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Michael Levinson v. Kelly McCullough, No. 12-15935 (9th Cir.)

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Released: September 19, 2012

No. 12-15935


IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT


MICHAEL STEPHEN LEVINSON,
Plaintiff-Appelant,
v.

KELLY McCULLOUGH, et al.,
Defendants-Appelees.


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA


BRIEF FOR INTERVENOR UNITED STATES




STUART F. DELERY
Of Counsel:
Acting Assistant Attorney General

JOHN S. LEONARDO
SEAN A. LEV
United States At orney
General Counsel
MARK B. STERN
JACOB M. LEWIS
MICHAEL P. ABATE
Associate General Counsel
(202) 616-8209
C. GREY PASH, JR.
At orneys, Appel ate Staf
Counsel
Civil Division, Room 7226
Federal Communications Commission
U.S. Department of Justice
Washington, DC 20554
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530


TABLE OF CONTENTS

Page


STATEMENT OF JURISDICTION ..................................................................................... 1
STATEMENT OF THE ISSUES ............................................................................................ 1
STATEMENT OF THE CASE ............................................................................................... 2
STATEMENT OF FACTS ....................................................................................................... 3
I.
Statutory and Regulatory Background .............................................................. 3
A.
The Reasonable Access Provision ......................................................... 3
B.
The Equal Opportunities Provision ..................................................... 5
C.
FCC Complaint Process and Judicial Review of FCC Orders ......... 6
II.
Prior Proceedings ................................................................................................. 7
SUMMARY OF ARGUMENT .............................................................................................. 12
STANDARD OF REVIEW ................................................................................................... 14
ARGUMENT ............................................................................................................................ 14
I.
Plaintiff’s Statutory and Constitutional Claims
Were Properly Dismissed Because the Reasonable
Access and Equal Opportunities Provisions Are
Enforceable Only By the FCC and Judicial Authority
Is Limited To Review Of The Commission’s Determinations. ................. 14
II.
Plaintiff’s First Amendment Claim is Meritless. ........................................... 19
CONCLUSION ......................................................................................................................... 21
CERTIFICATE OF COMPLIANCE WITHFEDERAL
RULE OF APPELLATE PROCEDURE 32(a)
CERTIFICATE OF SERVICE
- i -


TABLE OF AUTHORITIES

Cases:

Page


Accuracy in Media, Inc. v. FCC,
521 F.2d 288 (D.C. Cir. 1975) ............................................................................................... 2

American Bird Conservancy v. FCC
,
545 F.3d 1190 (9th Cir. 2008) ......................................................................................... 7, 15

Arkansas Educ. Television Comm’n v. Forbes
,
523 U.S. 666 (1998) ............................................................................................................... 19

Bel uso v. Turner Commc’n Corp.
,
633 F.2d 393 (5th Cir. 1980) ........................................................................................3, 6, 16

CBS, Inc. v. Democratic Nat’l Comm.
,
412 U.S. 94 (1973) ................................................................................................................. 19

Columbia Broad. Sys., Inc. v. FCC
,
453 U.S. 367 (1981) ........................................................................................................... 3, 20

Daly v. CBS, Inc.
,
309 F.2d 83 (7th Cir. 1962) .................................................................................................. 16

Dougan v. FCC
,
21 F.3d 1488 (9th Cir. 1994) .................................................................................................. 7

FCC v. Beach Commc’ns, Inc.
,
508 U.S. 307 (1993) ............................................................................................................... 20

FCC v. ITT World Commc’ns, Inc.
,
466 U.S. 463 (1984) ........................................................................................................... 7, 15

FCC v. League of Women Voters of California
,
468 U.S. 364 (1984) ......................................................................................................... 20, 21
- ii -



FCC v. Pot svil e Broad. Co.
,
309 U.S. 134 (1940) ................................................................................................................. 3

Fones4Al Corp. v. FCC
,
550 F.3d 811 (9th Cir. 2008) ................................................................................................ 18

Forbes v. Arkansas Educ. Television Commc’n Network Found.
,
22 F.3d 1423 (8th Cir. 1994) ................................................................................................ 16

Kennedy for President Comm. v. FCC
,
636 F.2d 417 (D.C. Cir. 1980) ............................................................................................. 19

Lechtner v. Brownyard
,
679 F.2d 322 (3d Cir. 1982) ............................................................................................. 3, 16

Lehnhausen v. Lake Shore Auto Parts Co.
,
410 U.S. 356 (1973) ......................................................................................................... 20, 21

Levinson v. New Hampshire Public Television et al.
,
No. 11-589 (D.N.H.) ............................................................................................................ 11

Levinson v. NHPT et al.
,
No. 12-1511 (1st Cir.) ........................................................................................................... 12

Levinson v. WEDU-TV et al.
,
No. 11-2839 (M.D. Fla.) ....................................................................................................... 12

Levinson v. WEDU-TV et al.
,
No. 12-12278 (11th Cir.) ...................................................................................................... 12

Maher v. Sun Pubs., Inc.,
459 F. Supp. 353 (D. Kan. 1978) ........................................................................................ 11

Montana Chapter of Ass’n of Civilian Technicians, Inc. v. Young
,
514 F.2d 1165 (9th Cir. 1975) ............................................................................................. 18
- iii -



Muril o v. Mathews
,
588 F.2d 759 (9th Cir. 1978) ................................................................................................ 18

Orsay v. U.S. Dep’t of Justice
,
289 F.3d 1125 (9th Cir. 2002) ............................................................................................. 13

Owner-Operators Independent Drivers Association of America, Inc. v. Skinner
,
931 F.2d 582 (9th Cir. 1991) ................................................................................................ 18

Red Lion Broadcasting Co. v. FCC
,
395 U.S. 367 (1969) ............................................................................................................... 20

Schnapper v. Foley
,
667 F.2d 102 (D.C. Cir. 1981) ............................................................................................. 16

Schneller v. WCAU Channel 10
,
413 F. App’x 424 (3d Cir.), cert. denied, 132 S. Ct. 246 (2011) ......................................... 15

Scripps-Howard Radio v. FCC
,
316 U.S. 4 (1942) ................................................................................................................... 16

The Law of Political Broadcasting and Cablecasting,

100 F.C.C.2d 1476 (1984) ................................................................................................ 6, 14

United States v. O’Brien
,
391 U.S. 367 (1968) ............................................................................................................... 20

Writers Guild of America, West, Inc. v. American Broadcasting Co., Inc.
,
609 F.2d 355 (9th Cir. 1979) ................................................................................................ 18



- iv -


Administrative Decisions:

In re Complaint of Michael Stephen Levinson Against Television Station Licensees,
87 F.C.C.2d 433 (1980)..................................................................................................... 6, 16

In Re Complaint of Michael Steven Levinson
,
9 F.C.C.R. 3018 (1994) ..................................................................................................... 6, 17

In re Complaint of Randal Terry
,
27 F.C.C.R. 598 (2012) ......................................................................................................... 17

In the Matter of Petitions of the Aspen Inst. Program on Communications & Soc’y

& CBS, Inc., for Revision or Clarification of Comm’n Rulings Under Section
315(a)(2) & 315(a) (4),
55 F.C.C.2d 697 (1975)........................................................................................................... 5

Michael Steven Levinson
,
7 F.C.C.R. 1457 (1992) ......................................................................................................... 17

Statutes:

28 U.S.C. § 1291 ........................................................................................................................... 1

28 U.S.C. § 1331 ........................................................................................................................... 1

28 U.S.C. § 2342 ..................................................................................................................... 7, 14

28 U.S.C. § 2403(a) .................................................................................................................... 10

47 U.S.C. § 154(i) ................................................................................................................. 3, 4, 6

47 U.S.C. § 303(r) ......................................................................................................................... 4

47 U.S.C. § 307 ............................................................................................................................. 6

47 U.S.C. § 312(a)......................................................................................................................... 6
- v -



47 U.S.C. § 312(a)(7) ...................................................................................... 1, 2, 3, 4, 6, 12, 14

47 U.S.C. § 312(b) ........................................................................................................................ 6

47 U.S.C. § 315(a)........................................................................................................ 4, 5, 12, 14

47 U.S.C. § 315(a)(1)-(4) ............................................................................................................. 5

47 U.S.C. § 315(d) ........................................................................................................................ 3

47 U.S.C. § 402(a)................................................................................................................... 7, 14

47 U.S.C. § 405(a)................................................................................................................... 7, 15

47 U.S.C. § 501 ............................................................................................................................. 6

47 U.S.C. § 502 ............................................................................................................................. 6

47 U.S.C. § 503 ............................................................................................................................. 6

47 U.S.C. § 504(a)......................................................................................................................... 7

Pub. L. No. 73-416, 48 Stat. 1064 (June 19, 1934) ................................................................. 5

Regulations:


47 C.F.R. § 1.2 ............................................................................................................................ 15

47 C.F.R. § 1.41 ...................................................................................................................... 6, 14

47 C.F.R. § 73.621 ...................................................................................................................... 21

47 C.F.R. § 73.1940 ...................................................................................................................... 4

47 C.F.R. § 73.1940(b) ................................................................................................................. 4
- vi -



47 C.F.R. § 73.1940(b)(2) .......................................................................................................... 16

47 C.F.R. § 73.1940(c) ................................................................................................................. 5

47 C.F.R. § 73.1940(f) ........................................................................................................... 4, 17

47 C.F.R. § 73.1944 ...................................................................................................................... 4

Rules:

Federal Rule of Appel ate Procedure 4(a)(1)(A) ..................................................................... 1

Federal Rule of Appel ate Procedure 44(a) ............................................................................ 10

Federal Rule of Civil Procedure 5.1(a).................................................................................... 10

Federal Rule of Civil Procedure 5.1(b) ................................................................................... 10









- vii -


STATEMENT OF JURISDICTION

Plaintiff invoked the district court’s federal question jurisdiction. See ER032
(Amended Compl. ¶ 1); 28 U.S.C. § 1331. On March 28, 2012, the district court
dismissed his case for lack of jurisdiction for failure to exhaust administrative remedies
under the Federal Communications Act. ER003. Plaintiff timely appealed that ruling
to this Court within the 30-day period provided by Federal Rule of Appel ate Procedure
4(a)(1)(A). ER001. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

Plaintiff, who seeks to become a write-in candidate for President of the United
States, brought suit against several national news networks and two public television
stations in Arizona, arguing that these television broadcasters improperly denied his
requests for access to broadcast his campaign message. The district court dismissed the
complaint for lack of jurisdiction, noting that plaintiff did not exhaust his claims before
the Federal Communications Commission. The questions presented by this appeal are:
1. Whether plaintiff had a cause of action under the Federal Communications
Act against the television stations that declined to grant him access.
2. Whether Congress’s decision to exempt public broadcasters from the
“reasonable access” requirement of 47 U.S.C § 312(a)(7) violated the First Amendment
rights of political candidates.


STATEMENT OF THE CASE

Michael Levinson seeks to become a write-in candidate for President of the
United States. His name appeared on the bal ot for the 2012 Arizona Republican
primary election, which was held on February 28, 2012. Prior to that contest, he sent
requests to several national television networks, as wel as to two local public television
stations affiliated with the Public Broadcasting Service (“PBS”),1 asking that the
networks and the public stations provide him with broadcast time to present “a
substantive, issue laden two hour speech” in support of his Presidential campaign.
ER032. The networks did not reply to his request. The public stations informed
Levinson that they are exempted by statute from the “reasonable access” requirement
of 47 U.S.C. § 312(a)(7).
Plaintiff filed this pro se action in district court, asking the court to declare the
Communications Act unconstitutional to the extent that it exempts public broadcasters
from the “reasonable access” requirements of Section 312(a)(7). He also requested that
the district court order the public broadcast stations to show cause why they should not
cease and desist al operations until they grant plaintiff’s request for access, and to order

1 The FCC licenses television broadcast stations either as commercial stations or
noncommercial educational stations. Noncommercial educational stations are often
referred to as “public” stations. The Public Broadcasting Service is a private, non-profit
corporation whose membership is made up of noncommercial educational television
stations. PBS provides programming and network services to its members, but is not
itself a licensee of any television stations. See general y Accuracy in Media, Inc. v. FCC, 521
F.2d 288, 291-93 (D.C. Cir. 1975).
2

the commercial networks to show cause why their broadcast licenses should not be
revoked by the district court.
The district court dismissed plaintiff’s complaint for failure to present his claims
to the FCC. Levinson appealed to this Court, which sua sponte appointed pro bono
counsel to represent Levinson and scheduled oral argument for October 15, 2012.

STATEMENT OF FACTS

I.

STATUTORY AND REGULATORY BACKGROUND

The Federal Communications Act of 1934 provides a “unified and
comprehensive regulatory system for the [broadcasting] industry.” FCC v. Pot svil e
Broad. Co., 309 U.S. 134, 137 (1940). The Act created the FCC and gave the agency
broad powers to promulgate rules and regulations and to enforce the provisions of the
Act. See 47 U.S.C. §§ 154(i), 315(d); Belluso v. Turner Commc’n Corp., 633 F.2d 393, 396
(5th Cir. 1980) (describing agency’s broad rulemaking and enforcement authority).
“The focus of the Act is the general public, with the FCC, not the private litigant, as its
champion.” Lechtner v. Brownyard, 679 F.2d 322, 327 (3d Cir. 1982).

A.

The Reasonable Access Provision

In 1971, Congress amended the Act to require broadcasters for the first time to
grant “reasonable access” to any “legal y qualified candidate for Federal elective office.”
47 U.S.C. § 312(a)(7). Prior to that time, “an individual candidate could claim no
personal right of access unless his opponent used the station,” Columbia Broad. Sys., Inc.
v. FCC, 453 U.S. 367, 379 (1981), in which case the Act’s equal opportunities provision
3

would require the broadcaster to “afford equal opportunities to al other such
candidates for that office,” 47 U.S.C. § 315(a).
In 2000, Congress amended the reasonable access provision to limit this
requirement only to commercial broadcasters. In the provision plaintiff chal enges in
this case, Congress clarified that this requirement applies only to a broadcaster “other
than a non-commercial educational broadcast station.” Id. § 312(a)(7).
Pursuant to its delegated rulemaking authority, 47 U.S.C. §§ 154(i), 303(r), the
Commission has promulgated rules defining the terms “legal y qualified candidate” and
“reasonable access.” See 47 C.F.R. §§ 73.1940, 73.1944. To be a legally qualified
candidate for President of the United States within the meaning of the reasonable
access provision, it is not sufficient that a candidate satisfy the constitutional
prerequisites for that office. In addition, he or she must either (1) appear on the bal ot
or (2) be an eligible write-in candidate that “makes a substantial showing that he or she
is a bona fide candidate for nomination or office.” Id. § 73.1940(b). That standard
requires candidates to produce “evidence that [they have] engaged to a substantial
degree in activities commonly associated with political campaigning,” such as “making
campaign speeches, distributing campaign literature, issuing press releases, maintaining
a campaign committee, and establishing campaign headquarters. . . .” Id. § 73.1940(f).
To be a qualified candidate in a particular state, a candidate must either: (1) show he
meets this standard based on his activities in that state; or (2) show that he meets that
4

standard in ten separate states, in which case he wil be deemed a legal y qualified
candidate nationwide. Id. § 73.1940(c).

B.

The Equal Opportunities Provision

A separate statutory requirement, applicable to public television stations as wel
as commercial stations, mandates that that whenever a broadcaster permits any
candidate for a federal, state or local public office to “use” broadcast facilities, the
broadcaster must afford an equal opportunity to any legal y qualified opponent. 47
U.S.C. § 315(a). This requirement has existed in various forms since the Act was first
passed in 1934. See Pub. L. No. 73-416, § 315, 48 Stat. 1064, 1088 (June 19, 1934).
The Act specifical y excludes coverage of certain bona fide news events from the
definition of “use.” See 47 U.S.C. § 315(a)(1)-(4). There is thus no equal opportunity
requirement when a broadcaster features a candidate on a “bona fide newscast,” “bona
fide news interview,” “bona fide news documentary (if the appearance of the candidate
is incidental to the presentation of the subject or subjects covered by the news
documentary),” or during “on-the-spot coverage of bona fide news events (including
but not limited to political conventions and activities incidental thereto).” Id. The FCC
has long held that “debates between candidates” general y qualify under this last
exception and thus are “exempt from the equal time requirements of Section 315 . . . as
‘on-the-spot coverage of bona fide news events.’” In the Matter of Petitions of the Aspen
Inst. Program on Communications & Soc’y & CBS, Inc., for Revision or Clarification of Comm’n
Rulings Under Section 315(a)(2) & 315(a)(4), 55 F.C.C.2d 697, 703 (1975).
5

C.

FCC Complaint Process and Judicial Review of FCC Orders

Congress has vested the Federal Communications Commission with authority to
enforce the Communications Act, including the “reasonable access” and “equal
opportunity” provisions. See 47 U.S.C. § 154(i). Section 312, which is entitled
“Administrative Sanctions,” authorizes the FCC to “revoke any station license or
construction permit . . . for wil ful or repeated failure to al ow reasonable access to or to
permit purchase of reasonable amounts of time for the use of a broadcasting
station . . . .” Id. § 312(a)(7).
A candidate who believes that a station has failed to provide the reasonable
access or equal opportunity required by the statute may file an informal complaint
against the broadcaster with the Commission. 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 a political broadcasting complaint). Plaintiff has, in the past,
followed this procedure. See, e.g., In Re Complaint of Michael Steven 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).
Upon finding that a station has failed to comply with the reasonable access or
equal opportunity requirements, the Commission can order various forms of relief
including cease and desist orders, monetary forfeitures, revocation of a station’s license,
and denial of license renewal. See, e.g., 47 U.S.C. §§ 307, 312(a), 312(b), 501, 502, 503;
Bel uso, 633 F.2d at 397 (describing agency’s enforcement authority).
6

A person aggrieved by the Commission’s order may seek review directly in the
court of appeals under 47 U.S.C. § 402(a) and 28 U.S.C. § 2342 (the Hobbs Act). The
statute provides that a litigant who seeks to rely “on questions of fact or law upon
which the Commission . . . has been afforded no opportunity to pass,” must first file a
petition for reconsideration with the agency to give the FCC the opportunity to address
the issue. 47 U.S.C. § 405(a). See also id. (A person “whose interests are adversely
affected” by an order, but “was not a party to the proceedings resulting in such order,”
also must file a petition for reconsideration before seeking review of the order in a
court of appeals).
These exclusive review provisions of the Communications Act displace causes of
action that a party might otherwise use to bring suit in district court. See FCC v. ITT
World Commc’ns, Inc., 466 U.S. 463, 468-69 (1984) (Communications Act displaces
Administrative Procedure Act review); American Bird Conservancy v. FCC, 545 F.3d 1190,
1193 (9th Cir. 2008) (Communications Act displaces Endangered Species Act review). 2

II. PRIOR PROCEEDINGS

1. For purposes of this appeal, the wel -pled al egations of the complaint are
assumed to be true. Plaintiff was a candidate on the Arizona Republican Presidential

2 A narrow exception to this scheme of exclusive appel ate review exists for suits
seeking to enforce or chal enge FCC monetary forfeiture orders issued under Section
503 of the Act. By statute, such suits must be brought in district court for a de novo trial.
See 47 U.S.C. § 504(a); Dougan v. FCC, 21 F.3d 1488, 1489-91 (9th Cir. 1994) (discussing
forfeiture exception to direct appel ate review under the Act).
7

primary bal ot. ER096. That election was held on February 28, 2102. ER032
(Amended Compl. ¶ 2).
Prior to that election, plaintiff sent a letter to the presidents of the ABC, NBC,
CBS, FOX, and CNN news networks, as wel as to two public television stations in
Arizona, “request[ing] time for broadcasting a substantive, issue laden two hour speech,
on behalf of [his] candidacy for U.S. president.” ER032 (Amended Compl. ¶ 3-a);
ER076-078 (certified mail receipts for network executives in New York). Plaintiff
wished to use this two-hour time slot to perform “‘The Book ov [sic] Lev It A Kiss,’”
which he describes as his “magnum opus Television Scripture, a prophetic work of art,
hand lettered, designed in double columns, with every line a careful y crafted delicate
sensible rhyme, rivalling [sic] both Dante, of Divine Comedic fame, and old Blind
Homer.” ER038 (Amended Compl. ¶ 15-c).3 Plaintiff’s proposed broadcast also
“include[d] a test drive of Plaintiff’s Vehicle for World Peace, this innovative
conception of such magnitude and public interest” that its nationwide airing would
create a “strong likelihood of winning the Arizona republican party primary,” and
“enable Plaintiff to make a huge showing in al presidential primaries that follow
Arizona’s.” ER038-039 (Amended Compl. ¶ 15-d); see also Pro Se Brief of Michael

3 Plaintiff refers to himself as “Lev” on his campaign website, which is entitled
“Lev for World Peacemaker.” Seehttp://www.michaelslevinson.com/new/index.php?%20itemid=4%23more/"> http://www.michaelslevinson.com/new/index.php?
http://www.michaelslevinson.com/new/index.php?%20itemid=4%23more/">itemid=4%23more/ (last visited Sept. 13, 2012).
8

Levinson as Amicus Curiae (“Pro Se Amicus Br.”) at 20-24 (describing proposed
television broadcast).4
Plaintiff invoked both Sections 312 and 315 of the Act in making this request.
He asserted that he was entitled to reasonable access under Section 312 because he was
a legally qualified candidate for President. He also argued that he was entitled to equal
opportunities under Section 315 because the broadcasters planned to air an upcoming
Republican Presidential primary debate in which plaintiff was not invited to participate.
See ER075 (letter from public broadcaster responding to access requests under both
Sections 312 and 315); see also ER086 (Original Compl. ¶¶ 6-7) (arguing that plaintiff is
entitled “to the same opportunity . . . to deliver a broadcast speech” as candidates who
wil be participating in the debate); ER034 (Amended Compl. ¶¶ 7-9) (same).
The national news networks did not respond to plaintiff’s request. ER033
(Amended Compl. ¶ 6). The two public broadcast stations, KAET-TV in Phoenix and
KAUT-TV in Tucson, responded by informing plaintiff that their public broadcast
channels are exempt from Section 312(a)(7)’s reasonable access requirements. ER075,
ER093. KUAT-TV further informed plaintiff that the coverage of a Presidential debate
does not trigger the equal opportunities requirement. See ER075.

4 In light of this Court’s order denying plaintiff’s request to act as counsel on his
own behalf in this appeal, this Brief refers to Mr. Levinson’s pro se arguments as the
arguments of the amicus, and the arguments of his pro bono appointed counsel as the
arguments of plaintiff-appel ant.
9

2. On February 2, 2012, plaintiff filed suit in district court against the managers
of the two public broadcast stations, asserting a “First Amendment right to deliver a
broadcast speech over U.S. non-commercial, tax payer funded network of PBS
stations.” ER086 (Original Compl. ¶ 7). Plaintiff asked the district court to order the
public stations to “cease and desist al TV operations until such time as the defendant
TV station managers in charge schedule Plaintiff’s proposed speech as a candidate for
president, before the Arizona primary is held.” ER089 (Original Compl. ¶ 15).5
Plaintiff then filed an amended complaint on February 14, 2012 that added the
ABC, NBC, CBS, FOX, CNN, and Public Broadcasting System networks as
defendants. ER027. That amended complaint asked the district court to order the
public stations to show cause why they should not schedule plaintiff’s speech or be
ordered to cease and desist al operations, and also asked the court to order the national
networks to show cause why their broadcasting licenses should not be revoked by the
district court. ER029.
In addition to chal enging the constitutionality of Section 312(a)(7), the amended
complaint raises both “reasonable access” claims under Section 312, and “equal

5 Although the complaint stated on its cover that it concerned a “constitutional
issue,” ER084 (emphasis removed), and expressly chal enged the constitutionality of a
federal statute, ER086, ER089-091 (Original Compl. ¶¶ 7, 17-18, 22), plaintiff failed to
serve a copy of the complaint upon the Attorney General, as required by Federal Rule
of Civil Procedure 5.1(a). Likewise, neither the district court nor this Court certified
this constitutional chal enge to the Attorney General as required by 28 U.S.C. § 2403(a),
Federal Rule of Civil Procedure 5.1(b), and Federal Rule of Appel ate Procedure 44(a).
10

opportunities” claims under Section 315, against both the public and commercial
broadcasters. See Pro Bono Counsel Br. at 3, 7, 28 (discussing plaintiff’s statutory
claims under Sections 312 and 315); Pro Se Amicus Br. at 3-4, 10, 29 (same). Plaintiff
has not named the United States or the Federal Communications Commission as
defendants in this lawsuit, however.
On March 28, 2012, the district court sua sponte dismissed the case for lack of
subject matter jurisdiction. ER004-005. The court held that because “the FCC has
exclusive jurisdiction over complaints that a broadcaster has violated 47 U.S.C. § 315,”
plaintiff must exhaust his complaint with the agency rather than filing suit in district
court. ER004 (citing Maher v. Sun Pubs., Inc., 459 F. Supp. 353, 356 (D. Kan. 1978)).
The court declined to consider plaintiff’s constitutional chal enge to Section 312(a)(7)
before plaintiff presented his claims to the agency, noting that if the FCC were to grant
him relief on his equal access claim under Section 315—which applies to public and
commercial broadcasters alike—“his constitutional argument is moot.” ER004.
Plaintiff appealed to this Court, which sua sponte appointed pro bono counsel to
argue on plaintiff’s behalf.
3. Plaintiff filed similar lawsuits in the District of New Hampshire and the
Middle District of Florida. In New Hampshire, plaintiff sued public broadcasters,
commercial broadcasters, and the Federal Communications Commission itself
(although he did not properly serve the complaint on the FCC). The court dismissed
his case for failure to al ege a cognizable First Amendment claim. See Levinson v. New
11

Hampshire Public Television et al., No. 11-589 (D.N.H.), Dkt. Nos. 9 (Report and
Recommendation of Magistrate Judge), 13 (Order adopting Report and
Recommendation). Plaintiff appealed to the First Circuit, which submitted the case to a
panel without argument. See Levinson v. NHPT et al., No. 12-1511 (1st Cir.).
In the Middle District of Florida, plaintiff again sued the FCC (without proper
service) as wel as public and commercial broadcasters. That court dismissed his
complaint as frivolous, noting that the Communications Act does not create a cause of
action to sue broadcasters, the First Amendment does not compel public broadcasters
to al ow third parties access to their programming, and the factual al egations against the
FCC are time barred because they concern the administrative complaint he filed with
the agency in 1980. See Levinson v. WEDU-TV et al., No. 11-2839 (M.D. Fla.), Dkt.
Nos. 23 (Report and Recommendation of Magistrate Judge), 32 (Order adopting
Report and Recommendation). Plaintiff appealed to the Eleventh Circuit, which
dismissed his appeal for want of prosecution, and later denied his motion for leave to
reinstate the appeal. See Levinson v. WEDU-TV et al., No. 12-12278 (11th Cir.).

SUMMARY OF ARGUMENT

I.

Plaintiff asks this Court to order several commercial broadcast networks and
two public broadcast stations to provide him with “reasonable access” within the
meaning of 47 U.S.C. § 312(a)(7), and to give him an “equal opportunit[y]” to broadcast
his campaign message under 47 U.S.C. § 315(a). Neither plaintiff nor his amicus come
to grips with structure of the statute, which vests sole authority to enforce these
12

provisions in the FCC and provides for judicial review of the FCC’s determinations
only on direct review in the court of appeals. Plaintiff argues that he can nevertheless
demand that the district court grant him access to air time on two public broadcast
stations because Congress has excluded public stations from the reasonable access
provision altogether. But the district court had no authority to grant plaintiff the relief
he seeks against the defendant public broadcast stations and could not provide a
constitutional ruling untethered to an actual case or controversy. In any event, even
under general exhaustion principles, courts wil not excuse failing to comply with a
statutory exhaustion scheme on the ground that it would be futile to present a claim to
an agency in the first instance.

II.

If the Court were nevertheless to consider the merits of plaintiff’s First
Amendment contentions, they should be rejected as wholly insubstantial. The
Constitution does not confer a right on political candidates to compel television and
radio stations to provide them with access. In providing a statutory right, Congress was
not obliged to make its provisions applicable to al broadcasters. Plaintiff’s chal enge
would have substance only if Congress could not rational y distinguish between
educational television stations and commercial stations. Plaintiff has not made such an
argument and none would be plausible.
13

STANDARD OF REVIEW

This Court reviews de novo the district court’s order dismissing plaintiff’s claims
for lack of subject matter jurisdiction. Orsay v. U.S. Dep’t of Justice, 289 F.3d 1125, 1128
(9th Cir. 2002).

ARGUMENT

I.

PLAINTIFF’S STATUTORY AND CONSTITUTIONAL CLAIMS WERE PROPERLY

DISMISSED BECAUSE THE REASONABLE ACCESS AND EQUAL

OPPORTUNITIES PROVISIONS ARE ENFORCEABLE ONLY BY THE FCC AND

JUDICIAL AUTHORITY IS LIMITED TO REVIEW OF THE COMMISSION’S

DETERMINATIONS.

A.

Plaintiff asks this Court to order several commercial networks as wel as two
public broadcast stations to provide him with “reasonable access” and “equal
opportunities” within the meaning of 47 U.S.C. §§ 312(a)(7) and 315(a). He does not
explain why, as a statutory matter, he is a qualified candidate for President or why
“reasonable access” would encompass his demand for time to present “a substantive,
issue laden two hour speech[.]” ER032.
This Court has neither the means nor the authority to determine in the first
instance whether plaintiff meets the prerequisites of the statute. Congress has vested
the FCC with authority to enforce the “reasonable access” and “equal opportunities”
provisions, and a candidate seeking to compel access must file a complaint with the
Commission. See 47 C.F.R. § 1.41; Political Primer, 100 F.C.C.2d at 1478. Decisions
issued by the FCC in response to such complaints are reviewable only in the Court of
Appeals under the exclusive judicial review provisions of 47 U.S.C. § 402(a) and the
14

Hobbs Act, 28 U.S.C. § 2342. To ensure that courts of appeals wil not be cal ed upon
to review factual and legal disputes that had not been presented to the agency, the Act
requires any person who “was not a party to the proceedings resulting in such order,
decision, report, or action,” or who “relies on questions of fact or law upon which the
Commission . . . has been afforded no opportunity to pass,” to first file a petition for
administrative reconsideration before petitioning for appel ate court review. 47 U.S.C.
§ 405(a).
Courts have uniformly held that the sole means of chal enging an FCC order is
to seek review under the Hobbs Act in the court of appeals. In ITT World
Communications, 466 U.S. at 468, for example, the Supreme Court held that
telecommunications companies could not bring suit in district court under the
Administrative Procedure Act seeking to enjoin an al egedly ultra vires action of the
Commission, because the “[e]xclusive jurisdiction for review of final FCC orders . . . lies
in the Court of Appeals.” Indeed, the Court observed that the doctrine of primary
jurisdiction would require any party that wishes to chal enge an FCC policy or practice
to first seek a declaratory ruling from the Commission under 47 C.F.R. § 1.2. See id. at
468 n.5. And in American Bird Conservancy, 545 F.3d at 1193, this Court likewise held
that the Act’s direct appel ate review scheme prevents a party from filing suit in district
court to enjoin agency action under the Endangered Species Act.
By the same token, the courts of appeals have uniformly held that no private
right of action to obtain judicial may be implied under the Act. See, e.g., Schneller v.
15

WCAU Channel 10, 413 F. App’x 424, 426 (3d Cir.), cert. denied, 132 S. Ct. 246 (2011)
(“The District Court did not err in concluding that it lacked jurisdiction to consider this
claim, for there is no private cause of action under that statutory provision. . . . The
proper course for raising a claim under section 315 is to file a complaint with the FCC.”
(citations omitted)); Forbes v. Arkansas Educ. Television Commc’n Network Found., 22 F.3d
1423, 1427 (8th Cir. 1994) (en banc) (no private right of action under § 315); Lechtner v.
Brownyard, 679 F.2d 322, 326 (3d Cir. 1982) (no private right of action under FCC’s
“personal attack rule”); Bel uso, 633 F.2d at 394-97 (no private right of action under
§ 315); Schnapper v. Foley, 667 F.2d 102, 116 (D.C. Cir. 1981) (no private right of action
under Public Broadcasting and Communications Acts); Daly v. CBS, Inc., 309 F.2d 83,
86 (7th Cir. 1962) (no private right of action under § 315); see also Scripps-Howard Radio v.
FCC, 316 U.S. 4, 14 (1942) (“The Communications Act of 1934 did not create new
private rights.”).
Plaintiff’s past invocations of the reasonable access provision il ustrate the
workings and good sense of the statutory exhaustion scheme. In 1980, for example, the
Commission found that Mr. Levinson had not established a sufficient campaign
presence throughout the state of New York to be considered a bona fide write-in
Presidential candidate in that state for the upcoming election. See In Re Complaint of
Michael Stephen Levinson Against Television Station Licensees, 87 F.C.C.2d 433 (1980).
Because he is once again a write-in candidate for the upcoming Presidential election,
Mr. Levinson must make “a substantial showing that he . . . is a bona fide candidate for
16

nomination or office,” 47 C.F.R. § 73.1940(b)(2), by producing “evidence that [he] has
engaged to a substantial degree in activities commonly associated with political
campaigning,” such as “making campaign speeches, distributing campaign literature,
issuing press releases, maintaining a campaign committee, and establishing campaign
headquarters,” id. § 73.1940(f).6
Similarly, in the 1992 Presidential primary contests in New Hampshire, the
Commission concluded that “reasonable access” did not encompass Mr. Levinson’s
“request[ing] a three-hour block of prime time programming” to present his campaign
message. Michael Steven Levinson, 7 F.C.C.R. 1457 (1992) (letter from Chief of FCC’s
Fairness/Political Programming Branch), aff’d In Re Complaint of Michael Steven Levinson, 9
F.C.C.R. 3018 (1994); see also, e.g., In re Complaint of Randal Terry, 27 F.C.C.R. 598, 601-02
(2012) (candidate’s request to run political advertising during the Super Bowl was
unreasonable under Commission’s longstanding interpretation of § 312(a)(7)). The
Commission might likewise have concluded here that plaintiff’s request for two hours
of air time to read from “‘The Book ov [sic] Lev It A Kiss,’ a magnum opus Television
Scripture” and to take “a test drive of Plaintiff’s Vehicle for World Peace,” ER038
(Amended Compl. ¶¶ 15-c, 15-d), is unreasonable. See, e.g., In re Complaint of Michael
Steven Levinson, 9 F.C.C.R. at 3019 (“Stations were not unreasonable in concluding that

6 Plaintiff does not dispute that his request for access based upon his primary
candidacy has become moot. See Pro Bono Counsel Br. at 10 (arguing controversy
persists based upon his write-in candidacy for the general election).
17

the request for a three-hour block of time on a specific date [to read from the Book ov
Lev] would unduly disrupt their programming, particularly given the likelihood of equal
opportunities requests for equivalent blocks in prime time.”).
Plaintiff is quite wrong to insist that he need not present his demand for access
on public broadcast stations to the Commission because the Commission does not
have authority to order access on public stations under the terms of § 312(a)(7). The
Commission also has no authority to order commercial stations to offer time to a
candidate who is not qualified, or to compel a station to provide access that is not
reasonable.
Moreover, this Court has previously held that “[b]ecause the
Telecommunications Act does require exhaustion, we cannot rely on a judicial y created
futility exception to evade the statutory exhaustion requirement.” See Fones4Al Corp. v.
FCC, 550 F.3d 811, 818 (9th Cir. 2008). And in other statutory contexts, this Court has
repeatedly recognized that “the doctrine of exhaustion of administrative remedies is not
prevented from being applied solely by the fact the party applying for judicial relief
urges a violation of rights secured by the federal constitution,” and that, “[w]here relief
may be granted on other nonconstitutional grounds, exhaustion is required.” Montana
Chapter of Ass’n of Civilian Technicians, Inc. v. Young, 514 F.2d 1165, 1167 (9th Cir. 1975);
see also Muril o v. Mathews, 588 F.2d 759, 762 (9th Cir. 1978) (same); Owner-Operators
Independent Drivers Association of America, Inc. v. Skinner, 931 F.2d 582, 588-89 (9th Cir.
1991) (requiring exhaustion of constitutional chal enge to agency regulations reviewable
18

under the Hobbs Act); Writers Guild of America, West, Inc. v. American Broadcasting Co., Inc.,
609 F.2d 355, 362-66 (9th Cir. 1979) (requiring exhaustion of First Amendment
chal enge to the FCC’s adoption of a “family viewing” policy). As the district court
noted, plaintiff raised both constitutional and statutory claims against the public
broadcasters, and “if relief is granted [on the statutory claim], his constitutional
argument is moot.” ER004.
In this case, the problem with plaintiff’s case is even more fundamental than a
failure to exhaust administrative remedies. As discussed, the courts have no
independent authority to order a public station or any other station to provide access to
a candidate. Courts are empowered only to review decisions of the FCC. Plaintiff
cannot obtain redress of his claimed injury in a suit against public stations, and a court
cannot properly resolve his constitutional constitutions in a suit that cannot redress his
grievance.

II. PLAINTIFF’S FIRST AMENDMENT CLAIM IS MERITLESS.

If the Court were to consider the merits of plaintiff’s constitutional claim, it is
apparent plaintiff does not, as he claims, have a “First Amendment right to deliver a
broadcast speech over the U.S. non-commercial, tax payer funded network of PBS
stations.” ER034 (Amended Compl. ¶ 9). The Supreme Court has explained that “the
First Amendment of its own force does not compel public broadcasters to al ow third
parties access to their programming.” Arkansas Educ. Television Comm’n v. Forbes, 523
U.S. 666, 675 (1998) (emphasis added); see also CBS, Inc. v. Democratic Nat’l Comm., 412
19

U.S. 94, 113 (1973) (noting that the FCC “on several occasions has ruled that no private
individual or group has a right to command the use of broadcast facilities”); Kennedy for
President Comm. v. FCC, 636 F.2d 417, 430-31 (D.C. Cir. 1980) (no “candidate has a
constitutional right of broadcast access to air his views”). Indeed, the Supreme Court
has observed that because “there are substantial y more individuals who want to
broadcast than there are frequencies to al ocate, it is idle to posit an unabridgeable First
Amendment right to broadcast comparable to the right of every individual to speak,
write, or publish.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388 (1969).
Whatever right plaintiff has to demand reasonable access to a broadcast station is
a creation of statute. Prior to the 1971 amendments to the Communication Act that
created the “reasonable access” requirement of Section 312(a)(7), “an individual
candidate could claim no personal right of access unless his opponent used the station”
(in which case the equal time requirement of Section 315(a) would require that the
candidate receive broadcast time). Columbia Broad. Sys, Inc., 453 U.S. at 379. Section
312(a)(7) thus “enlarged the political broadcasting responsibilities of licensees.” Id.
Because the reasonable access provision is not compel ed by the Constitution, it
is not, as plaintiff contends, subject to the same level of scrutiny that applies in
chal enges brought by broadcasters al eging violations of their First Amendment rights.
See Br. 21-22 (citing FCC v. League of Women Voters of California, 468 U.S. 364 (1984), and
United States v. O’Brien, 391 U.S. 367 (1968)). The contours of the statutory right are
subject only to rational basis review, which is a “paradigm of judicial restraint.” FCC v.
20

Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993). Those “attacking the rationality of the
legislative classification have the burden ‘to negative every conceivable basis which
might support it.’” Id. at 314-15 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410
U.S. 356, 364 (1973)). Public broadcasting serves a fundamental y different purpose
from commercial broadcasting and operates on a different economic model that relies
on voluntary viewer contributions and, in most cases, contributions from the
Corporation for Public Broadcasting. See 47 C.F.R. § 73.621 (noncommercial
broadcasting licenses are issued “only to nonprofit educational organizations upon a
showing that the proposed stations wil be used primarily to serve the educational needs
of the community; for the advancement of educational programs; and to furnish a
nonprofit and noncommercial television broadcast service”); see also League of Women
Voters, 468 U.S. at 367 (discussing history of noncommercial, educational broadcasting
in the United States).

CONCLUSION

For the foregoing reasons, the district court’s judgment should be affirmed.
21

Respectful y submitted,

STUART F. DELERY

Acting Assistant At orney General



JOHN S. LEONARDO
Of Counsel:
United States At orney


SEAN A. LEV
/s/Michael P. Abate
General Counsel
MARK B. STERN
JACOB M. LEWIS
MICHAEL P. ABATE
Associate General Counsel
(202) 616-8209
C. GREY PASH, JR.
At orneys, Appel ate Staf
Counsel
Civil Division, Room 7226
Federal Communications Commission
U.S. Department of Justice
Washington, DC 20554
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530

SEPTEMBER 2012
22

CERTIFICATE OF COMPLIANCE WITH

FEDERAL RULE OF APPELLATE PROCEDURE 32(a)

I hereby certify that that this brief complies with the requirements of Fed. R.
App. P. 32(a)(5) and (6) because it has been prepared in 14-point Garamond, a
proportional y spaced font.
I further certify that this brief complies with the type-volume limitation of Fed.
R. App. P. 32(a)(7)(B)(i) because it contains 5,311 words, excluding the parts of the
brief exempted under Rule 32(a)(7)(B)(i i), according to the count of Microsoft Word.


/s/Michael P. Abate







MICHAEL P. ABATE






CERTIFICATE OF SERVICE

I hereby certify that on September 17, 2012, I electronical y filed the foregoing
brief with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appel ate CM/ECF system.
The participants in the case are registered CM/ECF users and service wil be
accomplished by the appel ate CM/ECF system.



/s/ Michael P. Abate







MICHAEL P. ABATE





Document Outline

  • TABLE OF CONTENTS
  • TABLE OF AUTHORITIES
  • STATEMENT OF JURISDICTION
  • STATEMENT OF THE ISSUES
  • STATEMENT OF THE CASE
  • STATEMENT OF FACTS
    • I. Statutory and Regulatory Background
      • A. The Reasonable Access Provision
      • B. The Equal Opportunities Provision
      • C. FCC Complaint Process and Judicial Review of FCC Orders
    • II. Prior Proceedings
  • SUMMARY OF ARGUMENT
  • STANDARD OF REVIEW
  • ARGUMENT
    • I. Plaintiffs Statutory and Constitutional Claims Were Properly Dismissed Because the Reasonable Access and Equal Opportunities Provisions Are Enforceable Only By the FCC and Judicial Authority Is Limited To Review Of The Commissions Determinations.
    • II. Plaintiffs First Amendment Claim is Meritless.
  • CONCLUSION
  • CERTIFICATE OF COMPLIANCE WITH
  • FEDERAL RULE OF APPELLATE PROCEDURE 32(a)
  • CERTIFICATE OF SERVICE

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