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October 22, 1984

WPIX, Inc., Plaintiff, against League of Women Voters, League of Women Voters Education Fund; National Broadcasting Company, Inc.; CBS, Inc.; and American Broadcasting Companies, Inc., Defendants.

The opinion of the court was delivered by: SOFAER


Plaintiff WPIX, Inc., commenced this action against the defendants, the League of Women Voters and the League of Women Voters Education Fund (the "League"), National Broadcasting Company, Inc. ("NBC"), CBS, Inc. ("CBS"), and American Broadcasting Companies, Inc. ("ABC"), alleging violations of WPIX's first and fifth amendment rights, U.S. Const. amends. I and V, and of the Sherman Act, 15 U.S.C. ยงยง 1, 2 (1982). WPIX seeks injunctive and monetary relief. The only issues before the court on this motion for a preliminary injunction are plaintiff's constitutional claims.

 Plaintiff operates a local television station and also produces a daily half-hour national news program which it syndicates through a division of WPIX -- Independent Network News ("INN") -- to small UHF stations throughout the nation. INN's aim is to provide, through the use of cost-saving techniques for recording events and producing daily news programs, low-cost national news coverage that it claims many of its affiliated stations otherwise could not afford. The League is the sponsor of the 1984 presidential and vice-presidential debates. NBC, CBS, and ABC are the networks providing pooled television coverage of the debates pursuant to an arrangement established by the League.

 The League arranged the presidential and vice-presidential debates in 1976, 1980, and again this year. The League provides tickets for the debates to all bona fide media organizations which have sought to have representatives attend. It has concluded, however, that free acess to the debates for television crews would be infeasible.Based on the recommendation of its media consultant, Wallace Westfeldt, who visited the proposed debate sites, and after considering issues of space and security, the League decided to arrange for pooled television coverage.

 On September 18, 1984, the League issued a press release notifying the media through the wire services of a meeting it had called for September 19 to discuss television coverage of the debates. The three major networks and several local stations attended the meeting. The League announced its decision to require pooled coverage. Thereafter, the three major networks and Cable News Network offered to form a pool, and the League accepted their proposal. No other poor proposals were received by the League, and no other organization sought to become a pool member.

 On either October 4 or 5, INN first communicated with the League, requesting access for its cameras to the debates, the first of which was scheduled for October 7. John R. Corporon, President of INN, complained in a letter to the League dated October 5: "You have also failed to adopt appropriate pool arrangements that would allow us reasonable access to Sunday night's debate," referring to what INN regarded as the unreasonably high fee set by the pool for access to its "feed." (reprinted as Exh. K to Affidavit of Howard F. Jaeckel (undated)). INN claimed it could record the debate for about $3,000, whereas the pool proposed to charge INN about $15,000 to use pool coverage. INN consented to the pool's plan for the October 7 debate, but "under protest" and without prejudice to enforcing its "legal rights." Id. The League denied INN's request, as it had denied the requests of four local stations for access; twenty-seven other television organizations sent camera crews to cover the debate on October 7, but they were restricted to areas outside the auditorium.

 On October 9, Corporon sent telegrams to the League, CBS, NBC, and ABC, formally requesting that arrangements by "made immediately" to enable INN to take two ENG cameras into Pennsylvania Hall in Philadelphia to record the vice-presidential debate, scheduled for October 11, and into the Music Hall in Kansas City for the second presidential debate, scheduled for October 21. He added, alternatively: "If INN's ENG cameras are denied access, we formally request that INN be granted access to pool coverage of the debates on a reasonable [financial] basis." (reprinted in id., Exh.L). He warned that, if INN did not receive "the permission we seek by 6:00 P.M. today, we will instruct our attorneys to bring a lawsuit to obtain such access." Id.

 Brooksley Born, the League's counsel, replied by telex on October 9. She informed Corporon that the League had decided not to grant INN's request, since the League had concluded that pooled coverage was necessary "because of space limitations . . . and considerations stemming from the nature of the event and the identities of the participants. . . ." (reprinted in Order To Show Cause, Exh. C). She added:

 We understand that you object to the cost of participation in the pool and that that is the basis for your complaint about the pool arrangements. We also understand from those in charge of the pool arrangement that the pool is not requiring payment from Independent Network News prior to participation in the pool and that Independent Network News may reserve its rights to challenge the conditions of its participation in the pool including the amount of the payment it will be required to make. In fact, your letter of October 5, 1984, states that you did reserve all legal rights in participating in the pool for the October 7, 1984, debate.

 Under these circumstances, the League believes that you have been granted access to the vice presidential and presidential debates on a reasonable basis.


 WPIX commenced this action the next day, October 10, seeking a temporary restraining order prohibiting defendants from denying INN access for its equipment to the 1984 vice-presidential debate that was scheduled for October 11, 1984, and enjoining defendants from denying INN access to the 1984 presidential debate scheduled for October 21, 1984. In a memorandum and order dated October 10, 1984, WPIX's application for preliminary relief was denied with respect to the vice-presidential debate, and expedited discovery and briefing was ordered as to whether preliminary relief would be proper for the final presidential debate. Following substantial discovery, WPIX now moves for a preliminary injunction prohibiting the League from denying INN reasonable access for two television cameras to cover the final debate.

 To obtain a preliminary injunction, WPIX must demonstrate both "(a) irreparable injury, and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits and a balance of hardships tipping decidely toward [WPIX]." Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir. 1983); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam). Furthermore, equitable considerations are important in the determination whether to grant preliminary relief. As Chief Justice Burger has aptly described the principle, "in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable." Lemon v. Kurtzman, 411 U.S. 192, 200, 36 L. Ed. 2d 151, 93 S. Ct. 1463 (1973).

 Plaintiff contends that it is likely ultimately to prevail on the merits, arguing that "state action" exists sufficient to trigger constitutional safeguards, and that the Constitution guarantees the media not only access, but also equal access, to important public events. See American Broadcasting Companies v. Cuomo, 570 F.2d 1080, 1083 (2d Cir. 1977); Cable News Network v. American Broadcasting Companies, 518 F. Supp. 1238, 1245 (N.D. Ga. 1981). WPIX also claims tht defendants have failed to make a showing of infeasibility sufficient to justify the exclusion of INN's two cameras from the debate halls. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 73 L. Ed. 2d 248, 102 S. Ct. 2613 (1982) (state must show compelling interest and narrowly tailored restriction to justify denial of access to criminal trial); Sherrill v. Knight, 186 U.S. App. D.C. 293, 569 F.2d 124, 129-30 (D.C. Cir. 1977) (refusal of White House press pass to bona fide reporter must be justified by compelling governmental interest, such as protection of the president); Quad-City Community News Service v. Jebens, 334 F. Supp. 8, 15 (S.D. Iowa 1971) (selective denial of access to police department records to "underground" ...

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