                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 02 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MICHAEL STEPHEN LEVINSON, pro                    No. 12-15935
se,
                                                 D.C. No. 2:12-cv-00231-NVW
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

KELLY MCCULLOUGH, Manager PBS
TV Channel 8, Phoenix; et al.,

              Defendants - Appellees,

  and


UNITED STATES OF AMERICA,

              Intervenor.



                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                      Argued and Submitted October 15, 2012
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER and BEA, Circuit Judges, and RESTANI, Judge.**

      Michael S. Levinson appeals the district’s sua sponte order dismissing his

complaint for lack of jurisdiction. Levinson is a presidential candidate. He filed

this pro se action in district court, asking the court to declare the Federal

Communications Act of 1934, 47 U.S.C. §§ 154(i), 315(d), unconstitutional to the

extent it exempts public broadcasters from the requirements of 47 U.S.C.

§ 312(a)(7) that legally qualified candidates be given “reasonable access” to air

time. He also sought an order from the district court compelling the Federal

Communications Commission (“FCC”) to order the television stations to cease

broadcasting until they granted him air time pursuant to 47 U.S.C. § 315.

Levinson does not allege that any of the stations excluded him because of his

viewpoint.

      The district court held that because “the FCC has exclusive jurisdiction over

complaints that a broadcaster has violated 47 U.S.C. § 315,” Levinson must

exhaust his complaint with the FCC rather than filing suit in district court. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm. The district court is

correct.



       **
             The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.

                                            2
      Congress has vested the FCC with authority to enforce and interpret the

Federal Communications Act, including the “reasonable access” and “equal

opportunity” provisions. See 47 U.S.C. §§ 154(i), 312(a)(7). A candidate who

believes that a station has failed to provide him equal time as required under the

law must begin by filing a complaint with the FCC. 47 C.F.R. § 1.41; see The Law

of Political Broadcasting and Cablecasting (“Political Primer”), 100 F.C.C.2d

1476, 1478 (1984) (explaining how to file such a complaint).

      A person who loses at the FCC must then file a petition for reconsideration

with the FCC to give it the opportunity to address any issues the complainant

wishes to raise on appeal. 47 U.S.C. § 405(a). After the FCC denies the motion

for reconsideration, a complainant may then seek review directly in the court of

appeals, not in the district court. 47 U.S.C. § 402(a) and 28 U.S.C. § 2342 (the

Hobbs Act).

      Levinson is well aware of this procedure, having followed it in the past. See,

e.g., In Re Complaint of Michael Stephen Levinson, 9 F.C.C.R. 3018 (1994); In re

Complaint of Michael Stephen Levinson Against Television Station Licensees, 87

F.C.C. 2d 433 (1980). Levinson also knows he must first exhaust his complaint

before the FCC, and that if he chooses to file a complaint directly in district court

first, it will be dismissed. See Levinson v. F.C.C., 1995 WL 224851 (D.C.


                                           3
Cir.1995), cert denied, 516 U.S. 1011 (1995); Levinson v. F.C.C., 976 F.2d 46

(Table) (D.C. Cir. 1992).

      Levinson argues it would have been futile for him to file a complaint in the

FCC first because he has lost there in the past, and thus this requirement should be

excused. “Futility” is not shown where, as here, a claim is likely to be denied on

the merits because the plaintiff does not meet the legal requirements of the claim.

Otherwise, a claimant who repeatedly filed a complaint after losing, or after the

statute of limitations had run, etc., could simply claim that he should be able to file

in court regardless of any legal bar to his claim.

      Arkansas Educ. TV Comm’n v. Forbes, 523 U.S. 666 (1998), cited by

Levinson, does not address the jurisdiction of a district court, nor does it deal with

the requirement that a claimant must first file a complaint in the FCC. Thus, it is

inapposite to this case.

      AFFIRMED.




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