$// WCPX-TV, Orlando, FL, Order, DA 95-69 //$ $/ 300.315 Candidates for Public Office /$ $/ 73.1942 Candidate Rates /$ ///newjob/// $///DA 95-69,1/20/95///$ DA 95-69 Before the FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In re Complaint of ) ) Lawton Chiles, Bob Martinez, ) Bill Nelson and Jim Smith ) ) Against Station WCPX-TV ) Orlando, Florida ) ORDER Adopted: January 17, 1995 Released:January 25, 1995 By the Chief, Mass Media Bureau: 1. The Mass Media Bureau has before it a complaint filed December 8, 1992, on behalf of Lawton Chiles, Bob Martinez, and Bill Nelson (hereinafter, collectively, "Complainants"). Complainants allege that Station WCPX-TV, Orlando, Florida, overcharged them during the September 4, 1990, primary and the November 6, 1990, general elections in violation of the lowest unit charge requirements of Section 315(b) of the Communications Act of 1934, as amended. Chiles and Martinez were legally qualified candidates for nomination and election for Governor of the State of Florida in the 1990 primary and general elections; and Nelson was a legally qualified candidate for nomination for Governor of the State of Florida in the 1990 primary election. The Mass Media Bureau also has before it an Opposition to the complaint filed on February 16, 1993, by First Media Corporation, the licensee of Station WCPX-TV (hereinafter, "Station WCPX-TV"). 2. In addition, the Mass Media Bureau has under consideration Complainants' Request for Leave to Supplement, dated March 24, 1994, and Station WCPX-TV's May 4, 1994, Opposition thereto. Complainants assert that their 1994 supplement addresses recent requirements complainants must meet regarding specificity of information and supporting documentation for use of generally-available average rates, citing Dianne Feinstein, John Seymour, Thomas Hayes, et al. (KABC-TV), 9 FCC Rcd 1586 (MMB 1994) ("KABC-TV"); McConnell Senate Committee (WCPO-TV), 9 FCC Rcd 1602 (MMB 1994) ("WCPO-TV"); Mitch McConnell (WLEX-TV), 9 FCC Rcd 1598 (MMB 1994); and Lawton Chiles, Bob Martinez, Bill Nelson, and Jim Smith (WTVT(TV)), 7 FCC Rcd 6661 (MMB 1992), modified, 7 FCC Rcd 7199 (MMB 1992), review granted in part and denied in part, 8 FCC Rcd 131 (1992) ("WTVT(TV)"). 3. The Bureau has acknowledged that WTVT(TV) imposed a new standard of specificity, requiring complainants to provide more precise information regarding the manner in which generally-available average rates are utilized. 7 FCC Rcd at 6662, n. 8. However, the Station WCPX-TV Complaint was filed on December 8, 1992, after the release of the Bureau's October 1992 WTVT(TV) decision, and the supplement was not filed until March 1994, over a year after release of WTVT(TV). Moreover, the Complainants do not indicate how, in their view, the cases following WTVT(TV) have changed the "requirements" in any way relevant to their instant complaint, and it is far from apparent to us. 4. Finally, the Bureau specifically stated in WTVT(TV) that: pleadings other than the complaint and the answer to the complaint will not be accepted unless the party filing the additional pleading has demonstrated that the information presented is new and vital to the resolution of the complaint, and could not have been included in the original complaint because the facts were previously unknown or unavailable to the complainant, and could not have been discovered through reasonable efforts. 7 FCC Rcd at 6661. Complainants have not satisfied this criteria and their request to supplement their complaint will be denied. 5. Applying the guidelines set forth in Lowest Unit Charge Requirements, 6 FCC Rcd 7511 (1991), recon. denied, 7 FCC Rcd 4123 (1992) ("Declaratory Ruling"), to the information presented, we find that Complainants have failed to established a prima facie case of a lowest unit charge ("LUC") violation. To establish a prima facie case, a complainant must, at a minimum, submit a "short plain statement of the claim sufficient to show that the complainant is entitled to the relief requested." Declaratory Ruling, 6 FCC Rcd at 7513. Complainants have failed to meet this burden and, accordingly, their claims against Station WCPX-TV are hereby dismissed. Following is a discussion of the Bureau's findings with respect to the specific issues raised by Complainants. I. ALLEGATIONS CONCERNING MISLEADING RATE CARDS 6. Complainants allege that the political rate cards distributed by Station WCPX-TV during the 1990 elections were misleading and that the station intentionally steered candidates toward the purchase of higher priced spots. In support of its allegations, Complainants submitted copies of the political rate cards Station WCPX-TV utilized during the 1990 primary period. The rate cards specified fixed and suggested rates, with a notation that lowest unit rates were available upon request. Complainants assert that it was reasonable to conclude that the suggested rate was not a fixed rate, but a mid-level rate with a lower degree of preemptibility than the lowest unit rate for preemptible time. To bolster their interpretation, the Complainants provide an affidavit from Leslie J. Edelstein, an "expert" in the area of political rates. Edelstein states that, after reading the Station WCPX-TV rate card, she would "conclude that the suggested rate is not a fixed rate, but is a preemptible rate." 7. Station WCPX-TV asserts, however, that the suggested rate was a fixed candidate rate as compared with the standard commercial fixed rate also listed on the rate card. The station claims that both rates were given to show candidates that they were, in fact, being offered fixed rates at substantially lower costs than those paid by commercial advertisers. Complainants argue that the rate card was confusing and that because it was reasonable for candidates to assume that the suggested rate was a preemptible rate, the Complainants are now entitled to rebates back to the lowest preemptible rates. 8. In response, Station WCPX-TV contends that its rate card was clear, and that its rates were fully explained to all candidates or their representatives. In addition, Station WCPX-TV argues that the Complainants have provided no evidence that either they or their representatives were actually confused or misled. In fact, Station WCPX-TV points out, and the evidence supplied by the Complainants verifies, that the Complainants purchased both fixed and preemptible time from the station. Finally, Station WCPX-TV argues that the affidavit of Edelstein should be discredited because Edelstein does not state that she actually purchased time for the Complainants or from the station. 9. We find that Complainants have not made a prima facie case that Station WCPX-TV misled or attempted to "steer" them toward the purchase of higher-priced, non-preemptible spots. No evidence was provided that either the Complainants or their representatives were actually confused by the station's rate card. Rather, the record indicates that all Complainants purchased both suggested (fixed) spots and preemptible spots. See Lawton Chiles, Bob Martinez, Bill Nelson, and Jim Smith (WCIX-TV), 8 FCC Rcd 4019 (MMB 1993). Finally, there is no evidence that a candidate or his representative was denied information explaining the station's rate card or the type of spots available. II. OVERCHARGE ALLEGATIONS A. Comparison With Charges for Florida Lottery Spots 10. Complainants claim that one advertiser, the Florida Lottery ("Lottery"), paid less than candidates for spots aired during the lowest unit charge period. In support thereof, Complainants compare the amounts they paid for spots between August and October 1990, with the amounts paid by the Lottery during the same time period. The only documentation provided are copies of invoices for the Lottery spots, an invoice of spots purchased by Martinez in September 1990, and evidence of rebates by the station to the Complainants. The rebate information is the only documentation provided which identifies any classes of time purchased by Complainants, and those documents identify only the classes of time for rebated spots. There is no evidence or assertion as to the classes of time purchased by the Lottery during the same time period. In these circumstances, we lack sufficient information to determine whether the Complainants have shown, prima facie, that they were overcharged for the "same class and amount of time for the same time period" as required by Section 315 of the Act. 11. Complainants further contend that because of confusion concerning the station's rate card, they should be rebated to the lowest preemptible cost of every comparable spot. However, as discussed above, we have declined to accept such a position. Finally, at least with respect to the analyses contained in the text of the complaint, the station explains that the price differentials occurred because the Complainants purchased fixed time and the Lottery purchased preemptible time. 12. Complainants have provided us with insufficient information to compare the spots purchased by them with the spots purchased by the Lottery. Accordingly, absent evidence that the Complainants and the Lottery purchased the same class of time, we must dismiss Complainants' allegations. See KABC-TV, 9 FCC Rcd at 1587; citing WTVT(TV), 7 FCC Rcd at 6662-63. B. Comparison With Generally-Available Statistical Data 13. The Complainants also rely on generally-available statistical data to show that they were overcharged by Station WCPX- TV. Specifically, the complaint provides a comparison of time purchased by Martinez with SCOOP (Spot Cost Outlook and Projections) data. Other than Martinez, the complaint does not specifically indicate which candidates were overcharged for which spots and no candidate invoices are provided for any other candidate. Finally, as Station WCPX-TV points out, the complaint does not identify the ratings used in its analyses or the source of its rating data. Accordingly, even as to Martinez, the Commission cannot assess the accuracy of Complainants' claims. When a complainant is relying on generally-available statistical data, it must provide the Commission with the data it used to form the basis of its allegations. WTVT(TV), 7 FCC Rcd at 6662-63, 8 FCC Rcd at 132. C. Rebate Allegations 14. Complainants contend both that the issuance of rebates by Station WCPX-TV is grounds for finding a violation and that the rebates made by the station were untimely. Station WCPX-TV states that upon inquiry from the candidates or their representatives, over a year before the filing of the complaint, it conducted a complete audit of the sale of political time to all candidates during the 1990 LUC period. The station contends that it has made every effort to make rebates as soon as possible, but that it was necessarily a time consuming process. Further, it asserts that in order to give candidates the "benefit of the doubt," in some cases rebates were issued where the station did not necessarily need to do so, but where some possible question existed. 15. Broadcasters have long been required to make rebates to political candidates who paid more for an advertising spot than a commercial advertiser for the same class and length of spot during the same time period. However, it was not until the codification of the Commission's political programming policies in 1991, that the Commission specifically stated that all rebates had to be made in a timely fashion. Codification of the Commission's Political Programming Policies, 7 FCC Rcd 678, 694 (1991), recon. denied, 7 FCC Rcd 4611 (1992) ("We . . . will henceforth require that stations review their program logs periodically during the election period to determine whether rebates are required, and issue any such rebates or credits promptly"). This complaint concerns the 1990 LUC period, and we did not specify the necessity of making timely rebates until 1991. We cannot find the station culpable for violation of a rule which did not exist. 16. Further, while we agree with the Complainants that the issuance of rebates does not excuse a violation of our Rules, evidence of rebates is not in and of itself sufficient to make a prima facie case of an LUC violation. Were we to find that rebates alone establish a prima facie case of rule violation, we would, in direct opposition to our Rules, be discouraging the issuance of rebates absent the filing of a complaint and a Commission ruling on the merits of each case. III. CONCLUSION 17. ACCORDINGLY, we find that Complainants have failed to make a prima facie case of violation of any obligation arising under Section 315(b). Therefore, the complaint against Station WCPX-TV is hereby DISMISSED, and the relief requested is DENIED. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau