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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 ) ) HARVEY SLOANE) ) Against Station WTVQ-TV, ) Lexington, Kentucky ) MEMORANDUM OPINION AND ORDER Adopted: June 6, 1997 Released: June 17, 1997 By the Commission: 1. The Commission has before it an Application for Review filed on April 25, 1994 by Dr. Harvey Sloane ("Sloane" or "Complainant"). Complainant seeks review of an Order of the Chief, Mass Media Bureau, 9 FCC Rcd 1592 (released March 18, 1994) ("Order"), dismissing his complaint as untimely. Complainant had alleged that the then licensee had overcharged him for political advertisements purchased during the periods preceding the 1990 primary and general elections, in violation of the lowest unit charge ("LUC") provisions of Section 315(b) of the Communications Act of 1934, as amended, 47 U.S.C. Section 315(b). For the reasons which follow, we will deny Complainant's Application for Review. 2. Complainant maintains that the effect of the Bureau's Order is the creation of a statute of limitations for Section 315(b) complaints, contrary to the intent of Congress and contrary to the intent of the Commission. In this regard, Complainant observes that neither the statute nor the Commission's Lowest Unit Charge Requirements, 6 FCC Rcd 7511 (1991), recon. denied, 7 FCC Rcd 4123 (1992) ("Declaratory Ruling"), specifies a time by which a LUC complaint must be filed. Given the foregoing, Complainant contends that the Commission should use a local statute of limitations applicable to similar claims, such as breach of contract, in determining the timeliness of a LUC complaint. In any event, Complainant insists that any limitation period should be tolled since the licensee never allowed Complainant to view records of charges to commercial advertisers in order to determine whether he was, in fact, charged the lowest unit rate. 3. Complainant also notes that the station was put on notice of a possible LUC claim as early as the spring of 1991, and, for that reason, believes the former licensee should have retained records of the charges made to commercial advertisers. Complainant contends that, if the licensee destroyed records after being put on notice of a possible claim, it would subject itself to civil charges of fraud. 4. Complainant also submits that, in view of the amount of time which elapsed between the filing of the complaint and the Bureau's Order, it was unfair of the Bureau to find his complaint untimely. Complainant further maintains that dismissal of his complaint means that he has no remedy. Complainant concludes that the effect of the Bureau's Order is that the Commission has chosen not to preempt with respect to his complaint, thereby allowing him to seek relief in court contrary to the purpose of the Declaratory Ruling. 5. In opposition, Shamrock submits that the Commission is not obligated to employ a local statute of limitations because the application of such a statute would not comport with the federal policies underlying Section 315(b) of the Communications Act. In this regard, Shamrock points to the two year retention period for political records. In addition, Shamrock disputes that any limitation period should be tolled. Shamrock denies that it has committed any fraud upon Complainant and notes that it was under no obligation to provide Complainant with documents containing highly sensitive competitive and proprietary information regarding its advertising rates. Finally, Shamrock contends that it no longer has complete records concerning this complaint and that, in any event, whether it still possesses certain records relating to commercial time sold during the periods preceding the 1990 elections is irrelevant to whether the complaint is timely. Discussion 6. Complainant does not dispute the core facts upon which the Order relies. Specifically, prior to the instant complaint, which was filed on February 4, 1993, Complainant contacted the station once by letter dated March 28, 1991, regarding possible overcharges during the 1990 primary and general elections. Thereafter, Shamrock conducted a review of its records, determined that its own policies concerning political rates had been violated, and rebated to Complainant the sum of $450. Six months after sending the rebate check, Shamrock and the current licensee of the station submitted an application to assign the station's license. The Commission gave public notice of the grant of the application on December 18, 1991. The parties consummated the assignment on January 29, 1992. During the pendency of the assignment application and prior to its consummation, Complainant neither lodged an objection to the proposed assignment nor communicated in any way with Shamrock. Further, once the assignment was consummated, Complainant never alerted the new licensee that records in the station's political file should be retained beyond the time required by the Commission's Rules or that commercial records relating to Shamrock's activities should be retained. Thus, by the time Complainant filed the instant complaint, Shamrock was no longer the licensee of the station and had not been so for a year; it no longer possessed any records concerning political or commercial time sold in 1990, except for those records summarizing the results of the review it undertook in response to Complainant's March 28, 1991, letter. Given these circumstances, the Bureau's Order concluded that the complaint was untimely and should be dismissed. 7. We find no basis to set aside the Bureau's ruling. In the Declaratory Ruling, we did not establish a hard and fast rule, but advised complainants that their LUC complaints should be filed in a timely manner. Declaratory Ruling, 6 FCC Rcd at 7521 n. 46. In assessing timeliness we focus on whether the benefits of entertaining the complaint and allowing discovery are likely to advance the public interest and allow the Commission "to remedy violations before a pattern of abuse develops." Id., quoting National Citizens Committee for Broadcasting v. FCC, 567 F.2d 1095, 1116, cert. denied, 436 U.S. 926 (1978). Thus, under our current policy, our determination as to whether a LUC complaint is timely will depend upon the facts of each case. 8. We conclude that the public interest will not be advanced by further consideration of the instant complaint. We find no equities favoring the Complainant in this case. Complainant had ample time in which to submit a complaint prior to the station's sale or otherwise notify Shamrock that its LUC practices or the adequacy of its LUC rebate would be challenged, thereby allowing Shamrock to retain necessary records and maintain contact with appropriate personnel. By failing to follow either course, Complainant has no basis for faulting either Shamrock or the Bureau's disposition of the complaint. By waiting to initiate action until long after the sale of Shamrock's station, Complainant has forfeited his opportunity to conduct discovery. 9. Finally, we reject Complainant's argument that we should measure the timeliness of a complaint by judging it against any state statute of limitations. In deciding to exercise exclusive jurisdiction over all questions arising under Section 315(b) of the Communications Act, we sought to ensure uniform enforcement of the statute. Because the claims at issue stem exclusively from provisions of federal law, we believe that their enforcement should be governed by a single federal policy rather than by a multiplicity of state laws. ORDERING CLAUSE 10. ACCORDINGLY, in light of the foregoing, Complainant's Application for Review is hereby DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary