MICHAEL WAYNE FLOYD v. NAVARRO COUNTY DISTRICT CLERK (Other)

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State: Texas

Court: Criminal Court of Appeals

Docket No: WR-74,879-02

Case Date: 12/08/2010

Plaintiff: MICHAEL WAYNE FLOYD

Defendant: NAVARRO COUNTY DISTRICT CLERK (Other)

Preview:CCB Texas Licenses, L.P. ("WOAI"); Post-Newsweek
Stations, San Antonio GP, Inc. and Post-Newsweek
Stations, San Antonio, L.P.; KENS-TV, Inc. v. Joe
Farias--Appeal from 408th Judicial District Court of
Bexar County
MEMORANDUM OPINION
No. 04-07-00170-CV
KENS-TV, INC.; Post-Newsweek Stations, San Antonio GP, Inc and
Post-Newsweek Stations, San Antonio, L.P.; and CCB Texas Licenses, L.P.,Appellants
v.
Joe FARIAS,
Appellee
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CI-16910
Honorable Gloria Salda a, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: August 8, 2007
REVERSED AND RENDERED
Three television station defendants asserting immunity from defamation claims appeal the denial of a summary
judgment. Because in denying immunity the trial court erred, we reverse the trial court's judgment.
Factual Background
This case concerns allegedly defamatory political advertisements broadcast prior to the November 7, 2006 election.
Prior to the election, George Antuna, Jr., the Republican candidate for Texas State Representative, District 118,
contracted with three television stations to broadcast a paid political advertisement attacking his opponent Joe Farias.
Just before the election, Farias, a candidate for Texas State Representative, District 118, filed a defamation action in
Bexar County District Court against Antuna and one of Antuna's campaign contributors for alleged defamatory
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statements contained in the advertisement. (1) Farias later added the stations airing the advertisements, appellants
KENS-TV, Post-Newsweek Stations, San Antonio GP, Inc. and Post-Newsweek Stations, San Antonio, L.P. (owners
of KSAT-12) and CCB Texas Licenses, L.P. (owners of WOAI-TV) (hereinafter the "Stations"), as defendants. The
Stations subsequently moved for summary judgment based on an affirmative defense of immunity under 47 U.S.C.
315(a). On March 6, 2007, the trial court denied the Stations' motion for summary judgment and this interlocutory
appeal ensued.
The Stations assert the trial court erred in failing to grant their traditional motion for summary judgment because each
element of the immunity defense granted to licensees broadcasting political advertisements, was established. The
Stations further assert that Farias failed to raise a genuine issue of material fact negating the Stations' immunity; thus,
the trial court erred in its denial of their motion for summary judgment.
Jurisdiction
The Stations bring this interlocutory appeal under section 51.014(a)(6) of the Texas Civil Practice and Remedies Code,
which allows for an interlocutory appeal from the denial of a motion for summary judgment:
that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting
in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising
under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I,
Section 8, of the Texas Constitution, or Chapter 73 . . .
Tex. Civ. Prac & Rem. Code Ann. 51.014(a)(6) (Vernon Supp. 2006).
Farias filed a motion to dismiss this appeal, asserting we did not have jurisdiction to hear the claim. Farias argues the
Stations' motion for summary judgment was not based on a defense arising under the free speech or press clauses of
the United States or Texas constitutions or Chapter 73; rather, the Stations' defense relied on section 315(a) of the
United States Code. 47 U.S.C. 315(a) (2006).
The Stations contend a plain reading of section 51.014(a)(6) allows an appeal when the motion for summary judgment
is based upon a claim against a member of the media. Because Farias brought his claim against the Stations under
Chapter 73, the Stations reason their motion for summary judgment was based upon a claim against them arising under
Chapter 73. We agree. "The purpose of [Section 51.014(a)(6)] was to allow a newspaper, radio station, or television
station that was sued for libel to make an immediate appeal of a judge's refusal to grant a summary judgment." TSM
AM-FM TV v. Meca Homes, Inc., 969 S.W.2d 448, 451 (Tex. App.--El Paso 1998, pet. denied). We, therefore,
overrule Farias' motion to dismiss this appeal.
Standard of Review
The trial court must grant a motion for summary judgment if "the moving party is entitled to judgment as a matter of
law." Tex. R. Civ. P. 166a(c). A defendant moving for summary judgment on an affirmative defense is entitled to a
summary judgment upon conclusively establishing each of the essential elements of the affirmative defense as a matter
of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984); San Antonio Express News v. Dracos, 922
S.W.2d 242, 247 (Tex. App.--San Antonio 1996, no writ). Evidence is conclusively proven only if reasonable persons
could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Once a movant
presents sufficient evidence to establish its right to a summary judgment, the burden shifts to the non-movant to
present contradictory evidence giving rise to a fact issue in order to avoid summary judgment. Marshall v. Sackett, 907
S.W.2d 925, 930 (Tex. App.--Houston [1st Dist.] 1995, no writ). In considering the defense, the court assumes the non-
movant's evidence is true and resolves "[e]very reasonable inference . . . in favor of the non-movant." Nixon v. Mr.
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Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Moreover, an appellate court may only consider those items on
file at the time of the hearing. Tex. R. Civ. P. 166a(c); H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d 872, 878-79
(Tex. App.--Corpus Christi 1996, writ denied). We review the trial court's grant or denial of summary judgment de
novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Smith v. Janda, 126 S.W.3d 543, 545 (Tex.
App.--San Antonio 2003, no pet.).
47 U.S.C. 315(a)
A. Statutory Construction
The Stations' motions for summary judgment asserted an affirmative defense of immunity from liability derived from
the "no power of censorship" provision of 47 U.S.C. 315(a). The Stations must prove the statutory elements of section
315(a) and that they are bound by section 315(a)'s "no censorship" provision. The relevant portion of the statute
provides:
If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting
station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting
station: Provided, [t]hat such licensee shall have no power of censorship over the material broadcast under the
provisions of this section.
(emphasis original). 47 U.S.C. 315(a) (2006); see also 47 C.F.R. 73.1941(a) (2006). The affirmative defense therefore
applies to: (1) "any licensee" (2) who "permit[s]" (3) "a legally qualified candidate for any public office" (4) "to use"
their station. 47 U.S.C. 315(a) (2006). A "legally qualified candidate" for public office is further defined as:
A legally qualified candidate for public office is any person who: (1) Has publicly announced his or her intention to
run for nomination or office; (2) Is qualified under the applicable local, State or Federal law to hold the office for
which he or she is a candidate; and . . . (1) Has qualified for a place on the ballot [or met another criteria].
47 C.F.R. 73.1940(a)-(b). Finally, a "use" of a broadcasting station under section 315(a) is generally defined as "any
broadcast . . . of a candidate's voice or picture . . . such that [the candidate] will be identified by members of the
audience." Political Primer 1984, 100 F.C.C.2d 1476, at *14 (F.C.C. 1984).
Once a broadcaster agrees to sell time to a legally qualified candidate, it may not censor the candidate's materials. See
47 U.S.C. 315(a) (2006); Farmers Educ. & Co-op. Union of Am. v. WDAY, Inc., 360 U.S. 525, 528 (1959). In an
effort to promote political speech and a better informed electorate, the Supreme Court granted broadcasters immunity
from state libel laws for qualified "use" under section 315(a). Id. at 526-27, 529-30, 535 (describing licensees'
immunity from state libel laws); Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 516 (Tex. App.--Austin 1991, writ
denied) (recognizing that section 315(a) "expressly prohibited the censorship of certain [broadcast] political speeches . .
. [and] that the statute's absolute prohibition gave [broadcast] stations immunity from [state] libel claims arising out of
such political speeches").
B. Analysis
In their respective motions for summary judgment, each station expressly asserted its section 315(a) immunity from
suit as an affirmative defense. We therefore review the record before the trial court. When a movant asks for judgment
on the pleadings, the non-movant's pleadings may be used for summary judgment proof. Brooks v. Ctr. for Healthcare
Svcs., 981 S.W.2d 279, 283 (Tex. App.--San Antonio 1998, no pet.).
1. Questions of Fact
Here, the Stations provided an uncontroverted affidavit that each station was an FCC licensee. The evidence also
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established each station permitted its use by selling air time to the Antuna campaign; that Antuna was a legally
qualified candidate for a state public office; and that Antuna's image appeared in the advertisements which constitutes
a "use." Although Farias challenges section 315(a)'s applicability, which he asserts raises a question of fact, his
responsive pleading to the Stations' summary judgment motion effectively admits facts establishing the licensee,
permitted use, legally qualified candidate, and candidate elements of section 315(a).
Thus, the record shows that the Stations brought forward sufficient proof of each element of the affirmative defense
required to impose the "no censorship" provision of section 315(a), which results in immunity from state libel suits.
The record shows there are no questions of material fact pertaining to the Stations' affirmative defense. See Black v.
Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990) (holding that no disputed question of material fact can remain
on the affirmative defense).
2. Questions of Law
Farias asserts that the federal immunity statute does not apply in this case and the trial court properly denied the
Stations' motions for summary judgment. However, as licensees who agreed to air a political advertisement by a
legally qualified candidate, the Stations were bound by the "no censorship" provision in section 315(a) and could not
edit, substitute, or refuse to show the allegedly defamatory material. See Farmers, 360 U.S. at 530 ("[T]he individual
licensee has consistently been denied 'power of censorship' in the vital area of political broadcasts."). As such, the
Stations were eligible for section 315(a)'s corresponding immunity. See Carlisle, 805 S.W.2d at 516.
Further, the "no censorship" provision applies to all uses, whether first use or response. Becker v. FCC, 95 F.3d 75, 82
(D.C. Cir. 1996); Political Primer 1984, 100 F.C.C.2d at *37 ("A station may not refuse to broadcast a candidate's
program on the ground that it contains libelous remarks, even though no opposing candidates have made broadcasts.").
There is no exception for pre-recorded advertisements. Becker, 95 F.3d at *65. Section 315(a)'s immunity attaches to
broadcasters airing advertisements by legally qualified candidates for state, not just federal, public offices. (2)
Moreover, we find no authority for the proposition that a broadcaster's violation of the sponsor disclosure requirements
of 47 U.S.C. 317 voids the broadcaster's immunity under 315(a). 47 U.S.C. 317 (2006). To void the immunity for
technical infractions would be akin to the prohibited censorship, thereby limiting free speech, the very issue which
section 315(a) is trying to protect. See Farmers, 360 U.S. at 534.
Conclusion
We have jurisdiction over this interlocutory appeal and therefore, overrule appellee's motion to dismiss this appeal.
The record before the trial court establishes each element of the affirmative defense, raises no questions of material fact
pertaining to the affirmative defense, and supports that the Stations are entitled to judgment as a matter of law. The
trial court, therefore, erred in failing to grant the Stations' motions for summary judgment. We reverse the trial court's
summary judgment and render judgment in favor of the Stations.
Rebecca Simmons, Justice
1. Farias' claims against Antuna are not part of this interlocutory appeal. The alleged defamatory statements included
accusations that Farias solicited and accepted bribes.
2. See KVUE, Inc. v. Moore, 709 F.2d 922, 934-935 (5th Cir. 1983) (quoting In re Public Notice Concerning Licensee
Responsibility Under Amendments to the Communications Act Made by the Federal Election Campaign Act of 1971,
47 F.C.C.2d 516, at *2 (F.C.C. 1974), overruled on other grounds by In re Anthony Martin-Trigona, 64 F.C.C. 2d 1087
(F.C.C. 1977)); In re Amendment of Parts 73 and 76 of the Commission's Rules Relating to Broadcasts and Cablecasts
by Legally Qualified Candidates for Public Office, 68 F.C.C.2d 1049, at *1 (F.C.C. 1978).
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