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FORBES v. ARKANSAS EDUCATIONAL TELEVISION

No. 93-1031.

22 F.3d 1423 (1994)

Ralph P. FORBES, and the People, Appellant, v. ARKANSAS EDUCATIONAL TELEVISION COMMUNICATION NETWORK FOUNDATION, and its Board of Directors in their official capacities; Arkansas Education Telecommunications, and its members and officers; Susan J. Howarth, in her official capacity as Executive Director; Victor Fleming, in his official capacity as Chairman; G.E. Campbell, in his official capacity as Vice-Chairman; Dr. Caroline Whitson, in her official capacity as Secretary; Diane Blair, in her official capacity as Commissioner; S. McAdams, in his official capacity as Commissioner; James Ross, in his official capacity as Commissioner; Jerry McIntosh, in his official capacity as Commissioner; Lillian Springer, in her official capacity as Commissioner; Amy L. Oliver, in her official capacity as Production Manager; Bill Clinton, in his official capacity as Governor of the State of Arkansas; and John Does; KHBS TV/Channel 40 UHF; KHOG TV/Channel 29 UHF; American Broadcasting Company; Darrel Cunningham, in his individual capacity, Appellees.

United States Court of Appeals, Eighth Circuit.

Decided April 28, 1994.

Rehearings Denied June 21, 1994.

Attorney(s) appearing for the Case

Thomas S. Gay, Little Rock, AR, argued (Winston Bryan and Thomas S. Gay, on the brief, of appellees Arkansas Educational Television Network, et al.). (Robert L. Jones, III and Charles R. Garner, Jr. of Fort Smith, AR, on the brief of KHBS-TV, KHOG-TV and Darrell Cunningham).

James P. Mercurio, Theodore D. Frank, Marilyn D. Sonn and Kathleen L. Franco of Washington, DC, appear on the brief of amici curiae Asso. of America's Public Television Stations, National Public Radio, Organization of State Broadcasting Executives and Public Broadcasting Service.

Renee Licht, Daniel M. Armstrong and C. Grey Pash, Jr. of Washington, DC, on the brief of amicus curiae for Federal Communications Comm'n.

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

RICHARD S. ARNOLD, Chief Judge.

The petitioner, Ralph Forbes, appeals the District Court's dismissal of his complaint for failure to state a claim upon which relief can be granted. Forbes raises two issues. First, does a private television station violate the Federal Communications Act by deciding to air a political advertisement during "safe harbor" hours without first determining whether that ad is "indecent"? Second, does...

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