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`7X7jC:,Xj\  P6G;XP7nC:,%kXn4  pG;X2a=5,&a\  P6G;&P 2e=5,%Ep&e4  pG;&P:% ,0'J:\  P6G;JP<R&HHH,,H6X@`7h@y.X80,H;X\  P6G;P\0_=5,: &_*f9 xr G;&X!2J=.X+ &J\  P6Q&P ."2N=.XA7&N4  pQ&#P,%X+)J,\  P6QJP$0J=.Xd&J*f9 xQ&Xl2K=.X &K9 xyQ&888dodddddndoooodo"5@^2CRdd$CCdq2C28dddddddddd88q2?^R<?xxx,?x6X@`7X@?xxx,x `7X7jC:,Xj\  P6G;XP7nC:,%kXn4  pG;X2a=5,&a\  P6G;&P 2e=5,%Ep&e4  pG;&P:% ,0'J:\  P6G;JP<R&HHH,,H6X@`7h@y.X80,H;X\  P6G;P \0_=5,: &_*f9 xr G;&X \{,W80,:W*f9 xr G;X1a=5,Q1&a9 xOG;&8wC;,mreferred to as "Complainants");ha O< xЍ#X\  P6G;H;P# Feinstein and Wilson were legally qualified candidates for nomination and election for Governor of the  xState of California for the 1990 primary and general elections. Van de Kamp was a legally qualified candidate for  xxGovernor for the 1990 California primary election. Bergeson and McCarthy were legally qualified candidates for  x nomination and election for Lieutenant Governor for the 1990 California primary and general elections. MilkeFlores  xand Seymour were legally qualified candidates for nomination for Lieutenant Governor for the 1990 California  xKprimary election. Lungren and Smith were legally qualified candidates for nomination and election for Attorney  xiGeneral of the State of California for the 1990 primary and general elections. Hayes, Garamendi and Fong were  xKlegally qualified candidates for nomination and election for Treasurer, Insurance Commissioner and the Board of Equalization, respectively, for the State of California for the 1990 primary and general elections.  an Opposition to Application for Review filed August 18, 1995, by  xFidelity Television, Inc. ("Fidelity or licensee"), licensee of Station KCALTV, Los Angeles, California;  xand a Reply to Opposition to Application for Review filed August 28, 1995, by Complainants.  S- xComplainants seeks review of an Order of the Chief, Mass Media Bureau, 10 FCC Rcd 7193 (released  S- xJune 30, 1995) ("Order"), dismissing Complainants' complaint against Fidelity. Complainants alleged that  x=Fidelity had systematically overcharged them during the 1990 primary and general elections, in violation  xof the lowest unit charge ("LUC") requirements of Section 315(b) of the Communications Act of 1934,  xas amended, 47 U.S.C.  315(b). Complainants also alleged that Fidelity had engaged in rate  xdiscrimination between candidates, in violation of Section 73.1941(e) of the Commission's Rules, 47  S- xC.F.R.  73.1941(e), and violated the comparable rate provision of 47 U.S.C.  315(b).   For the reasons  S-that follow, we deny Complainants' Application for Review.   S- x   2. The Order concluded that Complainants failed to make a prima facie case of violation of any"0*''99"  S- x]obligation arising under 47 U.S.C.  315(b) or 47 C.F.R.  73.1941(e). First, the Order found that  xComplainants' reliance on generallyavailable statistical data was flawed because Complainants did not  xluse the same category of statistical and rating data to determine what the LUCs should have been.  S- x-Specifically, the Order found that, in calculating LUCs, Complainants inappropriately mixed cost per point  xSpot Quotations and Data, Inc. ("SQAD") data for Adults 25 54, with station specific Arbitron data for  S8- xAdults 25 and over. Second, the Order concluded that Complainants failed to show that spots they  S- xpurchased were of the same class as those a commercial advertiser purchased. The Order, therefore,  S- xdismissed all claims which relied on a comparison of those spots. Third, the Order held that Complainants  x.failed to establish that rate discrimination violations between candidates occurred because Complainants  S- xdid not show what classes of spots they had purchased.c[ O < xiЍ#X\  P6G;H;P# The Order also determined that Complainants did not establish a prima facie case of violations of the  yO -comparable use requirements of 47 U.S.C.  315(b)(2). Complainants do not seek review of this aspect of the Order.c Finally, Fidelity was ordered to review fourteen  Sp- xyapparent overcharges and, if appropriate, provide rebates to the four affected Complainants.0p0[ O@ < xЍ#X\  P6G;H;P# By letter dated July 31, 1995, Fidelity advised that it had sent all fourteen rebates to the affected  xLComplainants. Although Complainants assert in their Reply that three of the rebate checks were sent to old  x-addresses, we have no further information on the matter, which indicates that the rebate checks ultimately were received by the affected Complainants. The Order  SH - xdetermined that, notwithstanding these apparent overcharges, Complainants had failed to make a prima  S" - xfacie case and were not entitled to discovery. The Order concluded that as to each of the Complainants  S - xwho were apparently overcharged, the total number of overcharges was insignificant and thus de minimus.  S -Order, 10 FCC Rcd at 7195 n. 11.  S - xL 3. Complainants argue that the Order contains numerous errors. We shall address each claim of error in turn.  S- A. Apparent Overcharges Should Have Established a  Prima Facie Case  x 4. After reviewing the licensee's answer, which listed each of the approximately 1100 spots purchased  xby Complainants during the relevant election periods identifying class, rotation and LUC for each spot,  So- xComplainants submitted a list of more than sixty alleged overcharges. However, the Order concluded that  xonly fourteen overcharges (involving only four of the twelve Complainants) had apparently occurred. The  S- xOrder found invalid Complainants' claims regarding the majority of the alleged overcharges on the basis  S- xthat the compared spots were of different rotations. In addition, the Order rejected Complainants'  xarguments about the impropriety of multiple levels of preemptible time. Finally, rather than allow limited  S- xdiscovery of Fidelity's commercial records, the Order required Fidelity to issue rebates to the affected Complainants with respect to the fourteen apparent overcharges.  S/- x 5. Complainants argue that the Order erred by concluding that fourteen apparent overcharges were  S- xkinsufficient to establish a prima facie case, and they contend that the Order is inconsistent with cases  xywhere the Commission imposed forfeitures for multiple overcharges following an audit of those stations'"(0*&&99"  S- x\commercial and political records.h[ Oh< xЍ#X\  P6G;H;P# Complainants cite KDFWTV, Inc., 6 FCC Rcd 7491 (1991) ("KFDWTV"); Chronicle Publishing  yO@- xyCompany, 6 FCC Rcd 7497 (1991) ("KRONTV"); and Outlet Communications, Inc., 7 FCC Rcd 632 (1991)  yO-("WXIN(TV)"). Complainants further contend that because review of KCALTV's  x.political records and those of one commercial advertiser disclosed fourteen overcharges, review of all the  xlicensee's commercial records undoubtedly would reveal additional overcharges. Finally, Complainants  S- xargue that the Order erred by concluding that Complainants had failed to establish a prima facie case of  xrate discrimination even though competing candidates (Complainants Feinstein and Wilson) purchased spots of the same class, rotation and period of time but paid different rates.  S- x 6. In Lowest Unit Charge Requirements, 6 FCC Rcd 7511 (1991), recon. denied, 7 FCC Rcd 4123  S- x(1992) ("Declaratory Ruling"),  we stated that, to invoke the Commission's enforcement procedures,  S- x=complainants had to establish a prima facie case. We did not define the parameters of a prima facie case  x/other than to require a "short, plain statement of the claim sufficient to show that the complainant is  SL - x=entitled to the relief requested." Declaratory Ruling, 6 FCC Rcd at 7513. We left it to the Bureau in the  S$ - xfirst instance to exercise its discretion to make such a finding after considering all the relevant facts. Id.  S - xOnce a prima facie case was made, a complainant would be entitled to discovery of all pertinent station  xrecords related to rates, terms and conditions for any advertising, commercial or political, broadcast during the relevant period.  x 7. It is apparent that violations occurred but the total number of overcharges (fourteen) is extremely  xsmall when compared with the total number of spots (approximately 1,100) purchased by Complainants.  xZThus, the issue presented is whether Complainants should be granted discovery on the facts presented here.  S-We agree with the Bureau that discovery was not warranted because the violations were de minimus.  x 8. The Commission's purpose in permitting discovery in this context is to provide the parties with  Sp- xyinformation as to the extent of LUC (and related) violations, if any. Our ultimate goal is to ensure timely  SH- xcompliance with the statute and our rules, not to punish licensees.5H[ O< xЍ#X\  P6G;H;P# We therefore are not persuaded by Complainants' argument that discovery is warranted merely because one instance of apparent overcharge discovered during an audit might justify the issuance of a forfeiture.5 Thus, we agree that discovery should  xbe authorized only where the Bureau has reason to believe that a significant number of overcharges may  S- xhave occurred.=`[ O< xЍ#X\  P6G;H;P# E.g., Lawton Chiles, Bob Martinez, Bill Nelson, and Jim Smith, 7 FCC Rcd 6661, 6663 (MMB),  yO-modified, 7 FCC Rcd 7199 (MMB), aff'd in pertinent part, 8 FCC Rcd 131 (1992). = In contrast, where the universe of overcharges is relatively small, has already been  xkidentified, and the probability of finding additional overcharges is remote, we conclude that discovery  xwould be contrary to the public interest as it would tend to result in unwarranted fishing expeditions into  S-a licensee's business records.j[ O"<ԍ#X\  P6G;H;P# Cf. Ann Richards, Clayton Williams, Jim Mattox, Tom Luce, et al., 9 FCC Rcd 6051, 6053 (MMB  yO#-1994) ("KBMT(TV)"), where the Bureau concluded that, as to candidate Mosbacher, the invoices provided did  {O$-not establish a prima facie case of overcharging on a significant number of instances. " 0*&&99"Ԍ S-ԙ B. Additional overcharges should have been found  S- x 9. Complainants also urge that the Order erred by finding only fourteen overcharges. Complainants  x>argue that Fidelity's submissions reveal additional overcharges because Fidelity should not have used  xdiffering rotations as a basis for charging different rates. According to Complainants, Fidelity's rotation  xdesignations are meaningless. Complainants cite, for example, rotations with substantial overlap having  xLdifferent LUCs, and they submit the LUCs should have been the same. Complainants thus contend that  S- xlthe Order improperly applied the requirement that distinctly different rotations must be based on  S- xmeaningful differences to the advertiser. Further, Complainants fault the Order for excusing Fidelity's  xMuse of multiple classes of preemptible time because, according to Complainants, the "record does not  xindicate that . . . disclosure obligations were satisfied," and because, in any event, "the record . . .  x[contain[s] many examples of overcharges within the preemptible class of time." Application for Review at p. 12.  x 10. We agree with the Bureau that only fourteen apparent overcharges were shown. Complainants'  xallegations of additional overcharges are unsupported because they are based on a comparison of spots for  xLdifferent rotations. In this regard, we disagree with Complainants that Fidelity's submissions reveal that  SX- xit improperly used rotations as a basis for charging different rates. As noted in the Order, Fidelity  x.explained why rotations that overlapped had different LUCs, namely, that "different rotations may also  xhave different values based on the particular programs that air on a given day, audience size and market  S- x[conditions."[ OH<ԍ#X\  P6G;H;P# Declaration of Janet Schoff, quoted in Order, 10 FCC Rcd at 7195 n. 9. Thus, for example, even though one might expect that spots bought for a Monday through  x=Thursday rotation would cost the same as those bought for a Tuesday through Friday rotation, it is also  xpossible that their values could differ significantly depending on the programs which aired on the days  x{that did not overlap. Likewise, while Complainants argued that, given the flexibility of scheduling  x/available to the licensee, a Tuesday through Friday rotation should cost less than a spot bought for a  xyparticular day in that rotation, the licensee's answer noted that a particular day within the rotation would  xKoccasionally cost less than the rotation when that particular day's programming was less popular than those  S- xprograms which ran on the other days of the week. h[ O< x,Ѝ#X\  P6G;H;P# See Declaration of Janet Schoff at pp. 45, attached to Fidelity's answer to the Complainants complaint.  xWe therefore reject Complainants' claims that a rebate for a Friday only spot run during the 10 p.m. to 11 p.m. news  xrequires a rebate to the Friday price for a Wednesday only spot run on the same program during the same week.  xComplainants submit nothing which suggests that the Wednesday LUC was the same as the Friday LUC. Likewise,  xwe find insufficient Complainants' allegation that the record shows Fidelity used multiple levels of fixed time. On  xLthe contrary, in the examples cited by Complainants, the differences in price were apparently attributable to differences in rotation.  We thus conclude that, unlike the rotations found  S- xsuspect in Lawton Chiles, Bob Martinez and Bill Nelson, 9 FCC Rcd 1593, 1595 (MMB 1994)  Sx-("WTVT(TV)"), hx[ O"< xЍ#X\  P6G;H;P# In WTVT(TV), the Commission rejected the licensee's explanations for price differences between  xrotations offered to commercial advertisers and overlapping rotations offered to candidates where there was no apparent benefit to candidates to justify their greater costs.  Fidelity's rotations were based on reasonable, objective criteria.Z 0x [ O< xЍ#X\  P6G;H;P# We also find unsupportable Complainants' argument that, because the rate for a 60 second spot was  xZnormally double the rate for a 30 second spot, a rebate on a 30 second spot requires a comparable rebate on a 60  xsecond spot. The LUC is calculated separately for each amount of time, and Complainants provide nothing to  yO-suggest that rebates on the referenced 60 second spots were warranted. See WTVT(TV), 9 FCC Rcd at 1594. Z "x 0*&&99"Ԍ S- xkԙ 11. We also reject Complainants' claim of error regarding the Order's treatment of multiple classes  S- xNof preemptible time. It is true that the Commission had announced in a 1988 Public Notice9 [ O8< x,Ѝ #C\  P6QH;P#Public Notice, Licensees and Cable Operators Reminded of Lowest Unit Charge Obligations, 4 FCC Rcd  yO-3823, 3824 (1988) (Public Notice").#C\  P6QH;P#9 that  S- xpreemptible time should be treated as a single class of time. However, although the Public Notice was  xyin effect when Complainants purchased time, it did not represent binding law, but rather was a statement  S`- x>of general policy that could be challenged in any subsequent proceeding in which it was applied. See  S8- xgenerally, Williams Natural Gas Co. v. FERC, 3 F.3d 1544, 155355 (D.C. Cir. 1993); see also,  S- xKMBT(TV), 9 FCC Rcd at 6054. Therefore, we shall not penalize Fidelity simply for its apparent failure  S- xto follow the 1988 policy at the time it was in effect. See Roy Barnes, Johnny Isakson, Zell Miller, et  S-al., DA 97512, released March 11, 1997.  x 12. Moreover, in 1991, the Commission determined that it was reasonable for stations to define, as  SH - x.separate classes for LUC purposes, rates that afforded varying levels of assurance against preemption. H ([ O< xwЍ#Xw PE37