Court questions FCC’s sole jurisdiction over political ad rates

Court questions FCC’s sole jurisdiction over political ad rates

10/23/95

GEORGIA–Although a three-judge panel of the U.S. Court of Appeals in Atlanta (11th Cir.) declined to overturn an FCC ruling on television political ads in late September, it held that the commission does not have the power to pre-empt state law concerning contract or tort suits over television stations’ rates for political commercials.

Chief Judge Gerald Tjoflat wrote that the FCC’s claim to exclusive jurisdiction “amounts to nothing more than an agency’s opinion” of the law in a case brought by 25 political candidates who claimed that broadcasters overcharged them for political ads during the 1990 and 1992 elections.

The opinion rejected the FCC’s argument that it, along with Congress, has the exclusive power to consider candidates’ claims that a broadcaster’s rates for political ads exceeded the lowest unit charge for other advertising, contrary to federal law.

In their petition to the court, the candidates — including Georgia Governor Zell Miller, Alabama Governor Fob James, and former Atlanta Mayor Andrew Young — argued that they would not be able to recover any money if the FCC retained exclusive jurisdiction over their case, because the agency is not authorized to grant refunds for overcharges. The panel found that the plaintiffs may seek relief from the state courts if they have been overcharged.

The panel refused to review the FCC holding denying the candidates’ request to remove the case from FCC jurisdiction, because the organizations’ request that it determine whether the state court would have dismissed a candidate’s claim based on lack of jurisdiction was hypothetical. The Constitution limits the federal courts to ruling on actual cases or controversies, the panel added.

However, Judge Tjoflat added, “Our refusal to answer the question petitioners pose will not preclude them from obtaining an answer” from a state court. The panel invited further litigation on the issue of the FCC’s rule when an actual case is pending.

Roy Barnes, a plaintiff who ran for governor of Georgia in 1990, told the Associated Press that the panel’s ruling was a good first step. “The way I read the ruling, they said the cases have to be decided by the courts, not by the bureaucrats.” (Zell Miller, et. al v. FCC, Media Counsel: Bobby Kahn, Atlanta)