On October 25, 1973, this court filed an opinion denying defendants' motion to dismiss the complaint and dissolve the temporary restraining order. By stipulation of the parties, the restraining order was extended until February 1, 1974. Defendants have filed their Answer, and plaintiffs now move for a judgment on the pleadings pursuant to Rule 12(c), F.R. Civ. P.
Initially, it must be noted that the Answer filed by the defendants does not deny any of the factual averments of the Complaint. Thus, pursuant to Rule 8(d), F.R. Civ. P., the court must take these facts as admitted. Further, the sole defense tendered by defendants which has not heretofore been raised, is that of the equitable doctrine of "unclean hands."
Specifically, defendants argue that (1) the Government of the United States has engaged in the very conduct complained of, apparently in its overseas broadcast operations such as Radio Free Europe, and (2) the hands of the Government are "unclean" in that various members of the Executive Branch have conspired to deprive Reverend McIntire of access to the airwaves because of his opposition to various Presidential policies.
Without examining the merits of either claim, this court concludes that the doctrine of "unclean hands" is not available as a defense in this case. As many courts have noted, the equitable doctrine of "unclean hands" will not be permitted to frustrate or thwart the purposes and policies of the laws of the United States. See, e.g., Pan American Petroleum and Transport Co., 273 U.S. 456, 506-507, 47 S. Ct. 416, 71 L. Ed. 734 (1926); NLRB v. Kingston Cake Co., 206 F.2d 604, 611 (3d Cir. 1953); United States v. Philadelphia Electric Co., 351 F. Supp. 1394, 1398 (E.D. Pa. 1972). The overriding national interest in maintaining the orderly use of the nation's airwaves, as manifested in the Communications Act of 1934, National Broadcasting Co. v. United States, 319 U.S. 190, 63 S. Ct. 997, 87 L. Ed. 1344 (1943), as well as the adverse effects of defendants' unlicensed broadcasts upon the public interest, United States v. Reverend Carl McIntire et al., supra ; United States v. American Bond and Mortgage Co., 31 F.2d 448 (N.D. Ill. 1929), is such as to render the defense of "unclean hands" unavailable to defendants.
Inasmuch as this court has considered matters outside the pleadings, the motion for a judgment on the pleadings must be treated as a motion for summary judgment, as provided by Rules 56 and 12(c), F.R. Civ. P.
An examination of the pleadings and affidavits submitted by the parties to this dispute leads this court to conclude that there exists no genuine issues as to any material fact, and that plaintiffs are entitled to a judgment as a matter of law.
The temporary restraining order shall be and hereby is made permanent.
An appropriate order may be submitted.