The opinion of the court was delivered by: Kram, District Judge.
Plaintiff FEC is the independent agency of the United States
government empowered with administering, interpreting, and
enforcing the Federal Election Campaign Act (the "Act," or
"FECA"). See generally 2 U.S.C. § 437c(b)(1), 437d(a) and 437g
(1980). Defendant Political Contributions Data ("PCD") is a
for-profit corporation, wholly owned by Political Data Access,
Inc. ("PDA"), which produces campaign contribution reports to
sell to the public.
FECA requires political committees to report identification
information, including name, address, occupation and employer,
of each person who contributes to that committee $200 or more
in a year. 2 U.S.C. § 434(b)(3)(A).*fn2 The Act requires the
Commission to make all such reports and statements filed with
the Commission available for public inspection and copying, at
the expense of the person requesting such copying, within 48
hours of the Commission's receipt of those documents.
2 U.S.C. § 438(a)(4). That provision, however, prohibits the sale or use
of information copied from such reports by any person for the
purpose of soliciting contributions or for commercial purposes.
Id.*fn3 A rule promulgated by the FEC excepts newspapers,
magazines, books or other communications from this provision.
11 C.F.R. § 104.15(c).
In January 1986, PDA obtained from the FEC certain computer
tapes containing individual contributor information compiled
from the disclosure reports, pursuant to § 434(b)(3)(A). By
letters dated March 21 and June 24, 1986, PDA requested a
formal advisory opinion from the Commission regarding the
legality of selling individual contributor information obtained
from disclosure reports made available by the Commission for
public inspection and copying. In its resulting Advisory
Opinion, the Commission stated that the sale of compilations of
individual contributor information proposed by PDA would
violate FECA. Advisory Opinion 1986-25, attached as Exhibit 7
to FEC's Memorandum in Opposition to Defendant's Motion for
Summary Judgment and in Support of Plaintiff's Motion for
Summary Judgment (hereinafter "Pl. Mem. I"), at 4-5.
THIS REPORT MAY NOT BE USED OR SOLD BY ANY PERSON
FOR THE PURPOSE OF SOLICITING CONTRIBUTIONS OR FOR
ANY COMMERCIAL PURPOSE.
Defendant PCD also compiled and sold the results of special
computer "runs" of the individual contributor information,
often consisting of a short list of names and contributions.
These short lists were usually communicated directly over the
telephone or transmitted in letters.
As of June 6, 1987, defendants sold approximately 100 reports
ranging in price from $5.00 for a single report to $776.25 for
a combination of reports. They billed $9,398.76 and received
$4,544.73 for their products as of that date.
On August 2, 1989, the FEC brought this action for
declaratory and injunctive relief plus civil penalties,
alleging that PCD violated 2 U.S.C. § 438(a)(4). Defendant
answered on October 2, 1989, asserting constitutional defenses.
PCD has moved for summary judgment on its defenses, arguing
that the FEC's construction of that provision conflicts with
the First Amendment and infringes its rights of Equal
Protection; it also contends that the FEC's interpretation of
the provision is incompatible with the provision itself and
thus should be subject to a narrowing construction by this
Court. The Commission has cross-moved for summary judgment. The
Court first considers PCD's challenge to the rationality of the
Agency's decision, because the Court should "not decide a
constitutional question if there is some other ground upon
which to dispose of the case." Lowe v. SEC, 472 U.S. 181, 190,
105 S.Ct. 2557, 2563, 86 L.Ed.2d 130 (1985) (citations
I. Standards for Summary Judgment
Summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Rule 56(c). In
testing whether the movant has met this burden, the Court must
resolve all ambiguities against the movant. Lopez v. S.B.
Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987) (citing United
States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994,
8 L.Ed.2d 176 (1962)).
The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact. Adickes v.
S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26
L.Ed.2d 142 (1970). The movant may discharge this burden by
demonstrating to the Court that there is an absence of evidence
to support the non-moving party's case on which that party
would have the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d
The non-moving party then has the burden of coming forward with
"specific facts showing that there is a genuine issue for
trial." Rule 56(e). The non-movant must "do more than simply
show that there is some metaphysical doubt as to the material
facts." Matsushita Electric Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538
(1986). Speculation, conclusory allegations and mere denials
are not enough to raise genuine issues of fact. To avoid
summary judgment, enough evidence must favor the non-moving
party's case such that a jury could return a verdict in its
favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (interpreting the
II. FEC's Interpretation of 2 U.S.C. § 438(a)(4)
Section 438(a)(4) prohibits the sale "for the purpose of
soliciting contributions or for commercial purposes" of
information copied from the reports mandatorily filed by
political committees. The Commission determined in its Advisory
Opinion 1986-25 that the PCD reports were for commercial
purposes within the meaning of the statute. It also found that
the reports were more like brokers' lists, which are forbidden
under § 438(a)(4), than like newspaper or other traditional
media publications, which are excepted, 11 C.F.R. § 104.15.
Defendant now asks the Court, inter alia, to review that
determination. PCD admits to selling information copied from
these reports, but denies that its activity constituted use for
"commercial purposes." It argues that the phrase "commercial
purposes" should be narrowly construed to prohibit only using
the lists directly for political solicitations, which PCD is
not alleged to have done.
This Court must defer to an agency's reasonable construction
of its own enabling legislation, absent inconsistency with an
Act of Congress. Chevron, USA v. Natural Resources Defense
Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-88, 81
L.Ed.2d 694 (1984) (question properly before district court is
not whether in its view the regulation is inappropriate in the
general context of the regulatory program in question, but
whether the Administrator's view that it is appropriate in the
context of the program is a reasonable one).
Consistent with Chevron, this Court will accord deference to
the FEC's interpretation of its own enabling legislation, the
FECA. The FEC is "precisely the type of agency to which
deference should presumptively be afforded." FEC v. Democratic
Senatorial Campaign Committee, 454 U.S. 27, 37, 39, 102 S.Ct.
38, 44, 46, 70 L.Ed.2d 23 (1981) (Court need only find that
Commission's construction of statute is "sufficiently
reasonable"); accord Common. Cause v. FEC, 842 F.2d 436, 448
(D.C. Cir. 1988) (deference particularly appropriate in context
of FECA, which explicitly relies on the bipartisan Commission
as its primary enforcer); see also FEC v. Ted Haley
Congressional Committee, 852 F.2d 1111, 1115 (9th Cir. 1988)
(defer to FEC unless demonstrably irrational or clearly
contrary to plain meaning of statute); Orloski v. FEC,
795 F.2d 156, 164-67 (D.C. Cir. 1986) (according FEC's interpretation of
the Act "considerable deference").
Therefore, the Court will limit its inquiry to whether the
FEC's determination that PCD's activity violates the Act is a
reasonable one. It will review the FEC determinations: (1) that
the "commercial purpose" language contained in the Act includes
activity other than direct political solicitations; (2) that
PDA's sale of the information gathered from the FEC's reports
is among the forbidden commercial purposes; and (3) that PDA's
activity does not fall within the media exception embodied in
11 C.F.R. § 104.15(c). Advisory Opinion 1986-25 at 4-5.
A. Breadth of the "Commercial Purpose" Provision
The Court first turns its attention to the FEC's finding that
the "commercial purpose" language contained in the Act may be
construed to include certain for-profit activity other than
direct political solicitation. In light of the legislative
of the provision, this conclusion appears to be well-founded.
Senator Bellmon offered the present § 438(a)(4) as an
amendment on the floor of the Senate while a number of
amendments to the Act were being considered in 1974. He stated
that the proviso's purpose "is to protect the privacy of the
generally very public-spirited citizens who make a contribution
to a political campaign or a political party." 117 Cong.Rec.
30057, col. 3 (1971). Senator Bellmon continued:
We all know how much of a business the matter of
selling lists and list brokering has become. These
names would certainly be prime prospects for all
kinds of solicitations, and I am of the opinion
that unless this amendment is adopted, we will
open up the citizens who are generous and public
spirited enough to support our political
activities to all kind of ...