580 F.

2d 9
1978-1 Trade Cases 62,101, 4 Media L. Rep. 1071

COUNCIL FOR EMPLOYMENT AND ECONOMIC

ENERGY USE, Plaintiff, Appellant,
v.
WHDH CORPORATION et al., Defendants, Appellees.
No. 77-1283.

United States Court of Appeals,

First Circuit.
Argued Sept. 14, 1977.
Decided June 23, 1978.
1

Sanford A. Kowal, Boston, Mass., with whom Sallop, Kowal & Davis,
Associates, Boston, Mass., was on brief, for plaintiff, appellant.

John R. Hally, Boston, Mass., D. Todd Christofferson, Washington, D. C., and

Robert W. Meserve, Boston, Mass., with whom Alan D. Mandl and Nutter,
McClennen & Fish, Boston, Mass., were on brief, for defendants, appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, WOLLENBERG,*

District Judge.

WOLLENBERG, District Judge.

This private antitrust action was brought in the District Court for the District of
Massachusetts on November 2, 1976, by a political committee,1 the Council for
Employment and Economic Energy Use (the Council), against four radio
station operators, WHDH Corporation, General Electric Broadcasting Co., Inc.,
RKO General Broadcasting, Inc., and Plough Broadcasting Co., Inc. (the
broadcasters). The Council alleged in its complaint that the broadcasters had
entered into a conspiracy in restraint of trade2 in violation of section 1 of the
Sherman Antitrust Act3 by agreeing together on an amount of free advertising
time to provide opponents of the Council's position on a public initiative
referendum question to be voted upon on the November, 1976 Massachusetts
ballot. The Council sought money damages pursuant to section 4 of the Clayton
Act4 and injunctive relief pursuant to section 16 of the Clayton Act.5 Motions to

dismiss for failure to state a claim upon which relief could be granted were
filed by three of the broadcasters in January, 1977.6 The Council was
subsequently granted several extensions of time within which to file a brief in
opposition to the broadcasters' motions to dismiss. However, a fourth such
motion for an extension was denied on May 5, 1977,7 and on May 10, 1977, the
trial court entered an order pursuant to Fed.R.Civ.P. 12(b)(6) dismissing the
Council's complaint. On May 13 the Council filed a motion to vacate the order
of dismissal and on May 20 filed a motion to alter the judgment of dismissal by
vacating it to permit the filing of an amended complaint. Both of these motions
were denied on May 24, 1977.8 The Council appeals from the order and
judgment dismissing its complaint and from the denial of its motions to alter the
judgment and to vacate the order of dismissal.
FACTS
6

The Council was organized for the stated purpose of encouraging the creation
of employment and opportunities in economic energy use in Massachusetts by
defeating an initiative petition which if passed would have had the effect of
limiting discounts for volume purchasers of electricity. As part of its political
campaign, the Council engaged in extensive advertising in the media, part of
which involved the purchase of broadcasting time from the defendants and
from other stations in Rhode Island, Massachusetts, and New Hampshire.
During the course of the campaign, the broadcasters afforded free air space to
Fair Share, Inc., a public interest group supporting the passage of the
referendum issue, pursuant to their obligations under the fairness doctrine to
provide such time for the dissemination of opposing political views.9 The
Council lodged a complaint on October 26, 1976, with the Federal
Communications Commission (FCC) against three of the broadcasters, not
including WHDH, stating its belief that Fair Share, Inc. had the financial means
of purchasing time on the radio stations since it had purchased a considerable
amount of broadcast time on a Massachusetts television station subsequent to its
receipt of free radio time. The FCC made an initial determination that the
broadcasters had acted reasonably in discharging their affirmative responsibility
to encourage and implement the broadcast of contrasting views in each station's
overall programming.10 The FCC noted that licensees which had presented one
side of a controversial issue of public importance by broadcasting sponsored
programming could not reject exposition of contrasting viewpoints on that issue
merely because they could not obtain paid sponsorship for that presentation,
Citing In re Cullman Broadcasting Co., Inc., 40 F.C.C. 576 (1963). The full
Commission affirmed this ruling on June 27, 1977. We upheld the
Commission's decision in Council for Employment and Economic Energy Use
v. FCC, 575 F.2d 311 (1st Cir. 1978).

* The leading case of Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957), aptly set out the established rule for dismissal under Fed.R.Civ.P. 12(b)
(6): "a complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Id. at 45-46, 78 S.Ct. at 102. The
original intent of Congress in enacting the Sherman Act was to suppress and
penalize restraints on Commercial competition in the marketing of goods and
services. Apex Hosiery Co. v. Leaders, 310 U.S. 469, 493, 495, 60 S.Ct. 982,
84 L.Ed. 1311 (1940). It is difficult to conceive how the present complaint fits
under that general rubric. Moreover, the Supreme Court has made clear its
refusal to permit parties to "impute to the Sherman Act a purpose to regulate,
not business activity, but political activity, a purpose which would have no
basis whatever in the legislative history of that Act." Eastern Railroad
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137, 81 S.Ct.
523, 529, 5 L.Ed.2d 464 (1961). See also United Mine Workers of America v.
Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). The only
exceptions to this rule countenanced by the Court were situations in which the
political activity at issue was "a mere sham to cover what is actually nothing
more than an attempt to interfere directly with the business relationships of a
competitor." Id. 365 U.S. at 144, 81 S.Ct. at 533. Simply stating the exception
demonstrates that it has no relationship to the facts alleged in appellant's
complaint. This case involves political opponents, not commercial competitors;
and political objectives, not market place goals.

Since appellant seems to have great difficulty in understanding the point we

carefully point out the differences between the cases it cites in its brief and the
present litigation.11 The cited cases involve commercial enterprises, competing
in particular markets, arguing over issues which will determine the commercial
success and profitability of one or the other of the parties to the dispute. While
the government is involved in all three cases in a commercial or regulatory
capacity the contexts of the disputes are fundamentally commercial not
political. The present case involves access to the public media by expressly
political organizations for the purpose of influencing political decisions of the
general electorate.

If appellant's view of the Sherman Act's scope prevailed, it is difficult to

imagine why every dispute in a political contest among the major political
parties would not implicate the antitrust laws. This of course is precisely what
the Supreme Court in the Noerr case indicated it was attempting to avoid. The
Court explained, "Congress has traditionally exercised extreme caution in
legislating with respect to problems relating to the conduct of political
activities, a caution which has been reflected in the decisions of this Court

interpreting such legislation. All of this caution would go for naught if we

permitted an extension of the Sherman Act to regulate activities of that nature
simply because those activities have a commercial impact and involve conduct
that can be termed unethical." Eastern Railroad Presidents Conference v. Noerr
Motor Freight, Inc., supra, 365 U.S. at 141, 81 S.Ct. at 531 (footnote omitted).
10

California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513-14,
92 S.Ct. 609, 30 L.Ed.2d 642 (1972), does not support appellant's claim. There,
the Supreme Court concluded that, "A combination of entrepreneurs to harass
and deter their competitors from having 'free and unlimited access' to the
agencies and the courts" would result in an antitrust violation. Id. at 515, 92
S.Ct. at. 614. We find no such denial in the present case. In Council for
Employment and Economic Energy Use v. FCC, supra, we rejected appellant's
claim that the action of radio stations in giving the Council's political
opponents a fixed ratio of free reply time to the Council's paid political
advertising violated the Council's first amendment rights with this comment,

11 argument is patently absurd; these ratios, even if they were as rigidly imposed
The
as the Council represents, in no way restricted the amount of time available to the
Council. The Council's only complaint is that its opponents also had an opportunity
to communicate their views. It would be a novel interpretation of the first
amendment to find within its strictures a right not to be controverted in public
political debate.
12

Id. at 315.

13

Any contention that providing public air time to one's opponents somehow
denies a party free and unlimited access to government agencies, the courts, or
any part of the political process is equally meritless. Petitioner's proper avenue
for judicial relief was exercised through FCC administrative channels and in
judicial review of the FCC's decision. The antitrust laws provide no further
remedy.

II
14

We also determine that the motions to vacate or alter the judgment were
properly denied by the district court. It is clear that a Fed.R.Civ.P. 60(b) motion
is not a substitute for the normal appeal procedure and is not a means for the
mere reconsideration of a litigant's previously existing case. Kowall v. United
States, 53 F.R.D. 211, 216 (W.D.Mich.1971). Normally leave to amend should
be liberally granted following dismissal on the pleadings. Foman v. Davis, 371
U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). However, we cannot say it

was an abuse of the court's discretion not to allow an amendment to the

complaint which would be futile. See Ondis v. Barrows, 538 F.2d 904, 909 (1st
Cir. 1976); United States v. Newbury, 123 F.2d 453 (1st Cir. 1941); Stebbins v.
Weaver, 537 F.2d 939, 942 (7th Cir. 1976). Amendments would not change the
essential charge which today we find not to constitute an antitrust violation. We
therefore find that it was proper for the court, having dismissed the complaint
as not stating sufficient facts on which to base an antitrust claim, to deny the
motions to amend that judgment and allow amendments to the pleadings.
15

Affirmed. Double costs.

Of the Northern District of California, sitting by designation

A political committee is defined by Massachusetts General Laws, ch. 55, 1 in

part as:
. . . any committee, association, organization or other group of persons . . .
which receives contributions or makes expenditures . . . for the purpose of
opposing or promoting a charter change, referendum question, constitutional
amendment, or other question submitted to the voters.

The complaint alleged that:

On or about October 8, 1976, defendants, their agents, servants, or employees,
entered into an illegal combination and/or conspiracy in restraint of trade by
doing acts, including providing that for every two advertisements on their radio
stations purchased by the plaintiff, their agents, servants, or employees, to
promote the plaintiff's opposition to (the ballot issue), said defendants, their
agents, servants, or employees, would provide one free advertising space to the
opponents of the position of the plaintiff on the referendum (ballot issue). This
was done without any inquiry by the defendants, their agents, servants or
employees, of the ability to pay of the opponents to the plaintiff's and without
reference to the different coverage of (the ballot issue) afforded by each
individual radio station owned by the defendants.
In fact said defendants, from on or about October 8, 1976, continuing to the
date of the election, did provide free space to the opponents of the plaintiff's
position . . . on the basis of one free advertising space for each two spaces
purchased by the plaintiff.

15 U.S.C. 1 provides:

Every contract, combination in the form of trust or otherwise, or conspiracy, in

restraint of trade or commerce among the several States, or with foreign
nations, is declared to be illegal . . . .
4

Section 4 of the Clayton Act, 15 U.S.C. 15, provides:

Any person who shall be injured in his business or property by reason of
anything forbidden by the antitrust laws may sue therefor in any district court of
the United States . . . and shall recover threefold the damages by him sustained
....

Section 16 of the Clayton Act, 15 U.S.C. 26, provides:

any person, firm, corporation, or association shall be entitled to sue for and
have injunctive relief . . . against threatened loss or damage by a violation of
the antitrust laws . . . when and under the same conditions and principles as
injunctive relief against threatened conduct that will cause loss or damage is
granted by courts of equity . . . .
Since the Council has succeeded in the political objective for which it was
organized of defeating Question 7 on the November, 1976, Massachusetts
ballot, and apparently will not in the future be seeking broadcast time, we see
no basis for considering the claim for injunctive relief against the broadcasters.

One of these defendants, Plough Broadcasting Co., moved in the alternative for
summary judgment. This motion was supported by the affidavit of the General
Sales Manager of several radio stations in the Boston area owned by Plough
Broadcasting Co., to the effect that there was no conspiracy but rather that
decisions concerning ballot proposition broadcasts were made independently by
the stations for the purpose and with the intent of satisfying the requirements of
the fairness doctrine

The fourth motion was filed after the plaintiff's third extension had expired on
April 25, 1977. Counsel for plaintiff did not file an opposition to the motion to
dismiss made by General Electric Broadcasting Co., Inc., and filed no opposing
brief or counter affidavit prior to the order of May 10, 1977, which granted the
motions to dismiss

The order of the court noted that consideration was given to the various
motions and supporting memoranda of law filed by the Council subsequent to
the dismissal of its complaint on May 10, 1977. These included a late brief in
opposition to the motions to dismiss and to the motion for summary judgment.
The order stated:

1) That plaintiff's motion to vacate the order dismissing the complaint is denied
as without merit;
2) That plaintiff's motion to amend the judgment of dismissal by vacating it,
under Fed.R.Civ.P. 59(e) is denied as inappropriate; but treating it the same as
a motion for relief pursuant to Fed.R.Civ.P. 60(b) it is denied.
9

See generally Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794,
23 L.Ed.2d 371 (1969); In re Handling of Public Issues Under the Fairness
Doctrine and the Public Interest Standards of the Communications Act, 48
F.C.C.2d 1 (1974); In re Applicability of the Fairness Doctrine in the Handling
of Controversial Issues of Public Importance, 40 F.C.C. 598 (1964); In re
Cullman Broadcasting Co., 40 F.C.C. 576 (1963)

10

Appendix to appellant's brief at 62-63

11

The lower court cases cited by appellant are clearly inapposite to the present
case. George W. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25
(1st Cir. 1970), involved direct commercial competitors attempting to sell their
products to public bodies under competitive bidding procedures. Hecht v. Pro
Football, Inc., 144 U.S.App.D.C. 56, 444 F.2d 931 (1971), concerned attempts
by hopeful football franchise owners to alter a restrictive covenant in a public
stadium lease that permitted only one football franchise owner to have access to
the stadium. In Woods Exploration and Producing Co., Inc. v. Aluminum Co.
of America, 438 F.2d 1286 (5th Cir. 1971), certain owners of tracts of land in a
natural gas field accused other owners of giving false data to a state commission
regulating natural gas production