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July 23, 1980

Joel LEVITCH et al., Plaintiffs,

The opinion of the court was delivered by: DUFFY

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. *fn1"

 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 System, 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 Broadcasting, supra, 412 U.S. at 101, 93 S. Ct. at 2086. Thus, in the context of the broadcasting industry, a unique balancing of competing First Amendment interests obtains.

 In Columbia Broadcasting, supra, the Supreme Court considered the question of "whether a broadcast licensee's general policy of not selling advertising time to individuals or groups wishing to speak out on issues they consider important (violated) . . . the First Amendment." 412 U.S. at 97, 93 S. Ct. at 2084. The court, although recognizing that a broadcaster is not without protection under the First Amendment, concluded that "(i)t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount . . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here." Columbia Broadcasting, supra, at 102, 93 S. Ct. at 2086, quoting, Red Lion Broadcasting, supra, 395 U.S. at 390, 89 S. Ct. at 1806.

 Thus, under the balancing test formulated in Red Lion, and reaffirmed in Columbia Broadcasting, even conceding the competing First Amendment rights of plaintiffs and defendants, it is the right of the public to view news and documentary programs which is paramount. And, it is the alignment of the public's interest which must control.

 Although quick to espouse this unique First Amendment balancing test, the Supreme Court was equally quick to note that "balancing the various First Amendment interests involved in the broadcast media and determining what best serves the public's right to be informed is a task of . . . great delicacy and difficulty." 412 U.S. at 102, 93 S. Ct. at 2086. This is due in large part to the fact that Congress has opted for a system of private broadcasters licensed and regulated by the government. By doing so, Congress has unmistakenly evinced its desire that these broadcasters, although federally regulated, maintain a substantial measure of journalistic independence. Columbia Broadcasting, supra, at 116, 93 S. Ct. at 2093.

 As it has developed, this regulatory system has cast the broadcasters as "public trustees," charged with the obligation of fairly and impartially informing the public audience. And, while the FCC acts as overseer, "the initial and primary responsibility for fairness, balance and objectivity rests with the licensee." Id. at 117, 93 S. Ct. at 2094. Indeed, to perform in conformity with the First Amendment, the FCC "must oversee without censoring." Id. at 118, 93 S. Ct. at 2094. Likewise, the licensee may not transmit its views to the exclusion of those advocated by others.

 Just as the FCC must move with caution, so too must the courts within the broadcasting arena. On the one hand, the courts must be alert to the unique nature of the broadcasting industry, which uses a limited and valuable public resource, to insure that it is being used in the public's interest. On the other hand, however, the courts must preserve the journalistic freedom and editorial prerogative Congress intended to abide in the licensees.

 Given these general principles, I turn to the sensitive question of whether plaintiffs' First Amendment claims are sufficient to withstand the instant motion to dismiss.

 The threshold issue is, assuming, as I must, the truth of plaintiffs' allegations, whether defendants' conduct was governmental or private in nature. To be sure, the cases are legion that the First Amendment's prohibition against restrictions upon speech and the press "is a restraint on governmental action, not that of private persons." Columbia Broadcasting, supra, at 114, 93 S. Ct. at 2092. See also Jensen v. Farrell Lines, Inc., 625 F.2d 379 at 384 (2d Cir. 1980); Kuczo v. Western Connecticut Broadcasting Co., 566 F.2d 384, 387 (2d Cir. 1977); Kops v. New York Telephone Co., 456 F. Supp. 1090, 1093 (S.D.N.Y.1978), aff'd mem., 603 F.2d 213 (2d Cir. 1979).

 In Columbia Broadcasting, supra, the Supreme Court was faced with a factual setting not terribly dissimilar from the instant action. Indeed, at issue was a broadcasters' refusal to sell advertising time for editorial purposes. The facts were as follows:

 The Democratic National Committee ("DNC") and the Business Executives' Move for Vietnam Peace ("BEM"), filed complaints with the FCC charging that the practice of broadcasters in refusing to sell time slots to individuals and groups wishing to expound their views on controversial issues, *fn2" violated the First Amendment as well as the Communications Act of 1934, 47 U.S.C. §§ 151 et seq.

 The FCC rejected these charges and held that so long as a broadcaster meets its obligation as a public trustee to provide full and fair coverage of public issues, it is not required to accept editorial advertisements. Democratic National Committee, 25 F.C.C.2d 216; Business Executives' Move for Vietnam Peace, 25 F.C.C.2d 242. In addition, the Commission rejected the charges lodged in the BEM complaint that these exclusionary policies violated the Fairness Doctrine which requires that a broadcaster must provide adequate coverage of issues of public importance which are calculated to fairly reflect differing views.

 In overturning the FCC's decision, the D.C. Circuit held that broadcasters are instrumentalities of the federal government for First Amendment purposes and, as such, a flat ban on paid public issue announcements was violative of the First Amendment. Business Executives' Move for Vietnam Peace v. F. C. C., 146 U.S. App. D.C. 181, 450 F.2d 642, 646 (D.C.Cir.1971). The Supreme Court reversed.

 The thrust of the Court's decision, in which seven Justices concurred, was that the Communications Act, which incorporates First Amendment principles, did not require broadcasters to accept editorial advertisements. However, on the question of whether the broadcasters' conduct constituted governmental action the Court was less definitive. The Chief Justice, together with Justices Douglas, Stewart and Rehnquist, found that there was no governmental action. Three other Justices, White, Blackmun and Powell, declined to reach the question of governmental action.

 Only the dissenters, Justices Brennan and Marshall, concluded that a broadcasters' conduct constituted governmental action. In reaching this conclusion, the dissenters focused on a number of elements. They included the public nature of the airwaves, the status of the licensees as public trustees, the pervasive federal regulation of the broadcasting industry and, most importantly, the FCC's approval of the challenged conduct.

 Although it is evident that Columbia Broadcasting failed to resolve the nature of a broadcasters conduct vis-a-vis the First Amendment, numerous courts have since had an opportunity to address the issue. As recently noted in Kuczo v. Western Connecticut Broadcasting Co., 566 F.2d 384 (2d Cir. 1977), the prevailing view has been that broadcasters are not government instrumentalities and their conduct does not constitute governmental action. See, e.g., Kuczo, supra, at 387 and cases cited therein. In fact, in only two cases have courts reached a different conclusion. Business Executives' Move for Vietnam Peace v. F. C. C., 146 U.S. App. D.C. 181, 450 F.2d 642, 646 (D.C.Cir.1971), rev'd on other grounds, Columbia Broadcasting, supra; Writers Guild of America West, Inc. v. F. C. C., 423 F. Supp. 1064 (C.D.Cal.1976), vacated in 609 F.2d 355 (9th Cir. 1979), on the ground that primary jurisdiction to consider plaintiffs' challenges rest with the FCC. And, as will be pointed out below, in both cases there was compelling FCC conduct which is conspicuously absent from the case at bar.

 As previously mentioned, in Business Executives' Move for Vietnam Peace v. F. C. C., the D.C. Circuit found that a broadcaster's conduct may, in fact, constitute governmental action. However, in Business Executives, the court's determination hinged primarily upon the fact that the FCC had expressly approved the very conduct which was alleged to be violative of the First Amendment. Thus, a federal regulatory agency condoned the very conduct of its licensees which was alleged to be constitutionally infirm.

 Likewise, in Writers Guild of America, West, Inc. v. F. C. C., supra, governmental action was found based upon FCC conduct. Here, however, the FCC did much more than simply approve of the challenged conduct of the broadcasters. To be sure, the FCC exerted significant pressure upon the broadcasters to adopt the "family hour" viewing policy. In light of this significant FCC pressure, and the broadcasters' subsequent compliance with the proposed viewing policy, sufficient governmental intrusion was found in the programming domain to constitute governmental action for First Amendment purposes. 423 F. Supp. at 1140-43.

 Thus, it would appear that before governmental action will be found in the context of a broadcaster's conduct, it must be demonstrated that the FCC, as a government instrumentality, has either expressly approved or campaigned for the challenged conduct of the broadcaster. Absent such circumstances, no First Amendment claim will lie.

 Applying this analysis to the case at bar, the plaintiffs' First Amendment claims must be dismissed for want of governmental action. The broadcasters' conduct which plaintiffs attack is their decision to produce all documentaries in-house, and offer only these documentaries to their own stations as well as to their affiliates. However, there is no allegation that the FCC has condoned this practice or has in any way pressed the broadcasters to adopt this policy. On the contrary, plaintiffs themselves admit that the FCC is aware of the plight of the independent documentary film producer and, far from approving of the challenged conduct, has at least indicated its dissatisfaction therewith. See FCC, 2nd Interim Report by the Office of Network Study, Television Network Program Procurement, part II at 331-32 (1965). See also Neubauer, The Networks' Policy Against Freelance Documentaries: A Proposal For Commission Action, 30 Federal Communications Law Journal 117, 120-21 (1978); F.C.C. Regulation of Broadcast News: First Amendment Perils of Conflicting Standards of Review, 48 Fordham L.Rev. 1226 (1980).

 Thus, even the most liberal reading of the amended complaint before me fails to yield a scintilla of FCC conduct which will support a finding of governmental action and for this reason, plaintiffs' First Amendment claims must be dismissed. *fn3" Kuczo, supra, at 388.

 Having failed to demonstrate governmental action for First Amendment purposes, the question remains whether plaintiffs' § 1985 claim must also fall.

 Plaintiffs allege that defendants' conduct constituted a violation of 42 U.S.C. § 1985(3) which provides:

(3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

 As I have indicated above, plaintiffs have made no effort to comply with the basic pleading requirements of the Federal Rules of Civil Procedure. Rather than separating each claim and providing a short and plain statement upon which it is based, plaintiffs have grouped their constitutional and antitrust claims. However, when properly sifted, it is evident that plaintiffs' § 1985 claim rests upon the very same factual underpinnings as their First Amendment claim. And, the legal theory upon which this claim rests is an alleged abridgement by defendants of plaintiffs' First Amendment rights by denying plaintiffs' access to defendants' national networks.

 The threshold question is whether plaintiffs must still allege governmental action to state a valid claim under § 1985 for an alleged deprivation of First Amendment rights.

 Defendants urge that although § 1985 does not itself require government action, when it is used as a vehicle to assert a First Amendment violation, in order to state a valid claim it is incumbent upon the pleader to allege government action.

 Plaintiffs, however, urge that "unlike claims lying directly under the First Amendment, plaintiffs' § 1985(3) claims of First Amendment violations do not require a showing of (government) action." Plaintiffs' Memorandum, dated July 27, 1979, at 113 (hereinafter referred to as "Plaintiffs' Memorandum"). Smug in their belief, plaintiffs boldly assert that they decline at this juncture to respond to defendants' argument that defendants' activities do not constitute government action. Id. at fn.36. However, in light of my holding above, it is evident that plaintiffs' reluctance to address the question of government action is founded not on their judgment that such is an unnecessary element in a § 1985 claim, but rather in their fundamental inability to demonstrate even a hint of government action.

 In any event, what plaintiffs would have me do is to excise the government action requirement from their First Amendment claims. Both logic and the clear weight of reasoned legal authority dictate that the requirement of government action not be carved out of a First Amendment claim solely because it is brought under § 1985.

 It is now settled that § 1985 does not itself provide substantive constitutional rights, but rather provides a vehicle by which existing constitutional rights may be vindicated. See Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979). In short, the statute only provides a remedy. Id. See also Weiss v. Willow Tree Civic Ass'n, 467 F. Supp. 803, 815 (S.D.N.Y.1979). However, there has been some disagreement with respect to the question of whether § 1985 ever requires government action in order to state a valid claim. See, e.g., Spirt v. Teachers Insurance & Annuity Ass'n, 475 F. Supp. 1298, 1314 & n.25 (S.D.N.Y.1979). The source of this confusion appears to be the Supreme Court's decision in Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971).

 In Griffin, the Supreme Court held that a claim alleging a wholly private conspiracy of racial discrimination was actionable under § 1985(3). However, the constitutional predicate upon which plaintiffs' claim hinged was the Thirteenth Amendment which itself prohibited "conspiratorial, racially discriminatory private action." 403 U.S. at 105, 91 S. Ct. at 1799.

 Thereafter, in Great American, the court held that § 1985(3) was purely a remedial statute and itself created no substantive rights. Thus, when the two cases are read together, the clear import is that when the constitutional predicate, upon which a § 1985(3) claim hinges, permits a purely private conspiracy to be redressed-as with the Thirteenth Amendment, then § 1985, as a purely remedial statute, does not require that government action be alleged. Where, however, the constitutional predicate itself requires government action, as with the First and Fourteenth Amendments, then governmental action becomes an essential element of a § 1985(3) claim premised thereon. Indeed, "the requirement of state action, in this context, is no more than a requirement that there be a constitutional violation." Great American, supra, 99 S. Ct. at 2355 (Stevens, J., concurring).

 Plaintiffs vigorously argue that since Griffin focused only upon a constitutional predicate which did not require government action, the question with respect to those predicates requiring government action remains open. I disagree.

 In addition to the clear import of Griffin and Great American, the majority of cases which have addressed the problem have concluded that where the constitutional predicate upon which a § 1985(3) claim is premised requires government action, then government action becomes a necessary element of the § 1985 claim. See Murphy v. Mount Carmel High School, 543 F.2d 1189, 1193-94 (7th Cir. 1976); Spirt v. Teachers Insurance & Annuity Ass'n, 475 F. Supp. 1298, 1313-14 (S.D.N.Y.1979); Gemini Enterprises, Inc. v. WFMY Television Corp., 470 F. Supp. 559, 567 (M.D.N.C.1979); Bianco v. American Broadcasting Co., 470 F. Supp. 182, 184 (N.D.Ill.1979).

 Accordingly, based upon plaintiffs' fundamental inability to allege the requisite government action, plaintiffs' § 1985(3) claims suffer from the same fatal defect as their First Amendment claims and for this reason must be dismissed.

 Before moving from plaintiffs' First Amendment claims, I must note a deep-seated conviction that any complaints which plaintiffs may have are based squarely on economic grounds and are cloaked in the language of "free speech" merely as an alternative cause of action permitted by the liberal rules of pleading. I find it difficult to believe that plaintiffs, in the exercise of their alleged First Amendment rights or civil rights, would give completed ...

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