The opinion of the court was delivered by: Mercer, Chief Judge.
Plaintiff, Lar Daly, filed his complaint against West
Central Broadcasting Company and others, hereinafter referred
to as the defendants, West Central Broadcasting Company and
others,*fn1 for damages alleged to arise out of defendants'
violation of Section 315(a) of the Communications Act of 1934.
47 U.S.C.A. § 315(a). All of the defendants are engaged in the
business of broadcasting television and/or radio programs over
commercial stations, under authority granted by the Federal
Communications Commission, hereinafter FCC, under the Act, 47
U.S.C.A. § 151 et seq.
Section 315(a) provides, in pertinent part:
"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: * * *"
As a summary of the allegations of the complaint reveals,
the theory of the cause of action is that § 315(a) creates, in
the individual candidate, a contract right to "equal
opportunities" to espouse his political cause. Thus, the
complaint alleges that plaintiff, on and prior to March 5,
1956, was a legally qualified candidate, under the laws of
Illinois and certain other States, for the nomination as the
Republican Party candidate for President of the United States;
that the National Broadcasting
Company, American Broadcasting Company and Columbia
Broadcasting System, hereinafter, respectively, NBC, ABC and
CBS, granted to Dwight D. Eisenhower, then President of the
United States and an aspirant to the Republican Party
nomination as its candidate for reelection, free use of their
network facilities on February 29, 1956, and on divers dates
in April and August, 1956; that plaintiff invoked § 315(a) on
March 5, 1956, and demanded that NBC, ABC and CBS afford to him
free and equal radio and television broadcast time, coextensive
with that granted to Mr. Eisenhower; that all three networks
refused his request for equal time; that defendants, severally,
are affiliated with either NBC, ABC or CBS; that a public
policy contract between plaintiff and the several defendants
arose by virtue of the "equal opportunities" provision of §
315(a), the simultaneous certification of plaintiff and Mr.
Eisenhower by the several states as legally qualified
candidates for the same public office, the defendants having
afforded benefits of the statute to Mr. Eisenhower and
plaintiff's request to defendants to fulfill their equal time
obligation to plaintiff under the statute;*fn2 that broadcast
time accruing to a candidate under § 315(a) is a valuable
property right of which plaintiff was deprived by defendants'
refusal to grant to him "opportunities" equal to those granted
to Mr. Eisenhower; that the broadcast time to which plaintiff
became entitled in the premises was sold by defendants to
advertising purchasers resulting in defendants' "unjust
enrichment"; and that the named defendants are the principal
affiliates of NBC, ABC and CBS within the territorial
jurisdiction of this court. The complaint is concluded with a
prayer for both compensatory and exemplary damages.
Each of the defendants has moved to dismiss the complaint.
In the view which I take of the case, it is not necessary to
analyze each of the motions separately or to catalogue the
several grounds upon which dismissal is sought.
Indulging every presumption in favor of the adequacy of the
complaint, including some presumptions to which the largely
conclusionary pleading is not entitled, the complaint must be
dismissed for the reason that the Act provides no statutory
basis for this private cause of action. 47 U.S.C.A. § 151 et
seq. "The Communications Act of 1934 did not create new private
rights." Scripps-Howard Radio v. FCC, 316 U.S. 4, 14, 62 S.Ct.
875, 882, 86 L.Ed. 1229. Thus, it is said in Massachusetts
Universalist Convention v. Hildreth & Rogers Co., 1 Cir.,
183 F.2d 497, 500:
"`* * * The enforcement of the Act and the
development of the concept of public interest
under the Act are thus entrusted primarily to an
administrative agency. The only function of the
courts in the enforcement of the Act is the
exercise of the right to enforce or review orders
of the Commission under Sections 401 and 402 of
the Act. McIntire v. Wm. Penn. Broadcasting Co.
of Philadelphia, 3 Cir., 151 F.2d 597.
"`In the light of the scheme of enforcement by
means of an administrative agency which Congress
has chosen to select, it cannot be held that
Congress intended to create by implication
additional rights such as [a private right of
action under the Act for breach of
contract]. * *'" (Quoting the opinion of the
District Court, Massachusetts Universalist
Convention v. Hildreth & Rogers Co., 87 F. Supp. 822,
In the absence of congressional expression of intent to the
contrary, the power granted to the FCC to enforce the Act and
to regulate broadcasting and the power of enforcement by penal
sanctions are conclusive. Cf., Nashville Milk Co. v. Carnation
Co., 355 U.S. 373, 375, 377, 78 S.Ct. 352, 359, 2 L.Ed.2d
Felix v. Westinghouse Radio Stations, 3 Cir., 186 F.2d 1,
upon which plaintiff relies, involved only the question
whether, under the circumstances of that case, Section 315(a)
might be pleaded as a defense to an action for defamation. To
the extent that Weiss v. Los Angeles Broadcasting Co., 9 Cir.,
163 F.2d 313, carries the implication that private actions for
damages may arise out of a violation of § 315(a) the reasoning
of that opinion is respectfully rejected.
The theory of action upon which this complaint is based does
not exist under the Act. I place my decision squarely upon
that ground, and find it, therefore, unnecessary to consider
other grounds asserted for dismissal of the complaint.
The several motions to dismiss are allowed and judgment will
enter dismissing the complaint as to ...