WPC8 2PBV`@Z3|PA Roman (TT)8xCdX{9Xx{2 PQXP"5@^dC2CCdECCCCCCCd<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCddddddZi44d4i_d_QQGiVr_ZVC&Cr000!0i4R0_i___________dZdZdZdZdZ44444444mii_i_i_i_riririri0Z__idi_i_dZi_dd__ii__dZdZdZdZiidZmZm_mmZmZriri4iii444iGidV4VRmimiii00iQiR_Q00N00Gd0V___d0____Z______000000000000000__t_|nnV_yy24Z_7c__nCzZhcnonvyXzXshn~|y00000000000000000000000000000000L0Ld_rw0CCL|0|0i__________00r|rV_idid_mr4GiVwmiiii_Zr_r_d_CCCi_0_dZdZ>Zi44d4i_d_QQGiVr_ZVC&Cr00000000000000000000000000000000000Z__d4di_______4|__0ZG00______V_______ddddd4444imiiiii_irrrrddi______ZZZZZ4444_i_____V_iiiiZd"5@^*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ*7777CE7SSxJxJxJxJxJooJfJfJfJfJ7.7.7.7.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxSxJxJoJoJoJfJfJfJxSxSxxSxSxSxSCS7S777SAxSf.fExSxSxSxo7oE]A]AN:*LS7JSSSSS.4}}S2S}277JJS77SS7J72t7[[[[^ee*C`^.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ7SJSS7]777JJ:S7A7xx*7SSSS!S7.S^7SC[227`L*724S}}}Jxxxxxxoffff7777xxxxxxx^xxxxxx]SJJJJJJoJJJJJ....SSSSSSS[SSSSSSS28@+@.@2\F5"5@^*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW*7777CE7S]xSxSxSxSxSxxJoJoJoJoJA.A.A.A.x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxJxJxJoJoJoJSSSS]]C]A]A7A]S]o.oEx]x]SxxJxJ]A]AN:*ZS7SSSSSS27}}S2}}S}277SSS77SS7S72t7[[[[_ee*C`_.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW7SSSS7]777SS:S7A7xx*7SSSS%S7}2S_7}SC[227`Z*727S}}}SxxxxxxxooooAAAAxx_xxxxxf]SSSSSSxJJJJJ....S]SSSSS[S]]]]S]"5@^?(?SO_c(88?g(g(WOOOOOOOOOO((_g_GkOWSWSO[_,;WGc[WWWWOK_O_OSO888WO(OSKSK3KW,,S,WOSOCC;WG_OKG8 8_((((W,E(OWOOOOOOOOOOOwSKSKSKSKSK,,,,,,,,[WWOWOWOWO_W_W_W_W(KOOWSWOWOSKWOSSOOWWOOSKSKSKSKWWSK[K[O[[K[K_W_W,WWW,,,W;WSG,GE[W[WWW((WCWEOC((N((;S(GOOOS(OOOOKOOOOOO(((((((((((((((OOtOg[[GOee*,KO.wROOn[CfxKxWlRx[][ceIfIs`Wx[rriwge((((((((((((((((((((((((((((((((?(?SO_c(88?g(g(WOOOOOOOOOO((_g_GkOWSWSO[_,;WGc[WWWWOK_O_OSO888WO(OSKSK3KW,,S,WOSOCC;WG_OKG8 8_(((((((((((((((((((((((((((((((((((KOOS,SWOOOOOOO,gOO(K;((OOOOOOGOOOOOOOSSSSS,,,,W[WWWWWOW____SSWOOOOOOwKKKKK,,,,OWOOOOOGOWWWWKS"5@^(1<This letter constitutes a Notice of Apparent Liability (NAL) for a forfeiture of $2,000 issued  x[pursuant to Section 503(b) of the Communications Act of 1934, as amended, (47 U.S.C. Section  x=503(b)) for your apparent willful and repeated violation of Section 73.1943 of the Commission's  x?rules (47 C.F.R. Section 73.1943). This letter also cautions you to ensure that your sales  xpractices do not violate the Commission's nondiscrimination policy contained in Section 73.1941(e) of the Commission's rules (47 C.F.R. Section 73.1941(e)).  X-" BACKGROUND ă  xThis action results from a complaint regarding the sale of time by station WRKO(AM), Boston,  xKMassachusetts, to political candidates in connection with the November 2, 1993, general election.  xOn June 4, 1994, the Commission received a complaint from Kenneth A. Berk, an agent for  xformer Boston City Council candidate Richard Iannella. Berk alleged that WRKO sold time to  xDapper O'Neil, an opponent of Iannella, after informing Berk that the station would not be selling  xadvertising to City Council candidates. Berk also claimed that upon inspecting WRKO's political  xjfile, he found that the file contained neither a record of his request for time for Iannella nor that  xof the spots sold to O'Neil. On July 15, 1994, we sent you a letter of inquiry requesting that you  xexplain the circumstances surrounding the sale of time to O'Neil, and that you respond to Berk's allegations regarding the political file.  xIn response, you state that on October 4, 1993, Berk asked to purchase time on behalf of Iannella  xNand that you denied his request. You maintain that it was the station's policy not to sell  xadvertising to candidates for the City Council. You assert that a record of Berk's request was  x=placed in the station's political file, although you are unclear as to exactly when. You concedeX(0*0*0*3'3'#| X  xthat on October 18, 1993, you did accept campaign advertisements from the O'Neil campaign and  xscheduled fourteen spots to air from October 25 31, 1994. However, you maintain that you did  xnot solicit the sale, and that the employee who accepted the spots was acting contrary to station  xZpolicy. In fact, you state that the employee received "a strong verbal reprimand" and is no longer  xemployed at the station. On October 26, 1993, you state, Berk contacted the station to complain  xabout the spots sold to O'Neil. You assert that on that same day you agreed to accept advertising  xfrom the Iannella campaign, which on October 29, 1993, submitted an order for fourteen spots.  xThe Iannella campaign requested that all of its spots air on November 1, 1993. In light of the  xcircumstances, you decided to air Iannella's spots at no charge and, therefore, refunded the total amount paid by the O'Neil campaign.  xMeanwhile, you state, on October 27, 1993, Berk appeared at the station and asked to inspect the  xpolitical file. You assert that, after a delay of "approximately 30 minutes while station personnel  x.located the file," Berk was given access to it. You concede, however, that the file was not "in  xcomplete order" when Berk asked to inspect it. You explain that while the "sales paper work on  x>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."  Xb- (DISCUSSION ă  X4-Discrimination Between Candidates  xSection 73.1941(e) of the Commission's rules (47 C.F.R. Section 73.1941(e) prohibits  xzbroadcasters from discriminating between candidates "in practices, regulations, facilities, or  xservices . . . or [to] make or give any preference to any candidate for public office or [to] subject  xany such candidate to any prejudice or disadvantage." We have previously held that refusing a  xrequest for time by one candidate and then selling time to his or her opponent without notifying  x/the first candidate puts that candidate at a disadvantage in violation of Section 73.1941(e).  X|-Leonard A. Bolton, 5 FCC Rcd 5584 (1990).  XN- xBerk alleges that, despite the subsequent offer of time, the Iannella campaign was put at a  xdisadvantage by your actions because your offer came very late in the campaign, and money  xwhich had been previously allotted for airtime had been spent on direct mail. You acknowledge  X - xthat in Bolton the Commission admonished a station for a similar situation, but argue that the  X- xKBolton case is distinguishable in that Iannella was not put at a disadvantage by WRKO's actions.  X- xjWe recognize that in Bolton the complainant was more disadvantaged as result of the station's  X - xactions. In that case, the complainant did not become aware of his opponent's planned spots until  xthe day before the election and, therefore, had less than twentyfour hours to produce the spots  xit 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.  xZIt appears, nevertheless, that as soon as you became aware of the inadvertent discrimination, you  xtook effective steps to remedy the situation. You provided free spots to Iannella (and O'Neil)  x@in an effort to remedy the situation and gave him time on the day before the election. "#'0*((%"  xFurthermore, it appears that the decision to sell time to O'Neil resulted from employee error  xrather than station policy. Since there is no indication that you intended to discriminate between  xZcandidates, and it appears that you made every attempt to remedy the situation, we see no reason  xto take further action with respect to this aspect of Berk's complaint. We do caution you,  x.however, to ensure in the future that WRKO does not discriminate among political candidates with respect to sales practices.  Xv-  X_-Political File Section 73.1943 of the Commission's rules provides: x` ` (a) Every licensee shall keep and permit public x` ` inspection of a complete and orderly record x` ` (political file) of all requests for broadcast x` ` time made by or on behalf of a candidate for x` ` public office, together with an appropriate x` ` notation showing the disposition made by the  Xy-x` ` licensee of such requests, and the chargespp x` ` made, if any, if the request is granted. The x` ` disposition includes the schedule of time x` ` purchased, when spots actually aired, the rates x` ` charged, and the classes of time purchased. x` ` x` `   ... x` ` (c) All records required by this paragraph shall  X-x` ` be placed in the political file as soon as possible x` ` and shall be retained for a period of two years.  X|-x` ` As soon as possible shall mean immediately absent   xx x` ` unusual circumstances. 47 C.F.R. Section 73.1943(a) and (c).  xWhile it is unclear from your response exactly what information was missing from the political  xfile on October 27, 1993, and at what point it was subsequently "brought up to date," you  x=concede that the file was not "in order" when Berk requested to inspect it. Maintenance of an  xaccurate political file is an essential element of the equal opportunities obligation of Section 315  xof the Act. Because you failed to maintain a complete file, opposing candidates did not have  xsuch information available to them to exercise their rights under Section 315 during the period  xjpreceding the November 2, 1993, general election. Your failure to maintain an accurate political  x0file is particularly troublesome in that you sold time to one candidate after informing his  xopponent that the station would not sell advertising to candidates in that race. Moreover, the fact  xthat the Iannella campaign acquired actual knowledge of your sale of time to O'Neil does not  x  X affect our conclusion that the station violated the rule requiring that certain information be"#'0*((%" contained in the political file.  X- ^)FORFEITURE ă  xAccordingly, pursuant to Section 503(b) of the Communications Act, you are hereby advised of  x[your apparent liability for a forfeiture of two thousand dollars ($2,000) for your apparent willful  xand repeated violation of 47 C.F.R. Section 73.1943 (failure to properly maintain a political file)  xat least from October 18,1993, when you failed to include O'Neil's request for time in the  xpolitical file until October 27, 1993, when Berk inspected the file. The political file violation  X1- xcited herein appears similar in severity to those in WFNL(FM), 9 FCC Rcd 6824 (1994) and  X - x/WZNL(FM), 9 FCC Rcd 6822 (1994), for which $2,000 forfeitures were assessed for political  x.file violations under the applicable statute. After considering the factors set forth in 47 U.S.C.  X - xzSection 503(b),H Z Oe < ` ?Ѝ#X\  P6G;qP#` ` In United States Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994), the court set aside our Policy  yO=- x<Statement on Standards for Assessing Forfeitures, 6 FCC Rcd 4659 (1991), recon. denied, 7 FCC Rcd 5339 (1992),  yO- xrevised, 8 FCC Rcd 6215 (1993), in which we had established guidelines for determining appropriate forfeiture  xamounts for violation of various Commission rules and statutory provisions. In assessing this forfeiture, therefore,  yO- xxwe have undertaken to apply directly the statutory factors in Section 503(b) to the particular facts of this case,  xgiving due consideration to relevant intervening legislative changes and to our past decisions that predated the #X\  P6G;qP#ѐ yO%-Policy Statement.#x6X@`7/X@#H as well as foregoing precedent, we find that a fine in the amount of $2,000 is appropriate.  xWith respect to the forfeiture imposed herein, you are afforded a period of thirty (30) days from  xthe date of this letter "to show, in writing, why a forfeiture penalty should not be imposed or  xshould be reduced or to pay the forfeiture. Any showing as to why the forfeiture should not be  ximposed or should be reduced shall include a detailed factual statement and such documentation  xand 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. x` `  hh@hSincerely, x` `  hh@hRoy J. Stewart x` `  hh@hChief, Mass Media Bureau Attachments cc: Margaret L. Miller, Esq. Ken Berk