Jurisdictional Statement — Sagan v. Pennsylvania Public Television Network

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FILED

In The : OCT db 1988

JOSEPH F.

SUPREME COURT OF THE UNIT§D STATES...” “*

October Term, 1988

Case No.

CYRIL E. SAGAN, IN BEHALF OF

REGISTERED VOTERS OF THE

COMMONWEALTH

Appellant,

vs.

PENNSYLVANIA PUBLIC TELEVISION

NETWORK, AND ROBERT A. GLEASON,

SECRETARY OF THE COMMONWEALTH,

AND LEGREE S. DANIELS, COMM-

ISSIONER OF ELECTIONS

Appellees.

ON APPEAL FROM

THE SUPREME COURT OF PENNSYLVANIA

JURISDICTIONAL STATEMENT

+

CYRIL E. SAGAN, Pro Se

R.D. 2

Volant, Pennsylvania 16156

(412) 530-7240

QUESTIONS PRESENTED

“43 Whether a state agency can invoke fed-

eral laws to justify its tampering with a

free and open statewide federal election.

2. Whether a state agency acted as public

censor while alleging to act in the public

interest.

3. Whether principles of equal time, equal

opportunity and fairness in elections can

be protected by states against definitions

formulated by a federal agency.

————Keo- °°°»~——

—

.

. Robert A. Gleason, Secretary of the

ii

DEFENDANTS IN THE COURT BELOW

Pennsylvania Public Television Network,

an agency of the Commonwealth of

Pennsylvania

Commonwealth of Pennsylvania

Legree S. Daniels, state Commissioner

of Elections

iii

TABLE OF AUTHORITIES

Page

A. Statutes

1. Federal

28 U.S.C. § 1257(1) 1

28 U.S.C. § 1257(2) 1

47 U.S.C. § 312(2) 1

47 U.S.C. § 315(a) 1,4,5,6,8

2. Pennsylvania

25 P.S. § 3241(b) 1,4,5

25 P.S. § 3260(2) 4,7

42 P.S. § 764(2) 4

71 P.S. § 1188 4,5

P.L. 1075, No. 329, 71 P.S.

§ 1188 1,4,5

Pa. Code, Title 14

Ch. 174 § 174.6(a) 4,7

B. Constitutional Provisions

1. Federal

Article I, Sect. 4, Cl. 2 2,4

Article I, Sect. 5, Cl. l 4

Article IV, Sect. 2 2,4

Amendment I ye

iv

Page

Amendment IX 2,4

2. Pennsylvania

Article I

Section 5 4,8

Section 7 4

Section 1l 4,8

Section 20 4

Section 25 4

Cases

Haines v. Kerner, 404 U.S. 519

92°S.Ct. 594, 30 LE 652 (1972) 2

as

TABLE OF CONTENTS

Page

OPINIONS BELOW ]

JURISDICTION 1

QUESTIONS PRESENTED 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS 3

STATEMENT OF THE CASE 6

THE QUESTIONS ARE SUBSTANTIAL 12

a

1

OPINIONS BELOW

The opinion of the Supreme Court

of Pennsylvania, dated July 28, 1988, is

not reported but is set forth in Appendix

A. The opinion of the Commonwealth Court

of Pennsylvania is reported at 104 Pa.

Commw. Ct. 601 522 A.2d 191 (1987) and is

set forth in Appendix C.

JURISDICTION

Jurisdiction is conferred upon

this Court pursuant to 28 U.S.C. § 1257(1)

and § 1257(2) and draws into question the

validity of the lower courts' application

of 47 U.S.C. § 315(a), the state of Penn-

sylvania's P.L. 1075, No. 329, 71 P.S.

§1188 on grounds that they are repugnant to

the Constitution of the United States and

laws. The affirmation of judgment of the

Commonwealth Court of Pennsylvania by the

Supreme Court of Pennsylvania constitutes a

decision contradicting validity of statutes

challenged. The decision of the Pennsyl-

vania Supreme Court is final,ruling that

appellant's rights were not protected

under Articles I and IV and Amendments I

and IX of the United States Constitution

or by Article I of the Pennsylvania Const-

itution.!

QUESTIONS PRESENTED

1. Whether a state agency can invoke fed-

eral laws to justify its tampering with a

free and open statewide federal election.

2. Whether a state agency acted as public

censor while alleging to act in the public

interest.

3. Whether principles of equal time, equal

opportunity and fairness in elections can

be ‘protected by states against definitions

formulated by a federal agency.

1. Attention of this Court is called to

its decision in Haines v. Kerner, 404 U.S.

319, 92 S.Ct. 594, 30 LE 652 (1972)

regarding pro se litigants.

CONSTITUTIONAL AND

STATUTORY PROVISIONS

A. Constitutional Provisions

1. Article I, Section 4, Clause l

"The times, places and manner of

holding elections for senators and

representatives shall be prescribed

in each state by the legislature

thereof..."

2. Article I, Section 5, Clause 1

"Each house shall be the judge of the

elections, returns and qualifications

of its own members..."

-3. Article IV, Section2, Clause 2

"The citizens of each state shall

be entitled to all privileges and

immunities of citizens of several

states."

4. Amendment I

"Congress shall make no law respect-

ing an establishment of religion,or

phohibiting the free exercise thereof,

or abridging the freedom of speech, or

of the prss; or the right of the

people to peaceably assemble for a

redress of grievances."

5. Amendment IX

"The enumeration in the Constitution,

of certain rights, shall not be con-

4

strued to gong or disparage others

retained by the people.

B. Constitutional Provisions-Pennsylvania

6. Article I, Section 5

"Elections shall be free and equal;

and no power, civil or military,

shall at any time interfere to

prevent the free exercise of the

righc of suffrage."

7. Article I, Section 7

"...the free communication of

thoughts and opinions is one of the

invaluable rights of man, and every

citizen may freely speak, write and

print on any subject, being respons-

ible for the abuse of that liberty..."

8. Article I, Section 1l

",..Suits may be brought against the

Commonwealth in such manner, in such

courts and in such cases as the

legislature may by law direct."

9. Article I, Section 20

"Citizens have a right in a peaceable

manner to assemble together for their

common good, and to apply to those

invested with the powers of government

for redress of grievances or other

proper purposes by petition,

address or remonstrance."

10. Article I, Section 25

"To guard against transgressors of the

high powers which we have delegated,

we declare that everything in this

article is excepted out of the

general powers of government and

shall forever remain inviolate."

6

STATEMENT OF THE CASE

Appellant was a legally qualified

candidate for United States Senator in the

May 20, 1986 Pennsylvania primary election.

Pennsylvania Public Television Network

(PPTN) funded a planned statewide tele-

vision debate between Democratic senatorial

candidates for May 12, 1986. The debate

was aired by all public television studios

in the state on May 13, 1986. Though a

Democrat and a state recognized senatorial

candidate himself, the appellant was ex-

cluded from participation or equivalent

television access to Pennsylvania voters.

On September 11, 1986 appellant

filed a complaint in the Commonwealth

Court of Pennsylvania alleging malicious

acts and process to deny him and voters of

Pennsylvania rights protected by the

constitutions of Pennsylvania and the

United States. This lower court dismissed

the complaint by asserting it had no juris-

a WS ee oe eel ade tee

7

diction under 47 U.S.C. § 315(a) of the

Communications Act of 1934. The appellant

claimed the lower court could assume juris-

diction not only under Section 315 but

also under state and federal constitutions

and laws. Articles I and IV and Amend-

ments I and IX of the United States Const-

itution; Article I, Sections 5, 7, ll, 20,

and 25 of the Pennsylvania Constitution;

47 U.S.C § 315(a), 47 U.S.C. § 312(a)(7);

25 P.S. § 3241(b), 25 P.S.§3260(2), 42 P.S.

§ 764(2), Act of November 20, 1968, P.L.

1075, 71 P.S. § 1188.3, Pa. Code, Title 14

Ch. 174 § 174.6(a)

Appellant claimed that even § 315

gave the lower court grounds to determine

that PPTN violated Federal Communications

Commission regulations on the basis that

PPTN and the state public television stat-

ions it supported was devoid of good faith

in sponsoring television exposure for only

selected candidates for federal office and

E

8

by demonstrating favoritism toward those

selected candidates.

The Commonwealth Court of Pennsyl-

vania failed to adequately consider poss-

ible violations to Section 315 or relevant

constitutional and statutory provisions.

The lower court claimed that Section 315

deprived it of jurisdiction (See Appendix

C) and the Supreme Court of Pennsylvania

agreed (See Appendix A).

The Pa. Supreme Court erred in

agreeing with the Commw. Court's decision

to restrict coverage of the complaint to

narrow limits of Section 315. It failed

to consider the important qualifying fact-

ors of good faith and favoritism in Sect-

ion 315. It allowed the advancement of

selected candidates and censored the

appellant. Act of November 20, 1968, P.L.

1073, Mo. 329, 71 8:8. % 1188.3 makes it

clear that PPTN "...shall not be miused for

political or other propaganda purposes

9

contrary to the Federal Constitution or to

the Constitution of the Commonwealth of

Pennsylvania (Emphasis added)..." The has

no privilege to provide advantages to some

candidates and not to another.

The Commw. Court, with Pa. Supreme

Court in agreement, admitted the propriety

in naming the appellees as defendants when

it identified the planned debate as "

Pensylvania Public Television Network's

(PPTN's) debate..." (Appendix C, p. 3), and

then again, "The PPTN Democratic Senatorial

Debate..."’ (Appendix C, p. 4). Section 315

gives no rights to PPTN to sponsor a debate,

for that exemption under F.C.C. regulations

belongs only to broadcasters. The appell-

ant did not name any broadcaster in his

complaint. He named PPTN, and properly so

as the admission of the Pennsylvania courts

show. While appellees claim exemption under

Section 315 when they are not so entitled

the appellant justly charges appellees with

ie J

10

favoritism, lack of good faith and unfair

treatment of the appellant as a legally

qualified candidate by PPTN, an agency of

the state which preferentially spent

public monies on two senatorial candidates

but denied any support to the appellant.

Such partial funding amounts to political

contribution and violates the Pa. Code,

Title 14 Ch. 174 § 174.6(a) wherein it is

" ...the term ‘Political Contribut-

stated,

ion’ shall be define as a donation of

money or other valuable to a candidate for

nomination or election...for the purpose

of defraying primary or election expenses

...(Emphasis added)"". Candidate exposure

is the object in election campaign and so

the two preferentailly selected senatorial

candidates were provided effective and ex-

pensive exposure free of charge. 25 P.S.

§ 3241(b) further demonstrates that two

candidates were granted unfair favoritism

with unbudgeted ‘political contribution’.

TPS ePIC REM 0

ll

The lower court disregarded consider-

ation of constitutional grounds for cont-

rolling elections. The Pennsylvania Con-

stitution states:

Article I, Section 5

“Elections shall be free and equal,

and no power, civil or military,

shall at any time interfere to pre-

vent the free exercise of the right

of suffrage."

Article I, Section 11]

«eeSuits may be brought against the

Commonwealth in such manner, in such

courts in such cases as the legis-

lature may by law direct."

By failing to apply Pennsylvania constit-

utional and statutory protections and by

misapplying Section 315, the lower court

failed to act in the public interest to

protect a free and open election. Its

failure includes the preferential support

of selected candidates but not one excluded

from common public funds. Instead, it

suppressed an election and it, therefore,

suppressed vitality of the election process.

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THE QUESTIONS ARE SUBSTANTIAL

The issues raised in this case are

far-reaching and are fundamental to hallow-

ed free and open elections. The appellees

assert that a federal agency acting under

congressional mandate has exclusive control

of the election process where through

modern communication systems. While tech-

nology continues to advance communications

to greater and greater heights government

must be used fairly as a conduit for all

candidates seeking the public trust.

Federal and state actions must not be

permitted to chip away at the basic rights

of citizens, particularly when it comes to

making intelligent choices among political

candidates. Neither should governmental

agencies be permitted to act as quasi-

official censors of the people's right to

know, including the right to know their

candidates.

The decision of the Pennsylvania

+e

Supreme Court must not place unconstitut-

ional restraints which would preclude the

broadest appreciation by the people of

public issues and which would interfere

with their ability to make the most intell-

igent choices among candidates who seek

to serve them.

Appellant prays that this Court will

not allow such narrow application of fed-

eral regulations that would elevate them

to a position of supremacy over constitut-

ional protections. And, therefore, the

appellant asks that the decision of the

Pennsylvania Supreme Court be reversed.

Respectfully submit .

d

Cy — Sagan, P Se

R.B.

Volant, PA 16156

(412) 530-7240

AFFIDAVIT OF SERVICE

I hereby certify that I have prepared

this appeal and that I have forwarded three

true and correct copies and forwarded

them to counsel for the appellees at the

following address by prepaid first-class

mail.

Joseph S. Sabadish

Deputy Attorney General

Office fo the Attorney General

15th Floor

Strawberry Square

Harrisburg, PA 17120

Cyril E. Sagan, Pro Se

R.D. 2

Volant, PA 16156

(412) 530-7240

SUBSCRIBED and SWORN to

before me this day

of , 1988.

Notary Public

hh ————e——a

VERIFICATION

I, Cyril E. Sagan, being duly sworn,

certify that I have prepared this appeal,

and that the statements contained

herein are true and correct to the best

of my knowledge.

Cyril E. Sagan, Pro Se

5.0. Z

Volant, PA 16156

(412) 530-7240

SUBSCRIBED and SWORN to

before me this day

of , 1988

Notary Public

APPENDIX

NR HIN Cabbie ssdt'e Od

YS laa Ad ep ROH SE abel tid SAN re tt lh IRI Saat

ene

A-1

(J-47-1988]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

CYRIL E. SAGAN, in behalf: No. 33 W.D. Appeal

of Registered Voters of . Dkt. 1987

the Commonwealth Appeal from the

* order of the

: Commonwealth Court

_ of Pennsylvania

PENNSYLVANIA PUBLIC - : entered March 13,

TELEVISION NETWORK, and

ROBERT A. GLEASON, Sec- * 4987+ at No. 273%

retary of the Common- By ys ,

wealth, and LEGREE S. _ 104 Pa. Commw.

V.

DANIELS, Commissioner * 601 522 A.2d 191

of Elections : (1987)

Appellees = ARGUED: March 8,

APPEAL OF CYRIL E. sacan: 2988

OPINION OF THE COURT

JUSTICE STOUT FILED: JULY 28, 1988

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

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Set forth Under Pennsylvania Statutes and

The Constitutions of Pennsylvania and of the

United States of America"./ 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 Common-

wealth, and Legree S. Daniels, Commissioner

of Elections.

Sagan sought injunctive relief? and

3 The defendants filed

monetary damages.

preliminary objections, one of which

challenged the jurisdiction of the Common-

wealth Court. That court viewed Sagan's

1. This Court has exclusive jurisdiction of

appeals from final orders of the Common-

wealth Court entered in any matter which

was originally commenced in that court.

42 Pa. Cons. Stat. Ann. §723(a)

(Purdon 1981 & Supp. 1987).

A-3

complaint as being based on alleged violat-

u4 and "fairness"

ions of the “equal time

2. The issue of injunctive relief is moot.

We decide the case, however, because the

issue is of great public importance and Ng

likely to recur. See Wortex Mills, Inc.

Textile Workers Union, 369 Pa. 359, 85 A 54

851 (1952); Conway v. Wilburn, 87 Pa. lee.

611, 488 A.2d 92 (985)

3. The “equal opportunities” provision of

The Communications Act of 1934, 47 U.S.C.

§315(a) (1982), see infra, does not give rise

to a cause of action for damages either

under common law or the (sic) under The

Communications Act itself. Daly v.

Columbia Broadcasting Co., Inc., 309 F.

2d 83 (7th Cir. 1963); Gordon v. National

Broadcasting Co., 287 F. Supp. (D.C.N.Y.

1968); Crommelin v. Capitol Broadcastin

Co., 280 Ala. 472, 195 So. 2d 524 (i567).

4. “Equal time" is a misnomer. The

correct designation is "equal opportun-

ities.” See The Law of Political

Broadcasting and Cablecasting, 42 Fed.

Reg. 36342, 36369-72, 69 F.C.C. 2d

2209, 2260-62 (1978).

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doctrines of section 315 of The Communic-

ations Act of 1934, 47 U.S.C. §315 (1982),

and, in a per curiam opinion, sustained the

preliminary objection to its jurisdiction

and dismissed the complaint. _ Pa. Commw.

__, 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 396-399 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

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A-5

Commission.

The Communications Act of 1934 est-

ablished the Federal Communications Comm-

ission, a federal regulatory agency that

controls and licenses commercial and educ-

ational broadcasting. Section 315 of that

Act is the source of the “equal opport-

5

unities” and the “fairness™ doctrines.

The “equal opportunities" doctrine is set

5. The fairness doctrine is not involved

in this case. The fairness doctrine deals

with controversial public issues, whereas

the equal opportunities doctrine refers

to persons (candidates). The fairness

doctrine does not require “equal time."

Rather it requires that the broadcaster

devote a reasonable amount of time to

the discussion of the most important issues

in the geographic area, and if it presents

one side of such an issue, it give

reasonable opportunity for presenting

contrasting views on that issue.

See Red Lion Broadcasting Co. v. F.C.C.,

395 U.S. 367, 377 (1969). For a

discussion comparing and contrasting the

two doctrines, see The Law of Political

Broadcasting and Cablecasting, 43 Fed. Reg.

36342 76390 91, 69 F.C.C. a 2209,

2300-02 (1978).

A-6

forth in section 315(a) which states, in

relevant part, that:

If ny licensee shall permit any person

who is a legally qualified candidate for

any public office to use a broadcasting

station, he shall afford equal opportun-

ities to all other such candidates for

that office in the use of such broadcast-

ing station: Provided, That such licensz2e

shall 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, facil-

ities, 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 normall have comparable

audiences to competing candidates upon

request.

Rules and regulations that are prom-

ulgated under The Communications Act of

1934 establish the method of enforcement of

alleged violations of the Act. The Federal

PUBLISHER'S NOTE

THE FOLLOWING PAGED IS UNAVAILABLE

FOR FILMING

A-8

Communications Commission periodically has

published Public Notices containing recomm-

ended formal complaint procedures under

section 316,° as well as procedures for

formal requests for Commission action.

See 47 C.F.R. §1.41 (1987). Moreover,

Congress has specified remedies for viol-

ations of the Act. Section 312(a)(7) of

The Communications Act provides administ-

6. See Generally The Law of Political

Broadcasting and Cablecasting, 43 Fed.

Reg. 36342, 69 F.C.C.2d 2209 (1987).

Section D of this Primer gives instructions

on “How to File a Complaint," and subsect-

ion (4) instructs that "When the complain-

ant is seeking ‘equal opportunity," he or

she should give the dates of prior broad-

casts or cable originations, if any, by

his or her opponents, the date on which

the request for equal opportunities was

made to the station or cable operator, and

the reasons the station or cable operator

gave for refusing the. request." Id. at

36344, 69 F.C.C.2d at 2213-14. See also

Use of Broadcast Facilities by Candidates

for Public Office, 24 F.C.C.2d 832 (19/0);

Use of Br@dcast Facilities by Candidates

For Public Office, 3 F.C.C.2d 463

(1966).

A-9

rative 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.

47 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 Broad-

casting Act of 1967, 47 U.S.C. §§396-399

(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 estabiishment of the

United States Government, as a funding

A-10

mechanism for virtually all activities

comprising noncommercial broadcasting. 1d.’

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)

7. For an exhaustive discussion of the

construction and application of the Federal

Public Broadcasting Act of 1967, 47 U.S.C.

§396-399 (1982), albeit with respect to

controlling Gontent of public’ television

programs, see Annotation, Construction

and Application of Public Broadcasting Act

of 156) as amended (47 USCS §§396 et seq.)

with Respect to Controlling Content of Public

Television Programs, 44 A.L.R. Fed. 350 (1979).

A-11

(footnote omitted). It also was empowered

"to apply to the Federal Communications

Commission and other Federal agencies for

such licences necessary to operate and

maintain such a network.” Id. §1188.3(6).

Cases interpreting both the "equal

opportunities” and the "fairness" provis-

ions of section 315 agree that federal law

8

is preemptive, that private rights of act-

ion are not part of the machinery devised

8. The law of preemption is summarized in

Louisiana Pub. Serv. Comm'n v. F.C.C.,476

U.S. 355 (1986):

The Supremacy Clause of Art. VI of the

Constitution provides Congress with the

power to pre-empt state law. Pre-emption

occurs when Congress, in enacting a fed-

eral statute, expresses a clear intent to

pre-empt state law,...when there is out-

right or actual conflict between federal

and state law,...where compliance with

both federal and state law is in effect

physically impossible,...where there is

implicit in federal law a barrier to state

regulation,...where Congress has legis-

lated comprehensivel thus occupying an

entire field of poeta ion and leaving no

room for States to supplement federal law,

...Or where the state law stands as an

obstacle to the accomplishment and execut-

ion of the full objectives of Congress.

A-12

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 Comm-

ission. See Belluso v. Turner Comm. Corp.,

633 F.2d 393, 396 (5th Cir. 1980); Network

Project v. Corporation for Public Broad-

casting, 561 F.2d 963, 972 (D.C. Cir. 1977),

cert. denied, 434 U.S. 1068 (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

Pre-emption may result not only from action

taken by Congress itself; a federal agency

within the scope of its congressionally

delegated authority may pre-empt state

regulation.

Id. at 368-69 (citations omitted) (emphasis

added). See also KVUE, Inc. & Austin

Broadcasting Corp. v. Moore, /09 F.2d 922

(5th Cir. 1OB3), aft'd, 465 U.S. 1092 (1983).

nb. Stabe i I cihsr catiNe le hi

A-13

purpose,” administrative sanctions, and

the role of the courts in enforcement of

decisions. There it is written:

The purpose of the 1934 Act "was to

protect the public interest in communic-

° w : vw : °

ations, ...by formulating aunified and

comprehensive regulatory system for the

industry..." To achieve these goals,

Congress created the Federal Communic-

ations Commission and granted it broad

regulatory authority. The Commission

was empowered to prescribe rules and

regulations in furtherance of the Act

generally,...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 occ-

asions since 1934, these amendments have

in no way diminished either the central

role of the Commission in enforcing the

Act or its powere 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.

\

9. "Federal regulations have no less pre-

emptive effect than federal statutes."

Capitol Cities Cable, Inc., v. Crisp, 467

U.S. 691, 699 (1984) (quoting Fidelity Fed.

Sav. & Loan Ass'n v. De La Questa, 458

U.S. 141, 153 (1962Z)).

A-14

Columbia Broadcasting Sys., 301 F. Supp.

628 (S.D.N.Y. 1969).

Congress has legislated comprehen-

sively in the area of political broadcast-

ing. It established the Federal Communic-

ations Commission, which has provided that

a complainnat 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 legislat-

ive plan. It was brought in the wrong

forum, against the wrong defendants, -° and

partially sought the wrong relief.

A-15

The order of the Commonwealth Court

is affirmed.

10. The Television Network Commission is

not a licensee but an independent agency

to receive and distribute funds. Section

153(c) of The Communications Act defines

a licensee as "the holder of a radio

station license granted or continued in

force under authority of this Chapter."

47 U.S.C. §153(c) (1982).

B

SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

CYRIL E. SAGAN, in behalf :

: No. 33 W.D.

_ Appeal Docket

of Registered Voters of

the Commonwealth

Vv.

PENNSYLVANIA PUBLIC TELE-

VISION NETWORK, ROBERT A.

GLEASON, Secretary of the

Commonwealth, and LEGREE

S. DANIELS, Commissioner

of Elections

Appeal of CYRIL E. SAGAN

Appeal from the

* Order of the

: Commonwealth Court

of Pennsylvania,

* entered March 13,

1987, at No. 2734

"C.D. 1986.

104 Pa. Commvw.

: 601 522 A.2d 191

(1987)

ARGUED: March 8, 1988

JUDGMENT

ON CONSIDERATION WHEREOF, it is now

here ordered and adjudged by this Court that

the judgment of the COMMONWEALTH COURT OF

PENNSYLVANIA be, and the same is, hereby,

AFFIRMED.

Irma T. Gardner

Deputy Prothonotary

DATED: July 28, 1988

C-1

CYRIL E. SAGAN, in behalf :

of Registered Voters of

the Commonwealth, er THE

Petitioner * COMMONWEALTH

:COURT OF

Vv. PENNSYLVANIA

PENNSYLVANIA PUBLIC

TELEVISION NETWORK and

ROBERT A. GLEASON, Sec-

retary of the Common-

wealth and LEGREE S.

DANIELS, Commissioner

of Elections, No. 2734

Respondents :C.D. 1986

BEFORE: HONORABLE DAVID W. CRAIG, Judge

HONORABLE MADALINE PALLADINO,

Judge

HONORABLE ALEXANDER F. BARBIERI,

Senior Judge

SUBMITTED ON BRIEFS: January 5, 1987

PER CURIAM Filed: March 13, 1987

Petitioner, Cyril E. Sagan, commen-

ced an action in our original jurisdiction!

on behalf of himself and ‘the registered

voters of the Commonwealth." Sagan con-

tends in his suit that the respondents

violated federal and state and statutory

and constitutional provisions when he was

C-2

excluded from a televised debate of cand-

idates for the Democratic nomination for

the United States Senate in the May 20,

1986 primary election which was aired over

public television stations on May 13,

1986.° In his suit, he seeks both

injunctive relief and monetary damages.

The respondents have filed preliminary

objections challenging this Court's juris-

diction, service, standing, and a demurrer.

It is the respondents’ preliminary object-

ions which are before the Court at this

time.

We address first the respondents'

objection to our jurisdiction over this

matter. Viewing Sagan's complaint, we are

constrained to agree with respondents that

his complaint is based upon the respondents’

alleged violation of the “equal time" and

"fairness" doctrines of Section 315 of the

Communications Act of 1934, 47 U.S.C. §315.

Sagan alleges he was damaged, as were the

C-3

voters of the Commonwealth, by his

exclusion from the Democratic Senatorial

debate on May 13, 1986. The law is clear

that violations of the ‘equal time" or

"fairness" doctrines of 47 U.S.C. §315(a)

are exclusively within the jurisdiction of

the Federal Communications Commission

(FCC). See Ahmad v. Levy, 414 F. Supp.

597 (E.D. Pa. 1976); Ackerman v. Columbia

Broadcasting System, Inc., 301 F. Supp.

628 (S.D.N.Y. 1969). Section 315 creates

no private rights nor authorizes any suits

for damages its violations. The sole

function of the judiciary is to review

final orders of the FCC in accordance with

the statutory scheme. Ackerman, 301 F.

Supp. at 631. Therefore, this Court is

without jurisdiction to entertain Sagan's

claim based on an alleged violation of

47 U.S.C. §315.

Sagan's attempt to characterize

Pennsylvania Public Television Network's

C-4

(PPTN's) debate between the two prime

Democratic Senatorial candidates as a

"political contribution" is unpersuasive.

The PPTN Democratic Senatorial Debate

clearly falls within the excemption from

the equal time doctrine for on-the-spot

coverage of a bona fide news event since

the debate was broadcast for its news-

worthiness and was not intended to advance

the candidacy of any one individual candi-

date. See Chisholm v. FCC, 538 F.2d (D.C.

Cir. 1976), cert. denied, 429 U.S. 890

(1976). As such, the PPTN debate can in

no way be construed as a political contri-

bution of free television air time as

Sagan cdntends. Thus viewed, Sagan's

basic complaint, after all of his obfusc-

ations are stripped away, is with the

scope of the “equal time” and "fairness"

doctrines embodied in 47 U.S.C. §315(a).

We must, therefore, sustain the respondents’

preliminary objection as to our jurisdict-

C-5

ion and dismiss Sagan's complaint.

In view of our determination that

we lack jurisdiction over this matter, we

need not reach the respondent's remaining

preliminary objections.

Judge Palladino recuses.

FOOTNOTES

140 pa. 'C.S. §761.

2The named respondents are the

Pennsylvania Public Television Network

(PPTN); Robert A. Gleason, Secretary of

the Commonwealth; and Legree S. Daniels,

Commissioner of Elections.

3The televised debate was between

United States Representative Robert Edgar

and Pennsylvania Auditor General Don

Bailey.

CYRIL E. SAGAN, in behalf :

of Registered Voters of

the Commonwealth,

Petitioner “IN THE

: COMMONWEALTH

Vv. _COURT OF

*PENNSYLVANIA

PENNSYLVANIA PUBLIC

TELEVISION NETWORK and

ROBERT A. GLEASON, Sec-

retary of the Common-

wealth and LEGREE S.

DANIELS, Commissioner

' of Elections, :

Respondents ae git

ORDER

PER CURIAM

NOW, March 13, 1987, upon consider-

ation of the Preliminary Objections of the

Respondents, the Preliminary Objection

challenging this Court's jurisdiction is

sustained and Petitioner's complaint is

dismissed.

CERTIFIED FROM THE RECORD

AND ORDER EXIT

March 13, 1987

/s/ C R Hostutler

Deputy Prothonotary-

Chief Clerk