[1995/oagheade.htm]

OAG 95-28

July 7, 1995

Subject: Determination of Newspaper Entitled to Government Notice Advertising in County with Two or More Newspapers.

Written by: Gerard Gerhard

Requested by: Delores Chandler, Editor/Publisher, The Breathitt County Voice

Syllabus: The "statement of ownership" does not control in determining the "bona fide paid circulation" of a newspaper within a given "publication area."

OAGs cited: 80-584; 82-90; 83-247; 84-30; 94-9

Statutes construed: KRS 424.110(1); 424.120(1)(a); 424.120(1)(d)

OPINION OF THE ATTORNEY GENERAL

The following question, in substance, has been presented:

In a county with two or more newspapers, does the circulation shown in the "published statement of ownership" control in determining which newspaper has the largest bona fide paid circulation in the publication area so as to be entitled to the county's legal notice advertising business?

In our view the answer is no. Discussion follows.

KRS 424.120(1)(d) provides, in part pertinent here:

If, in a publication area there is more than one (1) newspaper which meets the above requirements, the newspaper having the largest bona fide paid circulation as shown by the average number of paid copies of each issue as shown in its published statement of ownership as filed on October 1 for the publication area shall be the newspaper where advertisements required by law to be published shall be carried.

(Emphasis added.)

In The Whitley Whiz, Inc. v. Whitley County, Ky., 812 S.W.2d 149, 151 (1991) (copy enclosed), the Supreme Court of Kentucky observed, in part pertinent here:

The Times Tribune statement of ownership includes substantial circulation outside of Whitley County, the publication area defined by KRS 424.110. Under these facts, the statutory requirement that the number in the published statement be observed for the publication area cannot be achieved. We must decide whether to strictly observe the number shown in the published statement of ownership or the actual number for the publication area. One or the other must yield.

The published statement of ownership is required by federal law and a violator is subject to criminal penalties. Recognizing this, the Legislature adopted the published statement of ownership as a convenient means of resolving disputes between newspapers as to which is entitled to legal publication rights. In so doing, however, the Legislature did not abandon the concept of 'publication area' nor was its significance diminished. . . . If the purpose of such publication is to provide information to affected citizens, and of this there can be no doubt, then this ambiguous statute should be construed to promote its objective: to provide notice to the greatest number of affected persons. See Conrad v. Lexington-Fayette Urban County Government, Ky., 659 S.W.2d 190 (1983).

The Whitley Republican contends that it has the largest paid circulation in the publication area, Whitley County. By virtue of the trial court's reliance on the number in the published statement of ownership, this contention remains unresolved.

The Court thereafter indicated that KRS 424.120(1)(d) contained a latent ambiguity when the facts of the case were applied to the statutory language, and that the statute must be construed to promote legislative intent and avoid an absurd result. Accordingly, the Court remanded the matter to the trial court " . . . for findings of fact as to which newspaper has the greater 'bona fide paid circulation' in . . . " the publication area. Id.

We believe the Whitley Whiz case indicates clearly that the circulation of a newspaper, as reflected in the "statement of ownership," is not controlling in determining the "bona fide paid circulation" in the "publication area" (KRS 424.110(1), KRS 424.120(1)(d)).

It follows that a fiscal court, in a county with two or more newspapers that meet the requirements of KRS 424.120, to carry governmental notices required by law, must solicit affidavits from otherwise qualified newspapers as to their "bona fide paid circulation" within the "publication area" (KRS 424.110(1), KRS 424.120(1)(a)), in order to determine which newspaper is entitled to receive statutorily required advertising of governmental notices. KRS 424.120(1)(d), The Whitley Whiz, Inc. v. Whitley County, Ky., 812 S.W.2d 149, 151 (1991). And see, Opinion of the Attorney General (OAG) 82-90, p. 4 (copy attached) in relation to procedures for determining the largest paid circulation in the publication area. See also, concerning "publication area," OAG 80-584 and 94-9 (copies enclosed).

OAG 83-247, and 84-30, both of which predated the ruling in Whitley Whiz, Inc., above, are overruled to the extent that they indicate that the circulation as shown by the "statement of ownership" controls in determining the bona fide paid circulation of a newspaper within a given publication area for purposes of KRS 424.120(1)(d).

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General