The Attorney General of Texas 

July 7, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin, TX. 76711. 2546 

5121475-2501 

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Dallas, TX. 75201-4709 

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El Paso. TX. 79905-2793 

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Houston, TX. 77002.6966 

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Lubbock, TX. 79401-3479 

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McAllen, TX. 76501-1665 

5121662.4547 

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San Antonio, TX. 76205.2797 

5121225~4191 

An Equal Opportunity/ 

Attirmative Action Employer 

Honorable Gerald Hill, Chairman 

House Committee on Elections 

Texas House of Representatives 

P. 0. Box 2910 

Austin. Texas 78769 

Opinion No. ~~-488 

Whether 47 U.S.C. section 

!&b)(l) preempts article 

14.09(B) of the Texas Election 

Code with regard to the rates 

a broadcaster in Texas may 

charge for political advertising 

Dear Representative Hill: 

You have asked five questions concerning article 14.09 of the 

Texas Election Code. That article provides in relevant part as 

follows: 

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

rate for political advertising in excess of the 

following: 

(1) For advertising broadcast over a radio or 

television station, including a community antenna 

or cable television system, the rate charged shall 

not exceed the lowest unit charge of the station 

for the same class, condition and amount of time 

for the same period; 

(2) For advertising printed or published by 

any other medium, the rate charged shall not 

exceed the lowest charge made for comparable use 

of such space for other purposes.... (Emphasis 

added). 

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. 

(Tex. 

See Blackman v. Hansen, 169 S.W.2d 962 

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 

"meaning" 

FCC discussion of "lowest unit charge" supplies the 

of the federal terminology. Since the 1978 discussion adds 

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

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

evidence which rebuts the presumption that in amending article 14.09 

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

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

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

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

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

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

we note that what little enlightening legislative history of article 

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

hearings, indicates that the legislature most likely intended this 

result. 

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

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

Currently, broadcasters across the state are 

providing political advertising to candidates at 

the lowest unit charge rate, but are informing 

candidates that if a commercial advertiser 

requests time, and is willing to pay a higher 

rate, the previously purchased political spot will 

be preempted, with no notice to the candidate. As 

a protection against being preempted, candidates 

are being forced to pay a higher rate for their 

advertising than the legally prescribed lowest 

unit charge. 

If the 'condition' of a commercial rate 

advertisement includes a guarantee of specific 

placement, must a broadcaster provide the same 

'condition' for political advertisers at the 

lowest unit charge rate, or is there a difference 

in the definition of 'condition' for political and 

commercial accounts? 

The phrase which was originally proposed for inclusion in article 

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

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

During the committee hearings on the proposed amendments, the 

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

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

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

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

was eventually enacted into law. 

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

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

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

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

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

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

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

sell a particular amount of fixed-position, preemptible or 

non-preemptible advertising time to a political candidate at the 

lowest unit charge given its most favored commercial advertiser for 

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

inherent in the particular class of time being purchased would, 

therefore, have automatically been included as factors in computing 

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

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

computation of this price any stipulation not inherent in the 

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

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

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

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

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

required to include it as a factor. 

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

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

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

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

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

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

"lowest unit charge" figure for political candidates. 

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

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

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

following phrase in article 14.09(B): 

No advertising medium may charge a rate for 

political advertising excese of the 

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

"Political advertising" is: 

anything in favor of or in opposition to any 

candidate for public office or office of a 

p. 1733 
. * 

Honorable Gerald Hill - Page 9 'NJ-488) 

political party, or in favor of or in opposition 

td any political party, or in favor of or in 

opposition to the success of any public officer, 

or in favor of or in opposition to any measure 

submitted to a vote of the people, which is 

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

(Emphasis added). 

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

any office created by or under authority of the 

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

(Emphasis added). 

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

any person who has knowingly and willingly taken 

affirmative action for the purpose of seeking 

nomination or election to, any public office. 

(Emphasis added). 

Elec. Code art. 14.01(A). 

"Political advertising" is, therefore, advertising which relates 

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

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

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

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

answer your fifth question in the negative. 

SUMMARY 

1. Under article 14.09(B) of the Election 

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

following instance: A radio or television station 

sells one fixed position one-minute announcement 

in prime time to commercial advertisers for $15. 

During the same period, an advertiser has bought 

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

candidate buys one fixed position one-minute 

announcement in prime time. 

2. If, assuming the above facts, one political 

candidate purchases 500 spots and is charged the 

reduced rate of $10 per spot, and another 

candidate purchases only one spot, that candidate 

could only be charged $10 for the spot. 

p. 1734 
1 

Honorable Gerald Hill - Page 10 (MW-488) 

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

insures that any stipulations not inherent in a 

given "class" of time which accompany the sale of 

an advertising spot to a commercial advertiser 

will be included as a factor in computing the 

"lowest unit charge" figure. 

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

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

elections for federal office. 

5. If a broadcaster in Texas accepts 

advertising from candidates for state or local 

offices in other states, or on issues to be voted 

upon in other states, he need not charge the rates 

prescribed by article 14.09(B) for that 

advertising. 

ms 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR, 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Patricia Hinojosa 

Chip Holt 

Jim Moellinger 

p. 1735