The opinion of the court was delivered by: BARTELS
C.W. Post Center, a division of Long Island University, operates two radio stations, one a non-commercial educational radio station WCWP-FM, licensed by the Federal Communications Commission (Commission), and the other a non-licensed carrier current radio station WCWP-AM. On November 30, 1970 the defendants closed both stations and discharged Steven A. Post, the director of the stations, because of alleged obscenities broadcast during the airing on November 13th and November 27th, 1970, of a program entitled "Satiricon -- or a Tree Grows in Brookville" and the threat such broadcast posed to the station's license.
From this action the plaintiffs seek immediate relief in the nature of a permanent injunction against the closing of the radio stations, a declaratory judgment declaring the defendants' actions unconstitutional, damages in the amount of $113,000 in favor of the director of the radio stations by virtue of his summary discharge and, pending the determination of the ultimate issues, a temporary restraining order and preliminary injunction directing the defendants to promptly resume broadcast operations and restore said stations to their normal operating schedules.
The plaintiffs are Steven A. Post, certain members of the radio staff, student listeners, faculty listeners and community listeners, who, except for Post, bring this action as a class action on behalf of themselves and those similarly situated. The defendants are the president of C.W. Post Center, the dean of the Fine Arts Division at C.W. Post Center, the chairman of the Drama Department at C.W. Post Center, and the chairman and members of the board of trustees of the Long Island University, who are accused of concerted action in suspending the broadcast operations of the radio stations and discharging the director.
Plaintiffs allege that the actions of the defendants violate their right of free speech under the First and Fourteenth Amendments to the Constitution, constitute a prior restraint on the exercise of such rights, violate their rights to equal protection of the laws, "chill" the exercise of their rights of free speech, association and assembly, and damage the reputation of plaintiff Post in the amount of $100,000 and deprive him of his salary in the amount of $13,000.
Jurisdiction is invoked pursuant to 47 U.S.C. Chap. 5 (Communications Act of 1934); 28 U.S.C. §§ 1331, 1337, 1343(3) and (4), 2201-2202, 2281 and 2284; 42 U.S.C. § 1981 et seq., and the Constitution of the United States and, more particularly, the First and Fourteenth Amendments thereto. The amount in controversy is alleged to exceed $10,000.
With the filing of the complaint plaintiffs moved for a temporary restraining order, and the defendants countermoved pursuant to Rule 12(b)(1) and (6), Fed. R. Civ. Proc., 28 U.S.C., to dismiss the complaint for lack of jurisdiction over the subject-matter and for failure to state a claim upon which relief can be granted.
Having denied plaintiffs' motion for a temporary restraining order for reasons stated in its memorandum of December 29, 1970, the court turns to an examination of the complaint pursuant to the defendants' motion to dismiss.
Federal Communications Act
The complaint, as amended, asserts jurisdiction under 28 U.S.C. § 1337
by reason of a violation of the Communications Act of 1934 (Act). There is little question that this court has such jurisdiction. Weiss v. Los Angeles Broadcasting Co., 163 F.2d 313 (9th Cir. 1947), cert. denied, 333 U.S. 876, 68 S. Ct. 895, 92 L. Ed. 1152 (1948); Ackerman v. Columbia Broadcasting System, Inc., 301 F. Supp. 628 (S.D.N.Y. 1969); Massachusetts Universalist Convention v. Hildreth & Rogers Co., 87 F. Supp. 822 (D. Mass. 1949), aff'd, 183 F.2d 497 (1st Cir. 1950). See Murphy v. Colonial Federal Savings and Loan Association, 388 F.2d 609 (2d Cir. 1967).
While a jurisdictional basis has been thus alleged, the complaint fails to set forth any specific provision of the Act which has been violated by the defendants. Section 312(a) and (b) of the Act, although not mentioned by the plaintiffs, provides that the Commission may revoke the license of any broadcaster who wilfully and repeatedly fails to operate his station substantially as set forth in his license or, in the alternative, order him to cease and desist from such action. Assuming that one could spell out from the complaint a violation of the Act by the failure of the defendant-trustees to comply with the terms and conditions set forth in their license, the remedy would nevertheless lie with the Commission and not in the district courts. But plaintiffs make no pretense that they sought relief from the Commission or that they have been prevented from so doing by lack of standing. It is clear that the Act created no new private rights nor afforded persons in plaintiffs' position a right to institute an action in the district courts (Scripps-Howard Radio v. Federal Communications Commission, 316 U.S. 4, 14, 62 S. Ct. 875, 86 L. Ed. 1229 (1942); Ackerman v. Columbia Broadcasting System, Inc., supra; Daly v. Columbia Broadcasting System, Inc., 309 F.2d 83, 86 (7th Cir. 1962)), the Commission being charged with its enforcement and providing the exclusive forum in which alleged violations may be vindicated. Gordon v. National Broadcasting Company, 287 F. Supp. 452 (S.D.N.Y. 1968); Nelson v. Leighton, 82 F. Supp. 661 (N.D.N.Y. 1949).
Consequently, the complaint fails to set forth a claim upon which relief can be granted under the Act.
Plaintiffs also invoke as a jurisdictional basis for this action 28 U.S.C. § 1343(3) and (4). Subsection (3) confers jurisdiction upon the court in actions to redress the deprivation under color of State law of any right, privilege, or immunity secured by the Constitution of the United States or by any act of Congress providing for equal rights. Subdivision (4) confers jurisdiction for private actions under any act of Congress providing for the protection of civil rights, including the right to vote. Plaintiffs assert that the defendants have deprived them of their constitutional rights under 42 U.S.C. §§ 1983, 1985, 1986 and 1988, which sections will be considered seriatim. Section 1983 authorizes a civil action against any person who under color of State law deprives another of any rights, privileges, or immunities secured by the Constitution and laws. The complaint, however, does not allege that the defendants acted under color of State law nor, upon analysis, can we find any factual allegations which would justify an inference that the defendants, in committing the acts complained of, acted under color of State law. The pertinent portion of Section 1985 provides a remedy for persons injured by a conspiracy to deprive them of equal protection of the laws. This provision has been interpreted by the cases to require a showing of State action or action under color of State law. Collins v. Hardyman, 341 U.S. 651, 71 S. Ct. 937, 95 L. Ed. 1253 (1951); Griffin v. Breckenridge, 410 F.2d 817 (5th Cir. 1969), cert. granted, 397 U.S. 1074, 90 S. Ct. 1525, 25 L. Ed. 2d 808 (1970); Ackerman v. Columbia Broadcasting System, Inc., supra. What the plaintiffs attempt unsuccessfully to allege is "Federal action" and not "State action". Furthermore, in order to succeed under Section 1985, plaintiffs must do more than allege vague and conclusory allegations respecting the existence of a conspiracy. They must allege with some degree of particularity overt acts and a deprivation of equal protection arising from an intentional and purposeful discrimination. Powell v. Workmen's Compensation Board of the State of New York, 327 F.2d 131 (2d Cir. 1964). This they have failed to do. Section 1986 is a derivative of Section 1985 and provides a remedy for persons injured by the neglect or refusal of those having power to do so to prevent the wrongs specified in Section 1985. Having failed to state a claim under Section 1985, it follows that plaintiffs assert no ground for relief under ...