Miller v. F.C.C., WKRG-T

Citation66 F.3d 1140
Decision Date29 September 1995
Docket NumberI,WKRG-T,No. 92-8777,92-8777
Parties23 Media L. Rep. 2526 Zell MILLER, Zell Miller for Governor, Pierre Howard, Georgians for Howard '90, Johnny Isakson, Johnny Isakson for Governor, Andrew Young, Young Working for Georgia, Lauren McDonald, Lauren McDonald for Governor, Roy Barnes, Roy Barnes for Governor, Tim Ryles, Tim Ryles for Insurance Commissioner, Warren Evans, Warren Evans Election Committee, William L. Dickinson, Second District Campaign Committee, William J. Cabaniss, Friends of Bill Cabaniss Committee, Spencer T. Bachus, III, Bachus for Attorney General Committee, John Teague, James E. Folsom, Jr., Jim Folsom, Jr., for Lieutenant Governor Committee, Fob James, Fob James for Governor Committee, Kenneth D. Wallis, Alabamians for Ken Wallis Committee, George D.H. McMillan, Jr., The McMillan Committee, George Wallace, Jr., Wallace for Treasurer Committee, Charles A. Graddick, Graddick for Governor Committee, William J. Baxley, Friends of Bill Baxley, Paul Hubbert, Richard Shelby, Don Siegelman, Jimmy Sullivan, Sonny Hornsby, Friends of E.C. Sonny Hornsby, Mark Kennedy, Judge Mark Kennedy for Supreme Court and Friends of Judge Mark Kennedy, Candidates for Public Office in Georgia and Alabama and Their Respective Campaign Committees, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION, Respondent, Capital Cities/ABC, Inc., Chris-Craft Industries, Inc., The Times Mirror Company, American Family Broadcast Group, Inc., Allbritton Communications Company, CBS, Inc., Chronicle Publishing Co., Fox Television Stations, Inc., Gillett Broadcasting of California, Inc., Gillett Communications of San Diego, Inc., Great American Television and Radio Company, Inc., Kelly Broadcasting Company, Kelly Television Company, Lin Television Corporation, McGraw-Hill Broadcasting Company, Inc., Midwest Television, Inc., National Broadcasting Company, Inc., The New York Times Company, Post-Newsweek Stations, Inc., The Providence Journal Company, The Spartan Broadcasting Company, Tribune Broadcasting Company, Westinghouse Br
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Roy F. Barnes, Robert S. Kahn, Barnes, Browning, Tanksley & Casurella, Marietta, GA, Albert G. Norman, Jr., John L. Watkins, L. Craig Dowdy, Bruce P. Brown, Long, Aldridge & Norman, Atlanta, GA, Michael Jablonski, Savell & Williams, Atlanta, GA, Roger S. Morrow, Morrow, Romine & Pearson, P.C., Montgomery, AL, Barbara A. McIntyre, Long, Aldridge & Norman, Atlanta, GA, for petitioners.

C. Grey Pash, Jr., FCC, Washington, DC, Daniel M. Armstrong, Catherine G. O'Sullivan, Andrea Limmer, U.S. Dept. of Justice, Washington, DC, for intervenors.

Carter G. Phillips, Richard Klingler, Craig J. Blakeley, Sidley & Austin, Washington, DC, for American Family Broadcast Group & Tribune Broadcasting.

Suzanne M. Perry, Peter C. Canfield, Dow, Lohnes & Albertson, Washington, DC, for A.H. Belo, Cosmos, & Cox Enterprises.

Theodore D. Kramer, Haley, Bader & Potts, Washington, DC, for Meredith Corp.

Mark J. Prak, Brooks, Pierce, McLeondon, Humprey & Leonard, Raleigh, NC, for North Carolina Association of Broadcasters.

Marjorie Nieset Neufeld, National Broadcasting, Inc., Burbank, CA, Arthur B. Goodkind, Koteen & Naftalin, Washington, DC, for National Broadcasting Co., Inc.

J. Roger Wollenberg, William R. Richardson, Jr., Wilmer, Cutler & Pickering, Washington, DC, for Capital Cities.

Ramsey L. Woodworth, Wilkes, Artis, Hedrick & Lane, Washington, DC, for Westinghouse Broadcasting.

Dennis Paul Corbett, Leventhal, Senter & Lerman, Washington, DC, for WKRG-TV.

Gregory M. Schmidt, Martin Wald, Covington & Burling, Washington, DC, for Post-Newsweek, etc.

Petition for Review of Decision and Order of the Federal Communications Commission (Georgia Case).

Before TJOFLAT, Chief Judge, KRAVITCH, Circuit Judge, and CLARK, Senior Circuit Judge.

TJOFLAT, Chief Judge:

This case involves a challenge to the Federal Communications Commission's (the "FCC" or "Commission") interpretation of section 315(b) of the Communications Act of 1934, 47 U.S.C. Sec. 315(b), which establishes a limit on the amount that a broadcast station may charge a political candidate for campaign advertisements--the lowest unit charge. Petitioners, twenty-five candidates for various public offices in Georgia and Alabama along with their campaign committees, seek review of a declaratory ruling by the FCC concluding that federal law preempts all state causes of action that require, as a condition of granting relief, a determination of the lowest unit charge under section 315(b) and that the FCC is the exclusive forum for adjudicating section 315(b) liability determinations. The FCC and the United States as respondents, joined by a group of broadcast station licensees, their parent corporations, and a national association representing broadcasters as intervenors, defend the issuance of the declaratory ruling as within the agency's delegated powers. We conclude that the issue presented by petitioners constitutes a hypothetical question rather than an actual case or controversy. Based on the constitutional prohibition against advisory opinions, we cannot decide this hypothetical question.

I.
A.

Section 315 of the Communications Act establishes certain requirements governing broadcast station licensees' treatment of candidates for public office. Section 315(a) requires that, subject to enumerated exceptions, licensees provide equal opportunities to all legally qualified candidates for a particular public office and prohibits censorship of candidate broadcasts. 47 U.S.C. Sec. 315(a). The provision at issue in this case, section 315(b), regulates broadcast media rates 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

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

Id. Sec. 315(b). Section 315(b)(1) is commonly known as the "lowest unit charge" provision. Section 315(c) defines relevant terms, and section 315(d) states that "[t]he Commission shall prescribe appropriate rules and regulations to carry out the provisions of this section." Id. Secs. 315(c), (d).

The comparable use requirement of section 315(b) was enacted as part of the Communications Act Amendments of 1952, Pub.L. No. 82-554, Sec. 11, 66 Stat. 711, 717 (codified as amended at 47 U.S.C. Sec. 315(b)(2)), to prevent broadcast licensees from charging political candidates higher rates than those charged to commercial advertisers. 1 S.Rep. No. 96, 92d Cong., 2d Sess. 22 (1971), reprinted in 1972 U.S.C.C.A.N. 1773, 1775. The lowest unit charge provision was added by the Federal Election Campaign Act (FECA) of 1971, Pub.L. No. 92-225, Sec. 103(a)(1), 86 Stat. 3, 4 (1972) (codified as amended at 47 U.S.C. Sec. 315(b)(1)), which had the dual purpose of reducing the costs of campaigns and increasing candidates' access to the broadcast media. S.Rep. No. 96, at 20, reprinted in 1972 U.S.C.C.A.N. at 1774.

B.

Since shortly after the enactment of the lowest unit charge provision, the FCC has promulgated various regulations regarding the determination of the lowest unit charge, including two "political primers" dealing with all political programming requirements as well as notices dealing exclusively with section 315(b)(1). See, e.g., Use of Broadcast and Cablecast Facilities by Candidates for Public Office, 34 F.C.C.2d 510 (1972); The Law of Political Broadcasting and Cablecasting, 69 F.C.C.2d 2209 (1978); Political Primer 1984, 100 F.C.C.2d 1476 (1984); Licensees and Cable Operators Reminded of Lowest Unit Charge Obligations, 4 F.C.C.R. 3823 (1988). These FCC issuances describe broadcast station licensees' obligations under section 315(b), dictate how those obligations affect certain advertisement sales practices in the broadcast industry, and illustrate the appropriate determination of the lowest unit charge. The FCC codified its political programming policies in a separate report and order, which was adopted contemporaneously with the ruling at issue in this case. See Codification of the Commission's Political Programming Policies, 7 F.C.C.R. 678 (1991); see also Codification of the Commission's Political Programming Policies, 7 F.C.C.R. 4611 (1992) (memorandum opinion and order on reconsideration).

On October 10, 1991, the FCC released a public notice stating that "[t]he Commission is 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) of the Communications Act." Notice of 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), 6 F.C.C.R. 5954 (1991). The notice also indicated that the Commission was considering "preempt[ing] any cause of action in which an alleged violation of Section 315(b) is an essential element." Id. As the impetus for the FCC's action, the notice cited inconsistent decisions in state and federal court litigation 2 brought by candidates alleging overcharging by broadcast stations. The Commission commented that "[t]his exclusive jurisdiction over Section 315(b) liability determinations, moreover, must be...

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