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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 ) ) Roy Barnes, Johnny Isakson, ) Zell Miller, et al. ) ) Against Station WMGT-TV ) Macon, Georgia ) ORDER Adopted: March 10, 1997 Released: March 11, 1997 By the Chief, Mass Media Bureau: 1. The Mass Media Bureau has before it a Complaint filed on behalf of Roy Barnes, Johnny Isakson, Zell Miller, Andrew Young, Pierre Howard, Warren Evans, Billy Lovett, Tim Ryles, and Mack Mattingly (hereinafter, collectively, "Complainants"). Complainants allege that Station WMGT- TV, Macon, Georgia, overcharged them during the periods preceding the August 12, 1986, primary election, the November 4, 1986, general election, the July 17, 1990, primary election, the August 7, 1990, runoff election, and the November 6, 1990, general election, in violation of the "lowest unit charge" (LUC) requirements of Section 315(b) of the Communications Act of 1934, as amended (the "Act"). The Bureau also has before it a Response to the Complaint filed on March 26, 1992, by Morris Network, Inc., the licensee of Station WMGT-TV (hereinafter, "WMGT"). 2. We have reviewed the information presented by Complainants pursuant to the guidelines set forth in Lowest Unit Charge Requirements, 6 FCC Rcd 7511 (1991), recon. denied, 7 FCC Rcd 4123 (1992) ("Declaratory Ruling"), and have concluded that discovery is not warranted. Complainants have failed to establish a prima facie case with respect to each of the alleged Section 315 violations. Specifically, as discussed below, we find that Complainants have not established a prima facie case that WMGT overcharged candidates during the LUC period. Additionally, we find that Complainants have not established a prima facie case that WMGT discriminated between candidates, or overcharged candidates during comparable use periods. I. LOWEST UNIT CHARGE A. GENERAL OVERCHARGE ALLEGATIONS 3. Complainants failed to make any specific allegations, and supplied no invoices to demonstrate, that the rates actually paid by Complainants Isakson, Young, Evans, Lovett, and Mattingly exceeded the LUC that these candidate should have been charged. Although Complainants did supply some specific information regarding the rates paid by Complainants Barnes, Miller, Howard, and Ryles, Complainants did not set forth what classes of time these candidates purchased, nor did they allege or provide any documentation, such as industry statistical data, to demonstrate that these candidates paid more than commercial advertisers for the same classes and periods of time. Thus, none of the Complainants provided sufficient information to establish a prima facie case of LUC violations. B. PREEMPTIBLE CLASS ALLEGATIONS 4. WMGT's rate card established three classes of time: fixed, intermediately-priced "suggested holding" preemptible, and lower-priced "immediately preemptible." Complainants contend that, at the time the candidates purchased time, WMGT-TV's rate card, and the charges made pursuant thereto, violated Section 315 by offering: (1) separate levels of preemptible time; and (2) candidate- only fixed time. With respect to preemptible time, Complainants contend that the LUC requirement obligated WMGT to treat all classes of preemptible time as a single class of time, and to provide to all candidates who purchased either class of preemptible time rebates on the basis of the lowest- priced preemptible spot that cleared. Specifically, Complainants contend that candidates purchasing the higher-priced "suggested holding" class should have received rebates to the lowest "immediately preemptible" level, but at the time of the complaint, had not. 5. WMGT responds by stating that the "suggested holding" and the "immediately preemptible" rates represented different classes of time, distinguishable by "the degree to which the advertisement is subject to preemptibility." After the filing of the Complaint in 1991, however, WMGT conducted an internal audit and adjusted "the lowest unit charge so that all preemptible time, regardless of whether it [was] 'suggested' or 'immediately preemptible,' [was] treated as one single class of preemptible," and the station ultimately provided rebates to all candidates based on the adjusted lowest preemptible rate. WMGT asserts that "it is ironic that [WMGT] must rebate advertising revenues based upon a rate and class structure which the Commission has determined is now permissible," citing in support of its position the Report and Order in Codification of the Commission's Political Programming Policies, 7 FCC Rcd 678, 691 (1991), recon. denied, 7 FCC Rcd 4611 (1992) ("Codification Report"). 6. We do not find that WMGT was bound or required to redefine its classes of preemptible time, adjust its rates, or provide rebates on that basis. Therefore, Complainants have not established a prima facie case on this issue. 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. However, although the Public Notice was in effect at the time the 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. (KMBT(TV)), 9 FCC Rcd 6051, 6054 (MMB 1994). WMGT has raised such a challenge here. Therefore, we shall not penalize WMGT simply for its failure to follow the 1988 policy at the time it was in effect. 7. 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), supraat 6054. Accordingly, because we believe the statute allows separate classes of preemptible time, the fact that WMGT's rate card established such classes does not provide a basis for a prima faciecase. Because the rebates were not required by the LUC requirement, it is also unnecessary to ascertain their validity, as argued in the Complainant's Supplement. C. FIXED CLASS ALLEGATIONS 8. Complainants allege that "[i]n many cases, WMGT charged candidates a special 'Section I Fixed' rate," but did not sell fixed time to commercial advertisers. Moreover, Complainants assert that the station charged its favored commercial advertisers less than the fixed rate when any chance of preemption was undesirable, and did not preempt those advertisers. The Complaint, however, does not substantiate this claim. Furthermore, WMGT, in its Response refutes Complainants' allegations, stating that "[c]ommerical advertisers have been sold fixed time, generally for time-sensitive events such as movie and theater promotions." Further, it is clear that many of the candidates, including Complainants, purchased preemptible spots, so there is no basis to conclude, without actual factual support, that the candidates were "steered" to purchasing fixed time. Complainants' bare allegations regarding the impropriety of WMGT's use of fixed rates fail to establish a prima faciecase with respect to this issue. D. FAILURE TO OFFER PACKAGES ALLEGATIONS 9. The Complainants allege that "[n]one of Complainants' records indicate that they were offered package deals." No supporting documentation is furnished. Nor does the Complaint provide any explanation of what advertising packages it refers to or even that such packages were actually available to commericial advertisers. Thus, Complainants' bare allegations regarding packages fail to establish a prima facie case. II. DISCRIMINATION ALLEGATIONS 10. Complainants allege that certain "rate variations" described in the Complaint demonstrate that WMGT engaged in discrimination between candidates in violation of Section 73.1941(e) of the Commission's Rules. The Complaint does not specify exactly which of the Complainants were subjected to rate discrimination, but apparently relies on the chart appearing on page 7 of the Complaint (as set forth below), which refers to "variations" in the rates charged three of the Complainants, Barnes, Howard, and Miller, for apparently similar time periods: Candidate Barnes Howard Barnes Howard Barnes Howard Miller Howard Miller Howard Miller Howard Date 7/10/90 7/10/90 7/11/90 7/11/90 7/11/90 7/11/90 7/14/90 7/14/90 7/16/90 7/16/90 7/24/90 7/26/90 Time 6:23 pm 6:28 pm 4:11 pm 4:15 pm 9:41 am 9:26 am 6:07 pm 6:28 pm 7:28 pm 7:13 pm 7:29 pm 7:59 pm Rate 50.00 55.00 45.00 40.00 25.00 15.00 80.00 55.00 120.00 105.00 130.00 115.00 11. WMGT responds that the cited disparities in rates charged resulted either from the sale of different levels of preemptible spots (which we have determined could reasonably have been considered separate classes by the licensee), or from a specific request by a candidate for a "news adjacency." According to WMGT, certain of these candidates specifically requested a "news adjacency" rather than time within the adjacent entertainment program. WMGT contends that the news adjacency request was thus a distinguishing factor which generally commanded a higher rate, in effect establishing a separate class of time. 12. The discrimination allegations fail because the Complaint does not indicate the classes of the spots at issue. As set forth in the WTVT(TV) case, "[t]he nondiscrimination provision of Section 73.1941(e) applies only to discrimination between candidates for spots purchased in the same classand amount of time in the same time period." 7 FCC Rcd at 6665 (emphasis in original). Because Complainants have not established that the spots they compare are of the same class, we find that the cited instances of rate disparities fail to establish a prima faciecase of discrimination. III. COMPARABLE USE OVERCHARGE ALLEGATIONS 13. The Complaint alleges that "several" of the Complainants advertised outside of the LUC window, and that WMGT "consistently charged these candidates higher rates than comparable commercial advertisers during this period," in violation of Section 315(b)(2) of the Act. That provision governs charges for political advertising outside the forty-five days preceding a primary and the sixty days preceding a general election. Specifically, the Act requires stations to charge a candidate no more than the rate charged other advertisers for a comparable use. 14. Complainants did not offer any evidence, nor attempt to substantiate in any way, their allegation of comparable use overcharges. A bare allegation, without more, is insufficient to establish a primafacie case of overcharges. IV. CONCLUSION 15. ACCORDINGLY, we find that Complainants have failed to make a prima facie case of violation of any obligation arising under Section 315(b) of the Act. Therefore, the Complaint against Station WMGT-TV is hereby DISMISSED, and the relief requested IS DENIED. Sincerely, Roy J. Stewart. Chief Mass Media Bureau