In Re: Exclusive Jurisdiction With Respect to Potential Violations of the Lowest Unit Charge Requirements of Section 315(b) of the Communications Act of 1934. as amended

6 FCC Red No. 26

Federal Communications Commission Record

FCC 91-404

Before the

Federal Communications Commission

Washington, D.C. 20554

In Re:

Exclusive Jurisdiction

With Respect to Potential

Violations of the Lowest Unit

Charge Requirements of Section

315(b) of the Communications

Act of 1934. as amended

DECLARATORY RULING

Adopted: December 12, 1991; Released: December 13, 1991

By the Commission: Commissioner Ouello dissenting in

part and issuing a statement: Commissioner Marshall

issuing a statement.

1. By this ruling the Federal Communications Commis

sion declares that any state cause of action dependent on

any determination of the lowest unit charge under Section

315(b) of the Communications Act. or of some other duty

arising under that subsection, is preempted by federal law.

The sole forum for adjudicating such matters shall be this

Commission.

BACKGROUND

2. Under Section 315(b) of the Communications Act. a

broadcast station's charges for advertising time purchased

for candidate uses while campaigning for political office

during the last 45 days of a primary campaign or the last

60 days of a general election campaign may not exceed

"the lowest unit charge of the station for the same cla.ss

and amount of time for the same period." Outside those

immediate pre-election periods, the charges to such can

didates may not exceed "the charges made for comparable

use of such station by other users." Subsection (d) of

Section 315 directs the Commission to prescribe rules to

implement the statute. The Commission over the years

has adopted rules, provided general guidance and issued

rulings both orally and in writing in response to com

plaints and requests for declaratory relief in particular

cases arising under Section 315(b) (as well as Sections

315(a) and 312(a)(7)). In its continuing attention to politi

cal broadcasting issues, the Commission is in the process

of updating its guidelines and regulatory policies regard

ing current and possible future advertising practices with

respect to political programming.'

3

sponse to com

plaints and requests for declaratory relief in particular

cases arising under Section 315(b) (as well as Sections

315(a) and 312(a)(7)). In its continuing attention to politi

cal broadcasting issues, the Commission is in the process

of updating its guidelines and regulatory policies regard

ing current and possible future advertising practices with

respect to political programming.'

3. In a Public Soiice released on October 10. 1991.' the

Commission stated that it was considering issuing, on its

own motion, a declaratory ruling confirming its earlier

conclusion' that it has exclusive jurisdiction to determine

questions of liability for violations of Section 315(b). Cit

ing litigation in several states where candidates for elective

office have sued broadcast stations for charging rates alleg

edly in excess of those permitted under Section 315(b).

and the inconsistent rulings with regard to jurisdiction

that have been issued to date in such litigation, the Com

mission specifically sought public comment upon the fol

lowing issues: (1) whether its jurisdiction to determine the

lawfulness of political advertising charges is exclusive; (2)

whether federal and state courts must refer the liability

question to the FCC in any case alleging that charges for

political advertising are excessive; and (3) whether its

exclusive jurisdiction should extend beyond the basic li

ability question and. if so. whether the Commission

should preempt any cause of action in any court in which

an alleged violation of Section 315(b) is an essential ele

ment.

4. Comments were received on October 21

the liability

question to the FCC in any case alleging that charges for

political advertising are excessive; and (3) whether its

exclusive jurisdiction should extend beyond the basic li

ability question and. if so. whether the Commission

should preempt any cause of action in any court in which

an alleged violation of Section 315(b) is an essential ele

ment.

4. Comments were received on October 21. 1991.^ The

27 sets of comments filed on behalf or by broadcasting

interests argued that the Commission has exclusive ju

risdiction over all aspects of complaints alleging excessive

political advertising charges and urged the Commission to

preempt completely any such cause of action in any

court.^ The joint candidate commenters stated that the

FCC does not have exclusive jurisdiction over Section

315(b) matters and that it lacks the authority to confer

upon itself exclusive jurisdiction over any matter." Fi

nally. one commenter did not address the merits of the

legal questions posed in the Public ,\otice. but requested

instead that the Commission not issue any declaratory

ruling to assert exclusive or primary jurisdiction until it

provides "express authority for a candidate and a can

didate's representatives to have access to a station s com

mercial files upon reasonable request."

5. On the basis of our review of the comments and our

own independent legal analysis, as set forth below, the

Commission has concluded that any state cause of action

dependent on any determination of the lowest unit charge

untler Section 315(b) or of some other duty arising undei

that subsection should be ]jreemptetl.'' Other claims, such

as standard breach of contract actions, not dependent

upon the determination of the lowest unit charge or some

other duty arising under Section 315(b) are not preempt

ed."

DISCUSSION

6. The preemption doctrine has its roots in the Suprem

acy Clause of the Constitution. U.S. Const.. Art. VI. cl. 2

315(b) or of some other duty arising undei

that subsection should be ]jreemptetl.'' Other claims, such

as standard breach of contract actions, not dependent

upon the determination of the lowest unit charge or some

other duty arising under Section 315(b) are not preempt

ed."

DISCUSSION

6. The preemption doctrine has its roots in the Suprem

acy Clause of the Constitution. U.S. Const.. Art. VI. cl. 2.

Preemption may be either express or implied, and it is

"compelled whether Congress' command is explicitly stat

ed in the statute's language or implicitly contained in its

structure and purpose.""' In the absence of express pre

emptive language, an intention by Congress to supersede

state law may be inferred because of the pervasiveness of

the federal regulatory scheme, because the federal interest

is so dominant, or because the purpose of the federal law

and the character of its obligations reveal an intent to

preempt." Furthermore, a court will find preemption

where state law would actually conflict with federal law or

would stand as an obstacle to the accomplishment of the

full purposes and objectives of Congress.

7. We find that Congress by implication preempted state

causes of action of which alleged violations of Section

315(b) are an integral part because: ( 1) the purpose of the

federal law and the character of its obligations reveal an

intention to preempt such causes of actitm: (2) allowing

actions to proceed in state courts would result in poten

tially inconsistent interpretations of federal law: and (3)

such actions would stand as an obstacle to the realization

of the full objectives of Congress. The express language of

Section I of the Communications /\ct provides that, for

purposes of "centralizing authority" with respect to inter-

7511

preempt such causes of actitm: (2) allowing

actions to proceed in state courts would result in poten

tially inconsistent interpretations of federal law: and (3)

such actions would stand as an obstacle to the realization

of the full objectives of Congress. The express language of

Section I of the Communications /\ct provides that, for

purposes of "centralizing authority" with respect to inter-

7511

FCC 91-404

Federal Communications Commission Record

6 FCC Red No. 26

state communications. Congress created the FCC "which

shall execute and enforce the provisions of |the| Act."

Moreover, the Supreme Court has held that, in adopting

the Act, Congress "formulated a unified and comprehen

sive regulatory system for the [broadcasting] industry" to

be administered by the Commission." As to Section 315

in particular, courts have held that the Commission's

authority is exclusive with respect to matters addressed

specifically by the Act and. thus, that it preempts state

and local regulation of those matters."

8. Section 315 itself embodies Congress' mandate that

uniform federal policies govern political broadcasting

rates. In particular. Section 315(d) specifically directs the

FCC to "make rules and regulations to carry this provi

sion [Section 315| into effect." This narrowly focused di

rective. which exists in addition to the more general grant

of Rule Making authority in Sections 4(i) and 303(f) of

the Act. 47 U.S.C. §§ 154(i) antl 3()3(r)

mandate that

uniform federal policies govern political broadcasting

rates. In particular. Section 315(d) specifically directs the

FCC to "make rules and regulations to carry this provi

sion [Section 315| into effect." This narrowly focused di

rective. which exists in addition to the more general grant

of Rule Making authority in Sections 4(i) and 303(f) of

the Act. 47 U.S.C. §§ 154(i) antl 3()3(r). is "something

more than the usual delegation of Rule Making author

ity." Rather, it "amounts to a congressional direction to

the FCC to recognize the importance of this particular

section of the statute and to prescribe separate rules and

regulations to deal with the multitudinous situations that

arise in applying it lo all federal, siaic and local candidates

for office throughout the naticjn."^" In view of this com

prehensive regulatory and enforcement scheme, we find

that Congress purposes and objectives in adopting Section

315(b) reveal an intention to preempt state litigation over

the charges for the broadcast of political advertisements."

9. We further find that, regardless of whether Congress

— either explicitly or by implication — has preempted

state law claims based upon violations of Section 315(b),

the Commission itself has authority to preempt such

claims. Substantial judicial precedent makes clear that an

agency may preempt state action under the Supremacy

Clause whether or not an intention to preempt can be

found in the governing statute or its legislative history.

I'he leading case on agency preemption is Fidelity Federal

Savtngs & Loan Ass'n v. de la Cuesta. 458 U.S. 141 (1982).

The Supreme Court in that case held that "[fjederal regu

lations have no less preemptive effect than federal stat

utes." 458 U.S. at 153. The Court held further that if the

agency has not exceeded its statutory authority or acted

arbitrarily, its preemption order should be upheld. 458

U.S. at 154.

10

n agency preemption is Fidelity Federal

Savtngs & Loan Ass'n v. de la Cuesta. 458 U.S. 141 (1982).

The Supreme Court in that case held that "[fjederal regu

lations have no less preemptive effect than federal stat

utes." 458 U.S. at 153. The Court held further that if the

agency has not exceeded its statutory authority or acted

arbitrarily, its preemption order should be upheld. 458

U.S. at 154.

10. The Supreme Court applied the rule established in

de la Ctiesta to affirm this Commission's preemption of

some aspects of state regulation of cable television in Cttv

of Sew York i'. FCC.'^ In proper circumstances, the Court

said, the agency itself may determine "that its authority is

exclusive and preempts any state effoits to regulate in the

forbidden area."'" The Court also stated that a federal

agency acting within its delegated authority is empowered

to preempt state laws "to the extent it is believed that

such action is necessary to achieve its purposes.'"" In

reviewing agency preemption orders, moreover, the Court

said that it would not disturb an agency's tlecision to

preempt if that decision represents "a reasonable accom

modation of conflicting policies that were committed to

the agency's care." unless it appears "from the statute or

its legislative history that the accommodation is not one

that Congress would have sanctionetl.""

11. Commission preemption of state claims arising un

der Section 315(b) meets the standards established in Citv

of Sew York

sion to

preempt if that decision represents "a reasonable accom

modation of conflicting policies that were committed to

the agency's care." unless it appears "from the statute or

its legislative history that the accommodation is not one

that Congress would have sanctionetl.""

11. Commission preemption of state claims arising un

der Section 315(b) meets the standards established in Citv

of Sew York. First, as the Court stated in that case, a

federal agency acting within the scope of its delegated

authority may preempt state regulation." Here, the Com

mission clearly has authority to enforce the lowest unit

charge reqijirement as it applies to all broadcasters and all

candidates;" indeed, it has explicit authority to prescribe

appropriate rules and regulations "to carry this provision

into effect."" The Commission's efforts over the years to

provide guidance as well as to take enforcement actions

with respect to Section 315(b) are evidence both of its

authority under the statute and of its commitment to

uniform enforcement of its regulation in this important

policy area. Thus, the Commission is acting well within

its delegated authority when it enforces Section 315(b).

12. Moreover, preemption is necessary to allow the

Commission to "achieve its purposes" by developing uni

form standards for interpreting and enforcing Section

315(b). The importance of having uniform standards that

are understood throughout the broadcast industry is un-

der.scored by the Commission's pending Rule Making into

political broadcasting, which seeks, tnter alia, to provide

certainty and consistency in this important area of regula

tion.'' Rulings by courts in numerous jurisdictions

around the country almost certainly would produce vary

ing and possibly conflicting determinations among state

courts and between those courts and the Commission,

thereby frustrating the objectives of certainty and uni

formity.^"

13. As various commenters have pointed out

alia, to provide

certainty and consistency in this important area of regula

tion.'' Rulings by courts in numerous jurisdictions

around the country almost certainly would produce vary

ing and possibly conflicting determinations among state

courts and between those courts and the Commission,

thereby frustrating the objectives of certainty and uni

formity.^"

13. As various commenters have pointed out. inconsis

tency in the enforcement of Section 315(h) would leave

both candidates and broadcasters unsure of their respec

tive rights and responsibilities under the lowest unit

charge requirement." The prospect of lawsuits in various

states might make it difficult, if not perilous, for broad

casters who serve more than one jurisdiction to provide

various candidates prompt, authoritative quotes for the

lowest unit charge available to them. We thus find that

state court adjudication of claims of which alleged viola

tions of Section 315(b) are an integral part would "con

flict with the basic objectives of federal policy"" with

respect to political broadcasting. The development and

enforcement of consistent guidelines by this agency, in

contrast, would provide critical certainty: to canditlates.

the certainty that they are indeed receiving the lowest unit

charge; and to broadcasters, the certainty that they are

fully complying with the law.

14. Preemption also is necessary for another important

reason. While there is no express statutory right of can

didate access to broadcast facilities beyond the "reason

able" access provisions of Section 312(a)(7) of the Act for

federal candidates, there is a public good in the dissemi

nation of information regarding political campaigns. In

deed

ertainty that they are

fully complying with the law.

14. Preemption also is necessary for another important

reason. While there is no express statutory right of can

didate access to broadcast facilities beyond the "reason

able" access provisions of Section 312(a)(7) of the Act for

federal candidates, there is a public good in the dissemi

nation of information regarding political campaigns. In

deed. the legislative history of the political broadcasting

laws suggests that one purpose of those laws was "to give

candidates for public office greater access to the media"

and "to halt the spiraling cost of campaigning for public

office."^" We believe that the comments of some broad

casters are correct in pointing out that inconsistent

rulings on Section 315(b) lawsuits might encourage some

stations simply to refuse to accept political advertisements,

or at least, in the case of federal candidates, to curtail

such advertisements to a bare minimum. Such a response

to state lawsuits, we believe, would frustrate the Congres

sional intention to encourage greater (and less costly)

access for candidates.'" We conclude, therefore, that we

should preempt state lawsuits of which allegations of vio

lations of Section 315(b) are an integral part to avoid

frustration of this federal purpose."

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6 FCC Red No. 26

Federal Communications Commission Record

FCC 91-404

15. As the Court observed in Ci/y of Seiv York, "it has

long been recognized that many of the responsibilities

conferred upon federal agencies involve a broad grant of

authority to reconcile conflicting policies."'" In this case,

the Commission's determination that preemption is neces

sary to avoid riisruption or frustration of its enforcement

of Section 315(b) is a "reasonable accommodation of

conflicting policies." '' I he emergence of civil litigation m

a

number of ctturts around the counity laises a ical

possibility of conflicting rulings as to what constitutes the

"lowest unit charge" and what remedies are appropriate

for violations of the statutory requirement

n is neces

sary to avoid riisruption or frustration of its enforcement

of Section 315(b) is a "reasonable accommodation of

conflicting policies." '' I he emergence of civil litigation m

a

number of ctturts around the counity laises a ical

possibility of conflicting rulings as to what constitutes the

"lowest unit charge" and what remedies are appropriate

for violations of the statutory requirement. The FCC is

the authority specifically designated by Congress to en

force the lowest unit charge reciuirement.'"' however, pre

cisely because it has the ex|)eitise necessary to make such

determinations based upon its untlerstanding rtf the com

plex and often arcane practices of the broadcast advertis

ing industry. Preempting claims arising under Section

315(b) represents a reasonable approach to avoiding

conflicting policies in the interpretation and enforcement

of the lowest unit charge requirement.

lb. There also is no basis for believing that preemption

is "an accommorlation of policies that Congress would not

have sanctionetl."'" The Supreme Court in other contexts

has found that Congress intended in adopting the Com

munications /\ct to give the TCC broad authority to ])io-

vide "a unified and comprehensive regulatory system for

the Ibroadcastingj industry.""' .Although in adopting Sec

tion 315(b) Congress did not expressly preempt state regu

lation. neither did it indicate any intention that the

Commission refrain from preempting if the Commission

believes such action is necessary or aj)|)ropriate to its

enforcement of that section. '

17. We recttgnize that, in our previous consideration of

this matter,'" we limiteil our conclusion in favor of pie-

emption to the issue ttf liability and tlid not find it

necessarv to ilecide whether preemption should also ex

tend to efforts to obtain state law remedies for the viola

tion of federal requirements relating to lowest unit charge.

After considering the comments submitted in response to

the Public .\oncc

at, in our previous consideration of

this matter,'" we limiteil our conclusion in favor of pie-

emption to the issue ttf liability and tlid not find it

necessarv to ilecide whether preemption should also ex

tend to efforts to obtain state law remedies for the viola

tion of federal requirements relating to lowest unit charge.

After considering the comments submitted in response to

the Public .\oncc. however, we have had an opportunity

to thoroughlv analyze the reasons that support preemp

tion in this area. It is now clear to us that those consirler-

ations support preempting state law remedies for the

violations of the lowest unit charge requirement or of

some other fctleral duty arising under Section 315(b).

IS. The Cttmmission has been specifically rlesignated by

Congress as the authority responsible for enforcing Sec-

tion°315(b). and a determination of the appropriate rem

edy for a violation of Section 315(b) is an integral part of

that enforcement. State efforts to provide their own reme

dies for a violation of the lowest unit charge requirement

of Section 315(b). or of other duties arising thereunder,

would interfere with uniform enforcement of the .Act by

the Commission just as surely as woukl state tletermina-

tions of the initial question of whether Section 315(b) has

been violated.

19. The Supreme Court recognized a related policy

concern when it upheld the preemption of judicial reme

dies for defamation arising from poTitieal broadeasts in

Farmers Educalional & Coop. Lnion n. U/3/\ V. Inc.

In

that case, the Court found that allowing a separate judicial

remedy woukl "hamper the Congressional plan to develop

broadcasting as a political outlet.""" Ihercfore

has

been violated.

19. The Supreme Court recognized a related policy

concern when it upheld the preemption of judicial reme

dies for defamation arising from poTitieal broadeasts in

Farmers Educalional & Coop. Lnion n. U/3/\ V. Inc.

In

that case, the Court found that allowing a separate judicial

remedy woukl "hamper the Congressional plan to develop

broadcasting as a political outlet.""" Ihercfore. the Couit

affirmed the preemption of local lawsuits that stand "as

an obstacle to the accomplishment and execution of the

full purposes and objectives of Congress.""' We believe

that allowing state crturts to impose arlditional remedies

for violations of Section 315(b) might encourage stations

to refuse to carry political advertising, and thereby would

frustrate the Congressional intent to foster dissemination

of information regariling political campaigns.

I bus. we

conclude that our preemption should extend to remedies

as well as to the determination of liability.

20. Finally, we note that Section 414 of the Act. which

preserves remedies "existing at commttn law or by stat

ute." does not foreclose our preemptive action here. Such

"savings clauses" do not preclude preemption where al

lowing state remedies would lead to a conflict with or

frustration of statutory purposes."' In any event, the law

suits we preempt here have no meaning apart from Sec

tion 315(b) and thus derive not from any "existing" state

common law or statutory origin, but solely from the

federal statute."" State actions to enforce the Section

315(b) obligations of broatlcasters are far removed from

the traditional state remedies that are preserved by the

"savings clause." See. e.g.. Arrow Transp. Co. n. Southern

R. Co.. 372 U.S. 658. 671 n.22 ( 1963). Section 414 cannot

have been intended to "create" new state causes of action

based on legal obligations established under federal law

and enforced bv this Commission."'

PROCEDURES

21

tion

315(b) obligations of broatlcasters are far removed from

the traditional state remedies that are preserved by the

"savings clause." See. e.g.. Arrow Transp. Co. n. Southern

R. Co.. 372 U.S. 658. 671 n.22 ( 1963). Section 414 cannot

have been intended to "create" new state causes of action

based on legal obligations established under federal law

and enforced bv this Commission."'

PROCEDURES

21. The Commission finds that it will further oui abil

ity to promptly and fairly tlispose of Section 315(b) com

plaints brought to us as a conscc|uencc of this ruling (and

all other Section 315(b) claims) by setting out the proce-

tlural framework for resolution of such complaints.

22. In order to invoke the Commission's enforcement

procedures, complainants alleging a violation of Section

315(b) will be required to make a prirna facie case."" This

must, at minimum, consist of a short, plain statement of

the claim sufficient to show that the complainant is en

titled to the relief requested. This requirement could be

met bv a simple recitation of a sequence of events show

ing that, if all allegations are accepted as true and all

inferences are drawn in the conaplainant s favot. the com

plaint woukl reasonably lie."" The complainant will be

requiretl to serve the complaint upon the station, and the

station will be given ten days to answer the complaint if it

so tlesires. If. after reviewing the complaint and answer (if

filed), the Mass Media Bureau ("Bureau") finds that a

prima facie case has been made, it will issue an Order that

will give the parties the opportunity to elect one of two

alternative procedures to resolve the complaint: mediation

(/Xlternative Dispute Resolution);" or evaluation and dis

position by the Bureau subject, of course, to review by

the full Commission.

23. Under either process, once a pnnia facie showing

has been made, the complainant will be entitletl to limit-

etl discoverv subject to specific ctrnrlitions

the parties the opportunity to elect one of two

alternative procedures to resolve the complaint: mediation

(/Xlternative Dispute Resolution);" or evaluation and dis

position by the Bureau subject, of course, to review by

the full Commission.

23. Under either process, once a pnnia facie showing

has been made, the complainant will be entitletl to limit-

etl discoverv subject to specific ctrnrlitions. 1 he Bureau s

Order will establish the limitations on and timetable for

discoverv."" Documents subject to discovery will consist of

the statitrn's records related to rates, teims and conditions

for anv arlvertising. commercial or political, broadcast

during the 45- or 6()-rtay periotl pertinent to the com

plaint. The station will be permitted to redact its records

prior to production by deleting the identities of commer

cial advertisers and other proprietary information not rel

evant to the resolution of the complaint. Document

production will be subject to a piotective order limiting

7513

FCC 91-404

Federal Communications Commission Record

6 FCC Red No. 26

its examination to parties designated in the order (as well

as the Commission), and prohibiting further dissemina

tion of the information revealed thereby.'"

24. Within 30 days after the completion of discovery,

the complainant will be required to file an amended

complaint alleging specific facts based on the information

discovered, stating the nature of the Section 315(b) viola

tion and the amounts said to be owed. The station

complained against will be given a 15 day opportunity to

respond. If the parties have not elected to pursue media

tion," the Bureau will either impose an appropriate sanc

tion where it finds the rules have been violated, or issue

an appropriate order dismissing the complaint where it

finds no violation.'' In appropriate circumstances, the

dispute may be referred to the Administrative Law Judges

(ALJs) for resolution.

25

be given a 15 day opportunity to

respond. If the parties have not elected to pursue media

tion," the Bureau will either impose an appropriate sanc

tion where it finds the rules have been violated, or issue

an appropriate order dismissing the complaint where it

finds no violation.'' In appropriate circumstances, the

dispute may be referred to the Administrative Law Judges

(ALJs) for resolution.

25. The sanctions available to the Commission for Sec

tion 315(b) violations (in addition to the rebate of any

amounts found to have been charged in violation of Sec

tion 315(b)) include forfeitures, letters of admonition,

short-term renewal, and designation of the station's li

cense for revocation. Any decision rendered by the Bu

reau or an ALJ may be appealed directly to the full

Commission."

26. Accordingly, pursuant to Sections 1. 4(i), 303(r),

and 315(b) and (d) of the Communications Act. 47 U.S.C.

§§ 151. 154(i). 303(r). and 315(b) and (d); Section 5(e) of

the Administrative Procedure /\ct. 5 U.S.C. § 556(e)-. and

Section 1.2 of the Commission's rules. 47 C.F.R. § 1.2. 11

IS DECLARED that state causes of action involving al

leged violations of the lowest unit charge requirement or

of some other duty arising under Section 315(b) ,-\RE

PREEMPTED to the extent indicated above.

TEUERAE COMMUNICATIONS COMMISSION

Donna R. Searcy

Secretary

APPENDIX I

COMMENTS FILED IN

INTENTION TO ISSUE DECLARATORY RULING

WITH RESPECT TO EXCLUSIVE AUTHORITY

OF FCC TO DETERMINE WHETHER

BROADCASTERS HAVE VIOLATED LOWEST

UNIT CHARGE REQUIREMENT OF SECTION 315(b)

1. CBS, Inc.

2. Northern Television. Inc.

3. Association of Independent Television Stations

4. Barnes. Browning. Tanksley & Casurella

Long, Aldridge & Norman

Savell & Williams

Venema, Towery. Thompson & Chambliss

5. Gillett Communications of Atlanta. Inc.

Gillett Communications of Boston. Inc.

Gillett Communications of San Diego. Inc.

Gillett Communications of Ohio. Inc.

Gillett Communications of Detroit. Inc.

Gillett Communications of Milwaukee. Inc.

KSBY. Inc

KSBW. Inc

evision Stations

4. Barnes. Browning. Tanksley & Casurella

Long, Aldridge & Norman

Savell & Williams

Venema, Towery. Thompson & Chambliss

5. Gillett Communications of Atlanta. Inc.

Gillett Communications of Boston. Inc.

Gillett Communications of San Diego. Inc.

Gillett Communications of Ohio. Inc.

Gillett Communications of Detroit. Inc.

Gillett Communications of Milwaukee. Inc.

KSBY. Inc

KSBW. Inc.

WTVT License. Inc.

6. Busse Broadcasting Corporation

7. Eox Television Stations. Inc.

Allbritton Communications Company

Eederal Broadcasting Company

8. WMUR-TV. Inc.. Manchester. New Hampshire

9. Benedek Broadcasting Group

Lin Broadcasting Corporation

Midwest Television. Inc.

Paducah Newspapers. Inc.

Post-Newsweek Stations. Inc.

Providence Journal Company

The Spartan Radiocasting Citrnpany

10. National Broadcasting Company. Inc.

11. American Family Broadcast Group. Inc.

12. iNationwide Communications. Inc.

13. Freedom .Newspapers. Inc.

14. Tribune Broadcasting Companv

Gray Communications Systems. Inc.

Gannett Co.. Inc.

The Spartan Radiocasting Com|)any

The Providence Journal Company

Westinghouse Broadcasting Company. Inc.

Burnham Broadcasting Company. A Limited

Partnership

Post-Newsweek Stations. Inc.

15. Niels C. Holch, .McGuiness A Ilolch

16. Osborn Communicatittns Coipoiation

17. State Broadcasting Associations

California Broadcasters .Association

Connecticut Broadcasters Association

Florida Association of Broatlcastcrs

Illinois Broadcasters Association

Iowa Broadcasters A.ssociation

Louisiana Association of Broadcasters

Maine Association of Broatlcastcrs

Maryland./Oistrict of Columbia Delaware

Broadcasters Association

Michigan Association trf Broatlcastcrs

Minnesota Broadcasters .Associatnm

Missouri Broadcasters /Association

Nebraska Broadcasters Associaturn

New Hampshire /Association td Broadcasters

7514

astcrs

Illinois Broadcasters Association

Iowa Broadcasters A.ssociation

Louisiana Association of Broadcasters

Maine Association of Broatlcastcrs

Maryland./Oistrict of Columbia Delaware

Broadcasters Association

Michigan Association trf Broatlcastcrs

Minnesota Broadcasters .Associatnm

Missouri Broadcasters /Association

Nebraska Broadcasters Associaturn

New Hampshire /Association td Broadcasters

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6 FCC Red No. 26

Federal Communications Commission Record

fcc 91-404

New Jersey Broadcasters Association

New York State Broadcasters Association

Oklahoma Association of Broadcasters

Pennsylvania Association of Broadcasters

Tennessee Association of Broadcasters

Texas Association of Broadcasters

Utah Broadcasters Association

Washington State Association of Broadcasters

West Virginia Broadcasters Association

Wisconsin Broadcasters Association

18. Minnesota Broadcasters Association

Id. Great /Xmerican Television and Radio Company.

Inc.

Kelly Broadcasting Company

McGraw-Hill Broadcasting Company. Inc.

The New York limes Company

20. Capital Cities/ABC. Inc.

Chris-Craft Industries. Inc.

The Times-Mirror Company

21.WCOV-'rV. Montgomery. .Alabama (Woods

Communications Corp.)

22. Mobile Video J apes. Inc.

Louisiana Television Broadcasting Corporation

Clear Channel Television. Inc.

Rocket City Television. Inc.

23. A. H. Belo Corporation

Booth American Company

Broad Street Television, L.P.

Cosmos Broadcasting Corporation

Cox Enterprises. Inc.

Diversified Communications

Evening Post Publishing Company

First Media Corporation

H & C Communications. Inc.

Multimedia. Inc.

Nebraska lelevision Corporation

River City Broadcasting. L.P,

24. National A.ssociation of Broadcasters

25. WKRG-TV, Inc.

26. Woods Communications Group. Inc.

LATE FILED COMME.NTS • ^

1. Pulitzer Broadcasting Company anrt WDSU Tele

vision. Inc.

2. Westinghouse Broadcasting Company. Inc.

** Late-filed comments were treated as informal

comments.

7515

ation

H & C Communications. Inc.

Multimedia. Inc.

Nebraska lelevision Corporation

River City Broadcasting. L.P,

24. National A.ssociation of Broadcasters

25. WKRG-TV, Inc.

26. Woods Communications Group. Inc.

LATE FILED COMME.NTS • ^

1. Pulitzer Broadcasting Company anrt WDSU Tele

vision. Inc.

2. Westinghouse Broadcasting Company. Inc.

** Late-filed comments were treated as informal

comments.

7515

FCC 91-404

Federal Communications Commission Record

6 FCC Red No. 26

Separate Statement of Commissioner

James H. QueUo, Dissenting in part

In re: Exclusive Jurisdiction With Respect to

Potential Violations of the Lowest Unit

Charge Requirements of Section 315(b) of the

Communications Act of 1934, as amended.

By this Declaratory Ruling ("Ruling"), the

Commission is taking the important step of

rcaffmning our exclusive jurisdiction to enforce

violations of Section 315 of the Communications

Act To the extent it does so, the Ruling is fully

supported by law and represents sound policy. I

can support this aspect of the Ruling without

reservation.

I think it is important to emphasize that this

action does not represent a new assertion of FCC

authority. Section 3IS never has been considered

U) have created a private right of action separate

from our administrative processes. See, e.g.,

Betluso V. Turner Communications Corp., 633

F.2d 393, 397 (5th Cir. 1980). Until recently, no

one had ever sought a judicial remedy for

purported lowest unit charge violations. In the

two decades since Section 3 lS(b) was enacted, the

Commission has provided the sole remedy.

So in many ways this Ruling merely

recognizes the obvious.

It certainly is no

departure from the Commission's historic view

of its jurisdiction and statutory responsibilities.

This necessarily means that the Commission is

not "taking away" any existing remedy.

Conspicuously absent from the Ruling is any

discussion of the Commission's existing

complaint procedures or any suggestion that they

have been in some way inadequate

merely

recognizes the obvious.

It certainly is no

departure from the Commission's historic view

of its jurisdiction and statutory responsibilities.

This necessarily means that the Commission is

not "taking away" any existing remedy.

Conspicuously absent from the Ruling is any

discussion of the Commission's existing

complaint procedures or any suggestion that they

have been in some way inadequate. Perhaps the

reason for this omission is the fact that the

Commission did not request comment on the

question of procedures, nor did it engage in much

internal analysis on this point.1

It has been suggested that the FCC is not

obligated to provide parties an opportunity to

comment on procedural issues. Whether or not

this claim is true in this context, the Commission

has been rather erratic in this proceeding in

deciding when to solicit and when to forego

public input

For example, there is no

requirement that the Commission receive

comments in order to promulgate a declaratory

ruling, yet we chose to do so here. Also, in our

Notice of Proposed RulemaJdng, the Commission

solicited advice on procedures for implementing

sponsorship ID and other requirements. In all of

our current proceedings, the question of

complaint procedures is the only significant

subject on which we did not request comment If,

as some have suggested, our current proceedings

"may be the most important determinations made

since the enacunent of the lowest unit charge

standard," this omission is exceedingly strange.

At this point the new procedural guidelines

raise more questions than they answer. For

example, the Ruling encourages the use of

Alternative Dispute Resolution at a time when

the Commission's policy on such procedures is

essentially conceptual. TTiere is no discussion of

how discovery will be limited to relevant

documents or how the Commission will enforce

such limits

ssion is exceedingly strange.

At this point the new procedural guidelines

raise more questions than they answer. For

example, the Ruling encourages the use of

Alternative Dispute Resolution at a time when

the Commission's policy on such procedures is

essentially conceptual. TTiere is no discussion of

how discovery will be limited to relevant

documents or how the Commission will enforce

such limits. Moreover, although the Ruling

expresses concern with

the

potential

administrative burden created by complaints, it

establishes a new multi-stage procedure that

includes a complaint, discovery, an amended

complaint and several levels of Commission

decisions including the possibility of hearings.

I dissent from the hastily made decision to

adopt procedures because we do not yet know

whether the new guidelines will help or make

matten worse. Will the new procedures allow

candidates to make a prima facie case and obtain

quick relief or will they delay matters? Will

they encourage the filing of speculative

complaints, thus requiring the extension of our

abuse of process rules? Will the number of

complaints diminish now that the Commission is

clariiying the pollticai rules or will the volume

of complaints under the new procedures create an

administrative nightmare? We simply do not

know. And, unfortunately, there was insufficient

interest at the Commission in taking the time to

find out

I would have preferred to adopt the

Declaratory Ruling on preemption and at the

same time, issue a Further Notice to expire these

issues. I believe that candidates, broadcasters and

other interested parties would have welcomed the

opportunity to comment on the issue of

procedures.

Ironically, the internal pressure to adopt

procedures intensified at the very time that the

Commission is clearing up the confusion that

prompted this Declaratory Ruling. Along with

7516

and at the

same time, issue a Further Notice to expire these

issues. I believe that candidates, broadcasters and

other interested parties would have welcomed the

opportunity to comment on the issue of

procedures.

Ironically, the internal pressure to adopt

procedures intensified at the very time that the

Commission is clearing up the confusion that

prompted this Declaratory Ruling. Along with

7516

6 FCC Red No. 26

Federal Communications Commission Record

fcc91-404

this Ruling and the Report and Order, the

Conunissioo is releasing a number of enforcement

actions arising from the 1990 political

broadcasting audit Contrary to the exaggerated

claims that 80 percent of television and 50

percent of radio stations overcharged candidates,

the Bureau is assessing fines for overcharging in

only two cases — about 7 percent of the stations

audited. All together, the Bureau is issuing

Notices of Apparent Liability to five of the

thirty stations we examined, two for lowest unit

charge violations and three for political file

violations. In short, the level of nile violations

by broadcasten is far below what some suggested

in the wake of the audit For this reason 1 wonder

whether the rush to adopt new procedures may be

premature.

We are doing the right thing by making clear

that the Commission has exclusive jurisdiction to

determine both liability and damages in

complainu that implicate Section 315(b).

Although I would not have taken the additional

step of adopting procedures just yet, I am hopeful

that they can be administered efficiently, and in a

way that is fair to all concerned.

^To put Che isfue into tome perspective, the

Commitiion adopted the Notice of Proposed

Rulemaking on our political broadcudng policies

lut June. The Commission began examining the

issue of jurisdiction in July end released the Notice of

Intent to Issue a Declaratory Ruling in October. By

sharp contraat, a draft order proposing new

procedures wu circulated less than a week ago at a

time when other presaing matters were under

cofuideration.

7517

mmitiion adopted the Notice of Proposed

Rulemaking on our political broadcudng policies

lut June. The Commission began examining the

issue of jurisdiction in July end released the Notice of

Intent to Issue a Declaratory Ruling in October. By

sharp contraat, a draft order proposing new

procedures wu circulated less than a week ago at a

time when other presaing matters were under

cofuideration.

7517

FCC 91-404

Federal Communications Commission Record

6 fcc Red No. 26

SEPARATE STATEMENT OF

COMMISSIONER SHERRIE P. MARSHALL

Re: Declaratory Ruling on FCC Preemption of

Claims Dependent on Section 315(b)

Today's declaratory ruling should not be interpreted as the

generous act of a Federal agency intent on providing shelter to

broadcasters charged with price gouging. To the contrary, I

write separately to emphasize that the Commission is asserting

its jurisdiction over all claims sounding in 47 USC §315(b) so as

to vigorously prosecute such claims, not bury them.

I

joined in calling for this full extension of the

Commission's preemptive authority only after I was confident that

the Commission possessed the legal authority, the administrative

wherewithal, and the institutional resolve to adjudicate Section

315 claims fairly and competently. Our declaratory ruling itself

recounts in detail the weighty record compiled in support of

Commission preemption of all claims arising from the statutory

duty of broadcasters to provide candidates with the lowest unit

charge for political advertisements.

That ruling also details the efficient, yet fair

administrative processes the Commission has established for

prompt resolution of bona fide overcharge grievances. Moreover,

the fines and rebates we are separately ordering today for past

violations of §315(b) clearly demonstrate this Commission's

commitment to enforcing the legal obligations our licensees owe

candidates for public office

tisements.

That ruling also details the efficient, yet fair

administrative processes the Commission has established for

prompt resolution of bona fide overcharge grievances. Moreover,

the fines and rebates we are separately ordering today for past

violations of §315(b) clearly demonstrate this Commission's

commitment to enforcing the legal obligations our licensees owe

candidates for public office.

While we stand prepared to provide for a timely and thorough

resolution of all candidate overcharge claims, I would not deny

that the recent surge of such allegations could create a

substantial burden on the Commission's ever scarce resources.

Thus, I strongly endorse the Commission's offer of an alternative

dispute resolution process to both candidates and respondent

broadcast stations.

I also wish to underscore the sincerity of the Commission's

suggestion that stations and candidates should attempt to reach a

mutually satisfactory settlement of their overcharge disputes.

As our declaratory ruling explains, the Commission will look

favorably upon the private settlement of these disputes in

7518

6 FCC Red No. 26

Federal Communications Commission Record

fcc 91-404

reviewing any overcharge claims brought to its attention.

Indeed, in light of the flood of claims that might immediately

follow our issuance of this preemption ruling, this Commissioner,

for one, will be disinclined to impose any additional sanctions

on licensees who act promptly to rebate funds or otherwise

redress the bona fide claims of aggrieved candidates pursuant to

such a settlement.

Let us move with dispatch to dispose of these past

grievances and ensure -- through our newly revised political

broadcast rules — clear regulatory guidance to broadcasters and

candidates alike for the upcoming and future political campaign

seasons.

7519

ons

on licensees who act promptly to rebate funds or otherwise

redress the bona fide claims of aggrieved candidates pursuant to

such a settlement.

Let us move with dispatch to dispose of these past

grievances and ensure -- through our newly revised political

broadcast rules — clear regulatory guidance to broadcasters and

candidates alike for the upcoming and future political campaign

seasons.

7519

FCC 91-404

Federal Communications Commission Record

6 FCC Red No. 26

FOOTNOTES

'

Sec Codification of the Commissions Political Programming

Policies (MM Docket No. 91-168), 6 FCC Red 5707 (1991). A

Report and Order revising and codifying these policies is being

adopted contemporaneously with this Declaratory Ruling.

- Public Xoiicc. FCC No. 91-326, 6 FCC Red 5954 (1991), 56

Fed. Reg. 51895 (October 16, 1991) (hereinafter "Public No

tice").

News Release. Report No. GN-74, June 6, 1991.

^ A list of the Comments received is attached as Appendix 1.

'

See, e.g.. Comments of National Association of Broadcasters;

Association of Independent Television Stations; Busse Broadcast

ing Corporation; A.H. Belo Corporation, et. al.; Capital (

ities/

ABC Inc., et. al.; Tribune Broadcasting Company, Inc.

" Sec Comments jointly Filed by the law firms of Barnes,

Browning, Tanksley & Casurella; Long, Aldridge & Normal;

Savcll & Williams; and Vencma, Towery, Thompson &

Chambliss (hereinafter "Kahn and Jablonski"), on behalf of

various candidates seeking refunds for alleged overcharges.

See Comments filed by Niels Holch, on behalf of certain

candidates.

* Similarly, any state cause of action dependent on any deter

mination of the lowest unit charge under Section 315(b) or of

some other duty arising under that subsection that is initialed

in a federal court pursuant to diversity jurisdiction also is

preempted and should be dismissed. Moreover, because Section

315(b) does not give rise to a private federal cause of action, any

federal lawsuit based directly upon allegations of violations of

Section 315(b) should be dismissed

lowest unit charge under Section 315(b) or of

some other duty arising under that subsection that is initialed

in a federal court pursuant to diversity jurisdiction also is

preempted and should be dismissed. Moreover, because Section

315(b) does not give rise to a private federal cause of action, any

federal lawsuit based directly upon allegations of violations of

Section 315(b) should be dismissed. See /ell .Miller for Governor

V. Pacific & So. Co.. No. !;91-(.;V-R1.V (N.D. Ga., June 4, 1991),

slip opinion at 15 (citing Belluso n. iunier Communications

Corp.. 633 F.2d 393, 397 (5th Cir. 1986)), appeal pending. See

also William L. Dickinson v. Cosmos Broadcasting Co.. C.A. No.

91-T-()72-N (M.D. Ala., April 1, 1991), slip opinion at 18.

^ As the court made clear in /.ell .Miller jor Governor, supra.

claims that stem from Section 315(b) cannot be converted to

state law claims simply because "the plaintiff may have artfully

cast his essentially federal law claims as state law claims." Slip

Opinion at 1 1-12.

.tones V. Rath Packing Co.. 430 U.S. 519, 525 (197/).

"

See Rice r. Santa Pe Elevator Corp.. 331 U.S. 218, 230

(1947).

See Hines r. Davidowit:, 312 U.S. 52, 5. (1941).

'■* /•('(' f. Pottsville Broadcasting Co.. 309 U.S. 134, 137 (194(1).

See also Seripps-Howard Radio. Inc. r. /■( ( . 316 U.S. 4. 6 ( 1942).

E.g.. Belluso V. Turner Communications Corp.. 633 1 .2d 393,

396 (5th Cir. 1980).

Kav V. FCC. 443 F.2d 638, (i43-44 (D.C. Cir. 1970).

Id. (emphasis supplied).

In adoptiitti the current version of Section 315(b), Congress

indicated that the abilitv of the Contmissictn ttt enforce that

provisiott was an important consideration. Pointing out the im

portance of havtng restrictions that were "workable and enforce

able," the Senate cominittee took comfort in assurances by the

Commission's chairman that the broadcast provisitms "were en

forceable by the Commission," S. Rept. No. 96, 92d ( ong., 1st

Sess. 20, reprinted. 1972 U.S. Code Cong. & /\dmin. News at

1786 ( 1971)

enforce that

provisiott was an important consideration. Pointing out the im

portance of havtng restrictions that were "workable and enforce

able," the Senate cominittee took comfort in assurances by the

Commission's chairman that the broadcast provisitms "were en

forceable by the Commission," S. Rept. No. 96, 92d ( ong., 1st

Sess. 20, reprinted. 1972 U.S. Code Cong. & /\dmin. News at

1786 ( 1971). We note in addition the decision in Belluso v.

Turner Communications Corp., 633 F.2d 393, where the court

held that Congress did not intend to create a private Icderal

cause of action for damages as a remedy for a violation of

Section 315(a) of the Communications Act and opted instead tor

an exclusive administrative remedy. The court's rea.soning is

equally applicable to Section 315(b). Thus, because we conclude

that Congress did not intend for a private/cr/era/ cause of action

for damages to be available as an additional remedy when Sec

tion 315(b) is violated, it would seem anomalous if Congress did

not also preempt the states from providing an additional remedy

in the form of a private state cause of action that is predicated

on establishing a violation ttl Section 315(h). See also discussion

in paragraph 20 tnfra.

486 U.S. 57 ( 1988).

Id.. 486 U.S. at 64, etting Capital Cities Cable. Inc. c. Crisp,

467 U.S. 691, 70(1 (1984), aiad de la Cuesta. 458 U.S. at 152-54.

486 U.S. at 63.

486 U.S. at 64. See also. e.g.. Computer & Communications

Industry .-\.ss'n v. FCC. 693 F.2d 198 (D.(.'. Cir. 1982), cert, dented.

461 U.S. 938 ( 1983); Sorth Carolina i'tililies Comm'n v. TCC. 552

F.2d 1036 (4th dr.). cert, dented. 434 U.S. 874 ( 19/ >).

486 U.S. at 63. citing Touisiana Publte Service ( oinniission

I.', FC(.', 476 U.S. 355, 368-369 ( 1986). The decision in l.ouisiana

that the F-'CC had exceeded its authority to preempt relied upon

an express reservation in the Communications Act of authority

for the states to regulate intrastatc common carrier service. 47

U.S.C. § 152(b)(1)

F.2d 1036 (4th dr.). cert, dented. 434 U.S. 874 ( 19/ >).

486 U.S. at 63. citing Touisiana Publte Service ( oinniission

I.', FC(.', 476 U.S. 355, 368-369 ( 1986). The decision in l.ouisiana

that the F-'CC had exceeded its authority to preempt relied upon

an express reservation in the Communications Act of authority

for the states to regulate intrastatc common carrier service. 47

U.S.C. § 152(b)(1). No such provisitin airplies to the regulation of

broadcasters.

See FCC r. Pottsville Broadcasting Co.. 309 U.S. at 137.

" 47 U.S.C. §315(d). See also Kav r. ECC. 443 F.2d at (r43-44.

.See Codification of the Commission's Polincai Programming

Policies. 6 FCC Red at 5710 (a purpose of the Rule Making is to

develop a "single, up-to-date written source to which the public

can turn for guidance" on how to comply with Section 315(b)).

Cf. Belluso V. Turner Communications Corp., 633 1 .2d at 396

(administrative remedies before F( (." for violations of Section

315(a) arc exclusive); K\'UF.. Inc. v. .Austin Broadcasting Corp.,

709 F.2d 922. 934-36 (5th Cir. 1983) (state law extending "lowest

unit charge" availability beyond statutory period under Section

315(b) preempted as an obstacle to achievement ot purpose of

federal statute).

/\ multiplicity of tribunals and a diversity of procedures

"are quite as apt to produce incompatible trr coniVicting adju

dication as are different rules of substantive law." Gardner r.

I'eamsters Union. 346 U.S. 485. 4t)0-tM ( 1953).

City of .\ew )'ork i'. ECC. supra. 486 U.S. at 69.

See S. Rept. No. 96. 92d Cong.. 1st Sess.. at 20. reprinted.

1972 U.S. Code (.'ong. & .Admin. News at 1

/4.

C/. Farmers Educational & Coop, inion v. H/).!). Inc.. 360

U.S. 525. 534-35 ( 1959); K\ UE v. .\ustin Broaileasling. 709 F.2d

at 936 n.65. We reL',igni.'e that, apart from the equal opportu

nities provision of Section 315(a). Congress chose not to require

that stations afford access rights to individual state and local

candidates. Nevertheless

rinted.

1972 U.S. Code (.'ong. & .Admin. News at 1

/4.

C/. Farmers Educational & Coop, inion v. H/).!). Inc.. 360

U.S. 525. 534-35 ( 1959); K\ UE v. .\ustin Broaileasling. 709 F.2d

at 936 n.65. We reL',igni.'e that, apart from the equal opportu

nities provision of Section 315(a). Congress chose not to require

that stations afford access rights to individual state and local

candidates. Nevertheless. C.'ongrcss clearly wanted to foster and

encourage candidates' access to the broadcast media, and the

state lawsuits conflict with that objective.

See City of Sew York e. FCC. 48(r U .S. at 64.

486 U.S. at 64.

Id.

See 44 U.S.C. §315(d).

See City of .Vevv S'ork r. ECC . 486 U.S. al (i4.

L .S. r. Soutltsvestern Cable Co.. 392 U.S. 15". 168 (1968).

quoting ECC e. Pottsville Broadeasnng Co.. 3u9 U.S. at 137. See

also Farmers Educational A Coop. Cnion e. WD.W. Inc.. 3hO

U.S. al 529 (state libel actions preempted to avoid undermining

a "basic purpose" of Section 315, even though an express provi

sion preempting such actions had been deleted from final ver

sion of statute).

7520

6 FCC Red No. 26

Federal Communications Commission Record

FCC 91-404

■' City of New York i'. FCC, 486 U.S. at 64,

See News Release. Report No. GN'-74, June 6, 1441 (cited in

n.3, supra).

360 U.S. at 534-35.

360 U.S. at 535.

/(/. (citation omitted).

Sec KVUF. I'. Austin Broadcasting. 704 I'.Jd at 436 n. 65.

.See. c.y.. Texas & Pacific Railroad Co. v. Abilene Cotton Oil

Co., 204 U.S. 427 (1407); Pennsylvania Railroad

Puritan Coal

.Mining Co.. 2il U.S. 121. 124 ( 1415); In rc Long Distance

Icleconimunications Litigation. 831 F.2d 627 (6th Cir. 1487);

(ointronics. Inc. r. Puerto Rico Iclcphonc ( o.. 553 P.2d .01,

707-08 n.6 ( 1st Cir. 1477); Blackburn v. Doublcdav Broadcasting,

Inc.. 35j N.W.dd 5.31) (.Minn. l')S4).

/.I'll Miller for Governor, supra, slip op. at 1 1-12.

.See Cointronics. Inc. v. Puerto Rico Tel. Co.. 553 f.2d at ;08

n.6

2il U.S. 121. 124 ( 1415); In rc Long Distance

Icleconimunications Litigation. 831 F.2d 627 (6th Cir. 1487);

(ointronics. Inc. r. Puerto Rico Iclcphonc ( o.. 553 P.2d .01,

707-08 n.6 ( 1st Cir. 1477); Blackburn v. Doublcdav Broadcasting,

Inc.. 35j N.W.dd 5.31) (.Minn. l')S4).

/.I'll Miller for Governor, supra, slip op. at 1 1-12.

.See Cointronics. Inc. v. Puerto Rico Tel. Co.. 553 f.2d at ;08

n.6.

We also reject the argument that we should not preempt

because only the courts can finally determine the extent of our

authority. Our preemption order clearly is subject to judicial

review pursuant to Section 402(a) of the Communications Act.

47 U.S.C. 5402(a). See also 28 U.S.C. 52342 et. seq. But that fact

neither disables us from making a declaratory ruling as to our

view of our authority nor excuses us of our obligation to clarity

an issue in dispute.

As a matter of general policy, we also believe that com

plainants should bring any lowest unit cliarge complaints in a

timelv manner. It would not serve the public interest to attempt

to resolve such complaints on the basis of a stale record, and by

recjuirino timelv action we ensure that the (.ommission is able

"to remedy violations before a pattern ot abuse develops." \a-

lional Citicens Committee for Broadcasting c. T(C. 56. h.2d

1(145, 1 1 Us (1).C. Cir. 1477); ccri. denied. 436 U.S. 426 ( 14;8).

V\c intend to apply a standard similar to that imposed by

Section 8(a)(2) of the federal Rules of Civil Procedure. Thus, a

complainant would be required to describe the factual basis lor

its belief that a specific station has committed a violation, rather

than, for example, merely accusing a station of overcharging

candidates based upon general information released in the Mass

Media Bureau's 1440 Audit Report. Similarly, the fact that a

station made efforts to settle overcharge claims would not be

considered in deciding whether a complainant has established a

pnma facie case

s lor

its belief that a specific station has committed a violation, rather

than, for example, merely accusing a station of overcharging

candidates based upon general information released in the Mass

Media Bureau's 1440 Audit Report. Similarly, the fact that a

station made efforts to settle overcharge claims would not be

considered in deciding whether a complainant has established a

pnma facie case.

In the past, candidates have relied upon invoices or other

information demonstrating inconsistencies in lowest unit

charges. In addition, a complainant could make a pnma faeic

case bv using generally-available industry or statistical data on

average rates to support its belief that the rate paid by a can

didate was higher than the average rate charged by the station

for the same class of time. These examples, ol course, are not

the sole means by which a pnma Jaeie case could be established;

rather, thev are merely intended to serve as a useful guide to

interested parties.

In this regard, the ("ommission believes that time-limited

mediation may be the most efficient means of rcsolving com

plaints, particularly where the circumstances ot a given case are

falrlv straightforward, fherefore. the Commissions proposed

/Mternative Dispute Resolution process (.ADR) may provide a

useful vehicle to resolve these complaints in a lair and expedi

tious manner. Sec Initial Policy Statement and (Irder. 1 (T. Re

lease No. 41-304. 56 Fed. Reg. 51 T8 (October 10, 1441 ).

No more than sixty days will be allowed for discovery.

Failure to abide by the terms of the protective order may

result in the imposition of sanctions which could include those

set forth in 47 C.F.R. §1.24 (censure, suspension or disbarment

of persons practicing before the Commission) or possible dis

missal of the complaint.

Even if the parties elect to resolve a dispute through

mediation, we of course retain our jurisdiction to enforce the

requirements of Section 315(b)

the terms of the protective order may

result in the imposition of sanctions which could include those

set forth in 47 C.F.R. §1.24 (censure, suspension or disbarment

of persons practicing before the Commission) or possible dis

missal of the complaint.

Even if the parties elect to resolve a dispute through

mediation, we of course retain our jurisdiction to enforce the

requirements of Section 315(b).

Given the substantial demand on agency resources which

Section 315(b) cases might create, the ("ommission would wel

come bona fide, mutually satisfactory settlements of overcharge

disputes between complainant candidates and respondent broad

casters. Thus, while retaining our discretion to determine

whether additional sanctions are warranted, the ("ommission

would be inclined to look with favor upon such settlements in

making that determination.

See 47 C.F.R. §1.115.

7521