******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 ) ) Conway Collis, Marian Bergeson, ) Diane Feinstein, Matthew Fong, ) Thomas Hayes, John Van De Kamp, ) Dan Lungren, Leo McCarthy, ) Joan Milke-Flores, John Seymour, ) Arlo Smith, and Pete Wilson ) ) Against CBS Inc., ) Licensee of Station KCBS-TV, ) Los Angeles, CA ) ORDER Adopted: March 10, 1997 Released: March 11, 1997 By: Chief, Mass Media Bureau: 1. The Mass Media Bureau has before it two Complaints against CBS Inc., licensee of Station KCBS-TV, Los Angeles, CA, alleging that the station overcharged various legally qualified candidates during the 1988 general and 1990 primary elections in violation of  315(b)(1)("lowest unit charge" (LUC)) and  315(b)(2) ("comparable use") of the Communications Act of 1934, as amended. In addition, it is alleged that KCBS-TV failed to disclose to candidates certain requisite information about its sales practices during the 1990 primary period. Finally, it is alleged that KCBS-TV failed to provide "reasonable access" in violation of  312(a)(7) of the Act during the 1988 general and 1990 primary election periods. Because the candidates in both complaints are represented by the same counsel, and since, in significant part, both complaints allege violations during the 1990 primary period, we have determined that consolidated consideration is appropriate. 2. The first complaint ("KCBS 1") was filed on behalf of Conway Collis, a candidate for California Insurance Commissioner during the forty-five day period preceding the June 5, 1990, California primary election. The second complaint ("KCBS 2") was filed on behalf of eleven legally qualified candidates for various elective offices with respect to alleged violations during the 1988 general election and the 1990 primary. The Bureau also has before it responses to its written and telephone inquiries regarding KCBS 1 and an Answer to KCBS 2 filed by CBS Inc. on September 23, 1992. In addition to its contention that the allegations are meritless, CBS Inc. argues that KCBS 2 is untimely and should be dismissed. 3. For the reasons set forth below, we find that KCBS 2 is timely. We also find that KCBS 1 Complainant Collis and KCBS 2 Complainants Bergeson, Feinstein, Hayes, Van De Kamp, Seymour, Smith, and Wilson have established a prima facie case of a violation by KCBS-TV of the LUC requirements of  315(b)(1) during the forty-five day period preceding the 1990 primary election. We also find that all Complainants have failed to establish a prima facie case of a violation of  315(b) in connection with disclosure, and that allegation is dismissed in its entirety. In addition, we find that all Complainants have failed to establish a prima facie case of a violation by KCBS-TV of the LUC requirements of  315(b)(1) during the sixty day period prior to the 1988 general election, and that allegation is dismissed in its entirety. We also find that all Complainants have failed to establish a prima facie case of any violations of the comparable use requirements of  315(b)(2) during either the 1988 or 1990 election periods, and, therefore, those allegations are dismissed in their entirety. Finally, we find that all Complainants have failed to establish a primafacie case of any violations of the reasonable access requirements of  312(a)(7) during either the 1988 or 1990 elections, and those allegations will be dismissed in their entirety. Following is a detailed discussion of the Bureau's specific findings with respect to the issues raised, and the timetable and procedures for discovery, post-discovery, and election of a procedure for resolving this complaint. Timeliness of Complainants' KCBS 2 Filing 4. CBS Inc. has not presented arguments which warrant dismissal of KCBS 2 as untimely. CBS Inc. argues that the KCBS 2 complaint should be dismissed because it was filed in August 1992, almost four years after the 1988 general election and more than two years after the 1990 primary election. The Bureau stated in WTVT, 7 FCC Rcd 6661, at n. 4, that "[o]ur rules do not prescribe or limit the time during which an LUC complaint must be filed," and, indeed, we have entertained LUC complaints filed more than two years after relevant election periods. See Ann Richards, Clayton Williams, et al, (KBMT), 9 FCC Rcd 6051 (MMB 1994)("KBMT"). We recognize that the passage of time and the possible loss of station personnel with direct knowledge of the relevant time periods may render more difficult the licensee's task of responding to LUC complaints. In this case, however, it does not appear that CBS Inc.'s ability to defend itself has been significantly affected. CBS Inc. does not, for example, assert that it no longer possesses the commercial or political documents necessary to resolve the complaint. Accordingly, in these circumstances, we will not dismiss the complaint as untimely. As discussed below, however, we conclude that complainants have not made a prima facie case with respect to any of the allegations pertaining to the 1988 election period and these complaints are thus dismissed. Prima Facie Analysis 5. This matter is properly before the Bureau pursuant to Declaratory Ruling, 6 FCC Rcd 7511 (1991), recon. denied, 7 FCC Rcd 4123 (1992). The Declaratory Ruling set forth specific procedural requirements governing  315(b) complaints. In order to invoke the Commission's enforcement procedures, complainants who allege a violation of  315(b) are required to make a prima facie showing of such violation. At a minimum, this showing must consist of a "short, plain statement of the claim sufficient to show that the complainant is entitled to the relief requested." Declaratory Ruling, 6 FCC Rcd at 7513,  22. A complainant must describe the specific factual basis for its belief that a station has committed a violation, rather than, for example, merely making a general allegation that a station has overcharged candidates. WTVT, 7 FCC Rcd 6661, 6662-6663 (MMB), modified, 7 FCC Rcd 7199 (MMB), rev. granted in part and denied in part, 8 FCC Rcd 131, 132 (1992). The licensee may submit an answer to the complaint within ten days. 6. If, upon review of the complaint and answer (if filed), the Bureau determines that the complainant has established a prima facie case, the Bureau will issue an order giving the parties the opportunity to select one of two dispute procedures for resolving the complaint: mediation or disposition by the Bureau, subject to review by the Commission. Declaratory Ruling, 6 FCC Rcd at 7513,  22. Under either procedure, the complainant is entitled to limited discovery, subject to specific conditions set forth in the Bureau's order. Declaratory Ruling, 6 FCC Rcd at 7513,  23. KCBS 1 A. Lowest Unit Charge Allegations 1. Refusal to Sell Candidates Preemptible Class During "Sold Out" Time Periods 7. KCBS 1 alleged that when Collis's media buyers attempted to order preemptible time for a number of dayparts during the period of May 21-June 4, 1990, KCBS-TV sales personnel told them that the time could be cleared for broadcast only at special, higher-priced, candidate-only, non- preemptible rates listed on the political rate card. Collis' media buyers then requested the demand- driven preemptible rates they believed were being made available to commercial advertisers during such dayparts. Station personnel apparently refused to provide any information about those rates and reiterated that it would sell to candidates only at the political non-preemptible rates. The complainant concluded that KCBS-TV's sales practices arbitrarily forced candidates to pay higher rates than a significant number of commercial advertisers, resulting in overcharges to candidates in violation of  315(b)(1). 8. CBS Inc. denied that KCBS-TV violated any obligations arising under  315(b)(1). With respect to KCBS-TV's two-tiered political rate structure, CBS Inc. stated that the preemptible rate listed on its political rate card represented the best estimate of what the lowest preemptible rate would be during the pre-election period. The non-preemptible rate represented the station's best estimate of the "going", "fair market" or "prevailing" commercial rate for preemptible time during the same period, with an added bonus of placement certainty for candidates. 9. CBS Inc. confirmed that KCBS-TV refused at all times to disclose information about, or to sell candidates any time at, the demand-driven preemptible rates routinely made available to commercial advertisers. CBS Inc. also confirmed that the non-preemptible class listed on the political rate card was offered only to candidates. The licensee denied, however, that candidates were "steered" toward purchasing non-preemptible time and pointed out that many candidates, including Collis, purchased preemptible time in various dayparts throughout the 1990 primary election period. CBS Inc. explained that where programs or dayparts were "sold-out," KCBS-TV would sell candidates only the non-preemptible class. CBS Inc. also acknowledged that during the "sold-out" programming, commercial advertisers were still permitted to purchase preemptible time if they were willing to buy at higher rates than those already charged for orders placed by other commercial advertisers. CBS Inc. concluded that KCBS-TV's sold-out policy complied with  315(b)(1), in that candidates were charged no more than the station's most favored commercial advertiser to gain access to a "sold-out" daypart, and that the candidate received an added protection against preemption. 10. CBS Inc.'s admission that KCBS-TV refused to sell candidates preemptible time, at the preemptible rates made available to commercial advertisers during so-called "sold-out" time periods, raises questions about KCBS-TV's compliance with  315(b)(1). This practice denied Collis the option of purchasing time within the preemptible class on a par with commercial advertisers, as contemplated by  315(b)(1). Thus, Collis has established a prima facie case of a violation of  315(b)(1) with respect to this allegation. It appears that by refusing to sell Collis time within the preemptible class during "sold out" programming, KCBS-TV forced him to buy non-preemptible time in order to be cleared for broadcast, thus precluding him from entitlement to rebates for lower- priced preemptible time cleared for the same dayparts. Similarly, because CBS Inc. states that it refused to sell at such preemptible rates to all candidates when programming was "sold-out", a primafacie case has been established for KCBS 2 Complainants Bergeson, Feinstein, Hayes, Van De Kamp, Seymour, Smith, and Wilson, each of whom purchased time from KCBS-TV during the period preceding the 1990 primary election. Based on this prima facie showing, we believe that further fact finding is warranted to determine whether the above-referenced KCBS 2 Complainants were denied preemptible rates, steered toward higher priced non-preemptible time, and thus overcharged, during "sold out" programming prior to the 1990 primary election. 2. Priority Against Preemption For Time-Sensitive Commercial Advertisers 11. In addition to the KCBS 1 allegation regarding "sold out" time periods, a further issue was raised by CBS Inc's response to a Bureau inquiry concerning KCBS 1. During the 1990 primary period, KCBS-TV apparently had a policy which involved giving a priority against preemption to commercial preemptible time purchasers with time-sensitive concerns such as a scheduled sale or promotional event. Specifically, the licensee stated that "While Mr. Jaeckel did state to Mr. Baker that the station might often choose to not preempt a sale advertiser, even for a higher paying advertiser, he did not mean to suggest that the station would never do so." KCBS 2 Complainants contend that this appears to be an admission by CBS Inc. that at least some favored commercial advertisers were accorded non-preemptible status when time sensitivity was a factor in the purchase of their preemptible time. Complainants argue that under the most favored commercial advertiser standard for LUC matters, KCBS-TV should have afforded political advertisers the same priority treatment. We agree. Complainants have established a prima facie case with respect to this allegation. Thus, Collis, and KCBS 2 Complainants Bergeson, Feinstein, Hayes, Van De Kamp, Seymour, Smith, and Wilson, all of whom purchased non-preemptible time in various dayparts prior to the 1990 primary election, have established a prima facie case with respect to whether they should have been offered non-preemptible status at preemptible rates. 12. The fact that at least some commercial advertisers with time-sensitive advertising campaigns had spots preempted during the 1990 primary period, as contended by CBS Inc., does not necessarily refute the allegation, particularly if any favored commercial advertisers were not preempted due to this factor. Resolution of this allegation is critical, since political purchasers of non-preemptible time and commercial advertisers of preemptible with priority against preemption time would, as a practical matter, be in the same class. Preemptible classes of time have associated risks of preemption, and it is that risk that characterizes the class. If a station consciously chooses to give a priority against preemption to certain favored advertisers, thus making their preemptible time the apparent functional equivalent of a more expensive non-preemptible class, a legitimate question of whether candidates purchasing non-preemptible time were treated on a par with favored commercial advertisers has been raised. B. Failure To Disclose Allegation 13. KCBS 1 also alleges that, prior to the 1990 primary election, KCBS-TV refused to disclose information regarding preemptible rates available to commercial advertisers. We recognize, however, that the Commission had not, prior to the Mass Media Bureau Report on Political Programming Audit, 68 RR2d 113 (MMB 1990) specifically articulated that duty. Accordingly, we will not find a prima facie case with respect to disclosure, and this aspect of the complaint is dismissed. KCBS 2 A. Lowest Unit Charge Allegations 1. Generally Available Statistical Rate Comparisons (SCOOP) 14. Complainants allege that, prior to the 1990 primary election, KCBS-TV violated the LUC requirements by charging candidates rates that exceeded "SCOOP"-based rates. SCOOP, the acronym for Spot Cost Outlook and Projections, a product of Media Market Guide, is a compilation of generally available statistical data on average rates charged by television stations. Complainants state that they multiplied the average SCOOP rate for a given daypart in the Los Angeles, CA market, as contained in the Media Market Guide, by the Arbitron ratings for KCBS-TV, as listed in Arbitron's Television Market Report. For the second quarter of 1990, Complainants multiplied the SCOOP rates in the second quarter Media Market Guide by the Arbitron ratings listed in the May 1990 Television Market Report. The demographic used in all of Complainants' calculations was households. They then compared the station-specific SCOOP-based rates with the rates actually charged to four of the Complainants, Bergeson, Feinstein, Van De Kamp, and Wilson, during the second quarter. 15. In its Answer to KCBS 2, CBS Inc. argues that SCOOP-based rate comparisons, such as those used by Complainants are inherently flawed because they do not take into consideration the class of time purchased by the candidate, but rather are merely "projections" of the average cost-per- point, irrespective of class. CBS Inc. claims that Complainants' own showing demonstrates that the SCOOP rates in every daypart analyzed are higher than KCBS-TV's corresponding preemptible rates, and only lower than KCBS-TV's non-preemptible rates. Thus, CBS Inc. contends that, since SCOOP is an average of all classes, it will always be lower than the non-preemptible rates. Accordingly, argues CBS Inc., Complainants have failed to make a prima facie case. 16. A complainant may make a prima facie case by using generally-available industry or statistical data on average rates to show that the rate paid by a candidate was higher than the average rate charged by the station. Declaratory Ruling, 6 FCC Rcd at 7521, n. 47. In this vein, we have has recognized SCOOP-based rates as a valid source of statistical information to support a primafacie case of overcharging. See e.g. Diane Feinstein, John Seymour, Thomas Hayes(KABC), 9 FCC Rcd 1586, 1587 (1994)("KABC"). Moreover, in WTVT, 8 FCC Rcd at 132, n. 13., the Commission determined that even when such generally available information does not take specific classes of time into consideration, it remains the best source of pertinent data for candidates unable to gain access to a station's commercial sales records in order to ascertain whether any overcharges have occurred. 17. With regard to comparisons with the full SCOOP rates, such comparisons show that, during the period preceding the 1990 primary, Bergeson paid more than the SCOOP rate to KCBS- TV for all of the sixteen spots purchased in the only two time periods listed on the invoices; Feinstein paid more than the SCOOP rate for KCBS-TV for twenty of the twenty-four spots purchased in seven of the nine listed time periods; and Van De Kamp paid more than the SCOOP rate for KCBS-TV for forty-five of the sixty spots purchased in six listed time periods. Accordingly, Complainants Bergeson, Feinstein, and Van De Kamp have made a prima facie case of a violation of the Commission's LUC requirement during the forty-five day period prior to the 1990 primary election in connection with Complainants' SCOOP-based allegations. The rates paid by them were higher than the SCOOP rates in a substantial number of instances. We also note that CBS Inc. failed to refute the validity of either the particular SCOOP rates or the Arbitron ratings relied upon by Complainants. Based on this prima facie showing, we believe that further fact finding is warranted to determine whether the above-referenced Complainants were overcharged by KCBS-TV during the 1990 primary election. Because no SCOOP based comparison, invoices or other information is provided in support of the SCOOP allegation for KCBS 2 Complainants Fong, Hayes, Lungren, McCarthy, Milke-Flores, Seymour, and Smith, they have failed to establish a primafacie case of an LUC violation based on SCOOP-based rates, and therefore, their claims against KCBS-TV, to the extent they allege violations based on a SCOOP analysis, will be dismissed. 2. Candidates Charged More Than The California Lottery In Several Dayparts 18. Complainants next allege that KCBS-TV violated the Commission's LUC requirements during the 1990 primary election period in connection with its sale of time to the California Lottery at rates lower than those paid by Van De Kamp and Wilson for comparable time periods. No specific showing is provided with respect to any other candidate. In light of our finding above, that a prima facie case of overcharging has been established for Van De Kamp and Wilson, it is unnecessary to resolve this claim. B. Comparable Use Allegations 19. Complainants allege that KCBS-TV violated the comparable use provision. That provision governs charges for political advertising by legally qualified candidates outside the forty- five days preceding a primary and the sixty days preceding a general election. Specifically, the comparable use provision requires stations to charge a candidate no more than the rate charged other advertisers for comparable time. 20. Complainants' sole basis for alleging violations of the comparable use requirements appears to be their belief that the rates charged candidates outside the LUC windows were "excessive." There is no supporting documentation, however, to demonstrate that rates paid by candidates outside the forty-five and sixty day windows were not comparable to commercial rates. A bare allegation, without support, is insufficient to establish a prima facie case. Accordingly, the Complainants' comparable use claims are dismissed in their entirety. C. Reasonable Access Allegations 21. Complainants allege that KCBS-TV'S sales policies during the 1988 general election and the 1990 primary, effectively denied reasonable access to federal candidates. In support, they furnish 1988 and 1990 political rate cards which list apparent limits on the number of spots available for purchase by candidates during certain dayparts, and a letter from the station to Target Enterprises, media buyers for Wilson, stating that the station is under no obligation to sell time to candidates outside the LUC window, but nonetheless offering to do so. Complainants provide no evidence that any federal candidate was, in fact, denied reasonable access based on the limits listed on the political rate cards. Moreover, despite the station's incorrect statement in its letter to Target that it was not obligated to sell to candidates prior to the LUC window, the same letter indicates that KCBS-TV would sell to candidates during that time period. Thus, Complainants have failed to establish a prima facie case of a violation of the reasonable access requirement, and therefore this claim is dismissed. Prima Facie Case Summary 22. The following summarizes our prima facie case findings as to the specific allegations. With respect to the 1988 elections, no prima facie cases were made on behalf of any complainant. In connection with the June 5, 1990 primary election, KCBS 1 complainant Collis and KCBS 2 complainants Bergeson, Feinstein, Hayes, Van De Kamp, Seymour, Smith, and Wilson made primafacie cases that during "sold-out" time periods they were denied any preemptible class of time, and were steered to a higher-priced non-preemptible class of time. KCBS 1 complainant Collis and KCBS 2 complainants Bergeson, Feinstein, Hayes, Van De Kamp, Seymour, Smith, and Wilson made prima facie cases that they were denied a priority against preemption at preemptible rates, which KCBS made available to commercial advertisers. KCBS 2 complainants Bergeson, Feinstein, and Van De Kamp made prima facie cases that they paid higher rates than the pertinent station- specific SCOOP rates for KCBS. No other prima facie cases were established. Timetable and Procedures for Discovery 23. In the Declaratory Ruling, the Commission determined that, once a prima facie showing has been made, the complainant will be entitled to limited discovery, subject to specific conditions established by the Bureau. See Declaratory Ruling at 7513-14, 7521, n. 49. See also, WTVT 7 FCC Rcd at 6665. Accordingly, we will allow Complainants Collis, Bergeson, Feinstein, Hayes, Van De Kamp, Seymour, Smith, and Wilson limited discovery on the issue of overcharges during the forty- five days preceding the June 5, 1990, primary. The documents set forth in Appendix A to this Order, and answers to the written interrogatories set forth in Appendix B to this Order, must be served upon counsel for the above-referenced Complainants (not the Commission) by CBS Inc. on or before the first day of the discovery period, which will be 30 days after the release date of this Order. See Appendix C. 24. Any request for further discovery by Complainants must contain a showing that such discovery is necessary to resolve the issue of overcharges. Any discovery request by CBS Inc. for production of documents, answers to written interrogatories, or for the taking of depositions must demonstrate that the information requested is necessary for CBS Inc. to respond to arguments or claims that could be made by Complainants in their amended complaint. We emphasize that any request for depositions must also demonstrate that depositions are necessary to resolution of the issue of overcharges and include a list of the proposed deponents. All discovery requests must be filed within the discovery period set forth in Appendix C. The Bureau will rule on all such requests as expeditiously as possible. 25. Documents produced by CBS Inc. that contain proprietary information may be redacted to delete the identities of commercial advertisers, including the name of the commercial advertiser, its address and telephone number, the name(s) of any person employed by the advertiser, and the name of any media company or agency representing the commercial advertisers and any persons employed by such media company or agency. Where any such information is redacted, CBS Inc. shall advise Complainants of the type of information deleted. Further redactions will be allowed only if the information redacted is proprietary and not relevant to resolution of the complaint. Should Complainants serve documents upon CBS Inc. they may redact proprietary information and so advise CBS Inc. of the type of information deleted. Any objections to redactions that are not resolved by the parties should be submitted to the Bureau in a written pleading for resolution, along with copies of the documents at issue with the disputed information intact. As with all discovery matters, the parties should make good faith attempts to resolve any discovery disputes before presenting such a dispute to the Bureau. 26. Any documents, answers to written interrogatories, or deposition transcripts, if any, produced during discovery, and the information revealed thereby, shall not be provided to any third party other than the Commission. Copies of all documents, answers to written interrogatories, and deposition transcripts produced shall be stamped with the statement: "This document is subject to a protective order entered by the Federal Communications Commission." It shall be the responsibility of the party producing the documents, answers to written interrogatories, or deposition transcripts to affix the stamp. 27. The parties must take reasonable measures to prevent unauthorized access to the documents, answers to written interrogatories, and deposition transcripts. Access must be limited to Complainants, the management of KCBS-TV, their attorneys and staffs, and expert witnesses. Either party may require the other to disclose in writing the names of staff and experts who have access to documents and written information. Each party must explain to all staff and experts that the documents, answers to written interrogatories, deposition transcripts, and their contents may not be disclosed to any entity other than the Commission. 28. None of the materials produced, nor the contents thereof, may be used for any purpose other than the prosecution of the instant complaint. Each individual who is provided access to these materials is hereby required to certify in writing that he or she has personally reviewed this Orderand understands the limitations imposed on the signing party. No copies of materials protected by this Order may be made except copies to be used by the persons identified in paragraph 25. Each party shall maintain a log recording the number of copies made of all proprietary material and the persons to whom the copies have been provided. Upon termination of this proceeding, including any appeals, petitions or settlement, all originals and reproductions of any protected materials, along with the log recording persons who received copies of such materials, shall be provided to the producing party. In addition, upon final termination of the proceeding, any notes or other work product derived in whole or in part from the protected materials of an opposing party shall be destroyed. 29. The parties may agree to additional reasonable measures to protect the confidentiality of information as the circumstances may warrant. Such agreement should be confirmed in writing and a copy provided to the Bureau. As noted in the Declaratory Ruling, any failure to abide by the terms of this protective order may result in the imposition of sanctions, including dismissal of the complaint or censure, suspension, or disbarment of the attorneys involved. See 47 C.F.R.  1.24. 30. Extensions of the discovery period (Appendix C) will be granted only where extraordinary circumstances exist and the parties agree to the extension, or both parties submit declarations that serious settlement discussions are ongoing. Any deadlines within the discovery period may be changed by mutual agreement, with notification to the Bureau, as long as all discovery is completed within the required time. Service of documents, discovery requests, and any pleading which requires a ruling by the Bureau is to occur by the dates set in Appendix C, unless modified by the Bureau or by mutual agreement of the parties. 31. Within 30 days after completion of discovery, Complainants must file an amended complaint, alleging specific facts based on the information discovered, stating the nature of the  315(b)(1) violation and the amounts said to be owed. After CBS Inc. has filed its answer, the parties shall file with the Bureau their election to have the complaint resolved either by the Bureau or by Alternative Dispute Resolution. 32. Settlement of lowest unit charge claims is strongly encouraged. Although the Commission retains its discretion to determine whether additional sanctions are warranted, the Commission is inclined to look with favor upon a settlement in making that determination. See Declaratory Ruling, at 7521, n. 52. 33. ACCORDINGLY, we find that a prima facie case of a violation of the Commission's lowest unit charge requirement has been established by Complainants Collis, Bergeson, Feinstein, Hayes, Van De Kamp, Seymour, Smith, and Wilson in connection with advertising aired on KCBS- TV on their behalf during the forty-five days preceding the June 5, 1990, primary. The parties are hereby ORDERED to follow the procedures and timetable for discovery, post-discovery, and election of a complaint resolution procedure established herein. 34. We find that Complainants Fong, Lungren, McCarthy, and Milke-Flores have failed to establish a prima facie case of a violation by KCBS-TV of the LUC requirement during the period before the June 5, 1990, primary. Thus, their claims as to the 1990 primary against CBS Inc. are DISMISSED in their entirety. We find that Complainants have failed to establish a prima facie case of any violations during the 1988 election periods, and Complainants claims as to the 1988 elections are DISMISSED in their entirety. We find that Complainants have failed to establish a prima faciecase with respect to allegations that KCBS-TV violated the comparable use requirements of  315(b)(2) during the 1988 or 1990 election periods. Thus, the Complainants' comparable use claims are DISMISSED in their entirety. Finally, we find that Complainants have failed to establish a prima facie case of a violation of  312(a)(7) during the 1988 or 1990 election periods, and thus these allegations are DISMISSED in their entirety. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau APPENDIX A DOCUMENTS TO BE PRODUCED TO COMPLAINANTS To the extent not already produced to Bureau and Complainants, certain documents shall be produced to Complainants Collis, Bergeson, Feinstein, Hayes, Van De Kamp, Seymour, Smith, and Wilson by CBS Inc. by delivering them to the offices of Barnes, Browning, Tanksley & Casurella, 166 Anderson Street, Suite 25, Marietta, Georgia 30060 in accordance with the procedures outlined in this Order. The documents to be produced are as follows: 1) All advertising contracts executed by or on behalf of candidates for public office in connection with the 1990 primary election. 2) All invoices, logs or other documents recording time, duration, or class of advertising time for each political advertisement ordered and/or aired on behalf of candidates for public office in connection with the 1990 primary election. 3) Copies of invoices and contracts for, and program logs related to: all commercial time run on KCBS-TV beginning on April 22, 1990 and running through June 5, 1990, (the 45 days preceding the primary election). This should include: a) All invoices, logs or other documents recording time, duration, or class of advertising time for each commercial spot aired, and, if not apparent from the preceding, documents reflecting all agency discounts provided by the station; b) All long term contracts that pertain to commercial spots, including make goods and bonus spots, that aired during this period; c) All addenda or memoranda relating to these invoices or contracts that alter or otherwise address the terms or provisions of any document subject to production pursuant to this document production order; d) All orders for commercial spots aired during this period, including confirmation orders or contracts; e) All orders for bonus spots, public service announcements, or any other type of free spots, for any of the commercial advertisers who purchased time that ran during this period; and f) All documents that describe the rate and other relevant terms (those that affect price or have a direct bearing on the characteristics, such as class of time, or any priorities against preemption, of each spot) of discount packages sold to commercial advertisers that included spots that aired during this period. 4. All documents used by KCBS-TV to explain to its sales personnel or other employees or agents dealing with political campaigns, or the agents of political campaigns, the application of the lowest unit charge provisions of Section 315(b) of the Communications Act. This should include any written policy statement(s) used by KCBS-TV in 1990 which directly or indirectly related to KCBS- TV's pricing policies. 5. All documents reflecting the existence, implementation, and results of any audit of rates charged to political advertisers performed by or on behalf of KCBS-TV with respect to the 1990 primary election, including any provision of rebates to such political advertisers, as well as all documents explaining or detailing the methodology used by in performing any such audit or providing any such rebates. APPENDIX B ADDITIONAL INFORMATION TO BE PROVIDED TO COMPLAINANTS COLLIS, BERGESON, FEINSTEIN, HAYES, VAN DE KAMP, SEYMOUR, SMITH, AND WILSON Answers to the following interrogatories shall be provided to Complainants in accordance with the procedures set forth in this Order: 1) Describe how KCBS-TV arrived at its LUC for the 1990 primary. 2) Detail any actions taken by KCBS-TV to ensure that political advertisers were, in fact, charged the lowest unit rate for the same class and amount of time during the same time periods which ran during the forty-five days preceding the 1990 primary. This should include the identities of all individuals taking or participating in such action, identifying their position at KCBS-TV, and should identify all documents which refer to or formed a part of KCBS-TV's efforts to ensure that candidates received the LUC. 3) Provide a statement that indicates the class and length of each commercial spot, if not apparent from the program logs, invoices or contracts, that aired during the relevant time period. 4) Provide a statement that explains any codes used by KCBS-TV or its sales representatives to indicate the rate, section or class of spot identified in confirmation contracts, program logs, affidavits of actual broadcast or other documents relating to advertising rates. 5) Provide a statement that explains to what extent, if any, KCBS-TV accorded any priorities against preemption to commercial advertisers who purchased time relevant to the 1990 primary period. To the extent that such priorities against preemption were given, explain whether this priority treatment was known to any commercial advertiser when the time was contracted for. APPENDIX C TIMETABLE FOR DISCOVERY AND POST-DISCOVERY First day of discovery period (30 days after release of this Order): Day 1 Documents in Appendix A and Answers to Written Interrogatories in Appendix B due: Day 1 Request by Complainants for further discovery (production of additional documents, answers to additional written interrogatories, and/or for the taking of depositions) due: Day 15 Opposition by CBS Inc. to Complainants request for further discovery due: Day 20 CBS Inc.'s request for discovery (production of documents, answers to written interrogatories, and/or for the taking of depositions) due: Day 20 Opposition by Complainants to CBS Inc.'s request for discovery due: Day 27 Documents and answers to written interrogatories (if allowed by Bureau) pursuant to CBS Inc.s request for discovery due: Day 45 Production of additional documents and/or answers to additional written interrogatories (if allowed by Bureau) pursuant to Complainants request for further discovery due: Day 60 Final day of discovery period: Day 60 Complainants amended complaint due: Day 90 CBS Inc.'s answer to amended complaint due: Day 105 Joint notice of election of complaint resolution procedure due: Day 116