WPCq: 2BVTZ 3|P)?xxxXVZXx6X@DQX@HP LaserJet 4/4M PostScript2HPLA4POS.WRSx  @ X@2*@ ZP@@3|PHP LaserJet 4/4M PostScript2HPLA4POS.WRSC\  P6Q P"5@^*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ*7777CE7SSxJxJxJxJxJooJfJfJfJfJ7.7.7.7.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxSxJxJoJoJoJfJfJfJxSxSxxSxSxSxSCS7S777SAxSf.fExSxSxSxo7oE]A]AN:*LS7JSSSSS.4}}S2S}277JJS77SS7J72t7[\\[^\d*C`^.wRSSn\Cfx`xWlRx\]\cdIfIs`Wx\rriwgd*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ7SJSS7]777JJ:S7A7xx*7SSSS!S7.S^7SC[227`L*724S}}}Jxxxxxxoffff7777xxxxxxx^xxxxxx]SJJJJJJoJJJJJ....SSSSSSS[SSSSSSS"5@^2CRdd$CCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CC!CCPRCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYYzYzYzYddddddPdCdCCCdNdz8zRdddCRoNoNNF2[dCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd2 \ v pG  X-   I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#Xj\  P6G;4XP#X01Í ÍxX01Í Ía1DocumentgDocument Style\+*)7  VKB I. ׃  ~9- a8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . 2 k kT  vd a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` 2dt    BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers :`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  2~  Ba3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers_o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# 2YrYa7Right 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 Technicala2paragraph/tab2` a5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   28a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . 2T"38keo!!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<CCoodCCddCoCddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYdTimes New Roman (TT)Times New Roman (Bold) (TT)Courier New (TT)Times New Roman (Italic) (TT)WP MultinationalA Roman (TT)"5@^dC2CCdECCCCCCCCodification of the Commission's Political Programming Policies, 7 FCC Rcd 67 8, 691 (1991),  X~-recon. denied, 7 FCC Rcd 4611 (1992) ("Codification Report").  XP- x6. We do not find that WMGT was bound or required to redefine its classes of preemptible time,  xadjust its rates, or provide rebates on that basis. Therefore, Complainants have not established  X"- xa prima facie case on this issue. It is true that the Commission had announced in a 1988 Public"",-(-(ZZ\"  X- xNotice.= Xy- xԍ #C\  P6QP#Public Notice, Licensees and Cable Operators Reminded of Lowest Unit Charge Obligations, 4 FCC Rcd 3823,  yOb-3824 (1988)(Public Notice").#C\  P6QP#. that all levels of immediately preemptible time should be treated as a single class of time.  X- xHowever, although the Public Notice was in effect at the time the Complainants purchased time,  xit did not represent binding law, but rather was a statement of general policy that could be  X- xchallenged in any subsequent proceeding in which it was applied. See generally, Williams  X- x|Natural Gas Co. v. FERC, 3 F.3d 1544, 155355 (D.C. Cir. 1993); see also Ann Richards,  X- x^Clayton Williams, Jim Mattox, et al. (KMBT(TV)), 9 FCC Rcd 6051, 6054 (MMB 1994).  xWMGT 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.  xL7. Moreover, in 1991, the Commission determined that it was reasonable for stations to define,  xas separate classes for LUC purposes, rates that afforded varying levels of assurance against  X - x0preemption. ) A= X- xԍ#Xw PE37OXP##C\  P6QP# Codification Report, 7 FCC Rcd at 691. The Commission, in revising the policy in 1991 to allow stations  xto establish separate classes of immediately preemptible time, stated that, "[t]he differences between classes, however,  yOV- xmay not be based solely upon price or the identity of the advertiser; rather, some other demonstrable benefit, such  yO- xas varying levels or assurance of preemption protection, scheduling flexibility, or special makegood benefits, must  xbe used to distinguish between different classes of immediately preemptible time." 7 FCC Rcd at 691 (emphasis  xLadded). In the present case, WMGT, in its Response, states that "[t]he class difference [between its levels of  xpreemptible time] is based on the degree to which the advertisement is subject to preemptibility." Thus, WMGT's  x,rate distinctions for different levels of immediately preemptible rates would appear to be acceptable under the 1991  yO-policy.#Xx{2 PQOXP# In so doing, the Commission determined that its 1988 policy of treating all  ximmediately preemptible time as a single class "does not appear to effectuate what Congress  X - xenvisioned when it enacted  315(b)." Codification Report, 7 FCC Rcd at 691. Thus, it is clear  X - xnow that stations legitimately may establish separate classes of preemptible time. See  X - xKMBT(TV), supra at 6054. Accordingly, because we believe the statute allows separate classes  x[of preemptible time, the fact that WMGT's rate card established such classes does not provide  Xy- xa basis for a prima facie case.@ Ay = X- xԍ#C\  P6QP# Nor do we believe that is is inequitable to apply this policy to the Complainants. The 1988 Public  Notice  xistatement that all immediately preemptible time must be treated as a single class did not reflect any longstanding  xCommission policy, nor is there any basis to believe that the candidates here relied upon it in deciding to purchase  yO5-particular classes of time. #Xx6X@DQVIX@#@ 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.  XM-  X6-C. FIXED CLASS ALLEGATIONS  x8. Complainants allege that "[i]n many cases, WMGT charged candidates a special Section I  xFixed rate," but did not sell fixed time to commercial advertisers. Moreover, Complainants  xLassert that the station charged its favored commercial advertisers less than the fixed rate when  x?any chance of preemption was undesirable, and did not preempt those advertisers. The  xComplaint, however, does not substantiate this claim. Furthermore, WMGT, in its Response  xrefutes Complainants allegations, stating that "[c]ommerical advertisers have been sold fixed" ,-(-(ZZ"  xtime, generally for timesensitive events such as movie and theater promotions." Further, it is  xKclear that many of the candidates, including Complainants, purchased preemptible spots, so there  xis no basis to conclude, without actual factual support, that the candidates were "steered" to  X- xpurchasing fixed time.m A= X4- xiԍ#C\  P6QP# Indeed, the "WMGTTV Political Guide," supplied by the licensee with its Response provides the following  yO- xxadvice to candidates regarding fixed time: "Please note that, in most instances, the Section I 'Fixed rate will notĄ  xbe required in order to avoid higher rate preemption; conversely, the III immediately preemptible rate level is not  yO-recommended, if nopreemption is desired." (Emphasis in original).#Xx{2 PQOXP#m Complainants' bare allegations regarding the impropriety of WMGT's  X-use of fixed rates fail to establish a prima facie case with respect to this issue.  X-  Xx-D. FAILURE TO OFFER PACKAGES ALLEGATIONS  x9. The Complainants allege that "[n]one of Complainants' records indicate that they were offered  X3- x<package deals." No supporting documentation is furnished. Nor does the Complaint provide any  xjexplanation of what advertising packages it refers to or even that such packages were actually  xLavailable to commericial advertisers. Thus, Complainants' bare allegations regarding packages  X -fail to establish a prima facie case.  X -  X - II. DISCRIMINATION ALLEGATIONS  x10. Complainants allege that certain "rate variations" described in the Complaint demonstrate  xthat WMGT engaged in discrimination between candidates in violation of Section 73.1941(e) of  Xf- x.the Commission's Rules." )f= X-ԍ#C\  P6QP# Section 73.1941(e), 47 C.F.R.  1941(e) (formerly 47 C.F.R.  1940(c)), provides as follows:  yOI- Xx (e) Discrimination between candidates. In making time available to candidates for public  2office, no licensee shall make any discrimination between candidates in practices, regulations,  ^facilities, or services for or in connection with the service rendered pursuant to this part, or make  #or give any preference to any candidate for public office or subject any such candidate to any  prejudice or disadvantage; nor shall any licensee make any contract or other agreement which shall  have the effect of permitting any legally qualified candidate for public office to broadcast to the  yO-exclusion of other legally qualified candidates for the same public office.#Xx{2 PQOXP# " The Complaint does not specify exactly which of the Complainants  xjwere subjected to rate discrimination, but apparently relies on the chart appearing on page 7 of  xthe Complaint (as set forth below), which refers to "variations" in the rates charged three of the  X!-Complainants, Barnes, Howard, and Miller,g y!r = X - xԍ #C\  P6QP#The Complaint provides no instances of alleged rate discrimination with respect to any of the other  xComplainants. For the purposes of this discussion, we assume that the allegation of rate discrimination is being made by these three Complainants.g for apparently similar time periods: "c ,-(-(ZZ"Ԓ Y ddx !ddx Y  ~    Xx-Candidate  XJ-Barnes Howard Barnes Howard Barnes Howard Miller Howard Miller Howard Miller Howard+  Xx-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+  Xx-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 ~  Xx-Rate  Xa- 50.00 55.00 45.00 40.00 25.00 15.00 80.00 55.00 120.00 105.00 130.00 115.00 ~ x.11. WMGT responds that the cited disparities in rates charged resulted either from the sale of  xdifferent levels of preemptible spots (which we have determined could reasonably have been  xconsidered separate classes by the licensee), or from a specific request by a candidate for a  x."news adjacency." According to WMGT, certain of these candidates specifically requested a  x"news adjacency" rather than time within the adjacent entertainment program. WMGT contends  xthat the news adjacency request was thus a distinguishing factor which generally commanded a higher rate, in effect establishing a separate class of time.  x12. The discrimination allegations fail because the Complaint does not indicate the classes of  X- x.the spots at issue. As set forth in the WTVT(TV) case, "[t]he nondiscrimination provision of  xSection 73.1941(e) applies only to discrimination between candidates for spots purchased in the  X-same class and amount of time in the same time period." 7 FCC Rcd at 6665  x(emphasis in original). Because Complainants have not established that the spots they compare  XS - xare of the same class, we find that the cited instances of rate disparities fail to establish a prima  X>!-facie case of discrimination.  X#-x III. COMPARABLE USE OVERCHARGE ALLEGATIONS  x13. The Complaint alleges that "several" of the Complainants advertised outside of the LUC  xwindow, and that WMGT "consistently charged these candidates higher rates than comparable  xcommercial advertisers during this period," in violation of Section 315(b)(2) of the Act. That"& ,-(-(ZZb%"  xprovision governs charges for political advertising outside the fortyfive days preceding a primary  xand 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.  x14. Complainants did not offer any evidence, nor attempt to substantiate in any way, their  xallegation of comparable use overcharges. A bare allegation, without more, is insufficient to  Xv-establish a prima facie case of overcharges.  X_- x IV. CONCLUSION  X - x{ 15. ACCORDINGLY, we find that Complainants have failed to make a prima facie case of  xviolation of any obligation arising under Section 315(b) of the Act. Therefore, the Complaint  X -against Station WMGTTV is hereby DISMISSED , and the relief requested IS DENIED. x` `  hh@hSincerely, x` `  hh@hRoy J. Stewart. Chief x` `  hh@hMass Media Bureau