.

Summa has propounded numerous theories in support of its motion for summary judgment. Chiefly it contends that no "repeated" violation within the meaning of 47 U.S.C. § 503(b)(1)(B) occurred and that there is thus no statutory basis for the imposition of a forfeiture. Three arguments are advanced to support this contention: that no "repeated" violation of section 315 can occur with respect to one candidate in one election; that no "repeated" violation can be found here since Rosner made only one demand for equal opportunities; and finally, that no violation is "repeated" unless persisted in after Commission warning.¹ The government counters by contending that each day a broadcaster persists in its refusal to honor an equal opportunities request a new and therefore "repeated" violation occurs.

Each of these arguments seems predicated on a common misunderstanding of the interplay between 47 U.S.C. §§ 315 and 503. Section 503 is strictly remedial, authorizing the FCC to impose forfeitures for a wide array of Communications Act violations:

"(b)(1) Any licensee or permittee of a broadcast station who —

"(A) willfully or repeatedly fails to operate such station substantially as set forth in his license or permit,

"(B) willfully or repeatedly fails to observe any of the provisions of this chapter or of any rule or regulation of the Commission prescribed under authority of this chapter or under authority of any treaty ratified by the United States,

"(C) fails to observe any final cease and desist order issued by the Commission,

"(D) violates section 317(c) or section 509(a)(4) of this title 47 USCS §§ 317(c), 509(a)(4), or

"(E) violates section 1304, 1343, or 1464 of title 18, of the United States Code 18 USCS §§ 1304, 1343, 1464,

shall forfeit to the United States a sum not to exceed $1,000. Each day during which such violation occurs shall constitute a separate offense. Such forfeiture shall be in addition to any other penalty provided by this chapter."

47 U.S.C. § 503(b)(1) (emphasis added). The provision that each day a violation continues constitutes a "separate offense" is ambiguous, and arguably admits of the government's construction that a single violation is "repeated" merely because persisted in for several days. However, the House Report accompanying proposed section 503 states:

"This statute would amend the Act to authorize the Commission to impose forfeitures on licensees and permittees of broadcast stations of up to $1000 a day for certain violations."

H.R.Rep.No.1800, 2 U.S.Code Cong. & Admin.News, pp. 3516, 3525 (1960) (emphasis added). This statement suggests that the "separate offense" provision should be read as modifying only the sentence which precedes it, affecting the amount of forfeiture and not the substantive violations for which a forfeiture can be assessed. That a violation continued for several days thus does not, eo ipso, render it "repeated." Compare 47 U.S.C. § 503(b)(1) with id. § 312(a)(4) (source of "willful or repeated" contains no "per day" provision).

Whether a "repeated" violation occurred depends instead on the statute whose substantive provisions are alleged to have been breached, in this case, 47 U.S.C. § 315:

"(a) 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 . . .

. . . . .

"(d) The Commission shall prescribe appropriate rules and regulations to carry out the provisions of this section."

Pursuant to its delegated authority, the FCC has defined a "use" giving rise to a right of equal opportunities as any broadcast appearance by a legally qualified candidate, "no matter how brief or perfunctory." Use of Broadcast Facilities by Candidates for Public Office, 35 Fed.Reg. at 13050, Q & A III.B.3. A broadcaster who allows a candidate to make an appearance for which equal opportunities are denied his opponents violates section 315. If he permits more than one such appearance, he potentially commits a "repeated" violation.

The purpose of section 315 is "to require a broadcaster to treat equally all candidates for a particular office or nomination once the broadcaster has made his facilities available to any one of the candidates." Paulsen v. FCC, 491 F.2d 887, 889 (9th Cir. 1974). Campaigns are conducted over a short period of time. Radio and television play an increasingly important role in the political process. Although complaints are given priority consideration an aggrieved candidate will rarely be able to set FCC machinery in motion to compel meaningful compliance with the Act. See Derby...