Opinion
CIVIL ACTION NO: 02-0108
January 15, 2001
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
Vernon V. Palmer seeks a temporary restraining order to enjoin two television stations from excluding him from their broadcasts of mayoral debates. Specifically, Palmer seeks to prevent WVUE from broadcasting its mayoral debate on Tuesday, January 15, 2002, and to prevent WLAE from broadcasting its mayoral debate on Friday, January 18, 2002.
Palmer submitted his application for a temporary restraining order to the Court at about 10:30 a.m. on January 14, 2002. The Court held a conference with the attorneys for all of the parties and set a deadline of 9:00 a.m. on January 15, 2002 for the filing of any additional pleadings. The Court heard oral argument on the motion at 12:00 p.m. on January 15, 2002.
I. Background
Palmer is a duly-registered and qualified candidate for election to the Office of Mayor of the City of New Orleans. There are fifteen candidates eligible for the primary election scheduled for February 2, 2002. Palmer alleges that defendants have excluded him from their scheduled mayoral debates in violation of the equal time provision of the Federal Communications Act, 47 U.S.C. § 315 (a). In addition, Palmer asserts that WLAE is a state actor, and its actions violate his rights of freedom of expression and equal protection under the First and Fourteenth Amendments to the United States Constitution, respectively.
Section 315 provides in pertinent part:
Candidates for Public Office
(a) Equal opportunity requirement; censorship prohibition; news appearances exception; public interest; public issues discussion opportunities 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 such other candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any —
(1) bona fide newscast,
(2) bona fide interview,
. . .
(4) on-the-spot coverage of bona fide new events (including but not limited to political conventions and activities incidental thereto,) Shall not be deemed to be use of a broadcast station within the meaning of this subsection. 47 U.S.C. § 315 (a).
II. Discussion
A. Legal Standard
A temporary restraining order may only be granted if there is (1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunctive relief is denied; (3) the threatened injury to the movant outweighs the harm the injunction will cause the opponent; and (4) the injunctive relief will not disserve the public interest. EEOC v. Cosmair, Inc., 821 F.2d 1085, 1088 (5th Cir. 1987); Gerhart Industries v. Smith International, Inc., 741 F.2d 707, 710 (5th Cir. 1984)
B. Statutory Claim
Palmer alleges that by excluding him from the mayoral debates both defendants are in violation of the equal opportunity provision of 47 U.S.C. § 315 (a). See 47 U.S.C. § 416 (a) (requiring licensed broadcast stations that allow qualified candidates for office to use the stations to provide equal opportunities to all other qualified candidates for that office). There is, however, no private cause of action under Section 315(a). Belluso v. Turner Communications Corp., 633 F.2d 393, 397 (5th Cir. 1980); Forbes v. Arkansas Educational Television Communication Network Foundation, 22 F.3d 1423, 1427 (8th Cir. 1994), rev'd on other grounds, 523 U.S. 666, 118 S.Ct. 1633 (1998) ("There is no private cause of action to enforce [the statute] . . ."). The proper course of action for a candidate seeking to enforce Section 315(a) is to seek relief from the Federal Communications Commission ("FCC"), and then appeal, if necessary, to a court of competent jurisdiction. Forbes, 22 F.3d at 1427 ( citing DeYoung v. Patten, 898 F.2d 628, 633-35 (8th Cir. 1990)); see also Belluso, 633 F.2d at 397 ("the Commission has promulgated rules and regulations which provide a candidate aggrieved by a violation of section 315(a) an administrative remedy."). Appellate courts construe Section 405(a) of the Federal Communications Act as codifying the exhaustion of administrative remedies doctrine, which requires complainants to give the FCC a fair opportunity to pass on a legal or factual argument before going to court. American Tel. Tel. Co. v. FCC, 974 F.2d 1351, 1354 (D.C. Cir. 1992); see also McClendon v. Jackson Television, Inc., 603 F.2d 1174, 1176 (5th Cir. 1979) (exhaustion of administrative remedies required under the Communications Act).
Plaintiff concedes that he did not exhaust his administrative remedy, but he argues that the Court should ignore his failure because time constraints prevented him from obtaining relief from the FCC. The Fifth Circuit has stated that "[w]hile courts have discretion in applying the jurisprudential exhaustion requirement, the exercise of that discretion is circumscribed in that a court should only excuse a claimant's failure to exhaust administrative remedies in extraordinary circumstances. Taylor v. United States Treasury Department, 127 F.3d 470, 477 (5th Cir. 1997) ( citing Central States S.E. S.W. Areas Pension Fund v. T.I.M.E.-D.C., Inc., 826 F.2d 320, 329 (5th Cir. 1987)). Courts have excused a claimant's failure to exhaust administrative remedies in the following circumstances: (1) when the unexhausted administrative remedy would be plainly inadequate, (2) when the claimant has made a constitutional challenge that would remain standing after exhaustion of the administrative remedy, (3) when the adequacy of the administrative remedy is essentially coextensive with the merits of the claim, and (4) when exhaustion of administrative remedies would be futile. Id. (citation omitted)
Plaintiff alleges that he learned of the debates and of his exclusion from them from the newspaper last Saturday and that any attempt to obtain a ruling from the FCC before the Tuesday, January 15 debate would have been futile. Plaintiff made no attempt to contact the FCC to obtain a determination of the propriety of defendants' actions. Furthermore, even if plaintiff could not obtain a ruling from the FCC before the WVUE debate scheduled for 6:00 p.m. on January 15, he could still seek relief from the FCC before WLAE's scheduled debate on Friday, January 18, and before any future debates that may be scheduled before the February 2 primary. Therefore, the Court declines to excuse plaintiff's failure to exhaust his administrative remedies. In light of the foregoing factors, the Court finds that plaintiff is not likely to achieve success on the merits of his statutory claim.
WVUE also contends that candidate debates fall under a statutory exception to the equal opportunity doctrine. See 47 U.S.C. § 315 (a)(4). Although the Court need not rule on this issue, it does note that the FCC has stated that the broadcast of a debate among legally qualified candidates can be an exception under Section 315(a)(4), whether the debate is sponsored by a third-party or by the broadcaster. See In re Geller, 1983 WL 182998, 95 F.C.C.2d 1236 (1983), aff'd by League of Women Voters Educational Fund v. F.C.C., 731 F.2d 995 (D.C. Cir. 1984).
C. Constitutional Claims
Plaintiff claims that WLAE is a state actor and that its exclusion of him from its debate violates the First and Fourteenth Amendments, respectively. The Court finds that there is a colorable argument that WLAE is a state actor. See, e.g., Chandler v. Georgia Public Telecommunications Commission, 917 F.2d 486, 488 (11th Cir. 1990). There is no colorable argument, however, regarding WLAE's alleged violation of plaintiff's First and Fourteenth Amendment rights.
The Supreme Court's decision in Arkansas Educational Television Commission v. Forbes establishes the standard for analyzing plaintiff's First Amendment claim. In Forbes, the Court addressed a claim by an independent political candidate that a state-owned public television broadcaster violated his First Amendment rights when it excluded him from a debate between the major party candidates for the 1992 presidential election. 523 U.S. at 670, 118 S.Ct. at 1637-38. The Court explained the three types of for a recognized under First Amendment law and determined that the debate was a nonpublic forum. The Court reasoned that the broadcaster's process for selecting the candidates who would be eligible to participate in the debate evidenced "[s]uch selective access, [that] unsupported by evidence of a purposeful designation for public use, does not create a public forum." Id. (internal quotes omitted); see also Estiverne v. Louisiana State Bar Association, 863 F.2d 371, 376 (5th Cir. 1989) ("The simple fact that the government sponsors a medium of communication does not, however, automatically render that means of communication a public forum . . . . [A] forum may be considered nonpublic where there is clear evidence that the state did not intend to create a public forum . . . ."). In the context of a nonpublic forum, the test for exclusion of a speaker is that the exclusion "must not be based on the speaker's viewpoint and must otherwise be reasonable in light of the purpose of the property." Id. at 682, 118 S.Ct. at 1643; Estiverne, 863 F.2d at 376. In Forbes, the broadcaster's executive director testified that Forbes was excluded from the debates because, among other things, there was ample evidence that the voters and news organizations did not consider him to be a serious candidate and because he had little if any financial support. Id. The Court concluded that the broadcaster's decision to exclude Forbes from the debate was "a reasonable, view-point neutral exercise of journalistic discretion consistent with the First Amendment." Id. at 683, 118 S.Ct. at 1644.
Here, Jerry Romig, the executive producer of WLAE's debate, testified that he considered the following factors to determine which of the fifteen candidates would be eligible for the debate: (1) that the WLAE studio could only accommodate, at most, five of the fifteen candidates, (2) the results of public opinion polls conducted around Christmas 2001, and (3) whether the candidate raised $50,000 in campaign funds, other than from his or her own money. See WLAE's Opp. Memo, Ex. A. Romig testified that he reviewed the results of a BK Research poll and a poll conducted by Susan Howell of the University of New Orleans, and he determined that the same four candidates finished in the top four of each poll, with another candidate finishing a strong fifth in Professor Howell's poll. See id. Romig further testified that a candidate either had to finish in the top of the public opinion polls or meet the contribution requirement to qualify for the debates. See id. Additionally, he testified that he did not consider the viewpoints, positions, or opinions of any candidate when he determined whether to invite a candidate to the debate. See id. Plaintiff does not allege that he met either of WLAE's criteria or that WLAE's criteria were designed to exclude the content of his or any other candidate's speech. WLAE's rationale mirrors that of the broadcaster in Forbes, in which the station based its decision on voters' views of and financial support for the candidates.
Palmer contends that, unlike Forbes, he is a serious candidate with a relatively well-funded and well-organized campaign. Despite Palmer's assertions about the seriousness of his campaign, he acknowledges that he did not qualify as a mayoral candidate until December 14, 2001, only weeks before the polls WLAE relied upon were conducted. The polls took place less than a month before the debate, and the debate will occur a mere two and a half weeks before the primary election. The Court does not read the Supreme Court's decision in Forbes to require a broadcaster to wait until a candidate meets its content-neutral criteria before conducting candidate debates. As in Forbes, WLAE used a reasonable basis to include and exclude candidates from its debates, based on objective indicia of support for their candidacy. 523 U.S. at 683, 118 S.Ct. at 1644. Palmer was not excluded because of his platform. In light of the facts presented by the parties, the Court finds that it is not likely that plaintiff will succeed on the merits of his First Amendment claim.
Plaintiff's equal protection claim under the Fourteenth Amendment is similarly defective. Plaintiff is not a member of a protected class, and thus WLAE need exhibit only a rational basis for its decision. See Chandler, 917 F.2d at 489 (applying rational basis test to Equal Protection claim of gubernatorial candidate denied access to public broadcast debate). WLAE's decision was demonstrably rational. Therefore the Court finds that plaintiff is not likely to succeed on the merits of his Equal Protection claim. Accordingly,
IT IS ORDERED that plaintiff's application for a temporary restraining order is hereby DENIED.