Attorney General Opinion GA-0669

ATTORNEY GENERAL OF TEXAS GREG ABBOTT October 7, 2008 The Honorable Jeff Wentworth Chair, Committee on Jurisprudence Texas State Senate Post Office Box 12068 Austin, Texas 78711-2068 Dear Senator Wentworth: Opinion No. GA-0669 Re: Whetherthe "radio station" exceptionto section 552.275, Government Code, applies to a person who holds an amateur radio license issued by the Federal Communications Commission (RQ-0698-GA) You ask whether the "radio station" exception to section 552.275 ofthe Government Code applies to a person who holds an amateur radio license issued by the Federal Communications Commission (the "FCC").! The Eightieth Legislature enacted House Bill 2564, codified as section 552.275 of the Government Code, in response to problems encountered by governmental bodies that receive voluminous and repetitive requests for information under the Public Information Act, chapter 552 ofthe Government Code. See Act ofMay 25,2007, 80th Leg., R.S., ch. 1398,2007 Tex. Gen. Laws 4801, 4801-03. According to a bill analysis prepared by the Senate Research Center, a person or persons may make more than one request per year for the production ofpublic information. Inaddition, manytypes ofrequests require a substantial amount ofemployee orpersonneltime to comply with the request. Both ofthese factors raise the operation costs ofa governmental body. SENATE RESEARCH CENTER, BILL ANALYSIS, Tex. H.B. 2564, 80th Leg., R.S. (2007). The gist of House Bill 2564 authorizes a governmental body to establish a reasonable time limit on the amount oftime that personnel are required to spend producing information incompliance with a request for public information. The bill also provides a process in which the governmental body may 'Letter from Honorable JeffWentwottb, Chair, Committee on Jurisprudence, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas (Apr. 8, 2008) (on file with the Opinion Committee, also available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter]. The Honorable JeffWentworth - Page 2 (GA-0669) charge a fee if the time limit required for information production is exceeded. Id. Section 552.275 also establishes exceptions for certaintypes ofrequestors. Forourpurposes, the relevant exception is subsection (j), which provides: This section does not apply ifthe requestor is a representative of: (1) a radio ortelevisionstation thatholds a license issuedby the Federal Communications Commission; or (2) a newspaper that is qualified under Section 2051.044 to publish legal notices or is a free newspaper ofgeneral circulation and that is published at least once a week and available and ofinterest to the general public in connection with the dissemination ofnews. TEX. GOV'T CODEANN. § 552.275(j) (Vernon Supp. 2008) (emphasis added). The specific question before us is whether an amateur radio license issued by the FCC is "a radio ... station" license for purposes ofsection 552.275(j)(1). You indicate that the exception at issue, section 552.275(j)(1) ofthe Government Code, was added as a floor amendment to House Bill 2564, and that "[i]n introducing the amendment, Representative Burnham stated that the exception applies to 'all news media outlets, and defines all ofthose as radio, television, newspapers, etc.'" Request Letter, supra note I, at 2. You appear to suggest that the amendment was intended to apply only to broadcast radio and television stations. See id. Like the courts, this office must ascertain and give effect to the intent ofthe Legislature. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008). We discern legislative intent primarily from the statute's plain language. ld. Ordinarily, a statute's words are to be given their common meanings. TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 2005) (Code ConstructionAct). By contrast, "[wlords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." ld. § 31 1.011(b). "[W]hen a statute's words are unambiguous and yield a single inescapable conclusion," our inquiryis at an end. See Alex SheshunoffMgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 652 (Tex. 2006). Thus, unless enacted statutory language is nebulous, there is no need to "consult legislative historyto help divine legislative intent." ld. at 653.' 'We note that the Legislature, when it intends to do so, knows how to distinguish between "radio station" and "broadcast radio station." A provision ofthe Utilities Code states: "Notwithstanding any other provision ofthis title, a provider of advanced services or local exchange telephone service shall provide snbscribers access to the signals of the local broadcast television andradio stations licensedby the Federal Communications Commission ...." TEX.UTIL. (continued...) The Honorable JeffWentworth - Page 3 (GA-0669) Nothing in the Public Information Act defines the term "radio station" and we have found no judicial decision that does so. In the present instance, the term "radio station" should be construed according to the definitions set forth in federal law, particularlyin view ofthe fact that the statute in question references "a license issuedbythe Federal Connnunications Connnission." TEX. GOV'T CODE ANN. § 552.275(j)(1) (Vernon Supp. 2008). The FCC regulates "all interstate and foreign" radio connnunication originating or received in the United States and "all persons engaged within the United States" in such radio connnunications. 47 U.S.C.A. § 152(a) (West Supp. 2008). The FCC also licenses and regulates all radio stations as provided by federal law. ld. The term "radio station" or "station" is defined broadly to mean "a station equipped to engage in radio connnunication or radio transmission of energy." ld. § 153(35)(2001). The term includes both amateur and broadcast stations. An "amateur station" is "a radio station operated by a duly authorized person interested in radio technique solely with a personal aim and without pecuniary interest." ld. § 153(2); see also 47 C.F.R. § 97.3(5) (2007) (defining "amateur station" as a "station in an amateur radio service consisting of the apparatus necessaryfor carrying onradioconnnunications"). Onthe otherhand, a"broadcaststation" or "radio broadcast station" is defined as "a radio station equipped to engage in broadcasting as herein defined." 47 U.S.C.A. § 153(5) (2001). Thus, under federal law, there are at least two kinds of "station": an "amateur station" and a "broadcast station." Each ofthem, however, requires an FCC license in order to operate. See id. § 301 ("No person shall operate any apparatus for the transmission ofenergy or connnunications or signals by radio ... except ... with a license ... granted under the provisions ofthis chapter."); 47 C.F.R. §§ 73.1745(a) (2008) (generally prohibiting any broadcast station from operating "at times, or with modes or power, other than those specified" in the license), 97.5 (generally requiring an amateur station license naming the person with physical control ofthe station apparatus "before the station may transmit on any amateur service frequency"); see also City ofRancho Palos Verdes v. Abrams, 124 Cal. Rptr. 2d 80, 86 (Cal. App. 2002) (under the Federal Connnunications Act, "a person operating as an amateur enthusiast, as a for-profit business, orboth is considered a 'licensee' operating a 'station"'). By the express terms ofsection 552.275 ofthe Government Code, an amateur radio station is a "radio . . . station that [must hold] a license issued by the Federal Connnunications Connnission." TEX. GOV'T CODE ANN. § 552.275(j) (Vernon Supp. 2008). In order to fall within the scope ofthe exception, however, a person must be a "representative" ofthe radio station. It is clear that a person who holds an amateur "radio station" license is a "representative" ofthe radio station. 2(...continued) CODE ANN. § 62.003(b) (Vernon 2007) (emphasis added). In section 552.2750) of the Government Code, the Legislature failed to make that distinction. '''The term 'broadcasting' means the dissemination of radio connnunications intended to be received by the public, directly or by the intermediary ofrelay stations." 47 U.S.C.A. § 153(6) (2001). The Honorable JeffWentworth - Page 4 (GA-0669) Accordingly, in answer to your question, the "radio station" exception to Government Code section 552.275 encompasses apersonwho holds an amateurradio stationlicense issuedbythe FCC. Should the Legislature prefer to limit the exception to persons who hold only a broadcast station license, it ofcourse has the authority to do so. But this office may not disregard the plain language ofthe statute as written. See City ofRockwall, 246 S.W.3d at 625-26. The Honorable Jeff Wentworth - Page 5 (GA-0669) SUMMARY The "radio station" exception to section 552.275 of the Government Code encompasses apersonwho holds an amateur radio station license issued by the Federal Communications Commission. KENT C. SULLIVAN First Assistant Attorney General ANDREW WEBER Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee