Summary
discussing "use" advertisements under section 315
Summary of this case from Deuell v. Tex. Right to Life Comm., Inc.Opinion
No. 04-07-00170-CV
Delivered and Filed: August 8, 2007.
Appeal from the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2006-CI-16910, Honorable Gloria Saldaña, Judge Presiding.
Opinion by: REBECCA SIMMONS, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
Three television station defendants asserting immunity from defamation claims appeal the denial of a summary judgment. Because in denying immunity the trial court erred, we reverse the trial court's judgment.
Factual Background
This case concerns allegedly defamatory political advertisements broadcast prior to the November 7, 2006 election. Prior to the election, George Antuna, Jr., the Republican candidate for Texas State Representative, District 118, contracted with three television stations to broadcast a paid political advertisement attacking his opponent Joe Farias. Just before the election, Farias, a candidate for Texas State Representative, District 118, filed a defamation action in Bexar County District Court against Antuna and one of Antuna's campaign contributors for alleged defamatory statements contained in the advertisement. Farias later added the stations airing the advertisements, appellants KENS-TV, Post-Newsweek Stations, San Antonio GP, Inc. and Post-Newsweek Stations, San Antonio, L.P. (owners of KSAT-12) and CCB Texas Licenses, L.P. (owners of WOAI-TV) (hereinafter the "Stations"), as defendants. The Stations subsequently moved for summary judgment based on an affirmative defense of immunity under 47 U.S.C. § 315(a). On March 6, 2007, the trial court denied the Stations' motion for summary judgment and this interlocutory appeal ensued.
Farias' claims against Antuna are not part of this interlocutory appeal. The alleged defamatory statements included accusations that Farias solicited and accepted bribes.
The Stations assert the trial court erred in failing to grant their traditional motion for summary judgment because each element of the immunity defense granted to licensees broadcasting political advertisements, was established. The Stations further assert that Farias failed to raise a genuine issue of material fact negating the Stations' immunity; thus, the trial court erred in its denial of their motion for summary judgment.
Jurisdiction
The Stations bring this interlocutory appeal under section 51.014(a)(6) of the Texas Civil Practice and Remedies Code, which allows for an interlocutory appeal from the denial of a motion for summary judgment:
that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73. . . .
Tex. Civ. Prac Rem. Code Ann. § 51.014(a)(6) (Vernon Supp. 2006).
Farias filed a motion to dismiss this appeal, asserting we did not have jurisdiction to hear the claim. Farias argues the Stations' motion for summary judgment was not based on a defense arising under the free speech or press clauses of the United States or Texas constitutions or Chapter 73; rather, the Stations' defense relied on section 315(a) of the United States Code. 47 U.S.C. § 315(a) (2006).
The Stations contend a plain reading of section 51.014(a)(6) allows an appeal when the motion for summary judgment is based upon a claim against a member of the media. Because Farias brought his claim against the Stations under Chapter 73, the Stations reason their motion for summary judgment was based upon a claim against them arising under Chapter 73. We agree. "The purpose of [Section 51.014(a)(6)] was to allow a newspaper, radio station, or television station that was sued for libel to make an immediate appeal of a judge's refusal to grant a summary judgment." TSM AM-FM TV v. Meca Homes, Inc., 969 S.W.2d 448, 451 (Tex.App.-El Paso 1998, pet. denied). We, therefore, overrule Farias' motion to dismiss this appeal.
Standard of Review
The trial court must grant a motion for summary judgment if "the moving party is entitled to judgment as a matter of law." Tex. R. Civ. P. 166a(c). A defendant moving for summary judgment on an affirmative defense is entitled to a summary judgment upon conclusively establishing each of the essential elements of the affirmative defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984); San Antonio Express News v. Dracos, 922 S.W.2d 242, 247 (Tex.App. — San Antonio 1996, no writ). Evidence is conclusively proven only if reasonable persons could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Once a movant presents sufficient evidence to establish its right to a summary judgment, the burden shifts to the non-movant to present contradictory evidence giving rise to a fact issue in order to avoid summary judgment. Marshall v. Sackett, 907 S.W.2d 925, 930 (Tex.App.-Houston [1st Dist.] 1995, no writ). In considering the defense, the court assumes the non-movant's evidence is true and resolves "[e]very reasonable inference . . . in favor of the non-movant." Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Moreover, an appellate court may only consider those items on file at the time of the hearing. Tex. R. Civ. P. 166a(c); H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d 872, 878-79 (Tex.App. — Corpus Christi 1996, writ denied). We review the trial court's grant or denial of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Smith v. Janda, 126 S.W.3d 543, 545 (Tex.App.-San Antonio 2003, no pet.).
47 U.S.C. § 315(a)A. Statutory Construction
The Stations' motions for summary judgment asserted an affirmative defense of immunity from liability derived from the "no power of censorship" provision of 47 U.S.C. § 315(a). The Stations must prove the statutory elements of section 315(a) and that they are bound by section 315(a)'s "no censorship" provision. The relevant portion of the statute provides:
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: Provided, [t]hat such licensee shall have no power of censorship over the material broadcast under the provisions of this section.
(emphasis original). 47 U.S.C. § 315(a) (2006); see also 47 C.F.R. § 73.1941(a) (2006). The affirmative defense therefore applies to: (1) "any licensee" (2) who "permit[s]" (3) "a legally qualified candidate for any public office" (4) "to use" their station. 47 U.S.C. § 315(a) (2006). A "legally qualified candidate" for public office is further defined as:
A legally qualified candidate for public office is any person who: (1) Has publicly announced his or her intention to run for nomination or office; (2) Is qualified under the applicable local, State or Federal law to hold the office for which he or she is a candidate; and . . . (1) Has qualified for a place on the ballot [or met another criteria].
47 C.F.R. § 73.1940(a)-(b). Finally, a "use" of a broadcasting station under section 315(a) is generally defined as "any broadcast . . . of a candidate's voice or picture . . . such that [the candidate] will be identified by members of the audience." Political Primer 1984, 100 F.C.C.2d 1476, at *14 (F.C.C. 1984).
Once a broadcaster agrees to sell time to a legally qualified candidate, it may not censor the candidate's materials. See 47 U.S.C. § 315(a) (2006); Farmers Educ. Co-op. Union of Am. v. WDAY, Inc., 360 U.S. 525, 528 (1959). In an effort to promote political speech and a better informed electorate, the Supreme Court granted broadcasters immunity from state libel laws for qualified "use" under section 315(a). Id. at 526-27, 529-30, 535 (describing licensees' immunity from state libel laws); Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 516 (Tex.App.-Austin 1991, writ denied) (recognizing that section 315(a) "expressly prohibited the censorship of certain [broadcast] political speeches . . . [and] that the statute's absolute prohibition gave [broadcast] stations immunity from [state] libel claims arising out of such political speeches").
B. Analysis
In their respective motions for summary judgment, each station expressly asserted its section 315(a) immunity from suit as an affirmative defense. We therefore review the record before the trial court. When a movant asks for judgment on the pleadings, the non-movant's pleadings may be used for summary judgment proof. Brooks v. Ctr. for Healthcare Svcs., 981 S.W.2d 279, 283 (Tex.App. — San Antonio 1998, no pet.).
1. Questions of Fact
Here, the Stations provided an uncontroverted affidavit that each station was an FCC licensee. The evidence also established each station permitted its use by selling air time to the Antuna campaign; that Antuna was a legally qualified candidate for a state public office; and that Antuna's image appeared in the advertisements which constitutes a "use." Although Farias challenges section 315(a)'s applicability, which he asserts raises a question of fact, his responsive pleading to the Stations' summary judgment motion effectively admits facts establishing the licensee, permitted use, legally qualified candidate, and candidate elements of section 315(a).
Thus, the record shows that the Stations brought forward sufficient proof of each element of the affirmative defense required to impose the "no censorship" provision of section 315(a), which results in immunity from state libel suits. The record shows there are no questions of material fact pertaining to the Stations' affirmative defense. See Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990) (holding that no disputed question of material fact can remain on the affirmative defense).
2. Questions of Law
Farias asserts that the federal immunity statute does not apply in this case and the trial court properly denied the Stations' motions for summary judgment. However, as licensees who agreed to air a political advertisement by a legally qualified candidate, the Stations were bound by the "no censorship" provision in section 315(a) and could not edit, substitute, or refuse to show the allegedly defamatory material. See Farmers, 360 U.S. at 530 ("[T]he individual licensee has consistently been denied `power of censorship' in the vital area of political broadcasts."). As such, the Stations were eligible for section 315(a)'s corresponding immunity. See Carlisle, 805 S.W.2d at 516.
Further, the "no censorship" provision applies to all uses, whether first use or response. Becker v. FCC, 95 F.3d 75, 82 (D.C. Cir. 1996); Political Primer 1984, 100 F.C.C.2d at *37 ("A station may not refuse to broadcast a candidate's program on the ground that it contains libelous remarks, even though no opposing candidates have made broadcasts."). There is no exception for pre-recorded advertisements. Becker, 95 F.3d at *65. Section 315(a)'s immunity attaches to broadcasters airing advertisements by legally qualified candidates for state, not just federal, public offices. Moreover, we find no authority for the proposition that a broadcaster's violation of the sponsor disclosure requirements of 47 U.S.C. § 317 voids the broadcaster's immunity under § 315(a). 47 U.S.C. § 317 (2006). To void the immunity for technical infractions would be akin to the prohibited censorship, thereby limiting free speech, the very issue which section 315(a) is trying to protect. See Farmers, 360 U.S. at 534.
See KVUE, Inc. v. Moore, 709 F.2d 922, 934-935 (5th Cir. 1983) (quoting In re Public Notice Concerning Licensee Responsibility Under Amendments to the Communications Act Made by the Federal Election Campaign Act of 1971, 47 F.C.C.2d 516, at *2 (F.C.C. 1974), overruled on other grounds by In re Anthony Martin-Trigona, 64 F.C.C. 2d 1087 (F.C.C. 1977)); In re Amendment of Parts 73 and 76 of the Commission's Rules Relating to Broadcasts and Cablecasts by Legally Qualified Candidates for Public Office, 68 F.C.C.2d 1049, at *1 (F.C.C. 1978).
Conclusion
We have jurisdiction over this interlocutory appeal and therefore, overrule appellee's motion to dismiss this appeal. The record before the trial court establishes each element of the affirmative defense, raises no questions of material fact pertaining to the affirmative defense, and supports that the Stations are entitled to judgment as a matter of law. The trial court, therefore, erred in failing to grant the Stations' motions for summary judgment. We reverse the trial court's summary judgment and render judgment in favor of the Stations.