ACSBlog: The Blog of the American Constitution Society

In this order, the Supreme Court of Nevada overturned Nevada Senior District Court Judge Charles Thompson’s temporary restraining order that would have prohibited NBC Universal, Inc. from proceeding with its planned presidential debate on MSNBC TV without including presidential aspirant Dennis Kucinich.

Kucinich had requested a temporary restraining order to prevent his being uninvited from the televised debate. He made two claims. First, he argued breach of contract, claiming NBC Universal invited him to participate in the debate based upon certain criteria and then revised its criteria to include only the “top three” candidates, thereby excluding him. Second, he argued NBC Universal violated Section 315 of the Federal Communications Act, which requires broadcasters to “operate in the public interest and afford reasonable opportunity for the discussion of conflicting views of issues of public importance.”

NBC Universal, in its brief before Judge Thompson, argued that the Federal Communications Act’s equal time requirement applies to broadcast stations and not cable television, and notes that MSNBC is a cable network. In the alternative, even if the FCA applied to MSNBC, NBC Universal argued that Kucinich failed to demonstrate he had exhausted his administrative remedies by showing that he had asked the FCC to intervene (and offered evidence that Kucinich had made similar previous requests for intervention against ABC). Regarding the contract claim, NBC Universal asserted the court lacks jurisdiction to hear the claim.

Nevada’s Supreme Court concluded that the district court exceeded its jurisdiction under the FCA because Kucinich “failed to allege that he first requested and was denied relief from the FCC.” It also concluded the district court “manifestly exceeded its jurisdiction” in determining there was a contract between the parties, holding that the contract lacked consideration. Because Kucinich failed to argue a promissory estoppel theory before Judge Thompson, he could not make that argument before the Nevada Supreme Court, and thus the contract failed for a lack of consideration.