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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\pBnnBsgg>\\7"yyyy\nlc\gnn\"i~'^ %,77\V%%%7>%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%%%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn7"i~'^"(22TN"""28"2222222222888,\HBBH>8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\pBnnBb\\>g\7"yyyy\njc\}nn\24K,K.\)1FZ"i~'^09FSS999Sq+9+/SSSSSSSSSS99qqqSggnxggxx9In]nxgxgS]xgg]]?/?FS9SSISI/SS//I/xSSSS??/SInII?C/CZ9+ZF999+999999S9S/gSgSgSgSgSnnIgIgIgIgI9/9/9/9/nSxSxSxSxSxSxSxSxS]IgSxSxSxS]IxSgSgSgSgSnInInZnIxdgIgIgIgIxSxSxSxZxSxZxS9/9S999SSZZnI]/]<]9]5]/nSanSnSxSxSng?g?g?S?S?S?ZZ]<]/]FxSxSxSxSxSxSn]Z]?]?]?xS]9nSS?]9]Sd+SS8%8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuddddddddddddddddddddddddddddddddddddddddNfx6X@`7X@@h(1)  hh#(#h 24 S- X   ~ S-  #&J\  P6Q&P#Federal Communications Commission`(#(# ă  yx}dddypp!X DA#98447 [tFederal Communications Commission HWashington, D.C. 20554  S-#&J\  P6Q&P# ` `  Ghh}pp!X  xxIn reply refer to: ` `  Ghh}pp!X  xx1800C1SD ` `  Ghh}pp!X  xx95100461   S - ` ` Adopted: March 5, 1998Released: March 6, 1998 xx  S - CERTIFIED MAIL RETURN RECEIPT REQUESTED   S - Vista Point Communications, Inc. Licensee of Station WFXD(FM), Marquette, Michigan 21160 Califa Street Woodland Hills, California 91367 Dear Licensee:      a&This letter constitutes a Notice of Apparent Liability for a forfeiture of $6,000.00 issued pursuant  c)to Section 503(b) of the Communications Act of 1934, as amended (47 U.S.C. Section 503(b)) (the "Act"),  c)[under authority delegated to the Chief, Mass Media Bureau by Section 0.283 of the Commission's Rules  c)L(47 C.F.R. Section 0.283). Vista Point Communications, Inc. ("Vista") is hereby assessed a forfeiture of  c)=$2,000.00 for its apparent willful and repeated violation of 47 U.S.C. Section 315(b) as implemented by  c)47 C.F.R. Section 73.1942(a)(1); $2,000.00 for its apparent willful and repeated violation of 47 C.F.R.  c)Section 73.1942(b); and $2,000.00 for its apparent willful and repeated violation of 47 C.F.R. Section 73.1943(a) and (c).  S-M BACKGROUND m  a&This action results from a Commission investigation into the political programming practices of  c)WFXD(FM), Marquette, Michigan, during the 1994 and 1995 primary and general election periods,  c)specifically from June 17, 1994, through June 13, 1995. On March 26, 1996, we sent you a letter of  c)inquiry ("LOI") regarding your political sales practices and political file maintenance for the period  S - c)yencompassing the 1994 and 1995 primary and general elections.`x + yO #- c)[ԍ We requested that you furnish a variety of documents, including a copy of your political file, rate cards,  c)candidate disclosure statements, if any, commercial invoices and contracts. We also requested information about your  c)sales practices, a description of the classes of advertising time sold on the station with their probability of  c);preemption, and a description of your methodology for calculating the lowest unit charge ("LUC") for each class of  c)wtime. We also asked you to address the complainant's allegations concerning the apparent violation of the LUC rule  c)during the 45 and 60 day window preceding the 1994 and 1995 primary and general elections as well as the alleged political file violation. ` On April 24, 1996, you responded that  c)Lany political file violations were due to management changes, a depressed economy and a lack of "skilled  c)radio people." You also attributed any LUC violations to possible "mistake[s] or an incorrect order [that]"h",**UU$"  d(#Lwas processed without my knowledge . . . purely on [sic] accident." However, your response contained"s",**UU$"  S- d(#.several incomplete answers to our specific questions.> yOh- d(#ԍ Specifically, you failed to provide the requested political files for the 1994 and 1995 primary and general  d(#elections. You also failed to provide the invoices for commercial time sold during this period. Finally, you failed  d(#to provide us with information regarding whether or when commercial time was sold during the 1994 and 1995  d(#primary and general election periods for the following candidates: John Engler; Spence Abraham; Dave Anthony; and Mike Prussi.> On July 9, 1996, you provided a supplementary  xresponse to our LOI, in which you attempted to clarify the station's political sales practices. You also stated that you would review the station's records and provide refunds to any candidates, if necessary.  S8-( DISCUSSION T  S-TP  S- Apparent Disclosure Violation   xIn order to ensure parity of treatment with a station's most favored commercial advertisers, Section  x73.1942(b) of the Commission's Rules imposes affirmative disclosure obligations on stations, requiring  xLthat candidates be fully informed about commercial sales practices and the discount privileges associated  S - xLwith the various classes of time a station offers commercial advertisers. In the Matter of Codification of  S -the Commission's Political Programming Policies, Report and Order, 7 FCC Rcd 678, 68889 (1991).   ?xIn response to our question regarding WFXD's sales practices, you stated that WFXD's rate card  xpermitted advertisers to select from three types of schedules, and that "they are the same for both  xLcommercial and political [advertisers]." The three types are ROS (run of schedule), TAP (total audience  xyparticipation), and Program Sponsorships. The TAP and Program Sponsorship schedules are fixed. The  xjROS is sold from 6am 7pm, 6am 12 midnight, and dayparted." While you state in your response that  x"dayparting has always been $2.00 more per spot," you do not explain how the dayparts are dissected to  xachieve the LUC for those time periods either in your response to our inquiry or on the 1994 political rate  xcard provided to the candidates. In addition, the 1994 political rate card presents only the ROS 6am 7pm class of time. The TAP and Program Sponsorship schedules are absent from the rate card entirely.   xIn response to our inquiry into the station's policies regarding disclosure of political rates to  xcandidates or their media buyers, you responded that "each candidate or buyer was given a political rate  xkcard and request form, when asked about rates concerning political candidates." However, your 1994  x.political rate card did not appear to contain even the most rudimentary elements of your sales practices.  x>Furthermore, while it is not incumbent on the licensee to provide every detail of its sales practices in  x=writing to political candidates or their media buyers, you do not indicate that the station orally provided  xyadditional requisite information to political candidates regarding its political advertising policies and LUC  xrates. Moreover, the submitted 1994 political rate card did not suggest that candidates should inquire  xabout the existence of specific dayparts, or, as mentioned above, did not indicate other types of spots were  xavailable. Thus, it appears that the station did not make full and complete disclosure of its sales practices to political candidates during the 1994 primary and general elections.   xAdditionally, as discussed more fully below, the rates listed on the political rate card appear to  xbe higher than the rates actually charged to commercial advertisers in several instances, and thus do not  xaccurately reflect the LUC. For example, the invoice for Honda of Marquette lists a 60second net  xweekend rate of $1.00 preceding both the 1994 primary and general elections. The political rate card listed""x,C)C)UU$"  S- xthe same class and amount of time for the same period as $1.60 per spot. yOh-ԍ You attribute this apparent overcharge of political candidate(s) to the error of a new station employee. Also, the invoice for the  xNational Rifle Association ("NRA") for advertisements which aired March 29, 1995, through April 4,  S- x1995, was inconsistent with political rates charged to candidates during the 1995 Special Election.X yO- xԍ The 1995 Special Election primary occurred on April 3 & 4, 1995, and the general election occurred on May 16, 1995. First,  S- xit listed 15second NRA spots for $5, whereas the political rate card lists these spots for $5.50.n yO-ԍ You attribute this apparent LUC violation to station employee error.n Second,  xit listed 35 15second NRA spots at no charge (bonus spots). We did not receive a response to our request  xthat you explain how you calculated the bonus spots in determining the LUC, and it appears that these bonus spots were not included in the LUC calculation.   xWhile you assert that employee error was the cause of the apparent inconsistencies between the  xrates charged to commercial advertisers and political candidates, licensees are ultimately responsible for  Sp- xcompliance with our rules and policies. See Letter to J. Dominic Monahan, 6 FCC Rcd 1867 (1991). For  xthe foregoing reasons, you appear to have violated the disclosure requirements in Section 73.1942(b) of the Commission's Rules.  S - Apparent LUC Violation   xSection 315(b) of the Communications Act, as implemented by Section 73.1942(a)(1) of the Rules,  x/directs licensees to charge legally qualified candidates for public office the LUC of the station for the  xsame class and amount of time in the same period during the 45 days preceding a primary election and  S- xduring the 60 days preceding a general election.x@ yO-ԍ Section 315 (b) states, in pertinent part:   x(b) The charges made for the use of any broadcasting station by any person who is a legally qualified  xicandidate for any public office in connection with his campaign for nomination for election, or election, to such office shall not exceed  ` x` ` (1) during the fortyfive days preceding the date of a primary or primary runoff election and during  x,the sixty days preceding the date of a general or special election in which such person is a candidate, the lowest unit charge of the station for the same class and amount of time for the same period . . . The legislative history of the LUC provision shows that  xCongress intended to "place the candidate on par with a broadcast station's most favored advertiser." S.  xRep. No. 96, 92d Cong., 1st Sess. 27 (1971). Since the enactment of the LUC provision in 1972, we have  xruled that Section 315(b) requires nocharge bonus spots to be included in LUC calculations, except for  Sh- xythose provided to nonprofit advertisers.  Nocharge bonus spots serve as an inducement for commercial  xadvertisers to purchase time from a station, and candidates are entitled to these discount privileges.  xMoreover, the Commission's regulations specifically provide that "bonus spots . . . must be included in  xthe calculation of the lowest unit charge calculation." 47 C.F.R. 73.1942(a)(i)(xi). Thus, bonus spots  S-clearly must be included in LUC calculations.  yO$- x-ԍ Bonus spots may directly affect the LUC rates, for example, "if a station sells 10 spots for $10 each to an  xJadvertiser but promises him an additional 10 spots "free," the average price per spot for lowest unit charge purposes  yOx&- xxwill be $5 instead of $10." See The Law of Political Broadcasting and Cablecasting: A Political Primer, 100 FCC  yO@'- xw2d 1478, 1517 (1984). See also In the Matter of Codification of the Commission's Political Programming Policies,  yO(-Report and Order, 7 FCC Rcd 678 (1991). "0,C)C)UU"Ԍ  @ԙxIn regard to WFXD, the complainant alleges that commercial advertisers were charged a lower  x\rate than the LUC rate charged to candidates during the 1994 and 1995 primary and general elections.  xYou state that if candidates were overcharged during the 1994 and 1995 election periods, you will provide  xjrebates. However, due to the lack of information provided in your two responses to our LOI, we cannot  xdetermine which political candidates were overcharged. First, there are apparent gaps in station records  xregarding the rates charged both political candidates and commercial advertisers. In reviewing the political  xfiles of 1994 and 1995 that you provided, we are unable to ascertain the rates charged many of the  x[candidates during the election periods in question because the information is simply not included in your  xrecords. Second, there are very few commercial invoices included in your response. Third, you stated that the invoices we requested were unavailable.   @xNevertheless, the invoices you do provide indicate instances where similar spots were sold to  xcommercial advertisers for less than the rate paid by candidates according to the political rate cards.  xSpecifically, as stated above, the commercial invoices for Honda of Marquette appear to establish a $1  x(net) rate for a 60second spot while the LUC for that same spot as indicated on the 1994 political rate  xcard is $1.60. The Honda spots aired from September 26, 1994, to February 11, 1995, encompassing the  xM1994 general election period. Additionally, the invoice for the NRA during the 1995 Special Election  xjappears to establish a $5 (net) rate for a 15second spot with the provision of 35 15second bonus spots  xat no charge. There is no indication that the bonus spots provided to the NRA were calculated into the  x=LUC. Moreover, the LUC for a 15second spot is listed as $5.50. You attribute this apparent violation  xto the actions of a new account representative and maintain that you verified that these spots did not affect  xthe rates for any political advertising. However, it appears that the LUC for the 1995 Special Election  S- xjwas affected by these spots. According to station records, the NRA spots apparently aired from March  x29, 1995, through April 4, 1995. The 1995 Special General Election occurred on May 16, 1995.  xConsequently, the NRA ads aired during the 60day window preceding the Special General election and should have been considered when calculating the LUC under Section 315(b)(1).   xDue to your incomplete political files, we are unable to determine the number of candidates who  xpurchased time during the 1994 primary and general election periods or the 1995 Special General Election.  xHowever, based on the apparent inconsistencies in the rates charged to commercial and political advertisers  xMduring these time periods, it appears that at least one candidate, Mike Prussi, a candidate in the 1995  xSpecial Election, may be entitled to a rebate. Thus, it is incumbent upon you, as licensee, to review all  S- x>of your pertinent records,g yOj-ԍ Particularly the invoices which you assert are "in storage."g and provide the Commission with a report of your findings and whatever rebates, if any, are necessary.  S-  ?x For the foregoing reasons, it appears that you have violated the LUC provision of Section 315(b)  xof the Communications Act and 47 C.F.R. Section 73.1942(a)(1). We have given you specific examples  xof apparent candidate overcharges, which may not represent the entirety of overcharges. We therefore  x.direct you to review all of your invoices, commercial and political, for the respective 45day and 60day  xperiods preceding the 1994 and 1995 primary and general elections, including the 1995 Special Election.  xYou then must submit to the Commission within thirty (30) days of the receipt of this letter, a report specifying the rebates made to each of the candidates who purchased time during this period.  S"%- ""%X,C)C)UU&"  S-Apparent Political File Maintenance Violation x   xThe Commission's Rules require licensees to keep, and permit public inspection of, a complete  x\record of all requests for broadcast time made on or on behalf of candidates for public office, together  xywith a disposition made by the licensees of such requests, (a "disposition" includes "the schedule of time  xpurchased, when spots actually aired, the rates charged, and the classes of time purchased"). 47 C.F.R.  x 73.1943(a). Moreover, licensees are required to retain requisite information in their political files for  xtwo years after an election. 47 C.F.R. 73.1943(c). The complainant alleged that on several occasions  xduring the 1994 and 1995 primary and general elections, she noticed that the station's political file was incomplete.   ]xYour supplementary response included the apparent political files for the 1994 and 1995 election  S - xjperiods.   yO - xԍ In your first response to the complainant's allegation, you did not furnish the Commission with the requested copies of the 1994 and 1995 political files. However, many of the documents contained in the file did not include the requisite disposition  xof the advertising requests. For example, most of the advertising agreements contained in the 1994  S - x\political file did not include the schedules of time purchased and the rates charged to the candidates.   yO- xԍ For example, in the 1994 elections, the agreements to sell time to candidates Spence Abraham, Dave Anthony, Conrad Mallet, Frank Kelley, and John Engler are incomplete.  xLMoreover, in our LOI we requested that you specify whether and when the station aired advertisements  xyduring the 1994 and 1995 primary and general election periods for the following candidates: John Engler,  x=Spence Abraham, Dave Anthony, and Mike Prussi. You stated that you do not know the exact dates of  S0- x=the advertising time purchased by these candidates.V X0x yOH- xԍ You further stated that the information regarding these candidates was contained in a "history report" of the  xaccounts. However, you do not explain the nature of this report or its relevance to the information required to be maintained as part of the political file.V This information should have been in the political  x[file and readily available to both you and the general public, yet you were unable to answer the question.  x[Based on your inability to provide information that should be contained in the station's political file, and  x0the incompleteness of the files you provided, it appears that you violated Section 73.1943 of the Commission's Rules.  Sh- T  S@-* FORFEITURE ĐTP   xAccordingly, pursuant to Section 503(b) of the Communications Act, you are hereby advised of  S- x>your apparent liability for a FORFEITURE of $6,000.00:  yO!- xԍ This $6,000 forfeiture amount includes fines for the three types of violations at issue in this case at $2,000 each. $2,000.00 for your apparent willful and  xzrepeated violation of 47 C.F.R. Section 73.1942(b) (failure to affirmatively and fully disclose rate and  xclass information) to candidates from June 17, 1994, through June 13, 1995; $2,000.00 for your apparent  xwillful and repeated violation of 47 U.S.C. Section 315(b) and 47 C.F.R. Section 73.1942(a)(1) (failure  xto charge candidates no more than the lowest unit charge of the station) from June 17, 1994, through June  S- xL13, 1995;   yO'- x,ԍ These dates encompass the 45 and 60 day periods prior to the 1994 and 1995 primary and general elections. and $2,000.00 for your apparent willful and repeated violation of Section 73.1943(a) and (c),"H ,C)C)UU\" (failure to properly maintain a political file) from June 17, 1994, through June 13, 1995. x   xThe apparent disclosure violations and lowest unit charge violations cited herein appear similar  S- xzto those in Bay Communications, Inc., ("Bay") 12 FCC Rcd 5989 (1997), for which a $2,000 fine was  xissued for apparent disclosure violations and a $2,000 fine was issued for lowest unit charge violations.  S:- xIn Bay the invoices indicated that commercial advertisers paid less than the rates charged to political  S- xcandidates and the political rate card was also incomplete. Moreover, in Bay, the station's incomplete  S- xpolitical file and the licensee's apparent miscalculations of the LUC hindered the Commission's ability  S- x.to calculate accurately the required rebate amounts. As in the instant case, the Commission required the  S- x=licensee in Bay to review its records independently to calculate any necessary rebates. Additionally, the  Sx- xpolitical file forfeiture is similar to the political file violation in Zephyr Broadcasting, Inc. ("Zephyr"), 9  xlFCC Rcd 6822 (1994), for which a $2,000 fine was issued for political file violations. Thus, after  S* - xzconsidering the factors set forth in 47 U.S.C. Section 503(b),t *  {O - xԍ In United States Telephone Ass'n. v. FCC, 28 F3rd 1232 (D.C. Cir. 1994), the U.S. Court of Appeals for  {O\ - xZthe District of Columbia set aside Policy Statement, Standard for Assessing Forfeitures, 6 FCC Rcd 4695 (1991),  {O&- xirecon. denied. 7 FCC Rcd 5330 (1992), revised, 8 FCC Rcd 6215 (1993), stating that the guidelines for assessing  xJforfeitures established therein must be subject to public comment to comply with the Administrative Procedure Act.  {O- xIn accordance with the court's decision, the Commission released Forfeiture Guidelines Notice of Proposed  {O- x,Rulemaking in CI Docket No. 956, 10 FCC Rcd 2945 (1995). After receiving and considering comments from the  {OL- xpublic in that proceeding, the Commission adopted Forfeiture Guidelines Report and Order in CI Docket No. 956,   {O- x<  FCC  Rcd (FCC 97218, adopted June 19, 1997, released June 28, 1997) ("Forfeiture Guidelines"). Forfeiture  {O- x<Guidelines id., became effective on October 14, 1997. 62 Fed. Reg. 43474 (August 14, 1997). With respect to  yO- xapparent violations occurring before the effective date of the new guidelines, the Commission will continue to  {Or- xconsider the criteria developed under Section 503 and applied by the Commission in previous cases. See Forfeiture  {O<-Guidelines at para. 49 as well as the foregoing precedents, we find that a fine in the amount of $6,000 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 should be  xjreduced or to pay the forfeiture. Any showing as to why the forfeiture should not be imposed or should  x\be reduced shall include a detailed factual statement and such documentation and affidavits as may be  xpertinent. 47 C.F.R.  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@Sincerely, x` `  hh@ x` `  hh@ x` `  hh@Roy J. Stewart x` `  hh@Chief, Mass Media Bureau  X -#XP\  P6Q XP#Attachment#Xx6X@DQ>fX@#  X-#Xj\  P6G; XP#cc: xMelody Virtue, Esq." ,C)C)UU"ԌxHaley, Bader & Potts P.L.C. x4350 N. Fairfax Drive xSuite 900 xArlington, VA 222031633  ?<#x6X@`7>fX@#