ALVIN B. RUBIN, Circuit Judge:
A television broadcaster challenges the constitutionality of a Texas statute prescribing the rates radio and television stations may charge political advertisers and requiring sponsors of such advertising to identify themselves. The district court found that the broadcaster had not been threatened with prosecution and dismissed the complaint for lack of standing to challenge the statute. We conclude that the broadcaster has suffered injury as a result of enactment of the statute and, therefore, presents us with a justiciable controversy.
On the merits, we conclude that the portion of the Texas statute setting the rates that may be charged for political advertising is unconstitutional because it conflicts directly with federal law and is, therefore, preempted. We conclude, however, that the sponsorship identification requirement is valid to the extent it applies to candidates for nonfederal office and campaigns that do not involve federal issues.
Article 14.09(B) of the Texas Election Code prohibits a radio or television station from charging a rate for political advertising that exceeds the lowest unit charge made by the station to other advertisers "for the same class, condition and amount of time."
Article III of the Constitution imposes limits on the cases federal courts may hear. This includes the requirement, broadly described as the justiciability doctrine, that there be a "case or controversy." The very use of the terms "case or controversy" implies that the dispute must be real, not hypothetical, and that the plaintiff must be personally affected and thus have standing to sue.
Almost two centuries ago, the Supreme Court declined on this basis to give advice to President George Washington, whose request was transmitted by Thomas Jefferson, because no actual controversy was involved and the President sought only guidance.
A. Case or Controversy
The basic inquiry in determining whether a case or controversy exists is whether the "conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract."
The rule that parties seeking relief in federal court must have standing to sue is closely related to the case or controversy requirement. It focuses on whether the plaintiff before the court is a proper party to sue rather than on the issues in the case. We determine whether a party has standing to sue by ascertaining whether it has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens
To invoke a federal trial court's jurisdiction, a litigant "must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement."
On the other hand, one who has violated a state law and has been charged with that offense will not be allowed to file suit in a federal court to challenge the constitutionality of the statute if the state permits him to raise the constitutional issue in the proceeding pending in its court.
C. KVUE's Position
Our inquiry cannot always turn on either the "standing" or the "case or controversy" requirement alone. The concepts are sometimes so interrelated that the determination can be made only by considering both. For example, in Younger, the Court held that three of the four plaintiffs, who had never been arrested, indicted, or even threatened with prosecution, lacked standing to sue because their complaint alleged only that they felt "inhibited" in their desire to distribute handbills by the statute they challenged. This fear, the Court held, was "imaginary or speculative." 401 U.S. at 42, 91 S.Ct. at 749, 27 L.Ed.2d at 674. As to them the Court focused attention on the standing aspect of justiciability, not on the existence of a controversy. The fourth plaintiff, who was actually being prosecuted in state court, had an obvious "controversy" with the state, id. at 41, 91 S.Ct. at 749, 27 L.Ed.2d at 673,
In Steffel, however, the Court found an actual controversy because the plaintiff had been twice warned to stop distributing handbills and had been told that, if he continued to pass out the leaflets, he would likely be prosecuted. In addition, his handbilling companion had been prosecuted. The Court stated that this evidence was
In Babbitt, the Court considered a challenge to several provisions of a statute affecting the plaintiffs' conduct. The Court posed two situations: first, a case in which the plaintiff "allege[s] an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [in which] there exists a credible threat of prosecution ...."; second, a case in which plaintiffs "`do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible ....'"
KVUE charged the advertising rates required by the statute until October 1981, losing some $2,300 in revenue in 1980 and $2,100 in 1981. It filed suit on October 29, 1981, and obtained a temporary restraining order preventing enforcement of the statute. Until November 17, 1981, when the restraining order was vacated, it charged rates greater than § 14.09(B) permits, and, during this period at least, suffered no loss of revenue as a result of the statute.
The state and county assert that KVUE also lacks standing because it has no real basis for apprehending that it will be prosecuted for charging rates in excess of those permitted by the statute. County Attorney Margaret Moore testified that she had not threatened KVUE with prosecution because she had not received a complaint, but had only advised people what information she would require before undertaking a prosecution. She stated that she did not anticipate prosecuting KVUE but would not issue "advisory opinions" about the likelihood of a prosecution without having a "set of facts" before her. She referred to the ambiguous language of Article 14.09(B), which might conceivably authorize the political advertising rates presently charged by KVUE and stated:
The Attorney General of Texas has since released a formal opinion clarifying the statute. See Op.Tex.Att'y Gen. MW-488 (July 7, 1982). We take judicial notice of this opinion and consider the effect, if any, of the Attorney General's opinion on KVUE's standing without remanding the case for the district court's views.
The district judge concluded that the County Attorney's testimony "would clearly
The threat to KVUE looms between the chimerical apprehension that the Younger Court labeled too unreal to warrant litigation and the fear that the Steffel Court treated as sufficiently real to warrant judicial consideration. The station alleges that it desires to violate the statute and has demonstrated that the county attorney, pursuant to her statutory duty to enforce the law and despite her concerns about the statute's possible ambiguity, would not rule out prosecution. The county attorney's concerns about the statute's ambiguity should indeed have been allayed by the Attorney General's opinion, creating the likelihood that this would no longer be a deterrent. Furthermore, the possibility that an advertiser may file a complaint with the county attorney is not entirely supposititious. Several advertisers filed written protests with KVUE when it did not charge the lowest unit rate and another inquired of the county attorney's office what might be done, testifying that he would at least consider filing a complaint to settle the question.
In addition, KVUE offered evidence that it suffered actual monetary losses during the time it obeyed the law and that it has in fact violated the statute since vacation of the restraining order. The combination of these facts persuades us that KVUE has standing to sue and has presented us with a live controversy between adverse parties.
The threat is more immediate than that held insufficient to confer standing in City of Los Angeles v. Lyons, ___ U.S. ___, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). In Lyons, the Supreme Court held that a person who had been once subjected to an allegedly illegal chokehold lacked standing to seek an injunction barring the future use of such chokeholds. The Court stated: "That [the plaintiff] may have been illegally choked by the police on October 6, 1976 ... does nothing to establish a real and immediate threat that he [will] again be stopped ... by an officer ... who [will] illegally choke him into unconsciousness without any provocation or resistance on his part." Id. at ___, 103 S.Ct. at 1667, 75 L.Ed.2d at 686.
KVUE has suffered actual financial loss as a result of the enforcement of the statutes. Should we refrain from deciding the case, KVUE will have to comply with the law and suffer a loss of revenue or defy it and face the likelihood of prosecution. Therefore, this case is not controlled by Lyons; it is more like Kolender v. Lawson, ___ U.S. ___, ___ n. 3, 103 S.Ct. 1855, 1857 n. 3, 75 L.Ed.2d 903, 908 n. 3 (1983), in which the Court held that a plaintiff stopped by police 15 times in two years had standing because of the existence of a "credible threat" that he might again be detained.
That the statute has not been enforced and that there is no certainty that it will be does not establish the lack of a case or controversy. The state has not disavowed enforcement. As the Court stated in Babbitt:
The existence of a "case" in the constitutional sense being established, we consider its merits. Article 14.09(B) requires broadcasters to charge the "lowest unit charge ... for the same class, condition and amount of time for the same period."
This argument fails without regard to whether the statute is ambiguous because it may be equally unconstitutional under either interpretation. The vice challenged here is Texas' regulation of political advertising rates, not the specific rate fixed. If the state may not constitutionally regulate the rate to be charged, neither interpretation will save the statute. We employ Pullman abstention only when the state court's determination "will eliminate or substantially modify a federal constitutional question."
The United States Constitution gives primacy to laws enacted by the Congress as the "supreme law of the land." U.S. Const. art. VI, § 2. This supremacy is patent when a state law conflicts directly with a federal law.
A. Federal Regulation of Advertising
Federal regulation of broadcasting, whether by radio or television, is comprehensive. By the Communications Act's licensing provision federal law governs who may broadcast and over what frequencies. Under that statute and the regulations adopted pursuant to it, broadcast licenses may be issued only after the Federal Communications Commission (FCC) determines that issuance is in the public interest.
This comprehensive regulatory scheme does not, however, entirely bar states from legislating in the broadcast field. Thus in Head v. New Mexico Board of Examiners, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963), the Supreme Court upheld the constitutionality of a state statute forbidding price advertising by optometrists. Recognizing the comprehensive nature of federal regulation under the Communications Act, the Court nevertheless held that preemption questions in the communications field must be answered by considering the specific factors in each case. The Court noted: "[s]tatements concerning the `exclusive jurisdiction' of Congress beg the only controversial question: whether Congress intended to make its jurisdiction exclusive." Id. at 430, 83 S.Ct. at 1763, 10 L.Ed.2d at 988. The Court held that the state statute was not preempted because Congress "could not have intended its grant of authority to supplant all the detailed state regulation of professional advertising
B. Federal Regulation of Political Advertising
Congress has enacted legislation regulating both the permissible price for candidate advertising and the required identification of sponsors of political broadcasting. The Federal Election Campaign Act of 1971 amended the Communications Act to provide that broadcasters must sell political candidates time at "the lowest unit charge of the station for the same class and amount of time for the same period ..." during the 45 days before a primary election and 60 days before a general election.
C. Sponsorship Identification
The statute neither regulates all types of political advertising nor manifests any intention to occupy the political advertising field. Nor does the legislative history suggest that Congress intended entirely to preclude state regulation of political advertising. The FCC has, however, apparently expressed the view that the sponsorship requirements preempt state law in part.
The FEC and FCC requirements are not identical. The FEC rules apply to candidates, their committees, and others buying political broadcast time. The announcements required are designed to reveal whether a commercial is authorized by a candidate.
Although the expression of intent to preempt does not expressly apply to the FCC's identification-of-sponsorship rules, it appears in a statement coauthored by the FCC and listing sponsorship identifications complying with § 317 and the regulations. The statement expresses federal intent to preempt the imposition by states of additional notice requirements on political advertising by federal candidates. Thus, it is sufficient to invalidate the Texas statute to the extent that the law seeks to regulate federal candidates or committees.
Patently the FCC does not seek to control sponsorship identification by state candidates or committees. The Texas sponsorship requirement is, therefore, valid to the extent that it regulates such advertising concerning state elections and campaigns. There is no direct conflict between the federal sponsorship requirements and Texas' requirement. It is not physically impossible to comply with both laws; indeed, compliance with the Texas statute satisfies the federal requirement.
When "the federal requirements [do] not regulate every aspect of [the] area, the state ha[s] the implied reservation of power to fill out the scheme."
D. Rate Regulation
By contrast, neither Congress nor the FCC has taken the position that the advertising rate provisions of § 315 oust states from regulating the price stations may charge for broadcasting political advertising. The federal statute requires that broadcasters charge the lowest unit rate 45 days before the primary and 60 days before the general election. 47 U.S.C. § 315(b)(1). A comparable use rate applies for the remainder of the year. 47 U.S.C. § 315(b)(2).
Before Congress amended § 315 the statute simply provided that candidates were entitled to comparable rates at all times. The 1971 amendments added § 315(b)(1), requiring broadcast licensees to offer political advertisers the lowest unit rate within a 45-day "window" of the primary and a 60-day "window" of the general election. Congress' overriding purpose in adding § 315(b)(1) was to put political advertisers on par with ordinary commercial advertisers. Candidates are, therefore, "entitled to discounts, frequency and otherwise, offered to a station's most favored commercial advertiser for the same class and amount of time for the same period, without regard to frequency of use by the candidate."
Congress sought to place candidates on equal footing with a station's most favored commercial advertisers. Because "a political candidate's broadcast requirements are limited in terms of weeks or a few months at best ... he cannot avail himself of the favorable rates available to commercial advertisers who usually buy time in bulk for longer periods."
In short, although Congress intended to allow access to the media at low rates, it carefully circumscribed the time during which those rates are available. The FCC has likewise moved with caution in applying the statute to the diverse sorts of political gatherings that take place in our 50 states. Furthermore, Congress and the FCC have limited the scope of the provisions to require broadcasters to charge the lowest unit rate to candidates and their campaign committees only.
The Texas statute sweeps far more broadly. Article 14.09(B) provides that for all political advertising—both candidate and issue advertising—a broadcaster can never charge more than "the lowest unit charge of the station for the same class, condition and amount of time for the same period." It permits access by candidates and their committees, but also allows noncandidates and unaffiliated committees to take advantage of the extremely low advertising rate. It extends the low rate from a period of days to the entire year. This extension of the statute's coverage to noncandidates and of the lowest unit charge to a year-round rule stands as an obstacle to the achievement of Congress' purpose in enacting the rate regulation statute.
Thus the Texas statute conflicts directly with the federal statute in important ways. It lengthens, rather than shortens, the "campaign season." It encourages greater, rather than lesser, campaign spending by encouraging candidates—and others—to advertise year-round. It imposes a considerably heavier burden on broadcasters to make low-cost time available to political advertisers than does the federal statute.
The Supreme Court has recognized that preservation of the integrity of the electoral process is a compelling state interest.
For these reasons, the judgment of the district court is REVERSED and the case is REMANDED for proceedings consistent with this opinion.
Congress' power to regulate radio and television broadcasting arises from the power to regulate commerce among the states. U.S. Const. art. I, § 8, cl. 3; United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968).
The FCC has devoted considerable attention to defining "lowest unit charge." See, e.g., Law of Political Broadcasting & Cablecasting, 69 F.C.C.2d 2209, 2273-81 (1978) [hereinafter cited as Law of Political Broadcasting]; Use of Broadcast & Cablecast Facilities by Candidates for Public Office, 34 F.C.C.2d 510, 524-33 (1972) [hereinafter cited as Use of Broadcast & Cablecast Facilities].