******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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, Guy Millner, Buddy Darden, ) Ben Jones, Fred Overby, John Oxendine ) and Tim Ryles ) ) Against Station WSB-TV ) Atlanta, Georgia ) ORDER Adopted: September 15, 1997 Released: September 18, 1997 By the Chief, Mass Media Bureau: 1. The Mass Media Bureau ("Bureau") has before it: 1) a Complaint filed March 27, 1995, on behalf of Zell Miller, Guy Millner, Buddy Darden, Ben Jones, Fred Overby, John Oxendine and Tim Ryles (collectively, "Complainants") against Georgia Television Company, licensee of Station WSB- TV, Atlanta, Georgia ("licensee" or "WSB-TV"); 2) an Opposition to Complaint ("Answer") filed May 22, 1995, by the licensee. 2. Complainants allege that WSB-TV overcharged them during the 1994 primary, runoff, and general elections WSB-TV in violation of the lowest unit charge ("LUC") requirements of Section 315(b)(1) of the Communications Act of 1934, as amended (the "Communications Act"). Specifically, Complainants contend that WSB-TV: (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 WSB-TV violated the political file rule (Section 73.1943 of the Commission's Rules). Complainants seek discovery of WSB-TV's advertising records covering the 1994 LUC periods. 3. Lowest Unit Charge Requirements, 6 FCC Rcd 7511 (1991) ("Declaratory Ruling"), recon. denied, 7 FCC Rcd 4123 (1992) ("Reconsideration Order") 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. WTVT(TV), 7 FCC Rcd at 6662, 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). 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 Complainants have established a prima facie case of a violation by WSB-TV of the LUC requirements of Section 315(b)(1) of the Communications Act with respect to: 1) the forty-five day period preceding the 1994 primary election as to Complainants Miller, Millner, Oxendine and Ryles; 2) the period preceding the runoff election as to Complainants Millner and Overby; and 3) the sixty day period preceding the 1994 general election as to Complainants Miller, Millner, Overby, Oxendine and Ryles. However, we find that Complainants have failed to establish a prima facie case of a LUC violation by WSB-TV during: 1) the forty-five day period preceding the 1994 primary election as to Complainants Darden, Jones and Overby; 2) the period preceding the 1994 runoff election as to Complainant Ryles; and 3) the sixty day period preceding the 1994 general election as to Complainants Darden and Jones. Likewise, we find that Complainants have failed to establish a prima facie case that regarding WSB-TV's disclosure of its sales practices. Finally, we find that allegations of political file violations are not properly considered in this Order. 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 election of the procedure for resolving those portions of the complaint which present a prima facie case. I. LOWEST UNIT CHARGE ALLEGATIONS A. Comparison With Generally-Available Statistical Data 6. Complainants contend that generally-available statistical data establish a prima facie case of overcharges by WSB-TV. Specifically, Complainants rely on Spot Market Analysis of Rates for Television ("SMART"), a product of Media Market Guide, which is a compilation of generally-available statistical data on average rates charged by television stations. To arrive at SMART-based rates for the third and fourth quarters, Complainants multiplied the SMART rates contained in the Media Market Guide published in the second and third quarters of 1994 by Nielsen's July 1994, October 1994 and November 1994 ratings for WSB-TV. Complainants' calculations were based on three different demographics, households, persons 18+, and Adults 25-54. Complainants then compared the station- specific SMART-based rates with the rates actually charged to each Complainant. Complainants performed a second set of calculations for the period prior to the general election by using data derived from Monitor Plus, which Complainants state is a Nielsen monthly service that tracks spots broadcast. The calculations performed result in two Monitor Plus categories: average or market-wide and station- specific household rates. Based on both sets of calculations, Complainants assert the following ranges of overcharges, depending upon which service and demographic are used: Miller, between $81,165.00 and $177,573.00; Millner, between $68,624.00 and $157,600.00; Overby, between $8,963.00 and $25,742.00; Oxendine, between $7,726.00 and $17,145.00; and Ryles, between $9,687.00 and $32,558.00. The LUC periods in which these alleged overcharges occurred included all elections for Millner; the primary and general elections for Miller and Ryles; the runoff and general elections for Overby; and the general election only for Oxendine. 7. WSB-TV maintains that reference to market average numbers is inappropriate and should not be utilized to establish a prima facie case here because it sells time on a demand basis, with price being the primary determinant of preemption decisions. WSB-TV states that, during the 1994 LUC periods, its political rate cards, generally prepared weeks in advance of the sales period, set forth the licensee's best estimates of various prospective rates. The rates estimated were the "submit," "close," and LUC rates for particular programs. The submit rate is described as the rate "which WSB-TV's sales force is to submit to commercial advertisers at the beginning of negotiations. Time purchased at the submit rate has an extremely high (approximately 95%) chance of running as ordered." Answer at 2. The close rate is described as "the lowest rate at which an account executive or rep is permitted to sell time to commercial advertisers. [Such time] has approximately an 85% chance of running as ordered. Both . . . rates fluctuate with demand." Id. The licensee explains further, however, that advertising may be sold at rates lower than the close rate but that such sales occur only in special circumstances and prior management approval must be obtained. According to the licensee, such special rates usually establish the LUC for a particular program. Id. at 3. The licensee states that the political rate card disclosed not only the estimated submit, close and LUC rates but also the chances of preemption and that, when so requested, its sales force also provided current estimates of preemptibility to candidates at the time of purchase. Id. at 5. The licensee further explains that, to accommodate candidates, WSB-TV also offered during the LUC periods, a candidate-only fixed ("COF") class of time. The licensee states that the COF was priced below its projected estimates of close rates so that candidates would obtain the benefit of "certainty of broadcast without having to pay the same rates which commercial advertisers would have to pay to gain that certainty." Id. at 4-5. The licensee claims that candidates were free to purchase the rates noted on the rate card, or at other intermediate rates, and that all candidates purchased both COF and preemptible classes of time. The licensee concludes that, because "virtually every purchase" (Id. at 12, emphasis supplied) listed by Complainants in their comparative chart was made at the COF rate, comparisons with SMART-based or Monitor Plus-based rates are irrelevant to establishing a prima facie case of LUC violations. The licensee further concludes that, in any event, no comparison was made with regard to Complainants Darden and Jones and that dismissal of their complaints is warranted. 8. The Commission has specifically endorsed the use of generally available industry or statistical data on average rates to make a prima facie case of an LUC violation. See WTVT(TV), 8 FCC Rcd at 132-33. In this regard, when a comparison of rates paid by candidates with generally available industry or statistical data show that a substantial number or percentage of spots exceeded station- specific average rates, we have determined that a prima facie case of overcharges has been made. E.g., Ann Richards, Clayton Williams, Jim Mattox, Tom Luce, et al., 9 FCC Rcd 6051, 6052-53 (MMB 1994) ("KBMT(TV)"). We see no reason to treat the instant Complainants differently. Thus, because Complainants Miller, Millner, Overby, Oxendine and Ryles have shown that in a substantial number of instances, the rates they paid exceed the SMART-based and/or Monitor Plus-based rates, we conclude that they have established a prima facie case of LUC violations. 9. In so concluding, we reject WSB-TV's argument that comparisons between the rates paid by Complainants with SMART-based or Monitor Plus-based rates are irrelevant since Complainants' purchase of COF, a class unique to candidates, necessarily precludes ultimately finding LUC violations. Answer at 15. It remains to be seen whether COF is in fact a unique class of non-preemptible time since Complainants have submitted evidence indicating that so-called COF spots did not run while lower- priced commercial spots ran. In addition, WSB-TV has acknowledged that "non-price factors (such as the end-date of the schedule, the time-sensitivity of the advertisement, and the date on which the schedule was purchased)" are almost "inevitable" considerations in a commercial environment in determining whether a particular spot will air as scheduled. Answer at 26. It thus appears that, as a practical matter, certain preemptible commercial spots may have been functionally fixed, while COF may not always have been fixed. Complaint at 20-25, Exhibits 12 and 13. Compare, Conway Collis, et al., DA 97-513, released March 11, 1997 ("KCBS-TV"). The existence of functionally fixed commercial spots at a rate lower than the COF could result in overcharges through the establishment of a lower LUC for those spots purchased by the Complainants at the COF rate. Likewise, the existence of COF spots which were preempted also raises questions about the legitimacy of this class of time. Of course, if any overcharges are ultimately found, and rebates are ordered, they will be based on the difference between the rates actually charged by the station and the LUC for the functionally equivalent same class of time during the same period. WTVT(TV), 7 FCC Rcd at 6662, n.9, and 6663. 10 For the foregoing reasons, we find that Complainants Miller, Millner, Overby, Oxendine and Ryles have established a prima facie case of an LUC violation with respect to the rates charged them during the 1994 general election period. Further, we find likewise that Complainants Millner and Overby have established a prima facie case of an LUC violation with respect to the rates charged them during the 1994 runoff election. Finally, we find that Complainants Miller, Millner and Ryles have established a prima facie case of an LUC violation with respect to the rates charged them during the 1994 primary election period. However, as noted, Complainants' analysis does not include comparisons involving rates paid by every Complainant for each noted election period. Thus, because Complainants Overby and Oxendine did not submit data covering the 1994 primary election period, they have not established a prima facie case of an LUC violation during this period. Likewise, because Complainant Ryles did not submit data covering the 1994 runoff election period, he has not established a prima facie case of an LUC violation during this period. Finally, because Complainants Darden and Jones did not submit data covering the 1994 primary or general election periods, they have not established a prima facie case of an LUC violation during these periods. See Lawton Chiles, Bob Martinez, Bill Nelson and Jim Smith, 10 FCC Rcd 940, 942  13 (MMB 1995) ("WCPX-TV"), (in establishing a prima facie case, candidates must include, and compare, political advertising invoices with station-specific industry data). B. Comparison With Candidate and Commercial Records 11. Complainants assert that a comparison of candidate invoices, candidate rebate records, and specific commercial rates reveals that WSB-TV overcharged candidates who purchased preemptible time. Complainants contend that these examples establish a prima facie case of overcharges entitling them to discovery. WSB-TV responds by admitting that through inadvertence or mistake in several instances candidates were overcharged, but that a few "clearly inadvertent errors in a massive audit of thousands of political and commercial sales do not establish a prima facie case of widespread [LUC] violations sufficient to warrant discovery." Answer at 34. 12. The procedures established for a prima facie analysis of LUC complaints are designed to protect the interests of the "parties" and to remedy apparent overcharges to "complaining candidates." Reconsideration Order. 7 FCC Rcd at 4127. Inasmuch as we have already determined that Complainants Miller, Millner and Overby are entitled to discovery, this aspect of the Complaint need not be addressed. See L. Douglas Wilder and Marshall Coleman, 10 FCC Rcd 7629, 7631 (MMB 1995) ("WTVR-TV"); Lawton Chiles, Bob Martinez, Bill Nelson and Jim Smith, 10 FCC Rcd 7310, 7311 (MMB 1995) ("WFTV(TV)"). Moreover, with respect to Complainants Darden and Jones, we conclude that the few instances cited are insufficient to establish a prima facie case, thereby entitling them to discovery. See Dianne Feinstein, John Seymour, Thomas Hayes, et al., 10 FCC Rcd 7193, 7195 (MMB 1995) ("KCAL- TV") (finding specific overcharges in a few instances is de minimus in nature and not sufficient to establish a prima facie case), application for review denied, FCC 97-211, released July 25, 1997. Nonetheless, because five of the charges listed on p. 14 of the Complaint appear to warrant rebates, we hereby order WSB-TV to review the following list of apparent overcharges and issue rebates if warranted: Candidate Date Length Time Class Rate LUC Jones 10/31 30 1228-1600 Preem 450 400 Jones 11/3 30 1228-1600 Preem 450 400 Jones 11/4 30 1228-1600 Preem 450 400 Darden 10/31 30 1228-1600 Preem 450 400 Darden 11/3 30 1228-1600 Preem 450 400 C. Disclosure 13. Complainants contend that WSB-TV did not sell time in accordance with its disclosed sales practices. As described above, WSB-TV indicated that the COF was set below the close rate, that is, "the lowest rate at which an account executive or rep is permitted to sell time to commercial advertisers." Answer at 2. In this regard, Complainants argue that although WSB-TV set its COF on the basis of its close rate, the licensee often sold time to commercial advertisers at rates much lower than the close rate. For example, Complainants submit that Southern Regional Medical Center (SRMC) placed an order on August 29, 1994, one week before WSB-TV's political ratecard for the general election LUC period was printed. According to Complainants, the rate for five of the six dayparts ordered by SRMC was less than the close rate and that the rate for four of those time periods was less than the COF offered to political advertisers during the general election LUC period. Specifically, Complainants note that while SRMC paid $1500 for the 6 p.m. news, the political ratecard showed the close rate as $1800 and the COF as $1700. Likewise, for the program "20/20,", SRMC paid $5000, but the political ratecard showed the close rate and the COF as $8000. 14. Complainants also claim that they were effectively steered toward higher-priced spots. In this regard, Complainants submit a declaration from Sharon Burrow, who states that she bought time for Complainants Darden and Jones. She relates that because she was told that only one of three Darden spots ordered for a 5-8 p.m. rotation for the week of October 10 through 16, 1994, would clear, the Darden and Jones campaigns thereafter refrained from ordering the rotation and instead ordered the more expensive individual programs. Complainants assert that had WSB-TV sold time in accordance with its disclosed sales practices, the Darden spots would have cleared at lower priced preemptible rates. 15. The licensee denies that it failed to disclose its COF rates and related sales practices to candidates. According to WSB-TV, candidates were able to review relevant rates and to make informed purchasing decisions. Further, the licensee denies that its practices effectively steered Complainants toward higher-priced COF spots. In this regard, the licensee maintains that Complainants Darden and Jones continued to buy rotations subsequent to October 10, citing, among other things, Darden's purchase of four spots (all of which aired) for the 10:58 a.m. to 7:56 p.m. rotation of October 22 and 23, and Jones' purchase of six spots (all of which aired) for the 10:58 a.m. to 8 p.m. rotation of November 5 and 6. 16. In Codification of Commission's Political Programming Policies, 7 FCC Rcd 678, 688 (1991), the Commission made clear that "broadcasters must disclose and make available to candidates all discount privileges available to commercial advertisers, including the lowest unit charges for different classes of time sold by the station." A review of WSB-TV's 4th quarter political ratecard indicates that the estimated LUC was disclosed as being below the rates allegedly paid by SRMC for the 6 p.m. news ($1500) and "20/20" ($5000). Specifically, we note that Complainants' Exhibit 2 shows that the 6 p.m. news estimated LUC was listed as $1000, while the "20/20" estimated LUC was listed as $4500. Thus, simply because a commercial advertiser had purchased preemptible time prior to the publication of the general election LUC ratecard at a rate below the close rate but not lower than the estimated LUC, we cannot say that WSB-TV's disclosures were inadequate. We thus conclude that Complainants failed to establish a prima facie case concerning the station's failure to disclose its sales practices. With regard to alleged steering, it appears that, notwithstanding the failure of certain Darden spots to run, Complainants Darden and Jones continued to purchase lower-priced rotations in the weeks preceding the general election. Hence, we conclude that Complainants Darden and Jones have not established a prima facie case with respect to the steering issue. D. Discrimination Regarding "Late Run" Spots 17. Complainants assert that WSB-TV provided the Georgia Lottery with a free spot based on "point underdelivery" due to late run movies and "sports final" on July 3 and 17, 1994, but did not provide a free spot to Complainant Millner due to a late run movie on July 17. In any event, Complainants allege that WSB-TV aired the bonus spot for the Georgia Lottery during the week of July 4 through 8. Thus, according to Complainants, the bonus spot was not a "compensatory" make good, but was an extra spot that had the effect of reducing the price of a spot that had already run. Complainants thereafter list late-running spots which aired during the general election LUC period for Complainants Miller, Millner and Overby but for which WSB-TV allegedly did not provide an extra spot such as was provided to the Georgia Lottery. 18. WSB-TV states that it does occasionally "provide advertisers with compensatory spots in situations when a late run causes the advertiser to reach an audience substantially smaller than bargained for." Answer at 39. The licensee asserts that this practice was disclosed in its disclosure statement and that advertisers were advised that they had the burden of bringing underdelivery to the licensee's attention. The licensee argues that, although Complainants had notice of late runs on invoices dated shortly after the spots ran, they never (until now) sought compensation. As for the Georgia Lottery example, the licensee argues it does not establish a pattern or practice of make goods which disadvantaged political candidates, and that, in any event, WSB-TV did provide political advertisers with compensatory spots when they complained. Moreover, with regard to the allegedly late-running spots cited by Complainants Miller, Millner and Overby, the licensee claims that they involved shorter delays which did not result in substantially smaller audiences than contemplated by the original orders. Finally, WSB-TV cites examples where commercial advertisers' spots ran late but the advertiser did not receive a compensatory make good. 19. We conclude that Complainants failed to make a prima facie showing with respect to this issue. Complainants did not furnish affidavits that they were unaware of the station's compensatory make good policy, or that they requested or were denied such make goods. II. POLITICAL FILE ALLEGATIONS 20. Complaints allege that WSB-TV violated the political file requirements contained in Section 73.1943 of the Commission's Rules. Specifically, the Complaint alleges that certain invoices for Complainants Miller and Millner do not contain an indication of class. WSB-TV disputes the allegations. 21. This Order is issued pursuant to procedures for a prima facie analysis of LUC complaints as set forth in the Declaratory Ruling, and allegations of violations of political file violations are not subject to those procedures. Thus, they will be handled as a separate complaint and will not be addressed herein. See Roy Barnes, Johnny Isakson, Zell Miller, et al., 12 FCC Rcd 3127, 3128, n. 5 ("WMGT-TV"). III. TIMETABLE AND PROCEDURES FOR DISCOVERY 22. 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 Complainants specified limited discovery on the issue of overcharges during the LUC periods preceding the July 19, 1994, primary election, the August 9, 1994, runoff election, and the November 8, 1994, 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 WSB-TV 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. 23. 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 WSB-TV for production of documents, answers to written interrogatories, or for the taking of depositions must demonstrate that the information requested is necessary for WSB-TV 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. 24. Documents produced by WSB-TV 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, WSB-TV 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 WSB-TV they may redact proprietary information and so advise WSB-TV 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. 25. 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. 26. 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 WSB-TV, 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. 27. 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. 28. 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. 29. 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. 30. 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 WSB-TV 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. 31. 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. 32. ACCORDINGLY, we find that a prima facie case of a violation of the LUC requirements of Section 315(b)(1) of the Communications Act has been established by Complainants in connection with advertising aired on WSB-TV on their behalf during the forty-five days preceding the July 19, 1994, primary election as to Complainants Miller, Millner and Ryles; the period preceding the August 9, 1994, runoff election as to Complainants Millner and Overby; and the sixty days preceding the November 8, 1994, general election as to Complainants Miller, Millner, Overby, Oxendine and Ryles. The parties are hereby ORDERED to follow the procedures and timetable for discovery, post-discovery, and election of a complaint resolution procedure established herein. 33. We find that Complainants have failed to establish a prima facie case of an LUC violation by WSB-TV during the period before: the July 19, 1994, primary election with respect to Complainants Darden, Jones, Overby and Oxendine; the August 9, 1994, runoff election with respect to Complainant Ryles; and the November 8, 1994, general election with respect to Complainants Darden and Jones. Thus, their claims as to those elections against WSB-TV are DISMISSED in their entirety. Finally, we DISMISS Complainants claims with regard to public file violations as those allegations are not properly considered here. 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 (as noted for each election) by WSB-TV by delivering them to the offices of Barnes, Browning, Tanksley & Casurella, 166 Anderson Street, Suite 225, 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: a) the 1994 general election (for Miller, Millner, Overby, Oxendine and Ryles); b) the 1994 runoff election (for Millner and Overby); and 3) the 1994 primary election (for Miller, Millner and Ryles). 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: a) the 1994 general election (for Miller, Millner, Overby, Oxendine and Ryles); b) the 1994 runoff election (for Millner and Overby); and 3) the 1994 primary election (for Miller, Millner and Ryles). 3) Copies of invoices and contracts for, and program logs related to: all commercial time run on WSB- TV beginning on: a) September 9, 1994, and running through November 8, 1994, (the 60 days preceding the general election); b) July 19, 1994 and August 9, 1994 (the period preceding the runoff election); and c) June 4 and July 19, 1994 (the 45 days preceding the primary election). 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 WSB-TV 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 WSB-TV in 1994 which directly or indirectly related to WSB-TV's pricing policies during the 1994 primary, runoff and general election LUC periods. 5) All documents reflecting the existence, implementation, and results of any audit of rates charged to political advertisers performed by or on behalf of WSB-TV with respect to the 1994 general election, 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 Answers to the following interrogatories shall be provided to Complainants in accordance with the procedures set forth in this Order: 1) Describe how WSB-TV arrived at its LUC for: a) the 1994 general election period (for Miller, Millner, Overby, Oxendine and Ryles); b) the 1994 runoff election (for Millner and Overby); and 3) the 1994 primary election (for Miller, Millner and Ryles). 2) Detail any actions taken by WSB-TV 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 relevant periods preceding the 1994 general election. This should include the identities of all individuals taking or participating in such action, identifying their position at WSB-TV, and should identify all documents which refer to or formed a part of WSB-TV'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 periods. 4) Provide a statement that explains any codes used by WSB-TV 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, WSB-TV accorded any priorities against preemption to commercial advertisers who purchased time relevant to the 1994 primary, runoff and general election 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 WSB-TV to Complainants request for further discovery due: Day 20 WSB-TV'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 WSB-TV's request for discovery due: Day 27 Documents and answers to written interrogatories (if allowed by Bureau) pursuant to WSB-TV'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 WSB-TV's answer to amended complaint due: Day 105 Joint notice of election of complaint resolution procedure due: Day 116