MEMORANDUM COMPLAINT AND PETITITON:

TO:

Federal Communications Commission 445 12th Street S.W. Washington, D.C. 20554 Attention: Political Office Via Email to: campaignlaw@fcc.gov Via Telefax to: (202) 418-1196 Attention: Mark Berlin (Direct Dial: (202) 418-1423) Eugene Martin LaVergne Democratic-Republican for United States Senate 543 Cedar Avenue West Long Branch, New Jersey 07764 Telephone: (732) 272-1776 Email: emlesqnj@hotmail.com September 25, 2013 In the Matter of: Emergent Petition of Eugene Martin LaVergne, Democratic-Republican for United States Senate from New Jersey at the October 16, 2013 Special General Election, for emergent and expedited clarification of actual scope the Federal Communication Communications 1983 announced expanded interpretation of the 47 U.S.C. sec. 315(a)(4) exemption regarding political candidate debates as announced in Matter of Petitions of Henry Geller and the National Association of Broadcasters and the Radio-Television News Directors Association to Change Commission Interpretation of Certain Subsections of the Communications Act, 48 Federal Register 53166-03, 95 F.C.C. 2d 1236, summarily affirmed without opinion sub nom League of Women Voters v. Federal Communications Commission, 731 F.2d 995 (D.C. Cir. 1984)

FROM:

DATE: RE:

Introduction and Relief Sought: This Petition for Clarification and Complaint for equal time under 47 U.S.C. sec. 315(a) pertains to a Special General Election for United States Senator from New Jersey that will take place on October 16, 2013. Petitioner Eugene Martin LaVergne is a bona fide and legally qualified candidate for the Federal elected office of United States Senate whose name will appear on the October 16, 2013 Special General Election Ballot along with the names and party affiliation or slogans of seven other candidates. ABC (New York and Philadelphia) and Univision (New York) will be hosting and televising a Senate Candidate Debate at some location in Trenton, New Jersey on

-1-

October 4, 2013. ABC (New York and Philadelphia) and Univision (New York) will only include the Republican partys political candidate Steven Lonegan and the Democratic political partys candidate Corey Booker in that debate and have already decided by plan and design to exclude petitioner Eugene Martin LaVergne (the only so called Third Party Candidate on the Ballot) and the other five wholly independent candidates from appearing in this televised debate. Under the facts extant, this network licensed sponsored debate falls well outside the parameters established in Geller (see infra) and therefore falls outside the 47 U.S.C. sec. 315(a)(4) exemption. As such, Eugene Martin LaVergne hereby demands equal time pursuant to 47 U.S.C. sec. 315(a). NBC (New York and Philadelphia) and Telemundo (Fort Lee, New Jersey) will be hosting and televising a Senate Candidate Debate at Rowan University in Glassboro, New Jersey on October 9, 2013. NBC (New York and Philadelphia) and Telemundo (Fort Lee, New Jersey) will only include the Republican partys political candidate Steven Lonegan and the Democratic political partys candidate Corey Booker in that debate and have already decided by plan and design to exclude petitioner Eugene Martin LaVergne (the only so called Third Party Candidate on the Ballot) and the other five wholly independent candidates from appearing in this televised debate. Under the facts extant, this network licensed sponsored debate falls well outside the parameters established in Geller (see infra) and therefore falls outside the 47 U.S.C. sec. 315(a)(4) exemption. As such, Eugene Martin LaVergne hereby demands equal time pursuant to 47 U.S.C. sec. 315(a). Petitioner Eugene Martin LaVergne has requested equal time from the licensees as is required by law as the first step in the process but because of the emergent time frame he hereby submits this document to the F.C.C. as it is expected that his requests for equal time will be denied by the licensee networks. In the event that the request for equal time as per sec. 315(a) is granted this Petition for Clarification will proceed but the Complaint for equal time under 47 U.S.C. sec. 315(a) may be withdrawn. Thirty years ago in Matter of Petitions of Henry Geller and the National Association of Broadcasters and the Radio-Television News Directors Association to Change Commission Interpretation of Certain Subsections of the Communications Act, 48 Federal Register 53166-03, 95 F.C.C. 2d 1236, summarily affirmed without opinion sub nom League of Women Voters v. Federal Communications Commission, 731 F.2d 995 (D.C. Cir. 1984) (hereafter simply referred to as Geller) the F.C.C. ruled that there may be circumstances where broadcasters can organize and host political candidate debates and still fall within the sec. 315(a)(4) exemption. The converse of that ruling is that there may also be circumstances (and typically are, such as are present here in this case) where broadcasters organize and host a political candidate debate and because of the way that candidates are selected and the way the debate is structures are not be protected by the sec. 315(a)(4) exemption. Geller has been misread, misreported in commercially published digest head notes, and therefore Geller has often been unintentionally misapplied over the past 30 years. Geller has come to be generally misunderstood in the legal and political and telecommunications community as allowing broadcast networks to organize and host and air candidate political debates under all circumstances and that in each and every case the broadcast station is as a matter of law exempt from providing equal time. This is not what Geller stated at all. Further,

-2-

petitioner Eugene Martin LaVergne seeks in good faith to bring this Petition as a legal vehicle to both clarify and outright challenge the 3 Commissioner majority and 1 Commissioner Concurrence in the 1983 F.C.C. Geller decision, and if necessary seek to bring a good faith challenge to the 1977 two judge majority opinion of the Court of Appeals for the D.C. Circuit in Chisholm v. F.C.C., 538 F.2d 349 (D.C. Cir. 1976), cert. denied 429 U.S. 890 (1976) and seek reversal of that decision based upon the reasoning in Circuit Court Judge Skelly Wrights dissent in that very same case, and on the basis of the F.C.C.s Geller decision failing to actually be supported with adequate facts as was later made an express requirement for such dramatic changes in F.C.C. policy and statutory interpretation a few years later by the District of Columbia Circuit Courts precedent in King Broadcasting Company v. F.C.C., 860 F.2d 465 (D.C. Cir. 1988). However, as to the specifics of this case today in 2013 in this Special United States Senate Election in New Jersey, the two statutory political parties (Democrat and Republican) and their candidates have already raised and spent literally well in excess of ten million dollars in a advertising purchases with the NBC and ABC affiliates in New York and Philadelphia in the last 4 months alone. These millions of dollars were paid to the broadcast networks (1) relative to the regular June 6, 2013 Regular Primary Election held for the November 2013 Regular General Election, (2) relative to the August 13, 2013 Special Primary Election for the October 13, 2013 Special General Election for Senate, (3) relative to the October 13, 2013 Special General Election for Senate, (4) relative to the November 2013 Regular General Election, and (5) relative to Republican Governor Chris Christies Stronger than the Shore tourism and public relations campaign. To repeat, the very same broadcast networks at issue herein has in the last four months alone received literally millions of dollars in advertising revenue from the Democratic and Republican Parties and their candidates. Petitioner Eugene Martin LaVergne, who has paid exactly $0 to the network broadcast stations and would not pay such money even if he had it to spend - but who is also on the very same Special Election Ballot as a bona fide candidate for United States Senate has been by plan and design and in bad faith excluded from participation in the televised debate without any thought or reason or basis or justification. There is no polling date that could have been relied upon by the licensed broadcast networks ABC, Telemundo, NBC, and Univision when deciding to exclude Eugene Martin LaVergne because (1) no polls whatsoever were conducted relative to the October 16, 2013 Special General Election for Senate prior to August 31, 2013 when both debates were announced, and (2) no polls taken since August 31 and to date (the Rutgers Eagleton Poll, the Stockton State College Poll, and the Quinnipiac College Poll) have so much as even bothered to inquire in any way whatsoever directly or indirectly - about any other candidates except Lonegan and Booker. As such, it can not be disputed as fact that the only polling data available provides absolutely no indication of any level of community support or lack of support for Third Party United States Senate Candidate Eugene Martin LaVergne because there was no inquiry regarding anything except Lonegan and Booker. The media and pollsters wish to inaccurately portray this election as a merely a 2 candidate race, when in tact portrayal not factually true at all. Moreover, Professor David Redlawsk, Ph.D. (who runs the Eagleton Polling Institute) has specifically confirmed in writing to Petitioner Eugene Martin LaVergne the very limited scope of the inquiry of the Eagleton Poll and also specifically confirmed the inapplicability of any

-3-

data in that poll to support (or disprove) United States Senate candidate Eugene Martin LaVergne and LaVergnes potential viability, popularity or newsworthiness as a candidate. Further, the ABC, Telemundo, NBC, and Univision broadcast network affiliates are apparently completely unaware that only last week Eugene Martin LaVergne spoke before 50 members of a Tea Party Group for 3 hours (he is not a Tea Party member, candidate Lonegan is) without a break (when the event was scheduled for only 2 hours) at a scheduled event, whereas candidate Lonegan (who will be included and allowed to participate in each broadcaster debate) appeared before the very same group for a scheduled event 3 days after Petitioner LaVergne (Lonegan was also scheduled for 2 hours) and only 15 people showed up, and all left after about 45 minutes. Additionally, ABC, Telemundo, NBC, and Univision broadcast network affiliates are apparently also completely unaware that Lonegan is the subject of a pending lawsuit (LaVergne v,. Lonegan) challenging Lonegans statutory right to preferred ballot position because of the failure of Lonegan to attract the necessary participants and minimum statutory showing of community support at the August 13, 2013 Primary Election. This case will be decided in Court on October 3, 2013 at 2:00 p.m. literally the day before the ABC / Telemundo debate that Eugene Martin LaVergne is excluded from! Further, the ABC, Telemundo, NBC, and Univision broadcast network affiliates are completely unaware of the Article the First and Change the Rules Pledge issues advanced by candidate Eugene Martin LaVergne and the Democratic-Republican Party of New Jersey. In sum, the actual fact of the matter is that the exclusion of candidate Eugene Martin LaVergne from both debates was not based upon and reasoned good faith and bona fide decision whatsoever but rather was a decision that was based upon a clear institutional prejudice of the licensed networks to only allow the candidates of the two statutory political parties (Democrat and Republican) to participate to the exclusion of all other candidates because of the simple related fact that such political organizations and their candidates pay millions of dollars to the ABC, Telemundo, NBC, and Univision broadcast network affiliates for political advertising revenue whereas petitioner Eugene Martin LaVergne does not. The Article the First issue standing alone is the single most significant and newsworthy - issue in this entire Special General Election for United States Senate. Yet, the ABC, Telemundo, NBC, and Univision broadcast network affiliates have arbitrarily and unreasonably excluded Eugene Martin LaVergne and the Article the First issue from the debates. In fact, the ABC, Telemundo, NBC, and Univision broadcast network affiliates are so woefully uninformed on the actual issues that they do not even have any idea what the Article the First issue even is! The plain fact is that the ABC, Telemundo, NBC, and Univision broadcast network affiliates excluded United States Senate candidate Eugene Martin LaVergne not by exercising any discretion (informed or otherwise) but rejected LaVergne without exercising any discretion. It is also equally clear that failure to exercise any discretion is by logical definition an abuse of discretion and arbitrary decision making. Under the circumstances extant, the sec. 315(a)(4) exemption does not apply and Eugene Martin LaVergne is statutorily entitled to be provided equal time on each network relative to the initial airing of the debates and relative to any re-airing of the debates that may occur.

-4-

Moreover, due to years of misapplication of Geller in the first instance, and due to the questionable sustaining viability of Geller as correct law even as intended in 1983, Petitioner hereby requests that the F.C.C. formally reconsider Geller for clarification or administrative reversal so as to confirm the true parameters of the sec. 315(a)(4) exemption as to candidate debates sponsored by licensed broadcast networks. To assist in this endeavor, the following comprehensive preliminary Memorandum on the issue is provided.

History of the sec. 315(a)(4) Statutory Equal Time Rule and Candidate Debates: Congress Enacts the Communications Act of 1934. Congress enacted the Communications Act of 1934 to replace the Radio Act of 1927 to address, in addition to the existing medium of radio, regulation of the peoples airwaves in the context of the then new technology of television. As part of the Communications Act of 1934, specifically sec. 315(a), Congress imposed an affirmative legal statutory duty (similar to what had already been imposed upon Radio Stations in 1927) on the holder of any Federal broadcast license to provide equal time to all candidates for public office. Section 315(a) as originally enacted contained no subsections and in original form read as follows: If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcast station, he shall afford equal opportunity to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by any such candidate. [47 U.S.C. sec. 315(a) (1934)].

The 1959 Lar Daly Case: For the next twenty five years the Federal Communication Commission and the changing Commission membership through the entirety of the Roosevelt and Truman administrations and into the second Eisenhower administration - consistently interpreted the text of sec. 315(a) as not operating to apply to a broadcast licensees newscasts of the actions of incumbent politicians or candidates for election that were reported as news events and as part of a newscast. The reasoning of the F.C.C. was that such news programming objective coverage of new events occurring and created by the actions of other people unrelated to the actions or inactions of the licensee network in and of itself did not constitute use of such broadcasting station (emphasis added) within the meaning of sec. 315(a) but rather was simply the network objectively reporting to the public the newsworthy actions of others, which news events were created and controlled

-5-

by third parties. The fact that such newsworthy actions may have occurred close in time to an election did not affect the interpretation. Then, in 1959, the Federal Communications Commission (near the end of the second term of the Eisenhower administration) suddenly changed their interpretation of sec. 315(a) in the context of a challenge for equal time brought in an election for Mayor of the City of Chicago. Incumbent Chicago Mayor Richard Daly was up for reelection and F.C.C. licensed television stations were routinely reporting his press conferences and reporting on his actions as Mayor during the same time period of the political campaigns for the primary elections. One of the other candidates for Mayor, the similarly named Lar Daly who was a candidate in both the Republican and Democratic political primary elections, filed a complaint with the F.C.C. arguing that the network news coverage gave Mayor Richard Daly an unfair advantage and that the coverage violated sec. 315(a) thereby entitling candidate Lar Daly to equal time. The F.C.C. agreed and formally ruled that the news coverage of the official duties of the incumbent Mayor triggered the sec. 315(a) equal time requirement, and ordered that Lar Daly be given equal time as required by sec. 315(a). See In re: Telegram to CBS, Inc. (Lar Daly), 18 Rad.Reg. (P & F) 238, reconsideration denied 26 F.C.C. 715 (1959). In 1959 the Eighty Sixth Congress Amends sec. 315(a) in Direct Response to the F.C.C.s Decision in the Lar Daly Case to Now Include Four Specific Statutory Exemptions to the Equal Time Rule: The text of the words of the statute had not been amended or changed by Congress in the 24 years since it was first enacted in 1934, and nothing had changed except the arguments brought forward by Lar Daly, and now the F.C.C. was suddenly going to interpret the text of the words of the statute in a way that was completely different indeed the exact opposite then the way that the F.C.C. had consistently interpreted the statutory language for the past 24 years. Congress was immediately concerned that the F.C.C.s new interpretation of the long existing text of the words in sec. 315(a) in the Lar Daly case would be construed by the F.C.C. to require that equal time be provided to every candidate each time any other incumbent candidate or challenging candidate did something the network deemed newsworthy and therefore reported on, which it was feared would open up the proverbial floodgate of unintended equal time claims. Therefore, Congress quickly moved to legislatively amend sec. 315(a) to now include four specific statutorily enumerated exceptions to the equal time rule. See Pub.L. 86274, sec. 1 (1959); see also 73 Stat. 557 (1959). After the 1959 amendments, new sec. 315(a) (now codified as 47 U.S.C. sec. 315(a)(1), (2), (3) & (4)) read and to this day still reads - as follows: (a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcast station, he shall afford equal opportunity to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by

-6-

any such candidate. Appearance by a legally qualified candidate of any (1) bona fide newscast, (2) bona fide news interview, (3) 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 (4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto), shall not be deemed to be use of a broadcasting station within the meaning of this subsection. [47 U.S.C. sec. 315(a), emphasis is added to the new amended portions in bold italics].

The 1960 Kennedy - Nixon Presidential Debates and the One Time Congressional Exemption of Those Debates From the sec. 315(a) Equal Time Rule: In the Presidential Election of 1960 the Democratic Partys candidate John F. Kennedy and the Republican Partys candidate Vice-President Richard Nixon agreed to debate each other on television. While today televised candidate debates between candidates for President, United States Senate and contests for a seat in the United States House of Representatives have come to be an expected part of most political campaigns for federal elected office, the fact is that before 1960 actual face to face debates between Presidential candidates were virtually unheard of, and face to face debates of other candidates for Federal Office (Senate and Member of the House of Representatives) were actually quite rare.1 This now planned Presidential candidate debate was to be the first ever debate between Presidential candidates to be aired on national television. However, unresolved was what effect if any the recent amendments to sec. 315(a) from the year before in 1959 would have on the obligation of any licensed television or radio network that aired the Presidential debates to provide equal rime to all other candidates for President who were not included in (or were excluded from) the debates. How the F.C.C. would actually interpret the new 1959 statutory exemptions and the equal time rule in relation to the first ever television debates was not known yet. As only Kennedy and Nixon would be participating, the networks were uncertain as to their potential obligations under sec. 315(a) and were uncertain that if they aired the debates whether they would then be obligated to provide equal time to all other candidates for President. It was not clear whether the networks would take a chance and actually air the debates without further guidance on the issue. To address this uncertainty, shortly before the Presidential debates between Kennedy and Nixon were scheduled to occur, United States Senator John O. Pastore, a
1

The famous Lincoln Douglas debates did not occur during the Presidential Campaign of 1860 but rather occurred during the Illinois United States Senate contest in 1858.

-7-

Democrat from Rhode Island and Chairman of the United States Subcommittee on Communications2 formally introduced, and on August 24, 1960 Congress passed and President Eisenhower signed and approved, a formal Joint Resolution that suspended for the period of the 1960 presidential and vice presidential campaigns with respect to nominees for the office of President and Vice President of the United States any obligation of television and radio networks to provide equal time as otherwise required by sec. 315(a), and further directed the F.C.C. to submit a formal Report to Congress by March 1, 1961 to make any recommendations the Commission may have for amendments to the Communications Act of 1934 as a result of experience under the provisions of this joint resolution. The Joint Resolution reads in full and verbatim as follows: Public Law 86-677 86 Congress, S.J. Res. 207 August 24, 1960 JOINT RESOLUTION
th

To suspend for the 1960 campaign the equal opportunity requirements of section 315 of the Communications Act of 1934 for nominees for the offices of President and Vice President. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That that part of section 315(a) of the Communications Act of 1934, as amended, which requires any licensee of a broadcast station who permits any person who is a legally qualified candidate for any public office to use a broadcast station to afford equal opportunities to all other such candidates for that office in the use of such broadcasting station, is suspended for the period of the 1960 presidential and vice presidential campaigns with respect to nominees for the offices of President and Vice President of the United States. Nothing in the foregoing shall be construed as relieving broadcasters from the obligation imposed upon them under this Act to operate in the public interest. (2) The Federal Communications Commission shall make a report to the Congress, not later than March 1, 1961, with respect to the effect of the provisions of this joint resolution and any recommendations the Commission may have for amendments to the Communications Act of
2

In 1960 the Senate Subcommittee on Communications was an eight member subcommittee formed out of the larger Senate standing Committee on Interstate and Foreign Commerce. The Subcommittee on Communications was vested with primary subcommittee jurisdiction over all proposed Television and Radio legislation and regulation.

-8-

1934 as a result of experience under the provisions of this joint resolution. Approved August 24, 1960. [See Senate Joint Resolution No. 207 (August 24, 1960), 86th Congress, published at Public Law 86-677 and 74 Stat. 554 (1960)] Thereafter, Kennedy and Nixon held a series of four debates3 which were aired on national television. The election proceeded and Kennedy was declared the winner. In accordance with the terms of Senate Joint Resolution No. 207 (86th Congress) the one time special exemption of Presidential candidate debates from the sec. 315(a) exemption had now expired and no longer applied, and the F.C.C. was required to now report back to Congress with any recommendations the Commission may have for amendments to the Communications Act of 1934 as a result of experience under the provisions of this joint resolution. Id.

The 87th Congress Convenes, Chairman Senator Magnusson Introduces Senate Bill No. 204, the F.C.C. Presents a Preliminary Report to Congress and Senator Pastores Subcommittee Holds Hearings on January 31 and February 1, 1961, and on March 1, 1961 the F.C.C. Presents the Final Report to Congress: As soon as the 87th Congress convened in January 1961 Senator Warren G. Magnusson, Democrat of Washington State and Chairman of the full Senate standing Committee on Interstate and Foreign Commerce, introduced a Bill designated as Senate Bill No. 204, 87th Congress, which if approved and enacted as law, would make the one time temporary exemption for Presidential Elections a permanent statutory exemption from the sec. 315(a) equal time exemptions. Later that month, Senator Pastores Subcommittee on Communications held hearings and took testimony from witnesses from the F.C.C. and various members of the Broadcasting Community. The F.C.C. at that time presented a Preliminary Report which was relied upon during questioning, as the final report was neither yet complete nor due until March 1, 1961. In this regard, Chairman Pastore specifically stated at the commencement of the hearings on January 31, 1961 as follows: I want the record to clearly show at this point that the hearings scheduled for today and tomorrow are merely preliminary, and that a full and complete report from the FCC is expected in March as required by the resolution.

The four debates were held on September 26, 1960, October 7, 1960, October 13, 1960 and October 21, 1960.

-9-

[See page 1 of Senate Report, Review of Section 315 of the Communications Act (1960 Temporary Suspension of Equal Time Provisions), Hearings Before the Communications Subcommittee of the Committee on Interstate and Foreign Commerce, United States Senate, Eighty Seventh Congress, First Session, on a Preliminary report on the Operation of Section 315 of the Communications Act of 1934 as it Pertained to the Presidential Campaign of 1960 (January 31 and February 1, 1961), Printed for the Use of the Committee on Interstate and Foreign Commerce, U.S. Government Printing Office, Washington: 1961]. As required, on March 1, 1961 the F.C.C. presented the final report to Congress, which report was entitled The Federal Communications Commissions Final Report to the Congress of the United States, March 1, 1961, Submitted Pursuant to Senate Joint Resolution 207, 86th Congress. The Final Report, submitted by the F.C.C. to Congress a month after the subcommittee hearings were actually concluded, was nonetheless attached and re-printed in full at the end of the published Senate Report on the subcommittee hearings at pages 106 to 117. Chairman Senator Magnussons Senate Bill No. 204, 87th Congress which would have created a specific permanent statutory exemption for Presidential Campaign Debates from the equal time provisions of sec. 315(a), though debated, was never actually enacted as law before the expiration of the 87th Congress. No similar proposal was ever thereafter brought forward, and the law to this day remains as last amended by Congress in 1959. In 1962 the F.C.C. Interprets the 1959 Amendments to The Communications Act of 1934 and Determines that Political Campaign Debates are NOT EXEMPT From the Equal Time requirements of sec. 315(a): In addition to the fact that Chairman Senator Magnussons Senate Bill No. 204, th 87 Congress was never enacted as law, in 1962 the F.C.C. finally had occasion to specifically consider the applicability of the sec. 315(a)(4) exemption to the statutory equal time rule to political candidate debates. The F.C.C. specifically and reasonably ruled, based upon the plain wording of the 1959 Amendments to the Communications Act of 1934 and the legislative history of the 1959 Amendments as interpreted by the five Commissioners of the F.C.C. then in 1962 that licensed network coverage of an organized political candidate debates did not qualify as on-the-spot news coverage of bona fide news events within the meaning of sec. 315(a)(4) and that such coverage of organized political candidate debates therefore was not exempt from the statutory equal time requirement of sec. 315(a). See The Goodwill Station, Inc., 40 F.C.C.2d 362, 24 P & F Radio Reg. 413 (1962); see also National Broadcasting Co. (Wyckoff), 40 F.C.C.2d 370, 24 P & F Radio Reg. 401 (1962). After the F.C.C. took action with what was then believed to be a wholly reasonable interpretation of the text of sec. 315(a)(4) itself (when considered in consort with the actual legislative history of the 1959 Amendments) there was no effort in

- 10 -

Congress to legislatively overrule the F.C.C. by permanently amending the statutory framework further so as to specifically legislatively exempt political candidate debates from the sec. 315(a) equal time requirements. Moreover, in light of the failure of Senator Magnussons Senate Bill No. 204 to be passed into law by 87th Congress and the President, and in light of the F.C.C.s decisions in The Goodwill Station, Inc., supra. and National Broadcasting Co. (Wyckoff), supra., any Presidential candidate debate that occurred, if aired on a licensed television or radio station, would have without question been subject to the equal time provisions of sec. 315(a) as to any candidate for President who was not included (or who was excluded) from the candidate debate. Always a possibility, of course, was another specific one time exemption similar to that approved by Congress and the President for the 1960 Presidential Elections. However, as circumstances in history developed, there were no national Presidential candidate debates held in the 1964, 1968 and 1972 elections, so the matter did not become an issue again until 1976.4 On February 7, 1972, President Richard M. Nixon signed into law the Federal Election Campaign Act of 1971 which for the first time required candidates to disclose information regarding their financial contributors. See Public Law 92-225; see also 86 Stat. 3 (February 7, 1972), now codified at 2 U.S.C. sec. 431 et. seq. Also that year in 1972 Shirley Chisholm, a black woman member of the House of Representatives from New York, ran in the Democratic Primary for President. While ultimately not winning enough political party delegates to secure the actual nomination, Chisholm nevertheless did actually win primaries in the States of New Jersey, Louisiana and Mississippi, collecting 158 political party delegates along the way. At the November 1972 General Election incumbent Richard M. Nixon, the Republican political partys candidate, was re-elected President. In August of 1974 President Richard M. Nixon resigned from office and Vice-President Gerald Ford 5, a member of the Republican political party, took the oath of office so that he could serve out the remainder of President Nixons term. Thereafter, as a direct result of information regarding recent questionable and outright illegal campaign activities revealed during the so called Watergate investigations, in 1974 Congress, by over-riding a veto of now President Gerald Ford, passed into law extensive amendments to the Federal Election Campaign Act of 1971 that operated to created for the first time a Federal Election Commission and which also fixed limits on campaign contributions and expenditures. A legal challenge was immediately brought to the constitutionality of certain portions of the 1974 amendments with James Buckley, a member of the Conservative political party and an incumbent United States Senator from the State of New York, named as the lead plaintiff. In 1976
4

It is noted in passing that Richard M. Nixon, the Republican political partys candidate for President in 1960, was the also Republican political partys candidate for President on the ballot in all 50 States in 1968 and 1972. Many commentators then attributed, and to this day still attribute rightly or wrongly - Nixons 1960 defeat in large part to Nixons poor visual appearance at the televised 1960 Presidential Debates with John F. Kennedy. Richard M. Nixon may perhaps be accused of many things in history, but being dumb is not one of those things. It is therefore specifically not at all surprising that no televised Presidential candidate debates occurred in 1968 and 1972 when Nixon was once again on the ballot. 5 Gerald R. Ford was appointed as Vice President after the resignation of elected Vice President Spiro Agnew.

- 11 -

the Supreme Court struck down certain portions of the 1974 act as unconstitutional. See Buckley v. Valeo, 424 U.S. 1 (1976). Simultaneous to the time frame just discussed when Congress was enacting legislation dealing with the issues of campaign reform and campaign finance reform in response to Watergate, and also while the Federal Courts were judicially reviewing the constitutionality of such legislation, there were organized efforts by networks, self anointed First Amendment advocates, and even certain Commissioners at the F.C.C., to convince Congress to take action to specifically and legislatively exempt candidate political debates from the equal time provisions of sec. 315(a). The argument was that the networks should be free to air political candidate debates without any obligation to provide equal time to those candidates that were excluded from the debates, because forcing the networks to chose between not airing political candidate debates, or air the debates and then maybe being subject to equal time obligations, was (it was argued) an infringement on the First Amendment rights of the licensed networks. This First Amendment argument upon an initial and uninformed superficial review sounds compelling to the uneducated ear, but the argument is actually severely flawed as being based upon several completely false premises. (1) The networks may express any first amendment views that they chose without any government interference or regulation whatsoever. The networks can air or say whatever they want. It is simply that when the networks conduct is in violate of the standards in sec. 315(a) and the conduct does not fall within any of the exceptions in subsections (1), (2), (3) or (4), then equal time must be provided if requested. The First Amendment issue is not legitimate: Rather, it is about money and profits, not about the First Amendment and editorial independence. Further, unlike newspapers who use their own purchased paper and ink for disseminating the news and their accompanying editorial comments, the broadcast networks use as a medium pursuant to a conditional license the publics airwaves which are owned by the people and regulated by Congress.6 One of the express statutory conditions is that room for competing views be made available as defined in sec. 315(a).

(2)

The Networks collective mindset sometimes operates to forget that they do not actually own the airwaves that they use and generate corporate profits from, and that they are required, under certain circumstances, to share those airwaves with others as a condition of the license. This is not a penalty or punishment at all but rather it is a specific condition of each license that a network must comply with sec. 315(a). Otherwise, the public debate on political candidates or on important public issues being held over the peoples own airwaves would be completely monopolized or put under the unilateral and unchecked control of the license holder. Stated somewhat more simply, while equal time requirements may inevitably operate to cut into corporate profits (because the equal time air time is free and may therefore take the place of other revenue generating programming) this is not punishment at all. Rather, equal time simply levels the playing field so that a network licensee does not have a monopoly over the commerce of political views and ideas or over which candidates receive preference in news coverage and which get completely ignored.

- 12 -

(3)

Moreover, it would severely imperil and compromise a fair democratic elective process to unconditionally vest in a private corporate license holder, who is also simultaneously a corporate recipient of large advertising payments and profits (today in 2013 often millions and millions of dollars) from certain political organizations and their candidates, the unilateral and unconditional power to determine which political organizations or their candidates will be allowed access to the publics airwaves and which political organizations and their candidates will not. There is a rather clear and inherent conflict of interest in a situation where an F.C.C. licensees holder may unilaterally determine whether political parties and their candidates who do not pay millions of dollars in advertising revenue are worthy of participating and having their message heard and advanced in candidate debates on the same level as political organizations and candidates who pay the license holder millions of dollars in revenue.

It is for these and other similar and important policy reasons that Congress chose to add only the 4 exemptions that they did in 1959 and not others. It is for these very important policy reasons that Congress, during the process in the early to mid 1970s of enacting new laws to regulate campaign disclosures and finances and creating the F.E.C., continued to reject the efforts of the networks, certain members of the F.C.C. itself and others to who wanted Congress to legislatively remove the equal time obligations imposed in sec. 315(a). Stated bluntly, Congress itself by specific conscious plan and design chose and decided to leave intact and undisturbed the 1959 Amendments and the 1962 F.C.C. interpretations in The Goodwill Station, Inc., supra. and National Broadcasting Co. (Wyckoff), supra. regarding the statutory equal time obligations imposed on licensed broadcast television and radio networks that aired political candidate debates, this all despite the zealous and continuing objections of some to the equal time requirements. The Aspen Institute and CBS Petition to the F.C.C. to Re-Examine the Long Standing 1962 Debate Precedents, the F.C.C.s September 30, 1975 Memorandum Opinion Suddenly Administratively Reverses the F.C.C. Debate Precedents, the Split Court of Appeals decision in Chisholm, and the 1976 Presidential Election Debates: Having been unable to obtain legislative relief in Congress, a new tact was now tried by those opposing the long existing sec. 315(a) equal time obligations. On April 22, 1975, the Aspen Institute Program on Communications and Society and television licensee holder CBS, Inc., in a blatantly transparent and coordinated effort with certain F.C.C. Commissioners, filed a joint formal Petition with the F.C.C. itself asking that the Commission now on its own administratively re-examine and administratively reverse the long standing The Goodwill Station, Inc. and National Broadcasting Co. (Wyckoff) precedents. The effort was by plan and design to seek to achieve administratively from the F.C.C. a legal interpretation and new application of the law that could not be achieved legislatively from Congress.

- 13 -

The Aspen Institute / CBS Petition argued that a political candidate debate that is sponsored and organized by a third party that is wholly independent from the broadcast network license holder, such as for example the League of Women Voters which candidate debate was specifically not organized or sponsored by the broadcast network themselves should now, 13 years later, suddenly year 1975 be re-interpreted so as to now fit within the sec. 315(a)(4) exemption from equal time obligations as coverage of an on-the-spot news event. This was indeed the very same argument and position that was specifically rejected by the five F.C.C. Commissioners in office 13 years earlier in 1962 when making their decision and establishing administrative interpretive precedent on the issue in The Goodwill Station, Inc. and National Broadcasting Co. (Wyckoff). In the ensuing 13 years Congress had changed nothing in the statute, and nothing was different from any circumstances that existed in 1962. The only thing that was different now in 1975 was that now lobbying played some role, and the National Association of Broadcasters (NAB) who gave huge political contributions, wanted their way. Amazingly, against this background, on September 30, 1975 the F.C.C. relented and suddenly released and issued and published a formal Memorandum and Opinion with a new revised statutory interpretation announcing as a new rule that a licensed network could now air a political candidate debate going forward, and that airing of such a candidate debate was now to suddenly be deemed an on-the-spot news event within the meaning of the sec. 315(a)(4) exemption as long as the network was merely covering an event hosted and controlled by some other third party. See F.C.C. Aspen Institute Memorandum and Opinion and Order at 55 F.C.C.2d 697 (1975). Simply stated, the new announced rule (based upon a claimed revised interpretation of the legislative history) was that as long as the licensed network played no role and did not participate in any way in deciding which candidates would or would not be included in the debate, and as long as the licensed network played no role in structuring the actual format of the debate, the F.C.C. rule going forward was that such a debate could qualify as on-the-spot news coverage within the meaning of sec. 315(a)(4) and therefore could be aired by the network without any obligation to provide equal time to any candidates excluded from participation. This was to be the new firm rule going forward. With the slash of the a pen operating almost like a magic want, the 5 unelected Federal Communications Commissioners effectively on their own unilaterally re-wrote the law as written and enacted by Congress 41 years earlier in 1934, a law that had been revised 17 years earlier by Congress in 1959, and a law that had been consistently interpreted by the F.C.C. for now 13 years. To those few that paid attention to such mundane things as revision of F.C.C. administrative regulations, this unprecedented action and lawmaking power grab was outrageous, and beyond the authority of the F.C.C. To those who wanted the change like the NAB, it was simply a long time in coming, no matter how it happened. Congresswoman Shirley Chisholm of New York, the National Organization of Women, and others who were among the outraged, immediately contested and challenged this new interpretation on appeal to the District of Columbia Circuit Court of Appeals. In a 2 to 1 opinion, a majority of the three judge panel of the District Court of Columbia Circuit Court of Appeals (Circuit Judges Edward Tamm and Malcolm Wilkey voting to affirm the new F.C.C. ruling, with a lengthy and detailed dissent by Circuit Judge Skelly Wright) eventually affirmed and allowed the new F.C.C. interpretation to stand on the claimed basis of the Courts deferring to the administrative agencys expertise and

- 14 -

findings, notwithstanding the fact that the findings were the polar opposite of those found by a differently composed five member Commission 13 years earlier in 1962. The Supreme Court declined to hear the case so the F.C.C. ruling at that point stood, and to this day still technically stands. See Chisholm v. F.C.C., 538 F.2d 349 (D.C. Cir. 1976), cert. denied 429 U.S. 890 (1976). However, this does not mean that the new F.C.C. ruling was not extremely controversial, and indeed legally questionable, or that at some future time (like today) some differently composed group of Commissioners could unilaterally change the policy back to what was originally implemented in 1962. In this regard, Circuit Judge Skellys dissent was direct and to the point as to his view of the inappropriate and sudden and unexplained reversal of policy, stating in part in his dissent as follows: In the recent past the Federal Communications Commission has repeatedly urged Congress to amend or repeal the equal protection provisions contained in section 315 of the Communications Act. The Commissions recommendation is based on its conclusion that section 315, including the 1959 amendments, prevents the American people from receiving adequate broadcast coverage of political campaigns. There is no indication that Congress failure to act on the Commissions recommendations with respect to section 315 is inadvertence. From the very beginning of broadcasting in this country Congress has been aware of the potential of the news media to shape and influence public opinion, particularly in the political forum. To say that time has confirmed that judgment is to understate the obvious. To protect political candidates, local and national, from that danger of partisan use of the media as well as to protect the constitutional principle of electoral equality, Congress inserted the equal time provision in its first major piece of legislation relating to broadcasting and it has remained the law to this day. [Chisholm v. F.C.C., supra., 538 F.2d at 366-367 (Wright, J., dissenting)].

Judge Wright concluded by noting that which was painfully obvious, that being the fact that the Commission has based its reversal of settled law on a highly selective reading of the legislative history, the same legislative history used to establish the settled law (Emphasis added), Id., which was now after 13 years was suddenly being reversed without real basis or adequate explanation.7 Unspoken by Judge Wright
7

This unsubstantiated and unexplained change and 180 reversal in policy by the F.C.C. would appear to be in clear violation of the principles established 12 years thereafter in King Broadcasting Company v. F.C.C., 860 F.2d 465 (D.C. Cir. 1988).

- 15 -

was what if any effect or political influence the then new institution of political lobbying had on this curious unilateral administrative process of overruling legislation duly enacted by Congress and the President. Was Government regulation under the new rules now simply for sale to the highest donor in an administrative law making process that no longer was constrained by lawmaking rules and the separation of powers doctrine? Time would tell. During the 1976 Presidential Elections incumbent (but never elected) President Gerald Ford was the candidate of the Republican political party and James Earl Carter was the candidate of the Democratic political party. Also in 1976 for the first time in 16 years there were again Presidential candidate debates (the first since the Kennedy-Nixon debates in 1960), specifically 3 debates8, all sponsored by the League of Women Voters. Congress did not pass any special exemption like was done in 1960, but all other candidates for President except Gerald R. Ford and James Earl Carter were excluded, the candidate debates were covered on network television, and because of the F.C.C.s September 30, 1975 Aspen Memorandum and Opinion and the Circuit Courts 2 judge majority Chisholm decision, the licensed networks provided coverage of the Presidential candidate debates without any networks having to provide equal time to any excluded Presidential candidates. The 1980 Presidential Election, President Reagan and Deregulation, Reagan Appoints Mark Fowler as Chairman of the F.C.C., and the Geller Ruling: As the 1980 Presidential Election approached the League of Women Voters agreed to host Presidential candidate debates. Under the recent Chisholm decision, since the Presidential candidate debates were not sponsored by or structured or governed by rules made by the networks, the networks were now free to televise the Presidential candidate debates as such circumstances were specifically ruled to fall within the sec. 315(a)(4) exemption from the equal time requirements. Since the League of Women Voters and not the television networks set the standards for the debates and was the host, the League of Women Voters invited incumbent President James Earl Carter, the Democratic political partys candidate, Ronald Reagan, the Republican political partys candidate, and also John Anderson of Illinois, an independent candidate for President, to participate. President Carter was furious and refused to participate in a debate that included independent candidate John Anderson. A such, on September 21, 1980 Ronald Reagan and John Anderson debated each other in Baltimore without the participation of President Carter, and on October 28, 1980, President Carter and Ronald Reagan debated each other without independent John Anderson participating. Ronald Reagan, who was running on a platform that in part included a call for widespread deregulation, won the election. One of President Reagans early appointments was Mark Fowler as the new Chairman of the F.C.C. It is ironic that early on, no less of a commentator on F.C.C. policy than Henry Geller himself the ultimate namesake and petitioner in the Geller decision commented upon the appoint of Mark Fowler to the F.C.C. and what could be expected from a Fowler run F.C.C.:

The Ford Carter debates were held on September 23, 1976, October 6, 1976 and October 22,

1976.

- 16 -

Since 1981 when Mark Fowler became its Chairman, the Federal Communications Commission (FCC) has been thought to be in the forefront of deregulation. Fowler said he wanted to go beyond mere negative burden lifting to bring a bold new principle to communications policy: broadcasting, he proclaimed, should receive the same First Amendment protections as the print media have always enjoyed. He therefore called on Congress to repeal the equal-time-for-political-candidates requirement, the so called fairness doctrine9, and the provision guaranteeing candidates for federal office reasonable access to airwave time. Not only would the FCC, under his stewardship, work for these statutory changes but also he pledged, it would do all it could within its regulatory discretion to advance First Amendment values for broadcasting. (Emphasis added). [See Viewpoint Talk vs. Action at the FCC, by Henry Geller, 7 Regulations 15 (1983)]. Armed with this knowledge, Henry Geller himself thereafter (or substantially contemporaneously) brought a formal petition on behalf of the National Association of Broadcasters (NAB)10 asking the F.C.C. to now extend the interpretation of the sec.
9

Under Fowlers Tenure the Fairness Doctrine was effectively and completely eradicated and relegated to history despite the fact that this policy was originally instituted at the direction of Congress in 1949 and was unanimously found by the United States Supreme Court to be constitutional as applied to broadcast stations in the late 1960s. See Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969). However, since the NAB wanted it gone, the F.C.C. obliged. When Congress declined to act legislatively, in 1985 the F.C.C. under Chairman Fowler issued a formal Report recommending abolishing the doctrine. Two years later, right after Fowler left and at the end of the second Reagan administration, the F.C.C. unilaterally and administratively abolished the doctrine. See Syracuse Peace Council, 2 F.C.C.R. 5043, par. 98 (1987). 10 The frank question today is who exactly is in charge of the F.C.C.? Congress? Apparently not. For the past 30 years it pretty clearly appears to be the NAB. Former senator Bill Bradley once observed that in political campaigns, the candidates simply transfer money from contributors to television stations. See Robert Gluck, Why TV is Addicted to Campaign Case, in George Magazine, March 1998 at page 72. Little has changed since Bill Bradley voluntarily left office almost 20 years ago in 1996. Moreover, during 1998 when Senators John McCain and Russell Feingold were seeking to bring about campaign finance reform, the biggest obstacle to enacting new legislation was the National Association of Broadcasters (NAB) and their main lobbyist Eddie Frits. As Senator McCain wryly noted in an interview with Robert Gluck in 1998: I must tell you and Im not proud of the fact that my record in all the encounters Ive had with them is unblemished by victory. They have beaten me every time. (Emphasis added) Id. McCain and Feingold wanted to make free television air time on licensed broadcast networks a centerpiece of Campaign Reform. Indeed, after the 1996 Elections, there seemed to be broad based multi partisan support for this significant change and use of the peoples airwaves. After the federal elections of 1996 (as reported in March of 1998 by Robert Gluck in George Magazine) and after Democratic and Republican party fundraising excesses were exposed, the notion of giving candidates free air time on television gained support. President Clinton endorsed that idea and formed a commission to examine broadcasters public interest obligations. With

- 17 -

315(a)(4) exemption (which had already been bizarrely reinterpreted in Chisholm), to, under certain circumstances, now to even allow the networks themselves to actually host political candidate debates and yet still have the debate administratively viewed as exempt as on-the-spot coverage of a news event within the meaning of sec. 315(a)(4) so that equal time requirements would not apply. This result was unthinkable only a few years earlier in Chisholm. If this interpretation was approved, now the broadcast networks would literally be creating the news themselves, and then reporting on themselves, and they wanted this behavior to be viewed as falling within the parameters of the sec. 315(a)(4) on-the-spot coverage of bona fide news events exemption, a result Congress has specifically refused to legislatively grant despite being requested to do so. In fact, Geller himself cites Fowler as Fowler specifically himself believing that leally the only way for such a change to occur was by asking Congress to repeal the equal-timefor-political-candidates requirement. So, when Congress said no, the F.C.C. under Chairman Fowler changed their view of what was actually legal and simply did it administratively all by themselves! The NAB requested interpretation, which was indeed adopted by the F.C.C., was as follows: (1) that broadcast of a debate between legally qualified candidates may be within the sec. 315(a)(4) exemption even if the debate is sponsored by the broadcaster. (emphasis added) [See Matter of Petitions of Henry Geller and the National Association of Broadcasters and the Radio-Television News Directors Association to Change Commission Interpretation of Certain Subsections of the Communications Act, 48 Federal Register 53166-03, 95 F.C.C. 2d 1236] The above is the extended interpretation that was accepted and adopted by the F.C.C. Nothing more, nothing less. Specifically, even in this questionable procedure, the F.C.C. merely ruled that they would now adopt an extended interpretation that there may be circumstances where a broadcaster sponsors a candidate debate where the facts
campaign advertising surging during recent election cycles a Senate race now regularly costs more than $10 million most reformers believe that meaningful change can only result from addressing the rising portion of campaign budgets devoted to TV ad buys. They are the most effective, and expensive, way of reaching voters. However, during that legislative process, then Senate Majority Leader Trent Lott, who by no small coincidence was a classmate of NAB chief lobbyist Eddie Frits at Ole Miss in College (and who have been friends with each other ever since college), literally refused to allow a floor vote on the Campaign Reform legislation unless and until Senators McCain and Feingold completely removed any proposal or reference whatsoever to including free television air time for any political candidates. Ultimately, removal of this proposal was the political price McCain and Feingold had to pay to get a full Senate floor vote on any proposed campaign reform: Give the NAB exactly what they wanted - no free television air time whatsoever. See Id. And that is just what eventually what took place.

- 18 -

allow an interpretation that the debate still somehow falls within the parameters of the sec. 315(a)(4) on-the-spot coverage of bona fide news events exemption thereby excusing any obligation of the broadcaster to provide equal time under sec. 315(a). The F.C.C. did not rule that all broadcaster sponsored political candidate debates are exempt or shall always be exempt, but merely that there may be circumstances where a broadcaster sponsored debate may be exempt under sec. 315(a)(4). Moreover, this decision was not unanimous even within the F.C.C. itself. The final and formal written opinion was by only 4 members of the F.C.C. participating: A three member majority decision by Republican Commission Chairperson Mark Fowler, Republican Commissioner Mimi Weyforth Dawson, and Republican Commissioner Stephen A. Sharp, with a Separate Statement (the equivalent of a concurrence by a Judge) from Democratic Commissioner James H. Quello, with the fifth Commissioner, Democratic Commissioner Henry Rivera, absent and not participating. The League of Women Voters appealed the case to the D.C. Circuit Court of Appeals where the case was summarily affirmed without opinion by a three judge panel (Judges Wright, Tamm and Edwards) sub nom League of Women Voters v. Federal Communications Commission, 731 F.2d 995 (memo) (D.C. Cir. 1984). Curiously, the D.C. Court of Appeals stayed the Judgment for 10 days to allow the League of Women Voters to move for full en banc review. However, for unknown reasons this never occurred, nor did the League of Women Voters ever seek review in the United States Supreme Court. As such, even the limited scope of Geller has not really had the final word spoken on it as yet, especially in light of the principles established 12 years thereafter in King Broadcasting Company v. F.C.C., 860 F.2d 465 (D.C. Cir. 1988) which call into question the legality of such a dramatic change in policy being made without any actual factual or legal support for the change. Despite the clear limited scope of the actual F.C.C. ruling in Geller, in the last 30 years the actual F.C.C. Geller holding has repeatedly been cited in head notes11, in other cases12, in law review articles13, and even in text books14 all incorrectly as a bright line rule which unconditionally and in all circumstances allows network broadcasters to sponsor political candidate debates and air those debates without having to provide equal time to candidates. The actual fact of history is that Geller really says nothing of the sort. As such, Complainant / Petitioner Eugene Martin LaVergne, in addition to his F.C.C. Complaint challenging what he claims is the broadcast networks illegal
11 12

See note 67 and 68 in 47 U.S.C.S. 315. See King Broadcasting Company v. F.C.C., 860 F.2d 465, 467 (D.C. Cir. 1988) ( in 1983 the Commission extended the exemption to cover debates sponsored by broadcasters as well. See Henry Geller, 95 F.C.C.2d 1236, sub nom League of Women Voters v. Federal Communications Commission, 731 F.2d 995 (D.C. Cir. 1984).); see also Matter of Dennis Kucinich, 23 F.C.C.2d 482, 23 FCC Rcd. 482 (2008) (In addition, debates may be sponsored or initiated by broadcasters, candidates, third parties, and others and remain exempt from the equal opportunities provision.). Neither case accurately describes the true limited scope of Geller. 13 Changing the Rules of the Game: The New FCC Regulations on Political Debates, by Erwin Chemerinsky (In November 1983, in response to a petition by Henry Geller and the National Association of Broadcasters, the FCC overturned its Aspen ruling and held that broadcast stations may sponsor political debates without providing equal time to candidates not included in the debate.) This quote does not accurately describe the true limited holding of Geller. 14 See Donald E. Lively, Essential Principles of Communications Law (1992).

- 19 -

exclusion of him from the televised debates thereby invoking his right to equal time under sec. 315(a) as to the initial airing and any re-airing of the debates, but Eugene Martin LaVergne in the capacity as a Petitioner hereby petitions the full F.C.C. for a Memorandum and Order of public clarification of the actual scope of the 1983 Geller ruling so that going forward the sec. 315(a)(4) exemption will not be so easily misapplied. Respectfully submitted,

Eugene Martin LaVergne Democratic-Republican Candidate For United States Senate

- 20 -