Levinson v. McCullough, No. 12-15935 (9th Cir.)
NOT FOR PUBLICATIONNOV 02 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL STEPHEN LEVINSON, pro
D.C. No. 2:12-cv-00231-NVW
Plaintiff - Appellant,
KELLY MCCULLOUGH, Manager PBS
TV Channel 8, Phoenix; et al.,
Defendants - Appellees,
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted October 15, 2012
San Francisco, California
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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Before: SCHROEDER and BEA, Circuit Judges, and RESTANI, Judge.
Michael S. Levinson appeals the district’s sua sponte order dismissing his
complaint for lack of jurisdiction. Levinson is a presidential candidate. He filed
this pro se action in district court, asking the court to declare the Federal
Communications Act of 1934, 47 U.S.C. §§ 154(i), 315(d), unconstitutional to the
extent it exempts public broadcasters from the requirements of 47 U.S.C.
§ 312(a)(7) that legally qualified candidates be given “reasonable access” to air
time. He also sought an order from the district court compelling the Federal
Communications Commission (“FCC”) to order the television stations to cease
broadcasting until they granted him air time pursuant to 47 U.S.C. § 315.
Levinson does not allege that any of the stations excluded him because of his
The district court held that because “the FCC has exclusive jurisdiction over
complaints that a broadcaster has violated 47 U.S.C. § 315,” Levinson must
exhaust his complaint with the FCC rather than filing suit in district court. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm. The district court is
The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
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Congress has vested the FCC with authority to enforce and interpret the
Federal Communications Act, including the “reasonable access” and “equal
opportunity” provisions. See 47 U.S.C. §§ 154(i), 312(a)(7). A candidate who
believes that a station has failed to provide him equal time as required under the
law must begin by filing a complaint with the FCC. 47 C.F.R. § 1.41; see The Law
of Political Broadcasting and Cablecasting (“Political Primer”), 100 F.C.C.2d
1476, 1478 (1984) (explaining how to file such a complaint).
A person who loses at the FCC must then file a petition for reconsideration
with the FCC to give it the opportunity to address any issues the complainant
wishes to raise on appeal. 47 U.S.C. § 405(a). After the FCC denies the motion
for reconsideration, a complainant may then seek review directly in the court of
appeals, not in the district court. 47 U.S.C. § 402(a) and 28 U.S.C. § 2342 (the
Levinson is well aware of this procedure, having followed it in the past. See,
e.g., In Re Complaint of Michael Stephen Levinson, 9 F.C.C.R. 3018 (1994); In re
Complaint of Michael Stephen Levinson Against Television Station Licensees, 87
F.C.C. 2d 433 (1980). Levinson also knows he must first exhaust his complaint
before the FCC, and that if he chooses to file a complaint directly in district court
first, it will be dismissed. See Levinson v. F.C.C., 1995 WL 224851 (D.C.
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Cir.1995), cert denied, 516 U.S. 1011 (1995); Levinson v. F.C.C., 976 F.2d 46
(Table) (D.C. Cir. 1992).
Levinson argues it would have been futile for him to file a complaint in the
FCC first because he has lost there in the past, and thus this requirement should be
excused. “Futility” is not shown where, as here, a claim is likely to be denied on
the merits because the plaintiff does not meet the legal requirements of the claim.
Otherwise, a claimant who repeatedly filed a complaint after losing, or after the
statute of limitations had run, etc., could simply claim that he should be able to file
in court regardless of any legal bar to his claim.
Arkansas Educ. TV Comm’n v. Forbes, 523 U.S. 666 (1998), cited by
Levinson, does not address the jurisdiction of a district court, nor does it deal with
the requirement that a claimant must first file a complaint in the FCC. Thus, it is
inapposite to this case.
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