                                          The Attorney           General of Texas
                                                           July 7, 1982

MARK WHITE
Attorney General


                                         Honorable Gerald Hill, Chairman        Opinion No. ~~-488
Supreme      Court Building              House Committee on Elections
P. 0. Box 12546
Austin,    TX. 76711. 2546
                                         Texas House of Representatives              Whether 47 U.S.C. section
5121475-2501                             P. 0. Box 2910                         !&b)(l)     preempts   article
Telex    9101674.1367                    Austin. Texas   78769                  14.09(B) of the Texas Election
Telecocxier    5121475.0266                                                     Code with regard to the rates
                                                                                a broadcaster in Texas may
                                                                                charge   for   political   ad-
1607 Main St., Suite 1400
Dallas, TX. 75201-4709                                                          vertising
2141742-6944
                                         Dear Representative Hill:
4624 Alberta       Ave., Suite     160
El Paso. TX.       79905-2793
                                              You have asked five questions concerning article 14.09 of the
915/533-3464                             Texas Election Code. That article provides in relevant part as
                                         follows:
1220 Dallas Ave., Suite           202
                                                      (B)   ...No advertising medium may charge a
Houston,     TX. 77002.6966
713/650-0666
                                                   rate for political advertising in excess of the
                                                   following:

606 Broadway,         Suite 312                       (1)   For advertising broadcast over a radio or
Lubbock,     TX.    79401-3479
                                                   television station, including a community antenna
6061747.5236
                                                   or cable television system, the rate charged shall
                                                   not exceed the lowest unit charge of the station
4309 N. Tenth, Suite B                             for the same class, condition and amount of time
McAllen,     TX. 76501-1665                        for the same period;
5121662.4547

                                                      (2)    For advertising printed or published by
200 Main Plaza, Suite 400                          any other    medium, the rate  charged shall not
San Antonio,  TX. 76205.2797                       exceed the lowest charge made for comparable use
5121225~4191                                       of such space for other purposes.... (Emphasis
                                                   added).
An Equal      Opportunity/
Attirmative     Action     Employer          Your questions are as follows:

                                                     1.   Is article 14.09(B)'s restriction on the
                                                  rate radio and television stations can charge for
                                                  political advertising the same as that imposed by
                                                  47 U.S.C. section 315(b)(l)? For example, suppose
                                                  a station sells one fixed position one-minute
                                                  announcement   in   prime   time  to   commercial




                                                                 p. 1726
Honorable Gerald Hill - Page 2   (MW-488)




         advertisers for $15. During the same period, an
         advertiser has bought 500 spots, however, and he
         paid only $5,000, or $10 each. When a candidate
         comes to the station to buy one fixed position
         one-minute announcement in prime time, under
         article 14.09(B), does the station charge $15, as
         it would charge a regular commercial advertiser,
         or must it charge no more than $10, the lowest
         unit rate?

            2.   In the situation discussed above, if one
         political candidate purchases 500 spots and is
         charged the reduced rate of $10 per spot, and
         another candidate purchases only one spot, should
         that candidate be charged the regular commercial
         rate of $15, or the lowest unit charge of $lO?

            3.   In article 14.09(B), which refers to 'the
         lowest unit charge of the station for the same
         class, condition and amount of time for the same
         period,' what does 'condition' of time mean?

            4.   Does 47 U.S.C. section 315(b)(l) preempt
         article 14.09(B)?

            5.   If a Texas broadcaster accepts    advertising
         from candidates for state or local        offices in
         other states, or on issues to be voted    on in other
         states, must a broadcaster charge          the rates
         prescribed   by   article    14,09(B)      for   that
         advertising?

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

            The   charges made    for   the use    of   any
         broadcasting station by any person who is a
         legally qualified candidate for any public office
         in connection with his campaign for nomination for
         election, or election, to such office shall not
         exceed --

            (1)   during the forty-five days preceding the
         date of a primary or primary runoff election and
         during the sixty days preceding the date of a
         general or special election in which such person
         is a candidate, the lowest unit charge of the
         station for the same class and amount of time for
         the same period; and




                             p. 1727
Honorable Gerald Hill - Page 3 (~~-488)




            (2)   at any other time, the charges made for
         comparable use of such station by other users
         thereof. (Emphasis added).

     KVUE-TV, Inc. v. Moore, C.A. No. A-El-CA-446 (W.D. Tex. March 18,
1982). answers your fourth question.       In that case, the court
dismissed a constitutional attack upon article 14.09(B). One of the
arguments was that article 14.09(B) is preempted by 47 U.S.C. section
315(b). Judge Nowlin responded as follows:

         When the Federal Election Campaign Act of 1971
         (which included 47 U.S.C. section 315(b)) was
         enacted, it contained the following provision:

                 Sec. 403(a)   Nothing in this Act
              shall be deemed to invalidate or make
              inapplicable any provision of any State
              law, except where compliance with such
              provision of law would result in a
              violation of a provision of this Act.

         In 1974, this provision, codified as 2 U.S.C.
         section 453, was amended as follows:

                 The provisions of this Act, and of
              rules   prescribed under    this  Act,
              supercede and preempt any provision of
              State law with respect to election to
              Federal office. (Emphasis added).

         As a consequence, Congress has expressly limited
         the boundaries of preemption exclusively to
         elections for federal office, and accordingly,
         Article   14.09(B) would not apply       to   such
         elections. Tex. Atty. Gen. Op. Nos. H-588 (1975)
         and H-433 (1974). Congress, however, clearly did
         not seek to foreclose legislatures from adopting
         laws which would regulate state elections. The
         reaulation of state elections is whollv within the
         authority of the individual states. Oregon v.
         Mitchell, 400 U.S. 112 (1970); United States v.
         Tonry, 605 F.2d 144 (1979).

Id. at 11 (citations omitted). See also Head v. New Mexico Board of
Examiners in Optometry, 374 U.S. 424 (1963); Exxon Corp. v. Governor
of Maryland, 437 U.S. 117 (1978) (standards for determining whether
federal statute preempts state statute).




                                p. 1728
Honorable Gerald Hill - Page 4   (MW-488)




     In our opinion, the KVUE-TV case resolves your preemption
question. It establishes that article 14.09(B) is preempted only in
the context of elections for federal office.

     The answer to your first three questions turns on the
construction of the following phrase in article 14.09(B)(l): "lowest
unit charge for the same class, condition and amount of time for the
same period." This phrase first appeared in the statute in 1975.
Acts 1975, 64th Leg., ch. 771, at 2269. The legislature has, however,
never offered any guidance as to its meaning. The legislative history
of article 14.09 also fails to shed much light on the problem. We
must therefore construe this phrase in the manner which, in our
opinion, best reflects the legislature's intent.          Flowers v.
Dempsey-Tegeler and Company, 472 S.W.2d 112 (Tex. 1971); Calvert V.
British-American Oil Producing Company, 397 S.W.Zd 839 (Tex. 1965).

     This phrase is virtually identical to the phrase used in 47
U.S.C. section 315(b)(l). That section speaks in terms of the "lowest
unit charge of the station for the same class and amount of time for
the same period." Unfortunately, just as the Texas legislature failed
to define the terms used in article 14.09(B)(l), Congress has not
defined the terms used in section 315(b)(l).

     The Federal Communications Commission [hereinafter "FCC"],
however, has published a booklet entitled "The Law of Political
Broadcasting and Cablecasting." 43 Federal Register No. 169 (Aug. 16,
1978). This booklet purports to be an "accurate restatement of
existing rules and precedent" in the field of political broadcasting.
Id. at 36343. The following discussion is found at page 36377:

                         LOWEST UNIT CHARGE

            2.     Section 315(b)(l) refers to 'the lowest
         unit charge of the station for the same class and
         amount of time for the same period...'        The
         following definitions of these terms and examples
         of the ways in which the lowest unit charge is to
         be computed and applied are bases [sic] on the
         Commission's 1972 Public Notice on this subject
         cited above, unless otherwise indicated:

            (4     What does 'class' of time mean?       It
         refers to the kinds of rates that most radio and
         TV stations have, such as rates for fixed-position
         spots, preemptible spots, run-of-schedule spots,
         and special discount packages.

            (b)    What is the 'amount' of time? This term
         refers to the length of the period purchases, such
         as 30 seconds, 60 seconds, 5 minutes or 1 hour.



                                 p. 1729
Honorable Gerald Hill - Page 5   (MW-488)




            Cc)    What is the 'same period?' This term
         refers to the time of the broadcast day, such as
         prime time on TV, 'drive time' in radio, and Calss
         [sic] A, Class B and other classifications of time
         which a station may establish for rate-making
         purposes.

            Cd)    What does 'lowest unit charge' mean?
         Briefly it means that candidates must be give
         [sic] all discounts, based on volume, frequency or
         any other factor, that are offered to the
         station's most favored commercial advertiser for
         the same class and amount of time for the same
         period, regardless of how few programs or spots
         the candidate buys.     This includes discounted
         rates given to commercial advertisers but not
         published on the rate card. Following are some
         examples:

            (0     A   station sells one-fixed position
         one-minute   announcement  in   prime   time   to
         commercial advertisers for $15. If an advertiser
         buys 500 spots, however, he pays only $5,000 or
         $10 each. If a candidate buys one spot he may not
         be charged more than $10.

            (ii) A     station   sells  one   preemptible
         30-second spot in drive time to commercial
         advertisers for $10. It sells 100 such spots for
         $750. It must sell one such spot to a candidate
         for no more than $7.50.

             (iii) A station's lowest rate per spot for
          run-of-schedule one-minute spots is 1,000 for
          $1,000, but    it   charges $4   for  a   single
          run-of-schedule spot. It must sell one such spot
          to a candidate for mot [sic] more than $1.
          (Emphasis added).

     The "Commission's 1972 Public Notice," to which the foregoing
discussion refers, is found at 34 F.C.C. 2d 510 (1972). The following
discussion is presented at page 524:

                VI. SECTION 315 -- LOWEST UNIT CHARGE

            VI.l.Q.  What is the meaning of 'lowest unit
         charge of the station for the same class and
         amount of time for the same period' in section
         315(b)(l)?




                                 p. 1730
Honorable Gerald Hill - Page 6   (MW-488)




             A.   The term 'class' refers to rate categories
          such as fixed-position spots, pre-emptible spots,
          run-of-schedule and special rate packages. The
          term 'amount of time' refers to the unit of time
          purchased, such as thirty seconds, sixty seconds,
          five minutes or one hour. The term 'same period'
          refers to the period of the broadcast day such as
          prime time, drive time, Class A, Class B or other
          classifications established by the station.

             Candidates are entitled to discounts, frequency
          and otherwise, offered to the most favored
          commercial advertiser for the same class and
          amount of time for the same period, without regard
          to the frequency of use by the candidate. This
          includes discount rates not published in a rate
          card but provided to commercial advertisers. Some
          examples follow:....

     The FCC is charged with the duty of implementing section
315(b)(l). 47 U.S.C. 9315(d). A construction of a statute by the
agency
 -   . charged with its execution will be followed unless there is
compelling evidence that the construction is wrong. E.I. du Pont de
Nemours and Company v. Collins, 432 U.S. 46 (1977); Lewis v. Martin,
397 U.S. 552 (1970). Clearly, the foregoing 1972 and 1978 discussions
of "lowest unit charge" are FCC "constructions" of section 315(b). We
are unaware of any evidence, compelling or otherwise, that these
constructions are incorrect, and we therefore accept them as
authoritative. In this context, we note that Congress has done
nothing in intervening years to cast doubt upon them.

     We next consider the relevance of these discussions in terms of
our inquiry. As noted, there is little legislative guidance as to the
meaning of the "lowest unit charge" phrase in the context of article
14.09(B)(l). We note, however, that this phrase was inserted in
article 14.09 three years after its federal counterpart was added to
section 315(b)(l). In our opinion, given the similarity between the
state and federal phrases and the fact that the former was enacted
three years after the latter, we may -- especially since there is no
evidence to the contrary -- conclude that the terms used in the state
phrase were intended to have the same meaning as the corresponding
terms in the federal phrase. See Blackman v. Hansen, 169 S.W.2d 962
(Tex. 1943) (where state statutory language is taken from federal
statute, presumption is that Texas legislature knew of construction
given federal law when state law adonted and intended to adoot federal
construction); State v. Wiess, 171 S:W.2d 848 (Tex. 1943); High Plains
Natural Gas Company v. Railroad Commission of Texas, 467 S.W.2d 532
(Tex. Civ. App. - Austin 1971, writ ref'd n.r.e.); see also Open
Records Decision Nos. 309 (1982); 251 (1980) (construction given




                                 p. 1731
Honorable Gerald Hill - Page 7    (MW-488)




exceptions to federal Freedom of Information Act, 5 U.S.C. 5552.
relevant in construing exceptions in Open Records Act, article
6252-17a, V.T.C.S.). In other words, the terms "lowest unit charge,"
"class," "amount," and "same period" have the same meaning in the
context of both statutes.

     The 1972 FCC discussion of "lowest unit charge" supplies the
"meaning" of the federal terminology. Since the 1978 discussion adds
nothing new to the FCC's 1972 construction but simply restates it, it
is also relevant for our purposes. Because we are aware of no
evidence which rebuts the presumption that in amending article 14.09
in 1975, the Texas legislature was aware of the FCC's construction of
the federal terms and intended to adopt that construction, we conclude
that this was most likely the case. The meaning ascribed by the 1972
and 1978 FCC statements to the terms used in the "lowest unit charge"
phrase in section 315(b)(l) is, therefore, also the meaning which
those terms have in the context of article 14.09(B). In this context,
we note that what little enlightening legislative history of article
14.09(B) we have found, as obtained from tapes of the coannittee
hearings, indicates that the legislature most likely intended this
result.

     We now turn our attention to the word "condition" in article
14.09(B)(l). In a supplementary letter to this office, you stated:

             Currently, broadcasters across the state are
          providing political advertising to candidates at
          the lowest unit charge rate, but are informing
          candidates that if a       commercial advertiser
          requests time, and is willing to pay a higher
          rate, the previously purchased political spot will
          be preempted, with no notice to the candidate. As
          a protection against being preempted, candidates
          are being forced to pay a higher rate for their
          advertising than the legally prescribed lowest
          unit charge.

             If the 'condition' of a commercial rate
          advertisement includes a guarantee of specific
          placement, must a broadcaster provide the same
          'condition' for political advertisers at the
          lowest unit charge rate, or is there a difference
          in the definition of 'condition' for political and
          commercial accounts?

     The phrase which was originally proposed for inclusion in article
14.09 tracked the federal language: "lowest unit charge of the
station for the same class and amount of time for the same period."
During the committee hearings on the proposed amendments, the




                            p. 1732
Honorable Gerald Hill - Page 8   (MW-488)




legislature added "condition" to this phrase. The tapes of the
committee hearings indicate that the change was made in an effort to
address the situation you describe. The amended version of the phrase
was eventually enacted into law.

     In the context of article 14.09(B), "class... of time" refers to
rate   categories,   such    as   fixed-position,   preemptible,   and
non-preemptible advertising spots. Each rate category has its own
unique characteristics; an obvious feature of "non-preemptible" time,
for example, is that it does not permit preemption. Under the version
of the "lowest unit charge" phrase which was originally proposed for
adoption, a radio or television station would have been obliged to
sell a particular amount of          fixed-position, preemptible or
non-preemptible advertising time to a political candidate at the
lowest unit charge given its most favored commercial advertiser for
the same kind and amount of time at the same period. Any stipulations
inherent in the particular class of time being purchased would,
therefore, have automatically been included as factors in computing
the "lowest unit charge" price. Under the original version, however,
the station would not have been obliged to include as a factor in the
computation of this price any stipulation not inherent in the
particular class of time being bought.      In other words, if, for
example, a guarantee of specific placement is an inherent feature of a
particular class of time, it would have automatically been a factor in
the computation; if, however, it is not an inherent feature of the
class of time being purchased, the station would not have been
required to include it as a factor.

     In our opinion, the legislature included the word "conditionu in
article 14.09(B) precisely in order to rectify this problem. We
conclude, therefore, that under the statute as finally enacted, 3
stipulations, whether inherent in the class of time being purchased or
not, which are included as part of the sale of an advertising spot to
a commercial advertiser must be used as a factor in computing the
"lowest unit charge" figure for political candidates.

     Thus, in answer to the hypotheticals set out in your first two
questions: in each case the candidate could only be charged $10.

     In order to answer your,final question, we must focus upon the
following phrase in article 14.09(B):

         No advertising medium may charge a       rate   for
         political   advertising         excese    of    the
         following:.... (Emphasis a%ed).

"Political advertising" is:

         anything in favor of or in opposition to any
         candidate for public office or office of a




                                 p. 1733
.   *


        Honorable Gerald Hill - Page 9   'NJ-488)




                 political party, or in favor of or in opposition
                 td any political party, or in favor of or in
                 opposition to the success of any public officer,
                 or in favor of or in opposition to any measure
                 submitted to a vote of the people, which is
                 communicated in any of the following forms:....
                 (Emphasis added).

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

                 any office created by or under authority of the
                 laws of this state, that is filled by the voters.
                 (Emphasis added).

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

                 any person who has knowingly and willingly taken
                 affirmative action for the purpose of seeking
                 nomination or election to, any public office.
                 (Emphasis added).

        Elec. Code art. 14.01(A).

             "Political advertising" is, therefore, advertising which relates
        to a state or local office in this state. Advertising relating to
        candidates for offices in other states or to issues to be voted upon
        in other states does not fit in this category. Since the article
        14.09(B) prohibition only applies to "political advertising," we
        answer your fifth question in the negative.

                                    SUMMARY

                    1. Under article 14.09(B) of the Election
                 Code, a candidate could only be charged $10 in the
                 following instance: A radio or television station
                 sells one fixed position one-minute announcement
                 in prime time to commercial advertisers for $15.
                 During the same period, an advertiser has bought
                 500 spots, but paid only $5000, or $10 each. The
                 candidate buys one fixed position one-minute
                 announcement in prime time.

                    2. If, assuming the above facts, one political
                 candidate purchases 500 spots and is charged the
                 reduced rate of $10 per spot, and another
                 candidate purchases only one spot, that candidate
                 could only be charged $10 for the spot.




                                          p. 1734
                                                                    1




Honorable Gerald Hill - Page 10    (MW-488)




            3. The word "condition" in article 14.09(B)
         insures that any stipulations not inherent in a
         given "class" of time which accompany the sale of
         an advertising spot to a commercial advertiser
         will be included as a factor in computing the
         "lowest unit charge" figure.

              4. Article 14.09(B) is only preempted by 47
          U.S.C.  section 315(b)(l) in the context of
          elections for federal office.

            5.    If a broadcaster in Texas accepts
         advertising from candidates for state or local
         offices in other states, or on issues to be voted
         upon in other states, he need not charge the rates
         prescribed   by   article    14.09(B)   for   that
         advertising.

                                       ms



                                        MARK      WHITE
                                        Attorney General of Texas

JOHN W. FAINTER, JR,
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Chip Holt
Jim Moellinger




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