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November 16, 1992


The opinion of the court was delivered by: BY THE COURT; JOHN R. PADOVA

Padova, J.

 Nine in-state public television stations currently serve the citizens of Pennsylvania. *fn1" Plaintiff Independence Public Media of Philadelphia, Inc. operates the infant of these nine, WYBE in Philadelphia, which began broadcasting in 1990. *fn2" In addition to being a newcomer, plaintiff considers WYBE to be unique among Pennsylvania public television stations in that it serves labor, low-income, women and minority groups rather than the "business and social elites" that plaintiff contends are most often the target of public television. Complaint at PP 84-89.

 Plaintiff alleges that WYBE's eight Pennsylvania sister stations jealously share in a state-funded network known as the Pennsylvania Public Television Network ("PPTN"), which links the stations via microwave relay and produces statewide public television programming. The PPTN is a legislative creation operated by defendant Pennsylvania Public Television Network Commission ("PPTNC"), a commonwealth entity consisting of 22 commissioners, eight of whom are closely affiliated with the seven organizations that operate WYBE's sister stations. *fn3" (Seven commissioners are members of the governing boards of these organizations pursuant to statute. See 71 Pa. Cons. Stat. Ann. § 1188.2. Another PPTNC commissioner is a president and general manager of WLVT.) In addition to operating the PPTN, the PPTNC annually distributes approximately $ 6 million in state grants directly to seven of WYBE's eight sister stations.

 Plaintiff avers that over the past four years, WYBE has unsuccessfully attempted to join the PPTN family and obtain its own share of the benefits of network membership, including microwave interconnection and funding. Plaintiff claims these attempts have been unlawfully blocked by its eight sister stations and spurned by the PPTNC. Consequently, invoking this Court's jurisdiction under 28 U.S.C. § 1331 to consider federal questions, plaintiff initiated this action against the PPTNC, the general manager of the PPTN, *fn4" the commissioners of the PPTNC *fn5" (the PPTNC, its general manager and the commissioner defendants will be referred to collectively as the "PPTN Defendants") and the seven organizations that operate WYBE's eight sister stations (collectively, the "TV Defendants"). Seeking compensatory, nominal, punitive, and treble damages as well as various forms of injunctive and declaratory relief, plaintiff makes several claims against these defendants that, for simplicity, I summarize under the following three headings:

 Plaintiff makes the following three claims under the United States Constitution:

 (a) The Act that created the PPTNC, P.L. 1075, No. 329 (1968), 71 Pa. Cons. Stat. Ann. §§ 1188.1, et seq. (Purdon 1990)("Act 329"), delegates legislative functions to the TV Defendants and infringes upon plaintiff's right to an unbiased decision maker in violation of plaintiff's right to due process of law under the Fifth and Fourteenth Amendments to the U.S. Constitution.

 (b) Defendants refused to provide plaintiff with PPTN microwave interconnection and network funding based, in part, upon the content of WYBE's broadcasts, in violation of plaintiff's right to freedom of speech under the First and Fourteenth Amendments to the U.S. Constitution.

 (c) Defendants refused to provide plaintiff with PPTN microwave interconnection and network funding on the same basis that interconnection and funding are provided to all other Pennsylvania public television stations, in violation of plaintiff's right to due process and equal protection of the laws under the Fifth and Fourteenth Amendments to the U.S. Constitution.

(2) Antitrust Claims

 Plaintiff claims that the TV Defendants collaborated to divide, monopolize, and cartelize the Pennsylvania public television market, exclude a competitor, divide market territory, and refuse to deal, in violation of the Sherman and Clayton Acts, 15 U.S.C. §§ 1 et seq.

(3) State Law Claims

 Plaintiff makes the following state law claims against the TV Defendants under this Court's authority to exercise supplemental jurisdiction, 28 U.S.C.A. § 1367 (West Supp. 1992):

 (a) The TV Defendants violated plaintiff's rights to due process of law, to liberty, to acquiring or possessing property, and to pursuing its own happiness under Article I, Section 1 of the Pennsylvania Constitution; to be free of discrimination under Article I, Section 26 of the Pennsylvania Constitution; and to freedom of speech under Article I, Section 7 of the Pennsylvania Constitution. Plaintiff also claims that the TV Defendants violated the prohibition under the Pennsylvania Constitution of the exercise of governmental authority by private parties.

 (b) The TV Defendants have violated Act 329, which requires the PPTNC to interconnect WYBE via microwave with the PPTN and to provide WYBE with network funding.

 Plaintiff has moved for partial summary judgment on its federal freedom of speech claim and the portion of its federal due process claim based upon the presence on the PPTNC of commissioners affiliated with the TV Defendants. All defendants have filed cross-motions for summary judgment as to each of plaintiff's claims.



 Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Whether a fact is material will be determined by reference to the "substantive evidentiary standards that apply to the case." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Whether a genuine issue of material fact is presented will be determined by asking if "a reasonable jury could return a verdict for the non-moving party." Id.

  Rule 56 requires opposition to a proper motion for summary judgment to be made by submission "of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Such evidence and all justifiable inferences that can be drawn from it are to be taken as true. Anderson, 477 U.S. at 255. Such evidence need not be presented in a form admissible at trial. Id. My analysis of the motions of plaintiff and defendants will be guided by these standards.


 Plaintiff grounds its federal constitutional claims under 42 U.S.C. § 1983 upon the following three factual allegations: (1) that Act 329 delegates legislative authority to the TV Defendants, making the PPTNC biased against plaintiff; (2) that defendants have refused to interconnect WYBE via microwave with the PPTN; and (3) that defendants have refused to provide WYBE with PPTN funding. I will assess in turn plaintiff's claims as to each of these factual allegations.


Unlawful Delegation of Legislative Authority and Bias

 Plaintiff claims that the PPTNC has been unlawfully constituted insofar as Act 329 makes "a member from each of the governing boards of public television station licensees serving the Commonwealth" an ex officio member of the PPTNC. 71 Pa. Cons. Stat. Ann. § 1188.2. *fn7" Plaintiff alleges that this scheme for selecting 7 of the 22 PPTNC commissioners violates principles under the Fifth and Fourteenth Amendments prohibiting the delegation of governmental authority to private parties. (Plaintiff makes a similar claim under the Pennsylvania Constitution.) Plaintiff also claims that the presence of these seven commissioners on the PPTNC, along with an eighth commissioner affiliated with the TV Defendants, *fn8" violates its rights under the Fifth and Fourteenth Amendments to an impartial governmental decision maker. Plaintiff asserts that it has been directly injured by the participation of these eight commissioners on the PPTNC because they effectively run the commission and are responsible in large part for the commission's denial of plaintiff's request for microwave interconnection and funding. Accordingly, plaintiff seeks partial summary judgment declaring this portion of Act 329 unconstitutional, enjoining these eight board members from further participation on the PPTNC, and enjoining the dispersal of public funds by the PPTNC pursuant to any decision that included these board members.

 Defendants first respond that this Court should abstain from deciding these claims under Railroad Comm'n v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). In this regard, defendants rely primarily upon Reetz v. Bozanich, 397 U.S. 82, 25 L. Ed. 2d 68, 90 S. Ct. 788 (1970). In Reetz, the Court vacated the decision of a three-judge district court declaring certain Alaska fishing statutes invalid under both the federal and Alaska Constitutions. The Court held that the panel should have abstained under Pullman because a state court decision "could conceivably avoid any decision under the Fourteenth Amendment and would avoid any possible irritant in the federal-state relationship." 397 U.S. at 86-87. Defendants contend that a state court decision in this case could likewise avoid both the federal constitutional questions presented and any possible irritation of the federal-state relationship.

 Reetz and subsequent Supreme Court decisions explaining Reetz, however, have made clear that Pullman abstention is only appropriate when an unsettled question of state law underlies the federal constitutional question. See Reetz, 397 U.S. at 86; Zablocki v. Redhail, 434 U.S. 374, 377-78, 54 L. Ed. 2d 618, 98 S. Ct. 673 n.5 (1978); Fornaris v. Ridge Tool Co., 400 U.S. 41, 43, 27 L. Ed. 2d 174, 91 S. Ct. 156 (1970); Wisconsin v. Constantineau, 400 U.S. 433, 438, 27 L. Ed. 2d 515, 91 S. Ct. 507 (1971). The Court held in Reetz, for example, that the three-judge district court panel should have abstained because the Alaska fishing statute "might be so confined as not to have any constitutional infirmity." Fornaris 400 U.S. at 43 (explaining Reetz).9 But the same cannot be said for the portion of Act 329 challenged by plaintiff here -- that seven seats on the PPTNC are to be filled by "a member from each of the seven governing boards of public television station licensees serving the Commonwealth." This language governing how PPTNC seats are to be filled is susceptible to only one possible interpretation: Seven of twenty-two members on the PPTNC are to be drawn from the governing boards of each of the TV Defendants. Plaintiff questions the constitutionality of this scheme, and defendants do not suggest, nor can I conceive of, any alternative glosses on Act 329 that might avoid plaintiff's challenge. Thus, unlike Reetz, there exists no unsettled question of state law for the courts of Pennsylvania to resolve. Accordingly, this Court cannot abstain from exercising its jurisdiction to adjudicate the constitutionality of this provision.

 But this is not to say that plaintiff's federal constitutional claims must necessarily be resolved. If the Pennsylvania Constitution provides "'independent support'" for plaintiff's claims, then "'there is no need for decision of the federal issue.'" Carreras v. City of Anaheim, 768 F.2d 1039, 1042 (9th Cir. 1985)(quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 294-95, 71 L. Ed. 2d 152, 102 S. Ct. 1070 (1982)). This rule follows from the long-standing reluctance of federal courts to decide federal constitutional questions when the case may be disposed of on other grounds. See, e.g., Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 345-48, 80 L. Ed. 688, 56 S. Ct. 466 (1936)(Brandeis, J. concurring). As the Court of Appeals for the Ninth Circuit aptly pointed out in Carreras, "the Supreme Court has indicated that federal constitutional issues should be avoided even when the alternative ground is one of state constitutional law." 768 F.2d at 1042-43. Applying this maxim here, I will consider first whether Act 329 conforms to the Pennsylvania Constitution, before reviewing it in light of the federal Constitution.

 a. Pennsylvania Constitution

 As a preliminary matter, I note that this Court has jurisdiction over plaintiff's claim against the TV Defendants under the Pennsylvania Constitution. In general, district courts have supplemental jurisdiction over "all other claims that are so related to claims in the action within . . . [the courts'] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C.A. § 1367(a) (West Supp. 1992). *fn10" This Court's original jurisdiction was invoked under 28 U.S.C. § 1331 to, inter alia, consider whether the commissioner appointment scheme of Act 329 violates the federal Constitution. Plaintiff's claim that this scheme also violates the Pennsylvania Constitution clearly forms part of the same case or controversy. Therefore, this Court may properly exercise jurisdiction over plaintiff's state constitutional claim.

 Under Pennsylvania constitutional law, "the power to appoint persons to conduct governmental functions cannot be delegated to private organizations." Hetherington v. McHale, 458 Pa. 479, 329 A.2d 250, 251 (1974). In McHale, the Supreme Court of Pennsylvania declared unconstitutional a Pennsylvania statute that granted "to three private organizations absolute authority to designate a controlling number of the members of a Commonwealth committee responsible for the disbursement of substantial public funds [raised pursuant to the Pennsylvania Harness Racing Act]." Id. The court reasoned that a "fundamental precept" of the Pennsylvania Constitution "is that the people are to be governed only by their elected representatives." Id. 329 A.2d at 253. The scheme before the court violated this precept "by surrendering to private organizations the power to select eight of seventeen members of [the] commitee [sic]." Id.

 This reasoning was followed and expanded by the same court two years later in Commonwealth ex rel. Kane v. McKechnie, 467 Pa. 430, 358 A.2d 419 (1976). There, the court considered a constitutional challenge to a statute providing that "'The State Dental Council and Examining Board shall consist of the president of the Pennsylvania State Dental Society [and eight other members]. . . ." Id. 358 A.2d at 420 (quoting Administrative Code of 1929, Act of April 9, 1929, P.L. 177, art. IV, Sec. 414)(bracketed text in original). Among other things, the Dental Council and Examining Board ("Board") was responsible for investigating and approving dental schools, licensing dentists and hygienists and investigating and prosecuting those who commit illegal dental practices. Id. at 420. The Pennsylvania State Dental Society ("Society") was a private organization.

 Citing McHale, the court held that this scheme for the appointment by the Society of one member of the nine member Board was in violation of the Pennsylvania rule against delegation of governmental functions to private organizations. In so doing, the court noted that this scheme was "actually worse than that present in [McHale]" because

when the members of the Pennsylvania Dental Society elect their president, their motivation for casting a ballot in favor of a certain individual is most probably not prompted by a desire to select a person appropriately suited to serve as a member of the Board. Other motivations are certainly present. Indeed, the private interest of the members rather than the public interest is most probably the controlling consideration in the election of the president of this private group.

 Id. 358 A.2d at 420-21. Continuing its comparison with McHale, the court also refused to accord any significance to the fact that only one member of nine on the Board was appointed by the Society, as opposed to eight of seventeen in McHale: "The one member in this case has a vote in the exercise of governmental functions, and one vote can without doubt significantly affect the decisions of the Board." Id. 358 A.2d at 421.

 The seven members of the PPTNC who receive their appointments solely by virtue of having been elected to the governing boards of the TV Defendants likewise cast their votes on the PPTNC in the exercise of governmental functions, *fn11" and their seven votes can undoubtedly affect the decisions of the Commission. *fn12" Similar to the board in McKechnie and the commission in McHale, the selection of these seven commissioners is controlled solely by private parties -- those who select individuals to the governing boards of the TV Defendants. *fn13" Also like McKechnie, this situation is "worse" than McHale because the choice of these commissioners is likely controlled more by private interests related to the selection of individuals best suited to governing the individual public television stations than the public interests of concern to the PPTNC, although the two may intersect on occasion.

 Tellingly, the TV Defendants do not even attempt to distinguish Act 329 and the PPTNC from either McHale or McKechnie. Nor do I see a significant distinction. Accordingly, I find Act 329 to be in violation of the Pennsylvania Constitution to the extent that it allows private parties to appoint commissioners to the PPTNC.

 Having so concluded, the next question to be addressed is the matter of a remedy. Avoiding federal Eleventh Amendment implications, plaintiff's claims under the Pennsylvania Constitution seek relief against only the TV Defendants. *fn14" But in its motion for partial summary judgment, plaintiff requests injunctive relief against not only the TV Defendants but the entire PPTNC and the current commissioners. Plaintiff admits in its motion that this Court cannot enter injunctive relief against these parties on its state claims for to do so would be to require state officials to conform their conduct to state law in violation of the Eleventh Amendment. Thus, the most that can be done in this regard is to enjoin the TV Defendants from further designating, choosing, selecting, or naming any representative to or member of the PPTNC. This would, perhaps, provide plaintiff with prospective relief as the terms of these commissioners expire; but it would do nothing to remedy the situation in the near term. Therefore, because the relief this Court can provide under plaintiff's state constitutional claim would prove inadequate, I am compelled to consider plaintiff's claims under the federal constitution, which, if resolved in plaintiff's favor, may empower this Court to provide more complete relief.

 b. United States Constitution

 Plaintiff makes essentially two claims regarding the membership of the PPTNC under the U.S. Constitution. First, plaintiff claims that the delegation to the TV Defendants of authority to appoint seven commissioners of the PPTNC violates the federal equivalent, under the Fifth and Fourteenth Amendments, of Pennsylvania's rule against such delegations. Second, plaintiff asserts that the eight PPTNC commissioners affiliated with the TV Defendants necessarily labor under a pecuniary conflict of interest when considering plaintiff's application for interconnection and funding. This conflict of interest, plaintiff contends, implicates plaintiff's right to an impartial decision maker, guaranteed by the Fifth and Fourteenth Amendments. Because I agree for the following reasons with plaintiff's later contention regarding the partiality of the PPTNC, which is dispositive of the issues here, I need not reach the question of whether an anti-delegation rule similar to Pennsylvania's can be found in the federal Constitution to apply to these circumstances.

 I begin my consideration of plaintiff's claim of unconstitutional bias with the presumption that governmental decision makers are considered unbiased absent a "showing of conflict of interest or some other specific reason for disqualification." Schweiker v. McClure, 456 U.S. 188, 195, 72 L. Ed. 2d 1, 102 S. Ct. 1665 (1982) (footnote omitted). See also Gibson v. Berryhill, 411 U.S. 564, 36 L. Ed. 2d 488, 93 S. Ct. 1689 ...

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