# The Attorney General of Texas July 7, 1982
MARK WHITE Attorney General

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An Equal Opportunity/ Attirmative Action Employer HonorableGeraldHill, Chairman House Committeeon Elections TexasHouse of Representatives P. 0. Box 2910 Austin.Texas 78769 OpinionNo.~~-488 Whether 47U.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 RepresentativeHill:
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 advertisingbroadcast over a radio or television station, including a community antenna or cable televisionsystem, the rate charged shall not exceed the lowest unit charge of the station for the same class, condition and amount of time for the sameperiod; (2) For advertising printed or published by any other medium, the rate charged shall not exceed the lowest charge made for comparableuse of such space for other purposes.... (Emphasis added).
Your questionsare 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 imposedby 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

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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 candidatepurchases only one spot, should that candidate be charged the regular commercial rate of $15, or the lowestunit 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 timemean?
4. Does 47 U.S.C. section 315(b)(l) preempt article 14.09(B)?
5. If a Texasbroadcasteracceptsadvertising from candidates for state or local offices in other states,or on issues tobe 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), providesas 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 connectionwith his campaignfornomination 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 sameperiod; and

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(2) at any other time, the charges made for comparable use of such station by other users thereof. (Emphasisadded). 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 constitutionalattack upon article 14.09(B). One of the argumentswas that article 14.09(B)is preemptedby 47 U.S.C. section 315(b). JudgeNowlin respondedas follows:

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

Sec. 403(a) Nothing in this Act shall be deemed to invalidate or make inapplicableany provision of any State law, except where compliance with such provision of law would result in a violation of a provision of thisAct.
In 1974, this provision, codified as 2 U.S.C. section 453,was amendedas 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. (Emphasisadded).
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 reaulationof state electionsiswhollvwithin 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 (citationsomitted). 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 determiningwhether federal statutepreempts state statute).

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In our opinion, the KVUE-TV case resolves your preemption question. It establishes that article 14.09(B) is preempted only in the contextof elections for federaloffice. The answer to your first three questions turns on the constructionof the followingphrase 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 legislaturehas, however, never offeredany guidanceas to itsmeaning. The legislativehistory 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-AmericanOil ProducingCompany, 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 sameperiod." Unfortunately,just as theTexas legislaturefailed to define the terms used in article 14.09(B)(l), Congress has not defined the termsused in section 315(b)(l). The Federal Communications Commission [hereinafter "FCC"], however, has published a booklet entitled "The Law of Political Broadcastingand Cablecasting." 43 FederalRegisterNo. 169 (Aug.16, 1978). This booklet purports to be an "accurate restatement of existing rules and precedent" in the field of politicalbroadcasting. Id. at 36343. The followingdiscussion is foundat page 36377:
LOWESTUNIT 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 followingdefinitions of these terms and examples of theways in which the lowestunit charge is to be computed and applied are bases [sic] on the Commission's 1972 Public Notice on this subject citedabove,unless otherwise indicated: (4 What does 'class' of time mean? It refers to the kinds of rates that most radio and TV stationshave, suchas rates for fixed-position spots, preemptible spots, run-of-schedule spots, and specialdiscountpackages. (b) What is the 'amount'of time? This term refers to the lengthof theperiodpurchases, such as 30 seconds,60 seconds,5minutes or 1hour.

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### Cc) What is the 'same period?' This term refers to the time of the broadcast day, such as prime time on TV, 'drivetime' in radio,and Calss [sic]A, Class B and other classificationsof 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 onvolume, frequencyor 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 commercialadvertisers for $15. If an advertiser buys 500 spots, however, he pays only $5,000 or $10 each. If a candidatebuys one spothe may not be chargedmore 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 forno 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-schedulespot. It must sell one such spot to a candidate for mot [sic] more than $1. (Emphasisadded). The "Commission's 1972 Public Notice," to which the foregoing discussionrefers, is foundat 34 F.C.C. 2d 510 (1972). The following discussion ispresentedat page 524:

VI. SECTION 315 -- LOWESTUNIT 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)?

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A. The term 'class'refers to rate categories such as fixed-positionspots, pre-emptible spots, run-of-schedule and special rate packages. The term 'amountof time' refers to the unit of time purchased, such as thirty seconds, sixty seconds, fiveminutes or one hour. The term 'sameperiod' refers to the period of the broadcast day such as prime time, drive time, ClassA, Class B or other classificationsestablishedby the station. Candidatesare entitled to discounts, frequency and otherwise, offered to the most favored commercial advertiser for the same class and amountof time for the sameperiod,without regard to the frequency of use by the candidate. This includes discount rates not published in a rate cardbut provided to commercialadvertisers. 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 Companyv. Collins, 432 U.S. 46 (1977);Lewis v. Martin, 397U.S. 552 (1970). Clearly, the foregoing 1972 and 1978discussions of "lowestunit 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 interveningyears to cast doubtupon them.
We next consider the relevance of these discussions in terms of our inquiry. As noted, there is little legislativeguidanceas 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 counterpartwas 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 termsused 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 lawwhen state law adonted and intended to adoot federal construction);Statev. 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

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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 otherwords, the terms "lowestunit charge," "class," "amount," and "same period" have the same meaning in the contextofboth 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 constructionbut 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 legislaturewas aware of the FCC's constructionof the federal termsand intendedto adopt that construction,we conclude that thiswas most likely the case. The meaning ascribedby the 1972 and 1978 FCC statements to the termsused in the "lowestunit charge" phrase in section 315(b)(l) is, therefore, also the meaning which those termshave in the contextof article 14.09(B). In this context, we note that what little enlightening legislativehistory 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 supplementaryletter 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, thepreviouslypurchasedpolitical spotwill 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 lowestunit charge rate, or is there a difference in thedefinitionof 'condition'forpoliticaland commercialaccounts? Thephrasewhich was originallyproposed for inclusionin 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

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legislature added "condition" to this phrase. The tapes of the committeehearings indicate that the changewas made in an effort to address the situationyou describe. The amendedversion of thephrase was eventuallyenacted 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 doesnot permitpreemption. Under theversion 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 timeat the sameperiod. Any stipulations inherent in the particular class of time being purchased would, therefore, have automatically been included as factors in computing the "lowestunit charge"price. Under the originalversion, however, the stationwould 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 guaranteeof specificplacement is an inherentfeatureof a particularclass of time, itwould have automaticallybeen 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 legislatureincluded theword "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 timebeing purchasedor not, which are includedas part of the sale of an advertising spot to a commercial advertiser must be used as a factor in computing the "lowestunit charge" figure forpolitical candidates. Thus, in answer to the hypotheticals set out in your first two questions: in each case the candidatecould onlybe charged $10.
In order to answer your,final question, we must focus upon the followingphrase in article 14.09(B):

No advertising medium may charge a rate for political advertising excese of the following:.... (Emphasisa%ed). "Politicaladvertising"is:

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

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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:.... (Emphasisadded). Elec.Code art. 14.01(R). "Publicoffice" is:

any office created by or under authority of the laws of this state, that is filledby the voters. (Emphasisadded). 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. (Emphasisadded). Elec. Code art. 14.01(A). "Politicaladvertising" is, therefore,advertisingwhich 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 answeryour fifthquestion in thenegative.
SUMMARY 1. Under article 14.09(B) of the Election Code, a candidatecould onlybe charged $10 in the following instance: A radio or televisionstation 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 announcementinprime 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 candidatepurchases only one spot, that candidate could onlybe charged $10 for the spot.

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3. The word "condition" in article 14.09(B) insures that any stipulations not inherent in a given "class" of timewhich accompany the sale of an advertising spot to a commercial advertiser will be included as a factor in computing the "lowestunit 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 federaloffice.
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 AttorneyGeneral of Texas
JOHNW. FAINTER,JR, FirstAssistantAttorneyGeneral
RICHARDE. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Jon Bible AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE
SusanL. Garrison,Chairman Jon Bible Rick Gilpin PatriciaHinojosa ChipHolt JimMoellinger

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