# FCC-91-404: 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 (12/13/91): 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

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URL: https://www.frixlaw.com/law-library/statutes/FCC_FCC_91_404

## Section

- **Citation:** FCC-91-404: 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 (12/13/91)
- **Heading:** 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
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** FCC Declaratory Rulings / 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

## Text

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."
7512

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
7514

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

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- [DA-00-1341: A&E Television Networks For Declaratory Ruling (06/20/00) A&E Television Networks For Declaratory Ruling](https://www.frixlaw.com/law-library/statutes/FCC_DA_00_1341.md)
- [DA-01-2234: Request for Declaratory Ruling Removing the Commission's Minimum Carrier Tone Requirement for OFDM Modulation in the Multipoint Distribution and Instructional Television Fixed Services (09/26/01) Request for Declaratory Ruling Removing the Commission's Minimum Carrier Tone Requirement for OFDM Modulation in the Multipoint Distribution and Instructional Television Fixed Services](https://www.frixlaw.com/law-library/statutes/FCC_DA_01_2234.md)
- [DA-01-2871: Multi-Association Group (MAG) Plan (12/11/01) Multi-Association Group (MAG) Plan](https://www.frixlaw.com/law-library/statutes/FCC_DA_01_2871.md)
- [DA-02-765: NATIONAL ASSOCIATION OF BROADCASTERS AND ASSOCIATION OF LOCAL TELEVISION STATIONS' EMERGENCY PETITION FOR MODIFICATION OR CLARIFICATION OF BROADCAST CARRIAGE RULES FOR SATELLITE CARRIERS, 47 C.F.R. SECTION 76.66 (04/04/02) NATIONAL ASSOCIATION OF BROADCASTERS AND ASSOCIATION OF LOCAL TELEVISION STATIONS' EMERGENCY PETITION FOR MODIFICATION OR CLARIFICATION OF BROADCAST CARRIAGE RULES FOR SATELLITE CARRIERS, 47 C.F.R. SECTION 76.66](https://www.frixlaw.com/law-library/statutes/FCC_DA_02_765.md)
- [DA-02-2078: Time-Telepictures Television (08/26/02) Time-Telepictures Television](https://www.frixlaw.com/law-library/statutes/FCC_DA_02_2078.md)
- [DA-03-2865: INFINITY BROADCASTING OPERATIONS INC (09/09/03) INFINITY BROADCASTING OPERATIONS INC](https://www.frixlaw.com/law-library/statutes/FCC_DA_03_2865.md)
- [DA-03-4108: Comcast Cable Communications, Inc., Petition for Declaratory Ruling Petition for Revocation of Certification Request for Expedited Consideration (01/06/04) Comcast Cable Communications, Inc., Petition for Declaratory Ruling Petition for Revocation of Certification Request for Expedited Consideration](https://www.frixlaw.com/law-library/statutes/FCC_DA_03_4108.md)
- [DA-04-970: List of Foreign Telecommunications Carriers that Are Presumed to Possess Market Power in Foreign Telecommunications Markets (04/08/04) List of Foreign Telecommunications Carriers that Are Presumed to Possess Market Power in Foreign Telecommunications Markets](https://www.frixlaw.com/law-library/statutes/FCC_DA_04_970.md)
- [DA-04-3201: Amendment of the Commission's Space Station Licensing Rules and Policies (10/06/04) Amendment of the Commission's Space Station Licensing Rules and Policies](https://www.frixlaw.com/law-library/statutes/FCC_DA_04_3201.md)
- [DA-04-3576: Thrifty Call, Inc. Petition for Declaratory Ruling Concerning BellSouth Tariff F.C.C. No. 1 (11/12/04) Thrifty Call, Inc. Petition for Declaratory Ruling Concerning BellSouth Tariff F.C.C. No. 1](https://www.frixlaw.com/law-library/statutes/FCC_DA_04_3576.md)
- [DA-05-140: Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities (01/26/05) Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities](https://www.frixlaw.com/law-library/statutes/FCC_DA_05_140.md)
- [DA-05-148: CLARIFICATION OF RECONSIDERATION PERIOD AND EFFECTIVE DATE FOR TERMINATIONS OF WIRELESS RADIO SERVICE AUTHORIZATIONS (01/21/05) CLARIFICATION OF RECONSIDERATION PERIOD AND EFFECTIVE DATE FOR TERMINATIONS OF WIRELESS RADIO SERVICE AUTHORIZATIONS](https://www.frixlaw.com/law-library/statutes/FCC_DA_05_148.md)
- [DA-05-1618: Implementation of the Subscriber Carrier Selection Changes Provisions of the Telecommunications Act of 1996 (06/09/05) Implementation of the Subscriber Carrier Selection Changes Provisions of the Telecommunications Act of 1996](https://www.frixlaw.com/law-library/statutes/FCC_DA_05_1618.md)
- [DA-05-1667: Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (06/15/05) Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991](https://www.frixlaw.com/law-library/statutes/FCC_DA_05_1667.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FCC_FCC_91_404. Check the current official text before relying on it. Not legal advice.