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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Complaint of) ) Zell Miller, Johnny Isakson,) Lawton Chiles, and Bill Nelson) ) Against Station WCTV (TV),) Thomasville, Georgia) ORDER Adopted: August 1, 1997Released: August 5, 1997 By the Chief, Mass Media Bureau: 1.The Mass Media Bureau has before it a Complaint filed January 24, 1995, on behalf of Zell Miller, Johnny Isakson, Lawton Chiles and Bill Nelson (collectively "Complainants") against John H. Phipps, Inc., licensee of Station WCTV (TV), Thomasville, Georgia ("WCTV"). The Bureau also has before it an answer to the complaint filed by WCTV on March 3, 1995. 2.Complainants allege that during the periods preceding the 1990 primary, primary runoff, and general elections and during the 1994 primary and general elections Station WCTV violated the "lowest unit charge" ("LUC") requirements of  315(b) of the Communications Act of 1934, as amended (the"Act"). Specifically, Complainants contend that WCTV (1) overcharged Complainants during the relevant LUC periods; and (2) failed to disclose to complainants certain requisite information about its sales practices. Complainants also allege that, during the 1990 election periods, WCTV discriminated among candidates contrary to the provisions of Section 73.1941(e) of the Rules. Finally, Complainants allege that WCTV violated the "reasonable access" requirements of Section 312(a)(7) of the Act. 3.This matter is properly before the Bureau pursuant to Lowest Unit Charge Requirements, 6 FCC Rcd 7511 (1991) ("Declaratory Ruling"), recon. denied, 7 FCC Rcd 4123 (1992) ("Reconsideration Order"). The Declaratory Ruling sets forth specific procedural requirements governing  315(b) complaints. To invoke the Commission's enforcement procedures, complainants who allege a violation of  315(b) are required to make a prima facie showing of such violation. At a minimum, this showing must consist of 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,  22. A complainant must describe the specific factual basis for its belief that a station has committed a violation, rather than, for example, merely making a general allegation that a station has overcharged candidates. Lawton Chiles, Bob Martinez, Bill Nelson, and Jim Smith, 7 FCC Rcd 6661, n. 8 (MMB 1992), modified, 7 FCC Rcd 7199 (MMB 1992), review granted in part and denied in part, 8 FCC Rcd 131, 132 (1992)("WTVT"). The licensee may submit an answer to the complaint within ten days. 4.If, upon review of the complaint and answer (if filed), the Bureau determines that the complainant has established a prima facie case, the Bureau will issue an order giving the parties the opportunity to select one of two dispute procedures for resolving the complaint: mediation or disposition by the Bureau, subject to review by the Commission. Declaratory Ruling, 6 FCC Rcd at 7513,  22. Under either procedure, the complainant is entitled to limited discovery, subject to specific conditions set forth in the Bureau's order. Declaratory Ruling, 6 FCC Rcd at 7513,  23. 5. Applying the guidelines set forth in the Declaratory Ruling, we find that Complainant Miller has established a prima facie case of a violation of the LUC requirements during both the 1990 Georgia primary, runoff and general elections. In addition, we find Complainant Isakson has established a prima facie case of a violation for the 1990 general election election, but he has not established a prima facie case with respect to the 1990 primary election. We also conclude that Complainants Miller, Chiles and Nelson have failed to establish a prima facie case of an LUC violation during either the 1994 Georgia or Florida elections. We find that Complainants have failed to establish a prima facie case with respect to disclosure, and therefore dismiss this aspect of the complaint. In addition, Complainants have failed to establish a prima facie case of discrimination among candidates, and we therefore dismiss these claims. Finally, we find Complainants have failed to establish a prima facie case of a violation of the reasonable access requirements, and therefore dismiss these claims. Following is a detailed discussion of the Bureau's specific findings with respect to the issues raised, and the timetable and procedures for discovery, post- discovery, and the procedure for electing the method to resolve this complaint. I. TIMELINESS OF COMPLAINANTS' FILING 6.WCTV argues that, with regard to the 1990 elections, the complaint is untimely. It points out that the Complaint was filed more than four years after the elections and asserts that the Complainants had the opportunity to file their complaint earlier. In addition, WCTV states that the personnel most familiar with the circumstances surrounding the alleged activities are no longer employed at the station. 7. In WTVT, we stated that "[o]ur rules do not prescribe or limit the time during which an LUC complaint must be filed." See WTVT, 7 FCC Rcd 6661 n. 4. We recognize that the passage of time and the loss of station personnel with direct knowledge of the relevant time periods may render more difficult the licensee's task of responding to LUC complaints. The passage of time may also impede the complainant's ability to establish a prima facie case. However, such difficulty does not alleviate the need to consider whatever evidence of violations is furnished. Accordingly, in these circumstances, we will not dismiss the claims relating to the 1990 elections as untimely. II. LOWEST UNIT CHARGE ALLEGATIONS A.Comparison with Generally Available Statistical Data 8.Complainants allege that WCTV violated the LUC requirements by overcharging candidates for air time because the candidate rates exceeded "SCOOP"-based rates. SCOOP, a product of Media Market Guide, is a compilation of generally available statistical data on average rates charged by television stations. In support of their allegations, Complainants multiplied the average rate for a given daypart by the actual, station-specific ratings on WCTV, and based on those calculations, estimated that each Complainant was overcharged by significant amounts. Specifically, Complainants state that the 1990 SCOOP calculations are based on Arbitron daypart ratings which corresponded to spot times purchased by Complainants. The 1994 SCOOP calculations are based on Nielsen daypart ratings which corresponded to spot times purchased by Complainants. To arrive at the separate SCOOP-based rates for the second, third, and fourth quarters of 1990, Complainants multiplied the SCOOP rates contained in the second, third and fourth quarter 1990 Media Market Guide by the ratings data listed in Arbitron's May 1990, July 1990, and November 1990 Television Market Reports. Complainants' calculations were based on three different demographics: households, adults 25-54, and persons 18 plus. For the 1994 elections, Complainants state that they multiplied the SCOOP rates in the fourth quarter Media Market Guide by the pertinent Nielsen ratings, which they identify as being compiled from the July 1994 Nielsen Book. The demographic used in all of Complainants' 1994 calculations was adults 25-54. Complainants then compared the station-specific SCOOP-based rates with the rates actually charged to each Complainant. 9. WCTV responds by asserting that with respect to the 1990 elections, the SCOOP data is unreliable because it does not reflect distinctions in class of time. As for the 1994 elections, WCTV explains that the disparity between the SCOOP rates and the political advertising charges is attributable to the fact that the Complainants purchased the more expensive "fixed" class of time, and as such, enjoyed the corresponding protection from preemption., In this connection, WCTV contends that where candidates have purchased only fixed spots, SCOOP data is not probative unless all or nearly all of the commercial time also is fixed. 10.A complainant may establish a prima facie case of an LUC violation by using generally- available industry or statistical data on average rates to show that the rate paid by a candidate was higher than the average rate charged by the station. Declaratory Ruling, 6 FCC Rcd at 7521 n.47. To support a prima facie case, the Commission has recognized SCOOP-based rates as a valid source of statistical information. See e.g., Diane Feinstein, John Seymour, Thomas Hayes, 9 FCC Rcd 1586, 1587 (1994) ("KABC"). Moreover, in WTVT, 8 FCC Rcd at 132 n.13, the Commission determined that even if such generally- available information does not take specific classes of time into consideration, it remains "the best resource available" of pertinent data for candidates unable to gain access to a station's commercial sales records in order to determine whether they have been overcharged. Thus, we reject WCTV's arguments that SCOOP- based data is not reliable or not probative with respect to both the 1990 and the 1994 elections. 11.We find that Complainants have established a prima facie case of a violation of the LUC requirements by demonstrating that the rates paid by Miller and Isakson for use of WCTV's facilities during the 1990 general election periods appear to be higher than the average station-specific SCOOP-based rates for the third and fourth quarters of 1990. We also find that Miller established a prima facie case of an LUC violation in regard to the 1990 primary and runoff elections. However, we find that Isakson has failed to establish a prima facie case of a LUC violation for the 1990 primary election period, as the complaint did not include data, rates or any other information specifically covering the primary election period. We find also that Complainants have failed to establish a prima facie case of a violation of the LUC requirements during either the 1994 primary or general election periods for Miller, Chiles, and Nelson. With respect to the primary elections, there are no SCOOP showings or calculations relating to the primary election period for any candidate. With respect to the general elections, Complainants incorrectly multiplied the relevant fourth quarter SCOOP ratings with data from the July 1994 Nielsen Ratings Book. In order to establish a prima facie case, Complainants were required to utilize the corresponding Nielsen ratings from the November 1994 Book. Accordingly, the Commission cannot assess the accuracy of Complainants' claims. In light of our disposition of the 1994 LUC allegations, we need not address WCTV's arguments regarding fixed rate spots. B.Disclosure 12.Complainants also allege that WCTV violated the Commission's LUC requirements during the 1990 primary and general elections in connection with its use of a so-called "grid card" to sell time to political candidates. Specifically, they argue that the rate card fails to disclose any information about the characteristics associated with each of the six classes listed on the card. In support, Complainants provide a copy of a 1990 WCTV Georgia primary political rate card which contained six classes of time on the grid. However, in upholding the Bureau's initial determination in WCTV I, (FCC 93-183, released June 5, 1997), the Commission affirmed the validity of the same WCTV rate card and concluded that stations legitimately could offer time on such a basis and that a failure to disclose the same information alleged as absent here during the 1990 elections did not violate the statute. The Commission indicated that the obligation to disclose was formally implemented in the Codification Order, 7 FCC Rcd 678, 691 (1991), which promulgated guidelines regarding broadcaster disclosure obligations, well after the elections in question. WCTV could not have been expected to have complied with a rule which had not yet been codified. Accordingly, we will not find a prima facie case with respect to disclosure, and this aspect of the complaint is dismissed. III. RATE DISCRIMINATION ALLEGATIONS 13.The Bureau also concludes that Complainants have failed to establish a prima facie case of rate discrimination by WCTV. Under Section 73.1941(e), political sales are discriminatory when the station charges candidates different rates for comparable time periods, lengths of time, and class of time. Complainants have not provided any documentation regarding the classes of time purchased by the candidates, as shown in their comparisons. Moreover, WCTV's refutes the claim, by explaining that each example of disparate rates cited by Complainants involved different classes of time. Consequently, given that complainants failed to indicate the classes of time purchased, and that WCTV refuted the allegation of discrimination by establishing the basis for the difference in rates, we are hereby dismissing this claim. IV. REASONABLE ACCESS ALLEGATIONS 14.Complainants allege that WCTV effectively denied reasonable access to federal candidates during the 1990 primary and general election periods, in contravention of Section 312(a)(7) of the Act. In support, they state that WCTV's published policy statement placed apparent limits on the number of spots and programs available for purchase by candidates during certain dayparts. For example, WCTV's policy apparently limited federal candidates to one thirty-minute program per election, and two five-minute programs per week. In addition, WCTV imposed limitations of one spot per time period, per day, during the last three weeks before an election. WCTV states that since in 1990 it was obligated to provide access to candidates in both Florida and Georgia, it believed reasonable limitations on certain classes of time would ensure, not thwart, access for all candidates. WCTV also notes that none of the complainants were federal candidates, and thus were not entitled to reasonable access. It is true that establishing pre-set limitations on the amount of spots or program length time available to federal candidates would appear to be inconsistent with the Commission's prohibition against flat bans or limitations in the sale of time to federal candidates. See Report and Order in the Matter of Commission Policy in Enforcing Section 312(a)(7) of the Communications Act, 68 FCC 2d 1079 (1978). Complainants, however, provide no evidence that any federal candidate was, in fact, denied reasonable access based on the limits listed on the station's political rate cards. Thus, we find that Complainants have failed to establish a prima facie case of a violation of the reasonable access requirements and, therefore, we dismiss this claim. V. TIMETABLE AND PROCEDURES FOR DISCOVERY 15.In the Declaratory Ruling, the Commission determined that, once a prima facie showing has been made, the complainant will be entitled to limited discovery, subject to specific conditions established by the Bureau. See Declaratory Ruling, 6 FCC Rcd at 7513-14, 7521, n.49. See also, WTVT, 7 FCC Rcd at 6665. Accordingly, we will allow Complainant Miller limited discovery on the issue of overcharges during the 45 days preceding the July 17, 1990, primary, the 45 days prior to the August 7, 1990 runoff election, and we will allow limited discovery for Complainants Miller and Isakson for the period 60 days before the November 6, 1990, general election. The documents set forth in Appendix A to this Order, and answers to the written interrogatories set forth in Appendix B to this Order, must be served upon counsel for the above-referenced Complainants (not the Commission) by WCTV on or before the first day of the discovery period, which will be 30 days after the release date of this Order. See Appendix C. 16.Any request for further discovery by Complainants must contain a showing that such discovery is necessary to resolve the issue of overcharges. Any discovery request by WCTV for production of documents, answers to written interrogatories, or for the taking of depositions must demonstrate that the information requested is necessary for WCTV to respond to arguments or claims that could be made by Complainants in their amended complaint. We emphasize that any request for depositions must also demonstrate that depositions are necessary to resolution of the issue of overcharges and include a list of the proposed deponents. All discovery requests must be filed within the discovery period set forth in Appendix C. The Bureau will rule on all such requests as expeditiously as possible. 17.Documents produced by WCTV that contain proprietary information may be redacted to delete the identities of commercial advertisers, including the name of the commercial advertiser, its address and telephone number, the name(s) of any person employed by the advertiser, and the name of any media company or agency representing the commercial advertisers and any persons employed by such media company or agency. Where any such information is redacted, WCTV shall advise Complainants of the type of information deleted. Further redactions will be allowed only if the information redacted is proprietary and not relevant to resolution of the complaint. Should Complainants serve documents upon WCTV they may redact proprietary information and so advise WCTV of the type of information deleted. Any objections to redactions that are not resolved by the parties should be submitted to the Bureau in a written pleading for resolution, along with copies of the documents at issue with the disputed information intact. As with all discovery matters, the parties should make good faith attempts to resolve any discovery disputes before presenting such a dispute to the Bureau. 18.Any documents, answers to written interrogatories, or deposition transcripts, if any, produced during discovery, and the information revealed thereby, shall not be provided to any third party other than the Commission. Copies of all documents, answers to written interrogatories, and deposition transcripts produced shall be stamped with the statement: "This document is subject to a protective order entered by the Federal Communications Commission." It shall be the responsibility of the party producing the documents, answers to written interrogatories, or deposition transcripts to affix the stamp. 19.The parties must take reasonable measures to prevent unauthorized access to the documents, answers to written interrogatories, and deposition transcripts. Access must be limited to Complainants, the management of WCTV, their attorneys and staffs, and expert witnesses. Either party may require the other to disclose in writing the names of staff and experts who have access to documents and written information. Each party must explain to all staff and experts that the documents, answers to written interrogatories, deposition transcripts, and their contents may not be disclosed to any entity other than the Commission. 20.None of the materials produced, nor the contents thereof, may be used for any purpose other than the prosecution of the instant complaint. Each individual who is provided access to these materials is hereby required to certify in writing that he or she has personally reviewed this Order and understands the limitations imposed on the signing party. No copies of materials protected by this Order may be made except copies to be used by the persons identified in paragraph 26. Each party shall maintain a log recording the number of copies made of all proprietary material and the persons to whom the copies have been provided. Upon termination of this proceeding, including any appeals, petitions or settlement, all originals and reproductions of any protected materials, along with the log recording persons who received copies of such materials, shall be provided to the producing party. In addition, upon final termination of the proceeding, any notes or other work product derived in whole or in part from the protected materials of an opposing party shall be destroyed. 21.The parties may agree to additional reasonable measures to protect the confidentiality of information as the circumstances may warrant. Such agreement should be confirmed in writing and a copy provided to the Bureau. As noted in the Declaratory Ruling, any failure to abide by the terms of this protective order may result in the imposition of sanctions, including dismissal of the complaint or censure, suspension, or disbarment of the attorneys involved. See 47 C.F.R.  1.24. 22.Extensions of the discovery period (Appendix C) will be granted only where extraordinary circumstances exist and the parties agree to the extension, or both parties submit declarations that serious settlement discussions are ongoing. Any deadlines within the discovery period may be changed by mutual agreement, with notification to the Bureau, as long as all discovery is completed within the required time. Service of documents, discovery requests, and any pleading which requires a ruling by the Bureau is to occur by the dates set in Appendix C, unless modified by the Bureau or by mutual agreement of the parties. 23.Within 30 days after completion of discovery, Complainants must file an amended complaint, alleging specific facts based on the information discovered, stating the nature of the  315(b)(1) violation and the amounts said to be owed. After WCTV has filed its answer, the parties shall file with the Bureau their election to have the complaint resolved either by the Bureau or by Alternative Dispute Resolution. 24.Settlement of lowest unit charge claims is strongly encouraged. Although the Commission retains its discretion to determine whether additional sanctions are warranted, the Commission is inclined to look with favor upon a settlement in making that determination. See Declaratory Ruling, 6 FCC Rcd at 7521, n.52. 25.ACCORDINGLY, we find that a prima facie case of a violation of the Commission's lowest unit charge requirement has been established by Complainant Miller regarding the 1990 primary, runoff and general elections, and Complainant Isakson regarding the 1990 general election, in connection with advertising aired on WCTV. The parties are hereby ORDERED to follow the procedures and timetable for discovery, post-discovery, and election of a complaint resolution procedure established herein. 26.We find that Complainants Chiles, Nelson, and Miller have failed to establish a prima facie case of a violation of the Commission's lowest unit charge requirement with regard to the 1994 primary and general elections. Complainants also have failed to establish a prima facie case with respect to allegations that WCTV engaged in rate discrimination or failed to disclose all information about the characteristics associated with the station rate structure during the 1990 election period. Thus, these Complainants' claims are DISMISSED in their entirety. Finally, we find that Complainants have failed to establish a prima facie case of a violation of  312(a)(7) during the 1990 or 1994 election periods, and thus these allegations are DISMISSED in their entirety. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau APPENDIX A DOCUMENTS TO BE PRODUCED TO COMPLAINANTS To the extent not already produced to Bureau and Complainants, certain documents shall be produced to Complainants Miller and Isakson as to the 1990 general election and Miller as to the 1990 runoff and primary elections by delivering them to the offices of Barnes, Browning, Tanksley & Casurella, 166 Anderson Street, Suite 25, Marietta, Georgia 30060 in accordance with the procedures outlined in this Order. The documents to be produced are as follows: 1) All advertising contracts executed by or on behalf of candidates for public office in connection with the 1990 primary, runoff and general elections. 2) All invoices, logs or other documents recording time, duration, or class of advertising time for each political advertisement ordered and/or aired on behalf of candidates for public office in connection with the 1990 primary and general elections. 3) Copies of invoices and contracts for, and program logs related to: all commercial time run on WCTV including the 45 days preceding the 1990 primary elections and 60 days preceding the 1990 general elections. This should include: a) All invoices, logs or other documents recording time, duration, or class of advertising time for each commercial spot aired, and, if not apparent from the preceding, documents reflecting all agency discounts provided by the station; b) All long term contracts that pertain to commercial spots, including make goods and bonus spots, that aired during this period; c) All addenda or memoranda relating to these invoices or contracts that alter or otherwise address the terms or provisions of any document subject to production pursuant to this document production order; d) All orders for commercial spots aired during this period, including confirmation orders or contracts; e) All orders for bonus spots, public service announcements, or any other type of free spots, for any of the commercial advertisers who purchased time that ran during this period; and f) All documents that describe the rate and other relevant terms (those that affect price or have a direct bearing on the characteristics, such as class of time, or any priorities against preemption, of each spot) of discount packages sold to commercial advertisers that included spots that aired during this period. 4. All documents used by WCTV to explain to its sales personnel or other employees or agents dealing with political campaigns, or the agents of political campaigns, the application of the lowest unit charge provisions of Section 315(b) of the Communications Act. This should include any written policy statement(s) used by WCTV in 1990 which directly or indirectly related to WCTV's pricing policies. 5. All documents reflecting the existence, implementation, and results of any audit of rates charged to political advertisers performed by or on behalf of WCTV with respect to the 1990 primary and general elections, including any provision of rebates to such political advertisers, as well as all documents explaining or detailing the methodology used by in performing any such audit or providing any such rebates. APPENDIX B ADDITIONAL INFORMATION TO BE PROVIDED TO COMPLAINANTS MILLER, ISAKSON, CHILES, AND NELSON Answers to the following interrogatories shall be provided to Complainants in accordance with the procedures set forth in this Order: 1) Describe how WCTV arrived at its LUC for the 1990 primary, runoff and general elections. 2) Detail any actions taken by WCTV to ensure that political advertisers were, in fact, charged the lowest unit rate for the same class and amount of time during the same time periods which ran during the 45 days preceding the 1990 primary elections and 60 days preceding the 1990 general elections. This should include the identities of all individuals taking or participating in such action, identifying their position at WCTV, and should identify all documents which refer to or formed a part of WCTV's efforts to ensure that candidates received the LUC. 3) Provide a statement that indicates the class and length of each commercial spot, if not apparent from the program logs, invoices or contracts, that aired during the relevant time period. 4) Provide a statement that explains any codes used by WCTV or its sales representatives to indicate the rate, section or class of spot identified in confirmation contracts, program logs, affidavits of actual broadcast or other documents relating to advertising rates. 5) Provide a statement that explains to what extent, if any, WCTV accorded any priorities against preemption to commercial advertisers who purchased time relevant to the 1990 primary and general periods. To the extent that such priorities against preemption were given, explain whether this priority treatment was known to any commercial advertiser when the time was contracted for. APPENDIX C TIMETABLE FOR DISCOVERY AND POST-DISCOVERY First day of discovery period (30 days after release of this Order):Day 1 Documents in Appendix A and Answers to Written Interrogatories in Appendix B due:Day 1 Request by Complainants for further discovery (production of additional documents, answers to additional written interrogatories, and/or for the taking of depositions) due: Day 15 Opposition by WCTV to Complainants request for further discovery due:Day 20 WCTV's request for discovery (production of documents, answers to written interrogatories, and/or for the taking of depositions) due: Day 20 Opposition by Complainants to WCTV's request for discovery due: Day 27 Documents and answers to written interrogatories (if allowed by Bureau) pursuant to WCTV's request for discovery due:Day 45 Production of additional documents and/or answers to additional written interrogatories (if allowed by Bureau) pursuant to Complainants request for further discovery due: Day 60 Final day of discovery period:Day 60 Complainants amended complaint due:Day 90 WCTV's answer to amended complaint due: Day 105 Joint notice of election of complaint resolution procedure due:Day 116