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. § 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
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. § 315(a). The provision at issue in this case, section 315(b), regulates broadcast media rates as follows:
Id. § 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. §§ 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, § 11, 66 Stat. 711, 717 (codified as amended at 47 U.S.C. § 315(b)(2)), to prevent broadcast licensees from charging political candidates higher rates than those charged to commercial advertisers.
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
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
The FCC followed this notice with a declaratory ruling adopted December 12, 1991, which stated:
Exclusive Jurisdiction With Respect to Potential Violations of the Lowest Unit Charge Requirements of Section 315(b) of the Communications Act of 1934, as amended, 6 F.C.C.R. 7511 (1991). In addition, the FCC announced that state causes of action based on section 315(b) violations filed in federal district court under diversity jurisdiction are preempted. Id. at 7520 n. 8. The Commission limited the scope of the ruling by concluding that "[o]ther claims, such as standard breach of contract actions, not dependent upon the determination of the lowest unit charge or some other duty arising under Section 315(b) are not preempted." Id. at 7511. The ruling also established procedures for filing complaints with the Commission's Mass Media Bureau regarding alleged section 315(b) violations. Id. at 7513-14.
To justify its preemption decision, the Commission stated that Congress had preempted the relevant causes of action by implication because: (1) the purpose and character of the federal law revealed an intent to preempt; (2) potentially inconsistent interpretations of federal law could result from state court litigation; and (3) state causes of action would create an obstacle to fulfilling Congress' objectives under the federal statute. Id. at 7511. The FCC also relied on its broad rulemaking authority under section 315(d), as well as that of sections 4(i) and 303(f) of the Communications Act, 47 U.S.C. §§ 154(i) & 303(f), as evidence of Congress' intent to preempt state court actions. Id. at 7512. Moreover, the FCC concluded:
Id. (citing Fidelity Fed. Sav. & Loan v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982)).
In an order adopted on May 14, 1992, the FCC denied two petitions for reconsideration filed by the petitioners in this case. Exclusive Jurisdiction With Respect to Potential Violations of the Lowest Unit Charge Requirements of Section 315(b) of the Communications Act of 1934, as amended, 7 F.C.C.R. 4123 (1992) (order on reconsideration). The Commission rejected all of the arguments raised in the petitions for reconsideration, which are essentially the same as the arguments petitioners advance before this court.
Petitioners assert that this court has jurisdiction to review the declaratory ruling under 47 U.S.C. § 402(a) and 28 U.S.C. § 2342(1). Section 402(a) provides that:
47 U.S.C. § 402(a).
28 U.S.C. § 2342(1).
Before addressing the constitutional considerations affecting whether this court has jurisdiction over petitioners' challenge, it is necessary to characterize appropriately the FCC action. The Commission's declaratory ruling — that Congress (or the Commission itself) has preempted the jurisdiction of state courts and federal district courts, in diversity cases, when the candidate claims that the broadcaster's rates exceeded the lowest unit charge—is not a regulation promulgated pursuant to section 315(d). Unlike the regulations found at 47 C.F.R. §§ 73.1942, 76.206 (1994), the ruling does not define relevant statutory terms, dictate the use of certain industry practices, or prescribe appropriate methods for calculating the lowest unit charge. Furthermore, the declaratory ruling is not an adjudication of a pending case involving a dispute between a candidate and a broadcast station licensee. It is not a decision, a letter of admonition, or an order levying a penalty of forfeiture, a loss of operating authority, or a refund to the candidate. Because it is axiomatic that Congress has not delegated, and could not delegate, the power to any agency to oust state courts and federal district courts of subject matter jurisdiction, the FCC's declaratory ruling amounts to an agency opinion — a pronouncement interpreting the Communications Act to the effect that Congress impliedly abolished state and federal court jurisdiction over lowest unit charge violations.
Petitioners challenge the declaratory ruling based on the following arguments: (1) there can be no preemption by implication from the legislative scheme because section 315(b)(1) was enacted as part of the Federal Election Campaign Act, rather than as one of the Communications Act Amendments, and thus the relevant legislative scheme is FECA rather than the Communications Act; (2) the doctrine of primary jurisdiction would provide sufficient uniformity and allow the FCC to determine whether lowest unit charge violations have occurred without completely removing cases from federal and state courts; (3) the FCC cannot grant adequate relief for section 315(b)(1) violations because the relevant provisions of the Communications Act do not authorize the FCC to order refunds of overcharges; (4) the ruling impermissibly removes federal question jurisdiction from an Article III court; and (5) the power to preempt state law claims is not within the authority delegated by Congress to the FCC.
To support the Commission's power of preemption in this context, respondents and intervenors repeat many of the rationales from the declaratory ruling, including the following: (1) federal law occupies the field; (2) state activity in this area would frustrate uniform enforcement and create inconsistent interpretations of the statute, thereby harming the goal of increased candidate access to the broadcast media; (3) the complexity of determining lowest unit charge violations requires the expertise of the FCC; (4) the FCC has broad enforcement authority under section 315(d) and broad remedial powers under other provisions of the Communications Act; and (5) adjudication at the FCC is the exclusive remedy for lowest unit charge violations because section 315(b) provides no implied right of action.
Section 315(b) addresses situations in which candidates enter into contracts with broadcast stations for the purchase of airtime for political advertisements; the statutory language requires that the price stated in the contract "shall not exceed ... the lowest unit charge."
Article III of the Constitution limits the jurisdiction of the federal courts to actual "cases" or "controversies." Although "those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government," the purpose of the requirement is readily apparent — to limit the federal courts to deciding issues presented in an adversary framework amenable to judicial resolution and to maintain separation of powers among the three branches of government. Flast v. Cohen, 392 U.S. 83, 94-95, 88 S.Ct. 1942, 1949-50, 20 L.Ed.2d 947 (1968); see also Graham v. Butterworth, 5 F.3d 496, 498-99
These Article III requirements apply with the same stringency in the administrative law context. See Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 804 (11th Cir.1993) ("[T]he `case or controversy' requirement is of special importance in cases where a federal court is being asked to rule on the legality of an act of the executive branch."), cert. denied, ___ U.S. ___, 114 S.Ct. 683, 126 L.Ed.2d 651 (1994); New Jersey Speech-Language-Hearing Ass'n v. Prudential Ins. Co., 724 F.2d 383, 385 (3d Cir.1983) ("Parties seeking to challenge administrative actions must satisfy the constitutional prerequisites derived from the `case or controversy' clause of Article III, as well as a set of prudential requirements adopted by the courts...."); see also R.T. Vanderbilt Co. v. Occupational Safety & Health Review Comm'n, 708 F.2d 570, 574 (11th Cir.1983) (prohibition on advisory opinions); Alabama Power Co. v. FERC, 685 F.2d 1311, 1314-15 (11th Cir. 1982) (ripeness), cert. denied, 463 U.S. 1230, 103 S.Ct. 3573, 3574, 77 L.Ed.2d 1415 (1983); Branton v. FCC, 993 F.2d 906, 909 (D.C.Cir. 1993) (standing), cert. denied, ___ U.S. ___, 114 S.Ct. 1610, 128 L.Ed.2d 338 (1994). Federal courts simply are not permitted to render advisory opinions regarding agency pronouncements. See, e.g., Town of Deerfield v. FCC, 992 F.2d 420, 429 (2d Cir.1993) ("[T]he Commission plainly has no power to request or require such a court to render an opinion that is merely advisory."); City of Peoria v. General Elec. Cablevision Corp. (GECCO), 690 F.2d 116, 120 (7th Cir.1982) (A party "cannot simply put to the district court the abstract question whether [a rule] is valid, for it cannot receive an advisory opinion from a federal court."); American President Lines v. Federal Maritime Bd., 112 F.Supp. 346, 348 (D.D.C.1953) ("The courts may not pass upon the legality of official action merely because some one desires a judicial opinion on the subject."). Consequently, we are prohibited from determining the propriety of the FCC's declaratory ruling given the abstract circumstances in which this issue is presented.
It should be obvious from the foregoing discussion that our refusal to answer the question petitioners pose will not preclude them from obtaining an answer. Any of them who have been or may in the future be overcharged by a broadcaster while running for public office may seek judicial relief. In such a case, the court can determine whether Congress, in enacting section 315(b), has foreclosed the courts from granting relief by giving the Commission exclusive jurisdiction to adjudicate overcharge disputes. Because we conclude that no case or controversy is presented, we DISMISS the petition for review.
IT IS SO ORDERED.