Untitled Texas Attorney General Opinion

The Attorney General of Texas

July 7, 1982

MARK WHITE

Attorney General

Honorable Gerald Hill, Chairman Opinion No. ~~-488

Supreme Court Building House Committee on Elections

P. 0. Box 12546

Austin, TX. 76711. 2546

Texas House of Representatives Whether 47 U.S.C. section

5121475-2501 P. 0. Box 2910 !&b)(l) preempts article

Telex 9101674.1367 Austin. Texas 78769 14.09(B) of the Texas Election

Telecocxier 5121475.0266 Code with regard to the rates

a broadcaster in Texas may

charge for political ad-

1607 Main St., Suite 1400

Dallas, TX. 75201-4709 vertising

2141742-6944

Dear Representative Hill:

4624 Alberta Ave., Suite 160

El Paso. TX. 79905-2793

You have asked five questions concerning article 14.09 of the

915/533-3464 Texas Election Code. That article provides in relevant part as

follows:

1220 Dallas Ave., Suite 202

(B) ...No advertising medium may charge a

Houston, TX. 77002.6966

713/650-0666

rate for political advertising in excess of the

following:

606 Broadway, Suite 312 (1) For advertising broadcast over a radio or

Lubbock, TX. 79401-3479

television station, including a community antenna

6061747.5236

or cable television system, the rate charged shall

not exceed the lowest unit charge of the station

4309 N. Tenth, Suite B for the same class, condition and amount of time

McAllen, TX. 76501-1665 for the same period;

5121662.4547

(2) For advertising printed or published by

200 Main Plaza, Suite 400 any other medium, the rate charged shall not

San Antonio, TX. 76205.2797 exceed the lowest charge made for comparable use

5121225~4191 of such space for other purposes.... (Emphasis

added).

An Equal Opportunity/

Attirmative Action Employer Your questions are as follows:

1. Is article 14.09(B)'s restriction on the

rate radio and television stations can charge for

political advertising the same as that imposed by

47 U.S.C. section 315(b)(l)? For example, suppose

a station sells one fixed position one-minute

announcement in prime time to commercial

p. 1726

Honorable Gerald Hill - Page 2 (MW-488)

advertisers for $15. During the same period, an

advertiser has bought 500 spots, however, and he

paid only $5,000, or $10 each. When a candidate

comes to the station to buy one fixed position

one-minute announcement in prime time, under

article 14.09(B), does the station charge $15, as

it would charge a regular commercial advertiser,

or must it charge no more than $10, the lowest

unit rate?

2. In the situation discussed above, if one

political candidate purchases 500 spots and is

charged the reduced rate of $10 per spot, and

another candidate purchases only one spot, should

that candidate be charged the regular commercial

rate of $15, or the lowest unit charge of $lO?

3. In article 14.09(B), which refers to 'the

lowest unit charge of the station for the same

class, condition and amount of time for the same

period,' what does 'condition' of time mean?

4. Does 47 U.S.C. section 315(b)(l) preempt

article 14.09(B)?

5. If a Texas broadcaster accepts advertising

from candidates for state or local offices in

other states, or on issues to be voted on in other

states, must a broadcaster charge the rates

prescribed by article 14,09(B) for that

advertising?

The federal provision you cite, 47 U.S.C. section 315(b),

provides as follows:

The charges made for the use of any

broadcasting station by any person who is a

legally qualified candidate for any public office

in connection with his campaign for nomination for

election, or election, to such office shall not

exceed --

(1) during the forty-five days preceding the

date of a primary or primary runoff election and

during the sixty days preceding the date of a

general or special election in which such person

is a candidate, the lowest unit charge of the

station for the same class and amount of time for

the same period; and

p. 1727

Honorable Gerald Hill - Page 3 (~~-488)

(2) at any other time, the charges made for

comparable use of such station by other users

thereof. (Emphasis added).

KVUE-TV, Inc. v. Moore, C.A. No. A-El-CA-446 (W.D. Tex. March 18,

1982). answers your fourth question. In that case, the court

dismissed a constitutional attack upon article 14.09(B). One of the

arguments was that article 14.09(B) is preempted by 47 U.S.C. section

315(b). Judge Nowlin responded as follows:

When the Federal Election Campaign Act of 1971

(which included 47 U.S.C. section 315(b)) was

enacted, it contained the following provision:

Sec. 403(a) Nothing in this Act

shall be deemed to invalidate or make

inapplicable any provision of any State

law, except where compliance with such

provision of law would result in a

violation of a provision of this Act.

In 1974, this provision, codified as 2 U.S.C.

section 453, was amended as follows:

The provisions of this Act, and of

rules prescribed under this Act,

supercede and preempt any provision of

State law with respect to election to

Federal office. (Emphasis added).

As a consequence, Congress has expressly limited

the boundaries of preemption exclusively to

elections for federal office, and accordingly,

Article 14.09(B) would not apply to such

elections. Tex. Atty. Gen. Op. Nos. H-588 (1975)

and H-433 (1974). Congress, however, clearly did

not seek to foreclose legislatures from adopting

laws which would regulate state elections. The

reaulation of state elections is whollv within the

authority of the individual states. Oregon v.

Mitchell, 400 U.S. 112 (1970); United States v.

Tonry, 605 F.2d 144 (1979).

Id. at 11 (citations omitted). See also Head v. New Mexico Board of

Examiners in Optometry, 374 U.S. 424 (1963); Exxon Corp. v. Governor

of Maryland, 437 U.S. 117 (1978) (standards for determining whether

federal statute preempts state statute).

p. 1728

Honorable Gerald Hill - Page 4 (MW-488)

In our opinion, the KVUE-TV case resolves your preemption

question. It establishes that article 14.09(B) is preempted only in

the context of elections for federal office.

The answer to your first three questions turns on the

construction of the following phrase in article 14.09(B)(l): "lowest

unit charge for the same class, condition and amount of time for the

same period." This phrase first appeared in the statute in 1975.

Acts 1975, 64th Leg., ch. 771, at 2269. The legislature has, however,

never offered any guidance as to its meaning. The legislative history

of article 14.09 also fails to shed much light on the problem. We

must therefore construe this phrase in the manner which, in our

opinion, best reflects the legislature's intent. Flowers v.

Dempsey-Tegeler and Company, 472 S.W.2d 112 (Tex. 1971); Calvert V.

British-American Oil Producing Company, 397 S.W.Zd 839 (Tex. 1965).

This phrase is virtually identical to the phrase used in 47

U.S.C. section 315(b)(l). That section speaks in terms of the "lowest

unit charge of the station for the same class and amount of time for

the same period." Unfortunately, just as the Texas legislature failed

to define the terms used in article 14.09(B)(l), Congress has not

defined the terms used in section 315(b)(l).

The Federal Communications Commission [hereinafter "FCC"],

however, has published a booklet entitled "The Law of Political

Broadcasting and Cablecasting." 43 Federal Register No. 169 (Aug. 16,

1978). This booklet purports to be an "accurate restatement of

existing rules and precedent" in the field of political broadcasting.

Id. at 36343. The following discussion is found at page 36377:

LOWEST UNIT CHARGE

2. Section 315(b)(l) refers to 'the lowest

unit charge of the station for the same class and

amount of time for the same period...' The

following definitions of these terms and examples

of the ways in which the lowest unit charge is to

be computed and applied are bases [sic] on the

Commission's 1972 Public Notice on this subject

cited above, unless otherwise indicated:

(4 What does 'class' of time mean? It

refers to the kinds of rates that most radio and

TV stations have, such as rates for fixed-position

spots, preemptible spots, run-of-schedule spots,

and special discount packages.

(b) What is the 'amount' of time? This term

refers to the length of the period purchases, such

as 30 seconds, 60 seconds, 5 minutes or 1 hour.

p. 1729

Honorable Gerald Hill - Page 5 (MW-488)

Cc) What is the 'same period?' This term

refers to the time of the broadcast day, such as

prime time on TV, 'drive time' in radio, and Calss

[sic] A, Class B and other classifications of time

which a station may establish for rate-making

purposes.

Cd) What does 'lowest unit charge' mean?

Briefly it means that candidates must be give

[sic] all discounts, based on volume, frequency or

any other factor, that are offered to the

station's most favored commercial advertiser for

the same class and amount of time for the same

period, regardless of how few programs or spots

the candidate buys. This includes discounted

rates given to commercial advertisers but not

published on the rate card. Following are some

examples:

(0 A station sells one-fixed position

one-minute announcement in prime time to

commercial advertisers for $15. If an advertiser

buys 500 spots, however, he pays only $5,000 or

$10 each. If a candidate buys one spot he may not

be charged more than $10.

(ii) A station sells one preemptible

30-second spot in drive time to commercial

advertisers for $10. It sells 100 such spots for

$750. It must sell one such spot to a candidate

for no more than $7.50.

(iii) A station's lowest rate per spot for

run-of-schedule one-minute spots is 1,000 for

$1,000, but it charges $4 for a single

run-of-schedule spot. It must sell one such spot

to a candidate for mot [sic] more than $1.

(Emphasis added).

The "Commission's 1972 Public Notice," to which the foregoing

discussion refers, is found at 34 F.C.C. 2d 510 (1972). The following

discussion is presented at page 524:

VI. SECTION 315 -- LOWEST UNIT CHARGE

VI.l.Q. What is the meaning of 'lowest unit

charge of the station for the same class and

amount of time for the same period' in section

315(b)(l)?

p. 1730

Honorable Gerald Hill - Page 6 (MW-488)

A. The term 'class' refers to rate categories

such as fixed-position spots, pre-emptible spots,

run-of-schedule and special rate packages. The

term 'amount of time' refers to the unit of time

purchased, such as thirty seconds, sixty seconds,

five minutes or one hour. The term 'same period'

refers to the period of the broadcast day such as

prime time, drive time, Class A, Class B or other

classifications established by the station.

Candidates are entitled to discounts, frequency

and otherwise, offered to the most favored

commercial advertiser for the same class and

amount of time for the same period, without regard

to the frequency of use by the candidate. This

includes discount rates not published in a rate

card but provided to commercial advertisers. Some

examples follow:....

The FCC is charged with the duty of implementing section

315(b)(l). 47 U.S.C. 9315(d). A construction of a statute by the

agency

- . charged with its execution will be followed unless there is

compelling evidence that the construction is wrong. E.I. du Pont de

Nemours and Company v. Collins, 432 U.S. 46 (1977); Lewis v. Martin,

397 U.S. 552 (1970). Clearly, the foregoing 1972 and 1978 discussions

of "lowest unit charge" are FCC "constructions" of section 315(b). We

are unaware of any evidence, compelling or otherwise, that these

constructions are incorrect, and we therefore accept them as

authoritative. In this context, we note that Congress has done

nothing in intervening years to cast doubt upon them.

We next consider the relevance of these discussions in terms of

our inquiry. As noted, there is little legislative guidance as to the

meaning of the "lowest unit charge" phrase in the context of article

14.09(B)(l). We note, however, that this phrase was inserted in

article 14.09 three years after its federal counterpart was added to

section 315(b)(l). In our opinion, given the similarity between the

state and federal phrases and the fact that the former was enacted

three years after the latter, we may -- especially since there is no

evidence to the contrary -- conclude that the terms used in the state

phrase were intended to have the same meaning as the corresponding

terms in the federal phrase. See Blackman v. Hansen, 169 S.W.2d 962

(Tex. 1943) (where state statutory language is taken from federal

statute, presumption is that Texas legislature knew of construction

given federal law when state law adonted and intended to adoot federal

construction); State v. Wiess, 171 S:W.2d 848 (Tex. 1943); High Plains

Natural Gas Company v. Railroad Commission of Texas, 467 S.W.2d 532

(Tex. Civ. App. - Austin 1971, writ ref'd n.r.e.); see also Open

Records Decision Nos. 309 (1982); 251 (1980) (construction given

p. 1731

Honorable Gerald Hill - Page 7 (MW-488)

exceptions to federal Freedom of Information Act, 5 U.S.C. 5552.

relevant in construing exceptions in Open Records Act, article

6252-17a, V.T.C.S.). In other words, the terms "lowest unit charge,"

"class," "amount," and "same period" have the same meaning in the

context of both statutes.

The 1972 FCC discussion of "lowest unit charge" supplies the

"meaning" of the federal terminology. Since the 1978 discussion adds

nothing new to the FCC's 1972 construction but simply restates it, it

is also relevant for our purposes. Because we are aware of no

evidence which rebuts the presumption that in amending article 14.09

in 1975, the Texas legislature was aware of the FCC's construction of

the federal terms and intended to adopt that construction, we conclude

that this was most likely the case. The meaning ascribed by the 1972

and 1978 FCC statements to the terms used in the "lowest unit charge"

phrase in section 315(b)(l) is, therefore, also the meaning which

those terms have in the context of article 14.09(B). In this context,

we note that what little enlightening legislative history of article

14.09(B) we have found, as obtained from tapes of the coannittee

hearings, indicates that the legislature most likely intended this

result.

We now turn our attention to the word "condition" in article

14.09(B)(l). In a supplementary letter to this office, you stated:

Currently, broadcasters across the state are

providing political advertising to candidates at

the lowest unit charge rate, but are informing

candidates that if a commercial advertiser

requests time, and is willing to pay a higher

rate, the previously purchased political spot will

be preempted, with no notice to the candidate. As

a protection against being preempted, candidates

are being forced to pay a higher rate for their

advertising than the legally prescribed lowest

unit charge.

If the 'condition' of a commercial rate

advertisement includes a guarantee of specific

placement, must a broadcaster provide the same

'condition' for political advertisers at the

lowest unit charge rate, or is there a difference

in the definition of 'condition' for political and

commercial accounts?

The phrase which was originally proposed for inclusion in article

14.09 tracked the federal language: "lowest unit charge of the

station for the same class and amount of time for the same period."

During the committee hearings on the proposed amendments, the

p. 1732

Honorable Gerald Hill - Page 8 (MW-488)

legislature added "condition" to this phrase. The tapes of the

committee hearings indicate that the change was made in an effort to

address the situation you describe. The amended version of the phrase

was eventually enacted into law.

In the context of article 14.09(B), "class... of time" refers to

rate categories, such as fixed-position, preemptible, and

non-preemptible advertising spots. Each rate category has its own

unique characteristics; an obvious feature of "non-preemptible" time,

for example, is that it does not permit preemption. Under the version

of the "lowest unit charge" phrase which was originally proposed for

adoption, a radio or television station would have been obliged to

sell a particular amount of fixed-position, preemptible or

non-preemptible advertising time to a political candidate at the

lowest unit charge given its most favored commercial advertiser for

the same kind and amount of time at the same period. Any stipulations

inherent in the particular class of time being purchased would,

therefore, have automatically been included as factors in computing

the "lowest unit charge" price. Under the original version, however,

the station would not have been obliged to include as a factor in the

computation of this price any stipulation not inherent in the

particular class of time being bought. In other words, if, for

example, a guarantee of specific placement is an inherent feature of a

particular class of time, it would have automatically been a factor in

the computation; if, however, it is not an inherent feature of the

class of time being purchased, the station would not have been

required to include it as a factor.

In our opinion, the legislature included the word "conditionu in

article 14.09(B) precisely in order to rectify this problem. We

conclude, therefore, that under the statute as finally enacted, 3

stipulations, whether inherent in the class of time being purchased or

not, which are included as part of the sale of an advertising spot to

a commercial advertiser must be used as a factor in computing the

"lowest unit charge" figure for political candidates.

Thus, in answer to the hypotheticals set out in your first two

questions: in each case the candidate could only be charged $10.

In order to answer your,final question, we must focus upon the

following phrase in article 14.09(B):

No advertising medium may charge a rate for

political advertising excese of the

following:.... (Emphasis a%ed).

"Political advertising" is:

anything in favor of or in opposition to any

candidate for public office or office of a

p. 1733

. *

Honorable Gerald Hill - Page 9 'NJ-488)

political party, or in favor of or in opposition

td any political party, or in favor of or in

opposition to the success of any public officer,

or in favor of or in opposition to any measure

submitted to a vote of the people, which is

communicated in any of the following forms:....

(Emphasis added).

Elec. Code art. 14.01(R). "Public office" is:

any office created by or under authority of the

laws of this state, that is filled by the voters.

(Emphasis added).

Elec. Code art. 14.01(G). "Candidate" is:

any person who has knowingly and willingly taken

affirmative action for the purpose of seeking

nomination or election to, any public office.

(Emphasis added).

Elec. Code art. 14.01(A).

"Political advertising" is, therefore, advertising which relates

to a state or local office in this state. Advertising relating to

candidates for offices in other states or to issues to be voted upon

in other states does not fit in this category. Since the article

14.09(B) prohibition only applies to "political advertising," we

answer your fifth question in the negative.

SUMMARY

1. Under article 14.09(B) of the Election

Code, a candidate could only be charged $10 in the

following instance: A radio or television station

sells one fixed position one-minute announcement

in prime time to commercial advertisers for $15.

During the same period, an advertiser has bought

500 spots, but paid only $5000, or $10 each. The

candidate buys one fixed position one-minute

announcement in prime time.

2. If, assuming the above facts, one political

candidate purchases 500 spots and is charged the

reduced rate of $10 per spot, and another

candidate purchases only one spot, that candidate

could only be charged $10 for the spot.

p. 1734

1

Honorable Gerald Hill - Page 10 (MW-488)

3. The word "condition" in article 14.09(B)

insures that any stipulations not inherent in a

given "class" of time which accompany the sale of

an advertising spot to a commercial advertiser

will be included as a factor in computing the

"lowest unit charge" figure.

4. Article 14.09(B) is only preempted by 47

U.S.C. section 315(b)(l) in the context of

elections for federal office.

5. If a broadcaster in Texas accepts

advertising from candidates for state or local

offices in other states, or on issues to be voted

upon in other states, he need not charge the rates

prescribed by article 14.09(B) for that

advertising.

ms

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR,

First Assistant Attorney General

RICHARD E. GRAY III

Executive Assistant Attorney General

Prepared by Jon Bible

Assistant Attorney General

APPROVED:

OPINION COMMITTEE

Susan L. Garrison, Chairman

Jon Bible

Rick Gilpin

Patricia Hinojosa

Chip Holt

Jim Moellinger

p. 1735