joined by JOHN R. GIBSON, Senior Circuit Judge, FAGG, MAGILL, and HANSEN, Circuit Judges, concurring in part and dissenting in part.
Although I agree with most of the majority opinion, for the reasons discussed below, I would affirm the order of the district court dismissing Forbes’s complaint. Accordingly, I concur in part and dissent in part.
It has been an instructive experience to reconsider these issues. As a preliminary matter, however, I would hold that the FCC has exclusive jurisdiction of this litigation, including both the statutory and the constitutional claims, with judicial review in the court of appeals and then the Supreme Court. See Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 77 (D.C.Cir.1984); see also Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). Forbes should have taken his complaints to the FCC in the first instance. Litigation in the district court is inconsistent with and necessarily undermines the exclusive jurisdiction of the FCC.
Balancing the various First Amendment interests involved in the broadcast media and determining what best serves the public’s right to be informed is a task of great *1431delicacy and difficulty. The process must necessarily be undertaken within the framework of the regulatory scheme that has evolved [since 1927]....
... The judgment of the Legislative Branch cannot be ignored or undervalued simply because [Forbes has cast his] claims under the umbrella of the First Amendment. That is not to say that we “defer” to the judgment of the Congress and the [Federal Communications] Commission on a constitutional question, or that we would hesitate to invoke the Constitution should we determine that the Commission has not fulfilled its task with appropriate sensitivity to the interests in free expression.
Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. at 102-03, 93 S.Ct. at 2086-87.
It may be true that the FCC is not as vigilant or as sensitive to first amendment interests as it should be. See Muir v. Alabama Educational Television Comm’n, 688 F.2d 1033, 1056-57 (5th Cir.1982) (banc) (Frank M. Johnson, Jr., J., dissenting), cert. denied, 460 U.S. 1023, 103 S.Ct. 1274, 75 L.Ed.2d 495 (1983). It may also be true that technological changes since the Supreme Court decided Red Lion Broadcasting Co. v. FCC in 1969 have largely undermined the basis for the existing pervasive federal regulation of the broadcasting industry as a whole and, as a result, “raise a significant possibility that the First Amendment balance struck in Red Lion would look different today.” See Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1442 (8th Cir.1993) (banc) (Richard S. Arnold, C.J., concurring in the judgment). However, absent such developments, I would require Forbes to raise both his statutory and constitutional claims in proceedings before the FCC and not as an original matter in the district court.
Assuming the district court did have jurisdiction, I agree the district court correctly dismissed Forbes’s 42 U.S.C. § 1985 civil conspiracy claim because his allegations were too vague and his 42 U.S.C. § 1981 claim because he failed to allege discrimination on the basis of race. Op. at 1428. I also agree the district court correctly dismissed Forbes’s Federal Communications Act claims against the AETN defendants for excluding him from the debate and for refusing him air time and against the private stations for refusing to broadcast his political advertisements except during the safe-harbor hours. Id. at 1427. The district court lacked subject matter jurisdiction over these claims. Forbes should have taken these complaints to the FCC first. Forbes did not do so. The FCC has considered complaints involving candidate debates as well as complaints involving anti-abortion advertisements. Then, had the FCC ruled against him, Forbes could have sought judicial review in the court of appeals, not the district court. DeYoung v. Patten, 898 F.2d 628, 633-34 (8th Cir.1990) (no implied private right of action). I also agree that Forbes cannot use 42 U.S.C. § 1983 to enforce these statutory claims. Op. at 1428; DeYoung v. Patten, 898 F.2d at 634-35 (§ 1983 remedy foreclosed by comprehensive enforcement mechanism).
With respect to Forbes’s first amendment claim, I also agree that there is state action for purposes of § 1983 because AETN is an instrumentality of the state. It is a state-owned, noncommercial, public television station; its employees are state employees who are represented in this appeal by the state attorney general. Op. at 1428; DeYoung v. Patten, 898 F.2d at 631-32. I do not agree, however, that Forbes, even though he was a legally qualified candidate, had a first amendment right to be included in the candidate debate or that the candidate debate was a public forum for first amendment purposes. In my view, the candidate debate was a nonpublic forum. Like private commercial television, public television is not a traditional public forum; it does not extend a general invitation to the public to appear on or participate in its programs. Nor do I think the candidate debate was a limited or quasi-public forum; the format of this candidate debate was not compatible with either unrestricted public access or with unrestricted *1432access by all of the legally qualified candidates. For this reason, I would hold that the candidate debate was a nonpublic forum.
“Control over access to a nonpublic forum can be based on ... speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense & Education Fund, 473 U.S. 788, 806, 105 S.Ct. 3439, 3451, 87 L.Ed.2d 567 (1985) (citations omitted). Presumably, AETN decided to limit the number of candidates in order to maintain a traditional debate format, rather than to expand the format to a panel discussion. Because AETN has yet to file an answer, AETN’s reasons for designing the format of the candidate debate as it did are not known. However, it would not have been unreasonable or viewpoint-specific for AETN to have limited the candidate debate to only the two major party candidates, thus excluding minor party candidates and independent candidates, or, for that matter, to the two candidates who had the most support or who appeared to have the most likely chance of winning, for example, on the basis of poll results. It may not have been good programming, or even good politics, given voters’ interest in and the occasional historical success of minor party and independent (and even fringe) candidates, to limit the candidate debate to the two major party candidates. Nonetheless, I would hold that AETN had the editorial and programming discretion to structure the candidate debate along those lines and that excluding Forbes from the candidate debate for those reasons would be viewpoint neutral.