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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#Xj\  P6G;W XP#X01Í ÍxX01Í Ía8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . 2L k[ k 1 v a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` 2t~   /BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  2   i(a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# 2"a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p Tech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala1DocumentgDocument Style Style\s0  zN8F I. ׃  20Ta5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   2bPa4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . 2$"3;e?!!Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:d<d<BBYYdBBddBYBdYzzzzBBBBqodYYYYYYYYYYY8888dddddddnddddddd"5@^2Boddȧ8BBdr2B28ddddddddddBBrrrdzNdzoȐB8BtdBdoYoYBdo8Bo8odooYNBodddYO,Oh2BB!BBPRBdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNBNodo8RoodȐYYoNoNNF2ldBddddddddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd"5@^%-77\V%%7>%7777777777>>>1eOIIOC=OO%+OCbOO=OI=COOhOOC%%47%17171%777V7777%+77O77155<%%%%,-%77O1O1O1O1O1bII1C1C1C1C1%%%%O7O7O7O7O7O7O7O7O7O7O1O7O7O7O7O7=7O7O1O1I1I1I1C1C1C1O7O7OO7O7O7O7,7%7%%%7+O7CC-O7O7O7bOI%I-=+=+N&27%177777"SS7!TT7S!%%117n%%77ln%1n%!t%<<<<>l[O6Wls[77TTTH_%7777777777>>>1eOIIOC=OO%+OCbOO=OI=COOhOOC%%47%17171%777V7777%+77O77155%T7,OOOOOO=7111111I111117777777<7777777"5@^(1<N;WBCBGI5I5SE\>WB_R\RLVJI]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]](1< -ease of reference, we will refer to the station herein as WCIXTV.#&J\  P6Q/&P#?R) Miami, FloridaR) T  S% -  MEMORANDUM OPINION AND ORDER TP  S-X` hp x (#%'0*,.8135@8:rate structure, in effect during the 1990 primary period, violated Section 315(b) of the Act because it  x.failed to disclose the availability of intermediate rates. Complainants acknowledge that the Commission  x\did not articulate broadcasters' affirmative duty to disclose all rates until after Florida's 1990 primary  SZ- xelection.Zh X-ԍ #C\  P6QgP#Political Programming Audit , 68 RR 2d 113 (MMB 1990) ("1990 Audit Report").#&J\  P6Q/&P# However, Complainants contend that if, as the Bureau has previously stated, disclosure  xobligations are implicitly required by Section 315(b) of the Act, then Station WCIX's failure to disclose  S -must constitute a prima facie case of an LUC violation.  S-  x9. CBS contends that it would be "manifestly unfair" to penalize licensees for failing to comply  xwith disclosure requirements which were not articulated at the time of the 1990 primary. Moreover, CBS  xstates that the Bureau's ruling in this case is consistent with its handling of the 1990 audit in which the  x.Bureau declined to sanction stations found to have offered a twotiered rate structure without disclosing  x-intermediate rates. In support of its position, CBS cites to Letter from Roy J. Stewart, Chief, Mass Media  xBureau to CBS, Inc., Licensee of Television Station WCAUTV, DA 911551 (December 12, 1991)  S- x("WCAUTV Letter") (inappropriate to impose a sanction for failure to disclose since Commission had not yet articulated affirmative duty to disclose).  SR-  x 10. The Commission has concluded that disclosure is "implicit in the obligations placed on  S*- xbroadcasters by the lowest unit charge requirements." Chronicle Publishing Company (KRONTV), 6  S- xFCC Rcd 7497, 7500 (1991). See also Outlet Communications (WXIN(TV)), 7 FCC Rcd 632, 634 n.9  S- x(1992) ("WXIN"). Nonetheless, we believe that it would be unfair to hold licensees responsible for the  S- x/failure to affirmatively disclose rates before we specifically articulated the requirement to do so. See  S- xWXIN, 7 FCC Rcd at 634 n.9; KRONTV, 6 FCC Rcd at 7500. Moreover, in this case, there is no  x evidence that Complainants were confused or misled by Station WCIX's rate card or that the station impermissibly steered Complainants toward the purchase of higher rates.  S -  x 11. In its discussion of WCIX's disclosure of intermediate rates, the Bureau noted that, "it appears  S!- x<that . . . Complainants purchased intermediate priced preemptible spots." WCIXTV, 8 FCC Rcd at 4020.  xzAs both Complainants and CBS point out, the Bureau's conclusion in this regard was erroneous. The  xjdifferent rates identified by the Bureau did not represent different types of preemptible rates but, rather,"r#,-(-(ZZ$"  S- x0reflected the sale of time on a weekly rotation versus a weekendonly basis.h Xh- xԍ#C\  P6QgP# Complainants argue that the Bureau's analysis regarding the sale of weekend spots highlighted instances of  xrate discrimination. However, as CBS correctly states, the issue of rate discrimination was not raised in the  xcomplaint, or otherwise before the Bureau, and consequently, it may not be raised on review. 47 C.F.R.  1.115(c).  xMoreover, as Complainants themselves note, the spots at issue were of different classes of time (weekend only  yO- xversus weekly rotations) for which different rates may be charged. Codification of the Commission's Political  yOq-Programming Policies, 7 FCC Rcd 678, 693 (1991), recon. denied, 7 FCC Rcd 4611, 4619 (1992).#&J\  P6Q/&P#ъ The Bureau's error,  xhowever, is without significance. The Bureau's decision did not turn on whether or not Complainants  xactually purchased spots sold at intermediate rates. Rather, the Bureau's decision was correctly based on  xthe fact that Complainants neither alleged, nor provided, affidavits attesting to the fact that they requested  xrate information and that Station WCIX declined to convey such information, or that Complainants sought  xyto purchase various levels of preemptible time and their requests were denied. Absent such evidence, we  xdo not find that Station WCIX's rate structure and its failure to affirmatively disclose intermediate rates  S-on its rate card, constituted a prima facie case of an LUC violation.  S-  mx 12. Our finding herein is distinguishable from the Bureau's decision in Conway Collis, Marian  Sp- xjBergeson, Dianne Feinstein, et al. (KCBSTV), DA 97513,  10, nn.10 and 12, released March 11, 1997  SH - x("KCBSTV"). KCBSTV, Los Angeles, CA, is also a CBS owned and operated station which apparently  xutilized similar sales practices during the 1990 primary period as those used by Station WCIXTV.  xKCBSTV's rate card also listed a single, low preemptible rate and a higherpriced candidateonly non xpreemptible rate. However, in that case, the record showed that KCBSTV actually refused to sell  S - xcandidates intermediate preemptible rates. Thus, the Commission concluded in KCBSTV that, under  S - x/those circumstances, a prima facie case of violation existed. The instant case more closely resembles  SX- xWCAUTV Letter, supra, involving another CBS owned and operated station which had a similar rate  xstructure during the 1990 primary. In that case, the Bureau determined that the imposition of sanctions  xwas unwarranted because no evidence was presented that WCAUTV refused to sell candidates intermediatelypriced preemptible time.  S-  x 13. CandidateOnly Fixed Rate. The Bureau held that our 1988 Public Noticeah XA- xԍ #C\  P6QgP#Licensees and Cable Operators Reminded of Lowest Unit Charge Obligations, 4 FCC Rcd 3823 (1988) ("1988  yO*-Public Notice").#&J\  P6Q/&P# "recognized, and  xreasonably may have been interpreted as implicitly approving," the sale of a higherpriced candidate only  S@- xtime. WCIXTV, 8 FCC Rcd at 4020. Thus, the Bureau concluded that Station WCIX's offer of such  S- xtime did not constitute a prima facie case of LUC violation. Complainants do not now dispute this ruling.  xHowever, they contend that the candidate fixed rate is "as much as 375%" of the station's lowest unit rate  S- x>and that such "outrageous pricing practices" constitute a prima facie case of LUC violation. As CBS  x.correctly points out, this allegation was not raised below and, pursuant to 47 C.F.R.  1.115(c) may not be the subject of review.  S(-  x 14. Product Competition. Complainants argue that the Bureau erred in dismissing their claim that  x\Station WCIXTV violated Section 315(b) of the Act by failing to separate candidate spots. Product  xseparation is part of Station WCIXTV's standard contract for all advertisers and, Complainants contend,  x>the Bureau's conclusion that separation guarantees should not be considered relevant for purposes of  xzSection 315(b) of the Act "flies in the face of the 'most favored advertiser' standard." Application for  xReview at 14. Moreover, Complainants assert, that there is no basis for the Bureau's conclusion that in"`,-(-(ZZ"  xpolitical campaigns there is no value in "product protection." Finally, Complainants attack the Bureau's  xstatement in footnote 28 that "even if spotseparation guarantees were relevant for Section 315 purposes,"  xthere is no basis for relief in this case because Station WCIXTV issued refunds to the particular  S- x.candidates who were identified as not receiving notice of backtoback political placements. WCIXTV,  x8 FCC Rcd at 4023, n.28. Complainants contend that the Bureau's statement is contrary to long standing  xCommission policy that postelection restitution to candidates does not excuse overcharges. Complainants  xjfurther assert that allowing postelection rebates to excuse violations sets a "dangerous precedent" which  S- xwill make it impossible to establish a prima facie case of an LUC violation where rebates have been made.  Sp-  x15. CBS argues that commercial separation policies are neither "significantly related to rates nor  xcommonly used to distinguish between different classes of time." Opposition at 14. Thus, it asserts, that  xspot separations are properly not considered within the scope of Section 315(b) of the Act. Moreover,  xCBS agrees with the Bureau's conclusion that it could be difficult for broadcasters to guarantee political spot separation while maintaining compliance with equal opportunities and reasonable access requirements.  S -  x16. We uphold the Bureau's finding in this regard. Section 315(b) of the Act concerns rates and  xraterelated sales practices. As the Bureau correctly noted, as a general matter, spot separation guarantees  x!are unlike make good and preemption policies in that they do not significantly affect the value of  xparticular classes of time. Further, there is no evidence in the record to support Complainants' contention  xthat in political campaigns there is any value in product protection. Although Complainants challenge the  x[Bureau's conclusions in this regard, they do not provide any evidence supporting their claim. Moreover,  xwe agree with the Bureau that if spot separation were required for political time it could jeopardize  x/Section 315(b) equal opportunities and Section 312(a)(7) reasonable access requirements. Candidate  xdemand for specific programs or dayparts is often extremely high, particularly near the conclusion of a  x!campaign, and it would be difficult, if not impossible, for broadcasters to guarantee separation of  x1candidate spots while maintaining compliance with equal opportunities and reasonable access  xrequirements. Finally, contrary to Complainants' assertions, we do not read footnote 28 to suggest that  S- xpostelection rebates excuse violations. h X- xԍ #C\  P6QgP#We note that while the issuance of rebates does not excuse a violation, the mere issuance of rebates is not,  yO- xZin and of itself, sufficient to establish a prima facie case of an LUC violation. See Lawton Chiles, Bob Martinez,  yO- x-Bill Nelson and Jim Smith, 10 FCC Rcd 940, 942 (MMB, 1995). Were the mere issuance of rebates to be prima  yO- xyfacie evidence of a violation, stations would be discouraged from conducting audits and issuing rebates unless a  yOI-complaint has been filed. Id.#&J\  P6Q/&P# Rather, that footnote merely points out that the candidates in  xquestion have already received refunds. In any event, WCIX's decision to issue rebates for these spots  SP- xis irrelevant to our determination as to whether Complainants have established a prima facie case of an  xLUC violation because, as explained above, we have concluded that spot separation guarantees should not be considered as within the scope of the raterelated matters encompassed by Section 315(b) of the Act.  S-  x17. Accordingly, for the reasons set out above, Complainants' Application for Review is DENIED. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION "  ,-(-(ZZV""Ԍx` `  hh@William F. Caton x` `  hh@Acting Secretary