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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission DA 97-1511 Before the Federal Communications Commission Washington, D.C. 20554 1800 C3-W 94060430 94090055 July 17, 1997 Certified Mail - Return Receipt Requested Atlantic Ventures of Boston Licensee of Station WRKO(AM) 3 Fenway Plaza Boston, Massachusetts 02215 Dear Licensee: This letter constitutes a Notice of Apparent Liability (NAL) for a forfeiture of $2,000 issued pursuant to Section 503(b) of the Communications Act of 1934, as amended, (47 U.S.C. Section 503(b)) for your apparent willful and repeated violation of Section 73.1943 of the Commission's rules (47 C.F.R. Section 73.1943). This letter also cautions you to ensure that your sales practices do not violate the Commission's non-discrimination policy contained in Section 73.1941(e) of the Commission's rules (47 C.F.R. Section 73.1941(e)). BACKGROUND This action results from a complaint regarding the sale of time by station WRKO(AM), Boston, Massachusetts, to political candidates in connection with the November 2, 1993, general election. On June 4, 1994, the Commission received a complaint from Kenneth A. Berk, an agent for former Boston City Council candidate Richard Iannella. Berk alleged that WRKO sold time to Dapper O'Neil, an opponent of Iannella, after informing Berk that the station would not be selling advertising to City Council candidates. Berk also claimed that upon inspecting WRKO's political file, he found that the file contained neither a record of his request for time for Iannella nor that of the spots sold to O'Neil. On July 15, 1994, we sent you a letter of inquiry requesting that you explain the circumstances surrounding the sale of time to O'Neil, and that you respond to Berk's allegations regarding the political file. In response, you state that on October 4, 1993, Berk asked to purchase time on behalf of Iannella and that you denied his request. You maintain that it was the station's policy not to sell advertising to candidates for the City Council. You assert that a record of Berk's request was placed in the station's political file, although you are unclear as to exactly when. You concede that on October 18, 1993, you did accept campaign advertisements from the O'Neil campaign and scheduled fourteen spots to air from October 25 - 31, 1994. However, you maintain that you did not solicit the sale, and that the employee who accepted the spots was acting contrary to station policy. In fact, you state that the employee received "a strong verbal reprimand" and is no longer employed at the station. On October 26, 1993, you state, Berk contacted the station to complain about the spots sold to O'Neil. You assert that on that same day you agreed to accept advertising from the Iannella campaign, which on October 29, 1993, submitted an order for fourteen spots. The Iannella campaign requested that all of its spots air on November 1, 1993. In light of the circumstances, you decided to air Iannella's spots at no charge and, therefore, refunded the total amount paid by the O'Neil campaign. Meanwhile, you state, on October 27, 1993, Berk appeared at the station and asked to inspect the political file. You assert that, after a delay of "approximately 30 minutes while station personnel located the file," Berk was given access to it. You concede, however, that the file was not "in complete order" when Berk asked to inspect it. You explain that while the "sales paper work on the O'Neil political ads was in the file . . . [his] request for political time was not." You state that the political file was "brought up to date at some point after Mr. Berk's request." DISCUSSION Discrimination Between Candidates Section 73.1941(e) of the Commission's rules (47 C.F.R. Section 73.1941(e) prohibits broadcasters from discriminating between candidates "in practices, regulations, facilities, or services . . . or [to] make or give any preference to any candidate for public office or [to] subject any such candidate to any prejudice or disadvantage." We have previously held that refusing a request for time by one candidate and then selling time to his or her opponent without notifying the first candidate puts that candidate at a disadvantage in violation of Section 73.1941(e). Leonard A. Bolton, 5 FCC Rcd 5584 (1990). Berk alleges that, despite the subsequent offer of time, the Iannella campaign was put at a disadvantage by your actions because your offer came very late in the campaign, and money which had been previously allotted for airtime had been spent on direct mail. You acknowledge that in Bolton the Commission admonished a station for a similar situation, but argue that the Bolton case is distinguishable in that Iannella was not put at a disadvantage by WRKO's actions. We recognize that in Bolton the complainant was more disadvantaged as result of the station's actions. In that case, the complainant did not become aware of his opponent's planned spots until the day before the election and, therefore, had less than twenty-four hours to produce the spots it wished to air. We also recognize, however, that although the Iannella campaign learned of its opponent's spots a week before the election, it discovered them on its own. It appears, nevertheless, that as soon as you became aware of the inadvertent discrimination, you took effective steps to remedy the situation. You provided free spots to Iannella (and O'Neil) in an effort to remedy the situation and gave him time on the day before the election. Furthermore, it appears that the decision to sell time to O'Neil resulted from employee error rather than station policy. Since there is no indication that you intended to discriminate between candidates, and it appears that you made every attempt to remedy the situation, we see no reason to take further action with respect to this aspect of Berk's complaint. We do caution you, however, to ensure in the future that WRKO does not discriminate among political candidates with respect to sales practices. Political File Section 73.1943 of the Commission's rules provides: (a) Every licensee shall keep and permit public inspection of a complete and orderly record (political file) of all requests for broadcast time made by or on behalf of a candidate for public office, together with an appropriate notation showing the disposition made by the licensee of such requests, and the charges made, if any, if the request is granted. The disposition includes the schedule of time purchased, when spots actually aired, the rates charged, and the classes of time purchased. ... (c) All records required by this paragraph shall be placed in the political file as soon as possible and shall be retained for a period of two years. As soon as possible shall mean immediately absent unusual circumstances. 47 C.F.R. Section 73.1943(a) and (c). While it is unclear from your response exactly what information was missing from the political file on October 27, 1993, and at what point it was subsequently "brought up to date," you concede that the file was not "in order" when Berk requested to inspect it. Maintenance of an accurate political file is an essential element of the equal opportunities obligation of Section 315 of the Act. Because you failed to maintain a complete file, opposing candidates did not have such information available to them to exercise their rights under Section 315 during the period preceding the November 2, 1993, general election. Your failure to maintain an accurate political file is particularly troublesome in that you sold time to one candidate after informing his opponent that the station would not sell advertising to candidates in that race. Moreover, the fact that the Iannella campaign acquired actual knowledge of your sale of time to O'Neil does not affect our conclusion that the station violated the rule requiring that certain information be contained in the political file. FORFEITURE Accordingly, pursuant to Section 503(b) of the Communications Act, you are hereby advised of your apparent liability for a forfeiture of two thousand dollars ($2,000) for your apparent willful and repeated violation of 47 C.F.R. Section 73.1943 (failure to properly maintain a political file) at least from October 18,1993, when you failed to include O'Neil's request for time in the political file until October 27, 1993, when Berk inspected the file. The political file violation cited herein appears similar in severity to those in WFNL(FM), 9 FCC Rcd 6824 (1994) and WZNL(FM), 9 FCC Rcd 6822 (1994), for which $2,000 forfeitures were assessed for political file violations under the applicable statute. After considering the factors set forth in 47 U.S.C. Section 503(b), as well as foregoing precedent, we find that a fine in the amount of $2,000 is appropriate. With respect to the forfeiture imposed herein, you are afforded a period of thirty (30) days from the date of this letter "to show, in writing, why a forfeiture penalty should not be imposed or should be reduced or to pay the forfeiture. Any showing as to why the forfeiture should not be imposed or should be reduced shall include a detailed factual statement and such documentation and affidavits as may be pertinent." 47 C.F.R. Section 1.80(f)(3). Other relevant provisions of Section 1.80 of the Commission's rules are summarized in the attachment to this letter. Sincerely, Roy J. Stewart Chief, Mass Media Bureau Attachments cc: Margaret L. Miller, Esq. Ken Berk