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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 ) ) LAWTON CHILES, BOB MARTINEZ, ) BILL NELSON, and JIM SMITH ) ) Against Station WCTV(TV) ) Thomasville, Georgia ) MEMORANDUM OPINION AND ORDER Adopted: May 22, 1997 Released: June 5, 1997 By the Commission: 1. The Commission has before it an Application for Review filed January 24, 1995, by Lawton Chiles, Bob Martinez, Bill Nelson, and Jim Smith, and their respective campaign committees ("Complainants") of an Order by the Chief, Mass Media Bureau, dismissing their complaint against Station WCTV(TV), Thomasville, Georgia. Lawton Chiles, Bob Martinez, Bill Nelson, and Jim Smith, 10 FCC Rcd 1 (MMB 1994). Also before the Commission is an Opposition to Application for Review filed on February 8, 1995, by John H. Phipps, Inc., and Complainants' reply thereto filed on February 17, 1995. Complainants alleged that WCTV overcharged them during the September 4, 1990, primary and the November 6, 1990, general election campaigns in violation of the lowest unit charge ("LUC") requirements of Section 315(b) of the Communications Act of 1934, as amended. 2. In its Order, the Bureau concluded, inter alia, that none of the Complainants had established a prima facie case of LUC violations by WCTV during the 1990 primary or general election periods. Complainants assert that the Bureau erred in reaching that conclusion. For the following reasons, we will deny Complainants' Application for Review. 3. Complainants initially argue that the Bureau unfairly held them to a new standard for establishing a prima facie case that was not in effect when they filed their underlying complaint. Their complaint against WCTV was filed on May 28, 1992. Approximately four months later, the Bureau released Lawton Chiles, Bob Martinez, and Bill Nelson (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"). Complainants contend that WTVT created a new standard for establishing a prima facie case of overcharges by requiring complainants relying on generally available average market rates to provide a precise description of the specific data used in reaching their findings of overcharges. Complainants assert that the Bureau erred by applying the WTVT reasoning to them ex post facto. In Opposition, WCTV claims that the requirement of furnishing specific information to support LUC violations did not originate with WTVT, but rather, was expressed in December 1991 in the our Declaratory Ruling on Exclusive Jurisdiction With Respect to Potential Violations of the Lowest Unit Charge Requirements, 6 FCC Rcd 7511 (1991), recon. denied, 7 FCC Rcd 4123 (1992) ("Declaratory Ruling"). 4. We believe that the Bureau properly applied the correct standard of proof to Complainants in this matter. The Commission has routinely required complainants to provide specific information to establish a prima facie case of overcharges. Indeed, in our Declaratory Ruling, released six months before the subject complaint was filed, we stated that a complainant may not rest on bare allegations of LUC violations. Rather, we emphasized that a complainant must describe with particularity the factual basis for the belief that a specific station has committed an LUC violation. By way of example, we indicated that a complainant could make a prima facie case by relying on generally-available industry or statistical data on average rates to support the belief that the rate paid by a candidate was higher than the average rate charged by the station for the same class of time. Declaratory Ruling, 6 FCC Rcd at 7521, n. 47. The Declaratory Ruling also stated, however, that a complainant would be required to describe the factual basis for its belief that a specific station had committed a violation. Id. In other words, while generally available industry data could be used to help establish a prima facie case of overcharges, such data would still have to be connected to the specific station involved. 5. Complainants relied on "SCOOP"-based rates to establish a prima facie case of overcharges. SCOOP, the acronym for Spot Cost Outlook and Projections, a product of Media Market Guide, is a compilation of generally available statistical data on average rates charged by television stations in a particular television market. As the Bureau pointed out in its Order below, Complainants only furnished SCOOP statistics for candidates Chiles and Nelson and failed to describe with any particularity their methodology in arriving at any of the rates they argued established LUC violations for those two candidates. Because in WTVT the Commission articulated with greater specificity what is expected to support showings related to generally available average market rate showings, we have allowed supplemental pleadings containing such specific information from complainants whose complaints were filed prior to WTVT. These same Complainants supplemented their complaint against Florida television station WFTV with precisely the kind of information the Bureau noted was absent from the complaint in its Order below. There thus is no question that the Complainants here were then aware that such supplemental pleadings were called for and would be accepted. Therefore, Complainants' failure to supplement their complaint to provide the information referenced in WTVT cannot be attributed to either lack of notice or opportunity to supply the necessary information. Thus, their ex post facto arguments are without merit. 6. Complainants next argue that the Bureau failed to draw all inferences in their favor as required by the Declaratory Ruling. However, Complainants failed to state precisely which inferences the Bureau should have drawn in their favor and how the failure to draw such inferences affected the Bureau's ultimate determination. 7. Complainants next challenge the Bureau's failure to find a prima facie case in connection with WCTV's rate structure, which during the 1990 election periods provided for multiple classes of immediately preemptible time. Complainants contend that a 1988 Public Notice prohibited multiple classes of immediately preemptible time. It is true that the Commission had announced in a 1988 Public Notice that all levels of immediately preemptible time should be treated as a single class of time for LUC political sales purposes. We agree with the Bureau, however, that although the Public Notice was in effect when Complainants purchased time, it did not represent binding law, but rather was a statement of general policy that could be challenged in any subsequent proceeding in which it was applied. See generally, Williams Natural Gas Co. v. FERC, 3 F.3d 1544, 1553-55 (D.C. Cir. 1993); see also, Ann Richards, Clayton Williams, Jim Mattox, et al., 9 FCC Rcd 6051, 6054 (MMB 1994) ("KMBT(TV)"). Therefore, we shall not penalize WCTV simply for its apparent failure to follow the 1988 policy at the time it was in effect. See Roy Barnes, Johnny Isakson, Zell Miller, et al., DA 97-512, released March 11, 1997. 8. Moreover, in 1991, the Commission determined that it was reasonable for stations to define, as separate classes for LUC purposes, rates that afforded varying levels of assurance against preemption. In so doing, the Commission determined that its 1988 policy of treating all immediately preemptible time as a single class "does not appear to effectuate what Congress envisioned when it enacted  315(b)." Codification Report, 7 FCC Rcd at 691. Thus, it is clear now that stations legitimately may establish separate classes of preemptible time. See KMBT(TV), 9 FCC Rcd at 6054. Accordingly, because we believe the statute allows separate classes of preemptible time, WCTV's sale of such classes at different rates does not provide a basis for a prima facie case. In light of the foregoing, we agree with the Bureau that WCTV's practices regarding immediately preemptible time, in itself, does not establish a prima facie case of a LUC violation. 9. Complainants' next claim that WCTV's rate structure was invalid because it was not properly disclosed to political advertisers pursuant to the guidelines established in the Codification Order. Complainants' allegation in this regard is procedurally defective and lacking in merit. Section 1.115(c) of the Commission's Rules states that no application for review will be granted if it relies on questions of fact or law upon which the delegated authority has been afforded no opportunity to pass. In the instant case, Complainants have not previously raised the allegation that WCTV failed to properly disclose its rate structure to them. Consequently, we need not consider this claim which the Bureau had no opportunity to consider. However, even assuming, arguendo, that the claim had been raised earlier, it clearly lacks merit. The Codification Order was released in 1991, well after the elections in question, and the disclosure requirement had not been previously articulated. Similarly, the application for review argues for the first time that WCTV's varying levels of preemptible time were invalid because they were not distinct by virtue of actual degrees of preemption potential. Again, since this issue was not addressed below in the underlying complaint, Section 1.115(c) of the Rules precludes its consideration. We also note that even if this issue were properly before the Commission, we would find it lacking in merit. WCTV asserts that varying risks of preemption separate the classes and Complainants furnished no support for their allegation that the only distinguishing feature about WCTV's classes of immediate preemptible time was the rate charged to political candidates. 10. Accordingly, for the reasons stated above, the Application for Review filed by Complainants IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary