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decided: July 28, 1988.


Appeal from the Order of the Commonwealth Court of Pennsylvania, entered March 13, 1987, at No. 2734 C.D. 1986. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ.

Author: Stout

[ 518 Pa. Page 566]


Cyril E. Sagan, a legally qualified candidate for the United States Senate in the May 20, 1986, Pennsylvania primary election, filed, in the Commonwealth Court of Pennsylvania, a pro se "Complaint for Malicious Acts and Malicious Process to Knowingly and Wilfully Deny Plaintiff and Voters of the Commonwealth Their Rights as Set forth Under Pennsylvania Statutes and The Constitutions of Pennsylvania and of the United States of America."*fn1 He complained of his exclusion from a televised debate of candidates, aired over public television stations, in which two other candidates appeared. Appellant named as defendants the Pennsylvania Public Television Network, Robert A. Gleason, Secretary of the Commonwealth, and Legree S. Daniels, Commissioner of Elections.

Sagan sought injunctive relief*fn2 and monetary damages.*fn3 The defendants filed preliminary objections, one of which challenged the jurisdiction of the Commonwealth Court. That court viewed Sagan's complaint as being based on alleged violations of the "equal time"*fn4 and "fairness" doctrines of section 315 of The Communications Act of

[ 518 Pa. Page 5671934]

, 47 U.S.C. § 315 (1982), and, in a per curiam opinion, sustained the preliminary objection to its jurisdiction and dismissed the complaint. 104 Pa. Commw. 601, 522 A.2d 191 (1987). This appeal followed. We affirm.

In deciding this jurisdictional question, we have reviewed the pertinent legislation: (1) The Communications Act of 1934, 47 U.S.C. §§ 151-610 (1982); and particularly (2) Section 315 of that Act, which popularly is known as the Equal Time Act; (3) Sections 390-399 of The Communications Act, popularly known as the Federal Public Broadcasting Act of 1967, which created the Corporation for Public Broadcasting, a funding mechanism for non-commercial broadcasting; and (4) 1962 Pa.Laws. 329, 71 Pa.Stat.Ann. § 1188.1-.4 (Purdon Supp. 1987), which established the Pennsylvania Public Television Network Commission.

The Communications Act of 1934 established the Federal Communications Commission, a federal regulatory agency that controls and licenses commercial and educational broadcasting. Section 315 of that Act is the source of the "equal opportunities" and the "fairness" doctrines.*fn5 The "equal opportunities" doctrine is set forth in section 315(a) which states, in relevant part, that:

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, That such licensee shall

[ 518 Pa. Page 568]

    have no power of censorship over the material broadcast . . . .

47 U.S.C. 315(a) (1982) (emphasis added).

The Act forbids discrimination among candidates insofar as rates, facilities, practices, or services rendered. Paulsen v. F.C.C., 491 F.2d 887 (9th Cir. 1974). The Act does not require a station to sell or give a candidate any particular time period. The station must, however, make periods that normally have comparable audiences available to competing candidates upon request.

Rules and regulations that are promulgated under The Communications Act of 1934 establish the method of enforcement of alleged violations of the Act. The Federal Communications Commission periodically has published Public Notices containing recommended formal complaint procedures under section 315,*fn6 as well as procedures for informal requests for Commission action. See 47 C.F.R. § 1.41 (1987). Moreover, Congress has specified remedies for violations of the Act. Section 312(a)(7) of The Communications Act provides administrative sanctions for violation of Section 315. It reads:

(a) The Commission may revoke any station license or construction permit . . .

(7) for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.

[ 518 Pa. Page 56947]

U.S.C. § 312(a)(7) (1982). In addition to the administrative sanctions, Congress provided that an injured party may apply to the appropriate district court for the enforcement of a Commission order other than for the payment of money. Id. § 401.

In conjunction with this legislative scheme, Congress passed The Public Broadcasting Act of 1967, 47 U.S.C. §§ 390-399 (1982), which amended The Communications Act of 1934, and authorized the creation of the Corporation for Public Broadcasting, "a nonprofit corporation . . . which will not be an agency or establishment of the United States Government," as a funding mechanism for virtually all activities comprising noncommercial broadcasting. Id.*fn7 In response to the passage of that Act, the Pennsylvania legislature established in 1968 The Television Network Commission as an independent commission "to apply for, receive and distribute Federal funds, State funds and public or private funds from any source whatsoever, and to serve as a coordination agency in connection with those funds which are available through the Federal Public Broadcasting Act of 1967 and other Federal legislation now or hereinafter enacted." 71 Pa.Cons.Stat.Ann. § 1188.3(5) (Purdon Supp. 1987) (footnote omitted). It also was empowered "to apply to the the Federal Communications Commission and other Federal agencies for such licenses necessary to operate and maintain such a network." Id. § 1188.3(6).

Cases interpreting both the "equal opportunities" and the "fairness" provisions of section 315 agree that federal law is preemptive,*fn8 that private rights of action are not part of

[ 518 Pa. Page 570]

    the machinery devised by Congress for control over the activities of the Corporation for Public Broadcasting, and that enforcement of the statute and vindication of the public interest are vested in the Federal Communications Commission. See Belluso v. Turner Comm. Corp., 633 F.2d 393, 396 (5th Cir. 1980); Network Project v. Corporation for Public Broadcasting, 561 F.2d 963, 972 (D.C.Cir. 1977), cert. denied, 434 U.S. 1068, 98 S.Ct. 1247, 55 L.Ed.2d 770 (1978); Ahmad v. Levi, 414 F.Supp. 597, 603 (E.D.Pa. 1976).

Belluso, supra, is instructive as to the purpose of The Communications Act, the rules and regulations to achieve that purpose,*fn9 administrative sanctions, and the role of the courts in enforcement of decisions. There it is written:

[ 518 Pa. Page 571]

The purpose of the 1934 Act "was to protect the public interest in communications," . . . by formulating "a unified and comprehensive regulatory system for the industry . . . ." To achieve these goals, Congress created the Federal Communications Commission and granted it broad regulatory authority. The Commission was empowered to prescribe rules and regulations in furtherance of the Act generally, . . . and of Section 315 in Page 571} particular, . . . and to enforce compliance therewith through various administrative sanctions . . . . The role of the courts was limited to review and enforcement of Commission decisions and orders under an abuse of discretion standard. . . . Though the Act has been amended on several occasions since 1934, these amendments have in no way diminished either the central role of the Commission in enforcing the Act or its powers thereunder.

633 F.2d at 396 (emphases added). See also Kennedy for President Comm. v. F.C.C., 636 F.2d 432 (D.C.Cir. 1980); Ackerman v. Columbia Broadcating Sys., 301 F.Supp. 628 (S.D.N.Y. 1969).

Congress has legislated comprehensively in the area of political broadcasting. It established the Federal Communications Commission, which has provided that a complainant seeking redress for denial of equal opportunities should complain to that Commission. Congress has provided for administrative sanctions and judicial enforcement of the Commission's orders. Appellant's complaint seeking injunctive relief and damages in the Commonwealth Court, against the Pennsylvania Television Network Commission, the Secretary of the Commonwealth and the Commissioner of Elections for alleged malicious acts and malicious process must fade when viewed in the bright light of this federal legislative plan. It was brought in the wrong forum, against the wrong defendants,*fn10 and partially sought the wrong relief.

The order of the Commonwealth Court is affirmed.


The order of the Commonwealth Court is affirmed.

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