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Finally, it is alleged that KCBSTV failed to provide "reasonable access" in  d(#violation of  312(a)(7) of the Act during the 1988 general and 1990 primary election periods.  d(#.Because the candidates in both complaints are represented by the same counsel, and since, in  d(#significant part, both complaints allege violations during the 1990 primary period, we have determined that consolidated consideration is appropriate.  v 2. The first complaint ("KCBS 1") was filed on behalf of Conway Collis, a candidate for  d(#jCalifornia Insurance Commissioner during the fortyfive day period preceding the June 5, 1990,  X1- d(#California primary election.1ڵ O< d(#Ѝ #C\  P6QP#This complaint was filed prior to the Commission's assertion of exclusive jurisdiction over all LUC {O- d(#Mrelated complaints. Exclusive Jurisdiction with Respect to Potential Violations of the Lowest Unit Charge  {O- d(#Requirements of Section 315(b) of the Communications Act of 1934, as amended, 6 FCC Rcd 7511 (1991), recon.  {OV- d(#denied, 7 FCC Rcd 4123 (1992) ("Declaratory Ruling"). As such, it was initially handled under the complaint  d(#procedures in effect at that time, particularly the use of Commission letters of inquiry, rather than limited discovery,  {O- d(#Zwhen prima facie cases were made. After the Bureau inquired of CBS Inc., Robert S. Kahn, et al., filed an "Entry  d(#wof Appearance" as cocounsel for the Collis complaint on November 25, 1991. Kahn did not provide any additional  d(#substantive material as to Collis. On February 19, 1992, the Bureau sent a letter to CBS Inc., in which the licensee  yOB- d(#Zwas afforded an opportunity to respond to KCBS I under the procedures outlined in the Declaratory Ruling. CBS  d(#iInc. responded on March 19, 1992. On August 17, 1992, subsequent to his appearance on behalf of Collis, Kahn  yO-filed a separate complaint against KCBSTV on behalf of the candidates referenced below. #Xx6X@DQVIX@#ѡ The second complaint ("KCBS 2") was filed on behalf of eleven  d(#legally qualified candidates for various elective offices with respect to alleged violations during  X - d(#jthe 1988 general election and the 1990 primary.  ڵ O4< d(#Ѝ #C\  P6QP#Dianne Feinstein, a candidate for nomination and election for Governor of the State of California for the  d(#JJune 5, 1990, primary and November 6, 1990, general election; John Van De Kamp, a candidate for nomination for  d(#Governor of the State of California for the 1990 primary; Pete Wilson, a candidate for nomination and election for  d(#Governor of the State of California for the 1990 primary and general election, and he was also a candidate for  d(#nomination and election to the United States Senate for the June 7, 1988, primary and November 8, 1988, general  d(# election; Thomas Hayes, a candidate for nomination and election for Treasurer of the State of California for the 1990  d(#primary and general election; John Seymour and Joan MilkeFlores, candidates for nomination for Lieutenant  d(#Governor of the State of California for the 1990 primary; Marian Bergeson, a candidate for nomination and election  d(#-for Lieutenant Governor of the State of California for the 1990 primary and general election; Leo McCarthy, a  d(#;candidate for nomination and election for Lieutenant Governor of the State of California for the 1990 primary and  d(#general election, and he was also a candidate for nomination and election to the United States Senate for the 1988"$0* % %$"  d(#primary and general election; Dan Lungren and Arlo Smith, candidates for nomination and election for Attorney  d(#KGeneral of the State of California for the 1990 primary and general election; and Matthew Fong, a candidate for  d(#nomination and election to the Board of Equalization for the State of California for the 1990 primary and general  yO-election (collectively "Complainants"). #Xx6X@DQVIX@# The Bureau also has before it responses to its" 0* % %00 "  d(#written and telephone inquiries regarding KCBS 1 and an Answer to KCBS 2 filed by CBS Inc.  d(#jon September 23, 1992. In addition to its contention that the allegations are meritless, CBS Inc.  X-argues that KCBS 2 is untimely and should be dismissed.#C\  P6QP# Z Z O< d(#Ѝ #C\  P6QP#On March 24, 1994, Complainants filed a Request for Leave to Supplement Complaint as to allegations  d(#in KCBS 2, and on April 25, 1994, CBS Inc. filed a Response thereto. Complainants point out that their KCBS 2  d(#<complaint relies, in part, upon Spot Cost Outlook and Projections ("SCOOP") data. Complainants note that, in  yOz - d(#Lawton Chiles, Bob Martinez, Bill Nelson, and Jim Smith, 7 FCC Rcd 6661, n. 8 (MMB), modified, 7 FCC Rcd  yOB - d(#,7199 (MMB), review granted in part and denied in part, 8 FCC Rcd 131, 132 (1992)("WTVT"), which was released  yO - d(#after KCBS 2 was filed, the Commission cautioned complainants in the future to provide more precise information  yO - d(#regarding the manner in which such data was used to establish a prima facie case. Complainants' supplement  yO - d(#,provides information consistent with WTVT, including the ratings source upon which they relied and the multiplier  d(#used in calculating their stationspecific figures. We believe this supplemental information will assist us in the  d(#appropriate resolution of this matter. We find, however, that Complainants' attempt to supplement its complaint as  d(#to the 1988 general election must be denied. Complainants' initial August 17, 1992, filing, provided SCOOP data  {O- d(#for only the 1990 primary period, and thus information related to the 1988 general election will not be considered.  d(#JWe also find that Complainants attempt to add John Garamendi, a candidate for Insurance Commissioner during the  d(# 1990 primary election, will not be granted. Complainants could have known this information at the time of the initial  d(#filing and no justification for his exclusion from the initial filing is proffered. Accordingly, Complainants' request  d(#for leave to supplement their complaint with respect to SCOOP rates for the 1990 primary period is granted, but  yO-denied as to the 1988 general election and John Garamendi. #Xx6X@DQVIX@#щ  yO-  X- v 3. #XP\  P6Q4XP#For the reasons set forth below, we find that KCBS 2 is timely. We also find that  Xl- d(#/KCBS 1 Complainant Collis and KCBS 2 Complainants Bergeson, Feinstein, Hayes, Van De  XU- d(#Kamp, Seymour, Smith, and Wilson have established a prima facie case of a violation by KCBS d(#TV of the LUC requirements of  315(b)(1) during the fortyfive day period preceding the 1990  X'- d(#primary election.='ڵ O< d(#Ѝ #C\  P6QP#It appears that four of the Complainants, Fong, Lungren, McCarthy, and MilkeFlores did not purchase  yO-any time from KCBSTV during the 1990 primary election.#Xx6X@DQVIX@#= We also find that all Complainants have failed to establish a prima facie case  d(#of a violation of  315(b) in connection with disclosure, and that allegation is dismissed in its  X- d(#entirety. In addition, we find that all Complainants have failed to establish a prima facie case  d(#of a violation by KCBSTV of the LUC requirements of  315(b)(1) during the sixty day period  d(#prior to the 1988 general election, and that allegation is dismissed in its entirety. We also find  X - d(#?that all Complainants have failed to establish a prima facie case of any violations of the  d(#comparable use requirements of  315(b)(2) during either the 1988 or 1990 election periods, and,  X - d(#therefore, those allegations are dismissed in their entirety. Finally, we find that all Complainants  Xu- d(#have failed to establish a prima facie case of any violations of the reasonable access requirements"u:0* % %00"  d(#of  312(a)(7) during either the 1988 or 1990 elections, and those allegations will be dismissed  d(#in their entirety. Following is a detailed discussion of the Bureau's specific findings with respect  d(#Zto the issues raised, and the timetable and procedures for discovery, postdiscovery, and election of a procedure for resolving this complaint.  yO-#C\  P6QP#  Xl-#XP\  P6Q4XP#  bU<` `  Timeliness of Complainants' KCBS 2 Filing   v 4. CBS Inc. has not presented arguments which warrant dismissal of KCBS 2 as untimely.  d(#CBS Inc. argues that the KCBS 2 complaint should be dismissed because it was filed in August  d(#1992, almost four years after the 1988 general election and more than two years after the 1990  X - d(# primary election. The Bureau stated in WTVT, 7 FCC Rcd 6661, at n. 4, that "[o]ur rules do  d(#not prescribe or limit the time during which an LUC complaint must be filed," and, indeed, we  X - d(#Lhave entertained LUC complaints filed more than two years after relevant election periods. See  X - d(#Ann Richards, Clayton Williams, et al, (KBMT), 9 FCC Rcd 6051 (MMB 1994)("KBMT"). We  d(#Nrecognize that the passage of time and the possible loss of station personnel with direct  d(#knowledge of the relevant time periods may render more difficult the licensee's task of  d(#responding to LUC complaints. In this case, however, it does not appear that CBS Inc.'s ability  d(#to defend itself has been significantly affected. CBS Inc. does not, for example, assert that it no  XR- d(#longer possesses the commercial or political documents necessary to resolve the complaint.  d(#0Accordingly, in these circumstances, we will not dismiss the complaint as untimely. As  X$- d(#idiscussed below, however, we conclude that complainants have not made a prima facie case with  d(#respect to any of the allegations pertaining to the 1988 election period and these complaints are thus dismissed.  b<` `  Prima Facie Analysis   X- v N5. This matter is properly before the Bureau pursuant to Declaratory Ruling, 6 FCC Rcd  X- d(#7511 (1991), recon. denied, 7 FCC Rcd 4123 (1992). The Declaratory Ruling set forth specific  d(#procedural requirements governing  315(b) complaints. In order to invoke the Commission's  d(#enforcement procedures, complainants who allege a violation of  315(b) are required to make  XU- d(#ya prima facie showing of such violation. At a minimum, this showing must consist of a "short,  d(#plain statement of the claim sufficient to show that the complainant is entitled to the relief  X)- d(#requested." Declaratory Ruling, 6 FCC Rcd at 7513,  22. A complainant must describe the  d(#specific factual basis for its belief that a station has committed a violation, rather than, for  X - d(#example, merely making a general allegation that a station has overcharged candidates. WTVT,  X!- d(#/7 FCC Rcd 6661, 66626663 (MMB), modified, 7 FCC Rcd 7199 (MMB), rev. granted in part  X"- d(#and denied in part, 8 FCC Rcd 131, 132 (1992). The licensee may submit an answer to the complaint within ten days. "#0* % %00""Ԍ v ԙ6. If, upon review of the complaint and answer (if filed), the Bureau determines that the  X- d(#complainant has established a prima facie case, the Bureau will issue an order giving the parties  d(#jthe opportunity to select one of two dispute procedures for resolving the complaint: mediation  X- d(#or disposition by the Bureau, subject to review by the Commission. Declaratory Ruling, 6 FCC  d(#Rcd at 7513,  22. Under either procedure, the complainant is entitled to limited discovery,  X- d(#subject to specific conditions set forth in the Bureau's order. Declaratory Ruling, 6 FCC Rcd at 7513,  23.  Xe-   b <` `   hhCKCBS 1 pp  b <A.  Lowest Unit Charge Allegations  X+ -  ` `      X < 1. Refusal to Sell Candidates Preemptible Class   W <  During "Sold Out" Time Periods    v 7. KCBS 1 alleged that when Collis's media buyers attempted to order preemptible time  d(#for a number of dayparts during the period of May 21June 4, 1990, KCBSTV sales personnel  d(#jtold them that the time could be cleared for broadcast only at special, higherpriced, candidate X- d(#only, nonpreemptible rates listed on the political rate card.Kڵ O<Ѝ #C\  P6QP#A political rate card published by KCBSTV for use during the 1990 primary was furnished by the  yO-complainant. It lists single preemptible and nonpreemptible rates for each daypart. #Xx6X@DQVIX@#K Collis' media buyers then requested  d(#the demanddriven preemptible rates they believed were being made available to commercial  d(#advertisers during such dayparts. Station personnel apparently refused to provide any information  d(#labout those rates and reiterated that it would sell to candidates only at the political non d(#preemptible rates. The complainant concluded that KCBSTV's sales practices arbitrarily forced  d(#ycandidates to pay higher rates than a significant number of commercial advertisers, resulting in overcharges to candidates in violation of  315(b)(1).  X- v @8. CBS Inc. denied that KCBSTV violated any obligations arising under  315(b)(1).gP0ڵ O< d(#Ѝ #C\  P6QP#CBS Inc. suggests that informal advice from the staff of the Bureau's Political Programming Branch  yO- d(#supports the sales practices at KCBS-TV as they existed during the 1990 primary pre-election period. We disagree.  yOV - d(#   Commission records of a meeting with Bureau personnel, initiated by CBS Inc. on behalf of its owned and operated  d(#;stations, particularly a CBS Inc. "Talking Paper" provided in anticipation of a meeting on February 6, 1986, do not  yO!- d(#Jsupport CBS Inc.'s assertion that the Commission informally approved the practices described herein. For example,  d(#ithere is nothing in the "Talking Paper" to suggest that KCBSTV, or any other CBS owned and operated station,  d(#iwould refuse to sell to candidates demanddriven preemptible rates. In sum, whatever informal advice CBS might have received from the staff, it was apparently predicated on facts not presented during the 1990 primary election.">$0* % %$"Ԍ yO- d(#    #Xx6X@DQVIX@#ѐg " 0* % %00P"  d(#With respect to KCBSTV's twotiered political rate structure, CBS Inc. stated that the  d(#preemptible rate listed on its political rate card represented the best estimate of what the lowest  X- d(#preemptible rate would be during the preelection period. ڵ O<Ѝ #C\  P6QP#According to KCBSTV, candidates who purchased preemptible spots received rebates whenever  yO{-commercial preemptible spots cleared for less. #Xx6X@DQVIX@# The nonpreemptible rate represented  d(#the station's best estimate of the "going", "fair market" or "prevailing" commercial rate for  d(#{preemptible time during the same period, with an added bonus of placement certainty for candidates.  v 9. CBS Inc. confirmed that KCBSTV refused at all times to disclose information about,  d(#Lor to sell candidates any time at, the demanddriven preemptible rates routinely made available  d(#to commercial advertisers. CBS Inc. also confirmed that the nonpreemptible class listed on the  d(#political rate card was offered only to candidates. The licensee denied, however, that candidates  d(#were "steered" toward purchasing nonpreemptible time and pointed out that many candidates,  d(#including Collis, purchased preemptible time in various dayparts throughout the 1990 primary  d(#election period. CBS Inc. explained that where programs or dayparts were "soldout," KCBSTV  X - d(#would sell candidates only the nonpreemptible class.6  ڵ O<ԍ #C\  P6QP#In it s Answer, CBS Inc. states that:  v k"[a]s long as inventory remains to be sold in a particular daypart, the station offers candidates the option  d(#of purchasing on a preemptible or nonpreemptible basis. When a daypart in the political period is completely sold  yO'-out, however, the only way an advertiser can buy into the daypart is to preempt another advertiser."#Xx6X@DQVIX@#6 CBS Inc. also acknowledged that during  d(#the "soldout" programming, commercial advertisers were still permitted to purchase preemptible  d(#Ltime if they were willing to buy at higher rates than those already charged for orders placed by  d(#other commercial advertisers. CBS Inc. concluded that KCBSTV's soldout policy complied  d(#with  315(b)(1), in that candidates were charged no more than the station's most favored  d(#commercial advertiser to gain access to a "soldout" daypart, and that the candidate received an added protection against preemption.  X-  v 10. CBS Inc.'s admission that KCBSTV refused to sell candidates preemptible time, at  d(#the preemptible rates made available to commercial advertisers during socalled "soldout" time  d(#periods, raises questions about KCBSTV's compliance with  315(b)(1). This practice denied  d(#Collis the option of purchasing time within the preemptible class on a par with commercial"H 0* % %005"  X- d(#advertisers, as contemplated by  315(b)(1). ڵ Oy< d(#Ѝ #C\  P6QP#We note that the finding herein is distinguishable from the Bureau's decision in WCAUTV, DA1551  d(#(released December 12, 1991). WCAUTV, Philadelphia, PA, is also a CBS owned and operated station, which  d(#apparently utilized virtually identical sales practices during the 1990 Pennsylvania primary to those used by KCBS d(#-TV. WCAUTV's political rate card also listed a single, low preemptible rate and a higherpriced candidateonly  d(#nonpreemptible rate. However, because WCAUTV was subject to a Commission audit and not a candidate  d(#complaint, the Bureau could not conclusively determine whether WCAUTV actually refused to sell candidates  d(#,demanddriven preemptible time. Furthermore, unlike the circumstances in KCBSTV, WCAUTV asserted that no  d(#Zcandidate had requested the demanddriven preemptible rates. Thus, the Bureau did not impose sanctions against  yO-WCAUTV, but did caution the station to reform its sales practices. #Xx6X@DQVIX@# Thus, Collis has established a prima facie case of  X- d(#/a violation of  315(b)(1) with respect to this allegation. ڵ OD < d(#Ѝ #C\  P6QP#CBS Inc. contends that the Commission began in 1991 to permit such practices for "sold out"  yO - d(#programming in its Codification of Political Programming Policies, 7 FCC Rcd 678(1991); recon. granted in part,  yO - d(#denied in part, 7 FCC Rcd 4611 (1992). Consequently, the licensee argues, it would be improper for the Commission  d(#hto sanction KCBSTV for behavior now deemed appropriate. However, while the Commission indicated in the 1991  d(#action that candidates may be required to buy nonpreemptible time when preemptible time is sold out, it also  d(#explicitly stated that licensees could impose such a requirement on candidates only when commercial advertisers were  d(#also required to purchase nonpreemptible time when a sold out program was involved. Here, CBS Inc.  d(#acknowledges that commercial advertisers were able to break into sold out dayparts by purchasing at demand driven  yO-preemptible rates. Clearly, the circumstances as alleged in this case are distinguishable.#Xx6X@DQVIX@# It appears that by refusing to sell  d(#Collis time within the preemptible class during "sold out" programming, KCBSTV forced him  d(#to buy nonpreemptible time in order to be cleared for broadcast, thus precluding him from  X- d(#entitlement to rebates for lowerpriced preemptible time cleared for the same dayparts. ڵ O< d(#Ѝ #C\  P6QP#The allegations involving KCBSTV's refusal to sell candidates intermediate preemptible rates appear  yO- d(#similar to those in Outlet Communications ("WXIN"), 7 FCC Rcd 632 (1992). In WXIN, the record established that,  d(#during the 1990 Indiana primary election, WXIN impermissibly refused to sell candidates intermediate preemptible  d(#rates and effectively steered them toward fixed, nonpreemptible time. The Commission issued a forfeiture to WXIN  yO-for such practices and directed the licensee to make appropriate rebates to affected candidates.#Xx6X@DQVIX@#  X- d(# Similarly, because CBS Inc. states that it refused to sell at such preemptible rates to all  Xx- d(#Z candidates when programming was "soldout", a prima facie case has been established for KCBS  d(#.2 Complainants Bergeson, Feinstein, Hayes, Van De Kamp, Seymour, Smith, and Wilson, each  d(#[of whom purchased time from KCBSTV during the period preceding the 1990 primary election.  X5- d(#Based on this prima facie showing, we believe that further fact finding is warranted to determine  X - d(#kwhether the abovereferenced KCBS 2 Complainants were denied preemptible rates, steered  d(#toward higher priced nonpreemptible time, and thus overcharged, during "sold out" programming prior to the 1990 primary election. "H 0* % %00j"Ԍ X< 2.  Priority Against Preemption For TimeSensitive   W<  Commercial Advertiser  s   X-   X- v 11. In addition to the  KCBS 1 allegation regarding "sold out" time periods, a further issue  X- d(#was raised by CBS Inc's response to a Bureau inquiry concerning KCBS 1. ڵ O < d(#Ѝ #C\  P6QP#After KCBS 1 was filed, Bureau staff attorney Robert Baker telephoned CBS Inc. Associate General  d(#Counsel Howard Jaeckel to inquire about the allegations. During that conversation, Jaeckel stated that commercial  d(#xadvertisers with timesensitive concerns would generally not be preempted even though they could purchase only  d(#ypreemptible time. The Bureau then inquired of the licensee in writing about the KCBS 1 "sold out" allegation  d(#<discussed above, as well as the issue of a timesensitive priority against preemption. In this connection, KCBS 2  d(#Complainants allege that the priority against preemption afforded to certain commercial advertisers but not political  yO -advertisers, as acknowledged by KCBSTV, violated the LUC requirement.#Xx6X@DQVIX@# During the 1990  X- d(#primary period, KCBSTV apparently had a policy which involved giving a priority against  Xy- d(#preemption to commercial preemptible time purchasers with timesensitive concerns such as a  d(#scheduled sale or promotional event. Specifically, the licensee stated that "While Mr. Jaeckel did  d(#state to Mr. Baker that the station might often choose to not preempt a sale advertiser, even for  d(#ka higher paying advertiser, he did not mean to suggest that the station would never do so."  d(#KCBS 2 Complainants contend that this appears to be an admission by CBS Inc. that at least  d(#Zsome favored commercial advertisers were accorded nonpreemptible status when time sensitivity  d(#jwas a factor in the purchase of their preemptible time. Complainants argue that under the most  d(#favored commercial advertiser standard for LUC matters, KCBSTV should have afforded  d(#political advertisers the same priority treatment. We agree. Complainants have established a  X - d(#]prima facie case with respect to this allegation. Thus, Collis, and KCBS 2 Complainants  d(#Bergeson, Feinstein, Hayes, Van De Kamp, Seymour, Smith, and Wilson, all of whom purchased  d(#Lnonpreemptible time in various dayparts prior to the 1990 primary election, have established a  Xg- d(#prima facie case with respect to whether they should have been offered nonpreemptible status  XR-at preemptible rates.   v @12. The fact that at least some commercial advertisers with timesensitive advertising  d(#campaigns had spots preempted during the 1990 primary period, as contended by CBS Inc., does  X- d(#not necessarily refute the allegation, particularly if any favored commercial advertisers were not  X- d(#Lpreempted due to this factor. Resolution of this allegation is critical, since political purchasers  X- d(#of nonpreemptible time and commercial advertisers of preemptible with priority against  X- d(#preemption time would, as a practical matter, be in the same class. Preemptible classes of time  d(#have associated risks of preemption, and it is that risk that characterizes the class. If a station  X- d(#.consciously chooses to give a priority against preemption to certain favored advertisers, thus  d(#making their preemptible time the apparent functional equivalent of a more expensive non d(#preemptible class, a legitimate question of whether candidates purchasing nonpreemptible time were treated on a par with favored commercial advertisers has been raised."@ 0* % %00{"Ԍ X-   ę  b< B.  Failure To Disclose Allegation   v 13. KCBS 1 also alleges that, prior to the 1990 primary election, KCBSTV refused to  d(#disclose information regarding preemptible rates available to commercial advertisers. We  X- d(#recognize, however, that the Commission had not, prior to the Mass Media Bureau Report on  X- d(#]Political Programming Audit, 68 RR2d 113 (MMB 1990) specifically articulated that duty.  X- d(#Accordingly, we will not find a prima facie case with respect to disclosure, and this aspect of the complaint is dismissed.  X[-  b- < ` `  hhC KCBS 2   X> -  b' < A. Lowest Unit Charge Allegations   X!<   1.   Generally Available Statistical Rate Comparisons (SCOOP)   )  X -  X- v 14. Complainants allege that, prior to the 1990 primary election,g0ڵ Om< d(#Ѝ#C\  P6QP# Complainants also provided an analysis based on Spot Quotations and Data (SQAD). However, in their  d(#March 14, 1994, Supplement, Complainants indicated that its SQAD analysis was flawed and should not be  d(#considered. In the Supplement, Complainants also attempted to furnish SCOOP based evidence regarding the 1988  yO-general election, but as explained in n.4, supra, this evidence will not be considered herein.#Xx6X@DQVIX@#g KCBSTV violated the  X- d(#[LUC requirements by charging candidates rates that exceeded "SCOOP"based rates. SCOOP,  X- d(#the acronym for Spot Cost Outlook and Projections, a product of Media Market Guide, is a  d(#<compilation of generally available statistical data on average rates charged by television stations.  X- d(#= Complainants state that they multiplied the average SCOOP rate for a given daypart in the Los  X- d(#Angeles, CA market, as contained in the  Media Market Guide, by the Arbitron ratings for KCBS Xl- d(#|TV, as listed in Arbitron's Television Market Report. For the second quarter of 1990,  XU- d(#kComplainants multiplied the SCOOP rates in the second quarter Media Market Guide by the  X>- d(#Arbitron ratings listed in the May 1990 Television Market Report. The demographic used in all  d(#Kof Complainants' calculations was households. They then compared the stationspecific SCOOP d(#-based rates with the rates actually charged to four of the Complainants, Bergeson, Feinstein, Van De Kamp, and Wilson, during the second quarter.  X-  v l15. In its Answer to KCBS 2, CBS Inc. argues that SCOOPbased rate comparisons, such  X- d(#Zas those used by Complainants are inherently flawed because they do not take into consideration  d(#the class of time purchased by the candidate, but rather are merely "projections" of the average  d(#costperpoint, irrespective of class. CBS Inc. claims that Complainants' own showing  Xo- d(#demonstrates that the SCOOP rates in every daypart analyzed are higher than KCBSTV's"o 0* % %00"  d(#corresponding preemptible rates, and only lower than KCBSTV's nonpreemptible rates. Thus,  d(#CBS Inc. contends that, since SCOOP is an average of all classes, it will always be lower than  X- d(#the nonpreemptible rates. Accordingly, argues CBS Inc., Complainants have failed to make a  X-prima facie case.  X- v N16. A complainant may make a prima facie case by using generallyavailable industry or  d(#statistical data on average rates to show that the rate paid by a candidate was higher than the  Xc- d(#average rate charged by the station. Declaratory Ruling, 6 FCC Rcd at 7521, n. 47. In this vein,  d(#Zwe have has recognized SCOOPbased rates as a valid source of statistical information to support  X7- d(#Oa prima facie case of overcharging. See e.g. Diane Feinstein, John Seymour, Thomas  X" - d(#Hayes(KABC), 9 FCC Rcd 1586, 1587 (1994)("KABC"). Moreover, in WTVT, 8 FCC Rcd at  d(#132, n. 13., the Commission determined that even when such generally available information does  d(#[not take specific classes of time into consideration, it remains the best source of pertinent data  d(#for candidates unable to gain access to a station's commercial sales records in order to ascertain whether any overcharges have occurred.  X- v 17. With regard to comparisons with the full SCOOP rates,e0ڵ O< d(#Ѝ #C\  P6QP#Complainants had initially argued that a 30% discount of the SCOOP rate was appropriate since, they  d(#claimed, media buyers discounted SCOOP rates when planning buys. Complainants do not reiterate that argument  d(#iin its Supplement. In any event, there is no apparent basis for discounting SCOOP rates by 30%, and we will not  yOy-assume the existence of such discounted rates. See WTVT, 7 FCC Rcd at 6662. #Xx6X@DQVIX@#e such comparisons show that,  X- d(#during the period preceding the 1990 primary, Bergeson paid more than the SCOOP rate to  d(#KCBSTV for all of the sixteen spots purchased in the only two time periods listed on the  d(#Linvoices; Feinstein paid more than the SCOOP rate for KCBSTV for twenty of the twentyfour  d(#jspots purchased in seven of the nine listed time periods; and Van De Kamp paid more than the  X%- d(#jSCOOP rate for KCBSTV for fortyfive of the sixty spots purchased in six listed time periods.@%ڵ O<ԍ #C\  P6QP# Exhibit A.  9  X` hp x (#%'0*,.8135@8:the comparable use provision requires stations to charge a candidate no more than the rate charged other advertisers for comparable time.  X- v 20. Complainants ' sole basis for alleging violations of the comparable use requirements" 0* % %00"  d(# appears to be their belief that the rates charged candidates outside the LUC windows were  d(#"excessive." There is no supporting documentation, however, to demonstrate that rates paid by  d(#candidates outside the fortyfive and sixty day windows were not comparable to commercial  X- d(#0rates. A bare allegation, without support, is insufficient to establish a prima facie case. Accordingly, the Complainants' comparable use claims are dismissed in their entirety.  yO-#C\  P6QP#  b<   #XP\  P6Q4XP#C. Reasonable Access Allegationsq  X- v 21. Complainants allege that KCBSTV'S sales policies during the 1988 general election  X - d(#and the 1990 primary, effectively denied reasonable access to federal candidates. In support,  X - d(#they furnish 1988 and 1990 political rate cards which list apparent limits on the number of spots  X - d(#available for purchase by candidates during certain dayparts, and a letter from the station to  X - d(#=Target Enterprises, media buyers for Wilson, stat ing that the station is under no obligation to  d(#isell time to candidates outside the LUC window, but nonetheless offering to do so. Complainants  X - d(#provide no evidence that any federal candidate was, in fact, denied reasonable access based on  Xx- d(#the limits listed on the political rate cards. Moreover, despite the station's incorrect statement  d(#in its letter to Target that it was not obligated to sell to candidates prior to the LUC window, the  d(#Msame letter indicates that KCBSTV would sell to candidates during that time period. Thus,  X3- d(#Complainants have failed to establish a prima facie case of a violation of the reasonable access  X-requirement, and therefore this claim is dismissed.  b<` `   Prima Facie Case Summary   X- v 22. The following summarizes our prima facie case findings as to the specific allegations.  X- d(#1With respect to the 1988 elections, no prima facie cases were made on behalf of any  d(#complainant. In connection with the June 5, 1990 primary election, KCBS 1 complainant Collis  d(#/and KCBS 2 complainants Bergeson, Feinstein, Hayes, Van De Kamp, Seymour, Smith, and  X{- d(#Wilson made prima facie cases that during "soldout" time periods they were denied any  Xf- d(#zpreemptible class of time, and were steered to a higherpriced nonpreemptible class of time.  d(#KCBS 1 complainant Collis and KCBS 2 complainants Bergeson, Feinstein, Hayes, Van De  X8- d(#kKamp, Seymour, Smith, and Wilson made prima facie cases that they were denied a priority  d(#against preemption at preemptible rates, which KCBS made available to commercial advertisers.  X - d(#KCBS 2 complainants Bergeson, Feinstein, and Van De Kamp made prima facie cases that they  X- d(#paid higher rates than the pertinent stationspecific SCOOP rates for KCBS. No other prima  X -facie cases were established. "# 0* % %00""Ԍ b<` ` Timetable and Procedures for Discovery   X- v n23. In the Declaratory Ruling, the Commission determined that, once a prima facie  d(#showing has been made, the complainant will be entitled to limited discovery, subject to specific  X- d(#yconditions established by the Bureau. See Declaratory Ruling at 751314, 7521, n. 49. See also,  X- d(#WTVT 7 FCC Rcd at 6665. Accordingly, we will allow Complainants Collis, Bergeson,  d(#[Feinstein, Hayes, Van De Kamp, Seymour, Smith, and Wilson limited discovery on the issue of  d(#overcharges during the fortyfive days preceding the June 5, 1990, primary. The documents set  Xr- d(#Nforth in Appendix A to this Order, and answers to the written interrogatories set forth in  X[- d(#Appendix B to this Order, must be served upon counsel for the abovereferenced Complainants  d(#[(not the Commission) by CBS Inc. on or before the first day of the discovery period, which will  X- -be 30 days after the release date of this Order. See Appendix C.  v 24. Any request for further discovery by Complainants must contain a showing that such  d(#discovery is necessary to resolve the issue of overcharges. Any discovery request by CBS Inc.  d(#for production of documents, answers to written interrogatories, or for the taking of depositions  d(#must demonstrate that the information requested is necessary for CBS Inc. to respond to  d(#arguments or claims that could be made by Complainants in their amended complaint. We  d(#Zemphasize that any request for depositions must also demonstrate that depositions are necessary  Xu- d(#to resolution of the issue of overcharges and include a list of the proposed deponents.5uڵ O<  YЍ #C\  P6QP#See WTVT, 8 FCC Rcd 714, 717 (MMB 1993). In this regard, we require the party seeking depositions  yO-  to demonstrate with respect to each witness they seek to depose, that the individual's testimony is necessary to the  yO-  resolution of the issues upon which discovery has been granted herein. This must include "specific" arguments   demonstrating the necessity of the proposed testimony both in terms of the information sought and the use of   depositions as the means of securing the necessary information and should be supported by documentary evidence."  yO-Id.5 All  d(#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.  v _25. Documents produced by CBS Inc. that contain proprietary information may be  d(#redacted to delete the identities of commercial advertisers, including the name of the commercial  d(#advertiser, its address and telephone number, the name(s) of any person employed by the  d(#advertiser, and the name of any media company or agency representing the commercial  d(#advertisers and any persons employed by such media company or agency. Where any such  d(#Linformation is redacted, CBS Inc. shall advise Complainants of the type of information deleted.  d(#Further redactions will be allowed only if the information redacted is proprietary and not relevant  d(#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  h"  "J P0* % %00z"Ԍ d(# h" objections to redactions that are not resolved by the parties should be submitted to the Bureau  d(#iin a written pleading for resolution, along with copies of the documents at issue with the disputed  d(#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.  v ?26. Any documents, answers to written interrogatories, or deposition transcripts, if any,  d(#yproduced during discovery, and the information revealed thereby, shall not be provided to any  d(#third party other than the Commission. Copies of all documents, answers to written  d(#interrogatories, and deposition transcripts produced shall be stamped with the statement: "This  d(#document is subject to a protective order entered by the Federal Communications Commission."  d(#It shall be the responsibility of the party producing the documents, answers to written interrogatories, or deposition transcripts to affix the stamp.  v ^27. The parties must take reasonable measures to prevent unauthorized access to the  d(#documents, answers to written interrogatories, and deposition transcripts. Access must be limited  d(#to Complainants, the management of KCBSTV, their attorneys and staffs, and expert witnesses.  d(#Either party may require the other to disclose in writing the names of staff and experts who have  d(#access to documents and written information. Each party must explain to all staff and experts  d(#that the documents, answers to written interrogatories, deposition transcripts, and their contents may not be disclosed to any entity other than the Commission.  v /28. None of the materials produced, nor the contents thereof, may be used for any purpose  d(#other than the prosecution of the instant complaint. Each individual who is provided access to  d(#these materials is hereby required to certify in writing that he or she has personally reviewed this  X- d(#Order and understands the limitations imposed on the signing party. No copies of materials  X- d(#protected by this Order may be made except copies to be used by the persons identified in  d(#{paragraph 25. Each party shall maintain a log recording the number of copies made of all  d(#proprietary material and the persons to whom the copies have been provided. Upon termination  d(#of this proceeding, including any appeals, petitions or settlement, all originals and reproductions  d(#of any protected materials, along with the log recording persons who received copies of such  d(#materials, shall be provided to the producing party. In addition, upon final termination of the  d(#/proceeding, any notes or other work product derived in whole or in part from the protected materials of an opposing party shall be destroyed.  v 29. The parties may agree to additional reasonable measures to protect the confidentiality  d(#of information as the circumstances may warrant. Such agreement should be confirmed in  X - d(#writing and a copy provided to the Bureau. As noted in the Declaratory Ruling, any failure to  d(#.abide by the terms of this protective order may result in the imposition of sanctions, including  d(#dismissal of the complaint or censure, suspension, or disbarment of the attorneys involved. See 47 C.F.R.  1.24."#0* % %00G""Ԍ"#0* % %00G""Ԍ v 30. Extensions of the discovery period (Appendix C) will be granted only where  d(#[extraordinary circumstances exist and the parties agree to the extension, or both parties submit  d(#declarations that serious settlement discussions are ongoing. Any deadlines within the discovery  d(#/period may be changed by mutual agreement, with notification to the Bureau, as long as all  d(#discovery is completed within the required time. Service of documents, discovery requests, and  d(#Lany 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.  v |31. Within 30 days after completion of discovery, Complainants must file an amended  d(#complaint, alleging specific facts based on the information discovered, stating the nature of the  d(#L 315(b)(1) violation and the amounts said to be owed. After CBS Inc. has filed its answer, the  d(#parties shall file with the Bureau their election to have the complaint resolved either by the Bureau or by Alternative Dispute Resolution.  v P32. Settlement of lowest unit charge claims is strongly encouraged. Although the  d(#LCommission retains its discretion to determine whether additional sanctions are warranted, the  d(#=Commission is inclined to look with favor upon a settlement in making that determination. See  Xb-Declaratory Ruling, at 7521, n. 52. " X4- v "33. ACCORDINGLY, we find that a prima facie case of a violation of the Commission's  d(#xlowest unit charge requirement has been established by Complainants Collis, Bergeson, Feinstein,  d(#/Hayes, Van De Kamp, Seymour, Smith, and Wilson in connection with advertising aired on  d(#KCBSTV on their behalf during the fortyfive days preceding the June 5, 1990, primary. The  d(#parties are hereby ORDERED to follow the procedures and timetable for discovery, post X-discovery, and election of a complaint resolution procedure established herein.     v 34. We find that Complainants Fong, Lungren, McCarthy, and MilkeFlores have failed  X~- d(#to establish a prima facie case of a violation by KCBSTV of the LUC requirement during the  d(#period before the June 5, 1990, primary. Thus, their claims as to the 1990 primary against CBS  d(#Inc. are DISMISSED in their entirety. We find that Complainants have failed to establish a  X;- d(#prima facie case of any violations during the 1988 election periods, and Complainants claims  d(#as to the 1988 elections are DISMISSED in their entirety. We find that Complainants have failed  X- d(#to establish a prima facie case with respect to allegations that KCBSTV violated the comparable  d(#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 "#0* % %00G""Ԍ X- d(#yԙComplainants 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. ` `  hhCFEDERAL COMMUNICATIONS COMMISSION ` `  hhCRoy J. Stewart ` `  hhCChief, Mass Media Bureau " 0* % %00 "  X-` `  hhC APPENDIX A    DOCUMENTS TO BE PRODUCED TO COMPLAINANTS  X-  d(#To the extent not already produced to Bureau and Complainants, certain documents shall be  d(#produced to Complainants Collis, Bergeson, Feinstein, Hayes, Van De Kamp, Seymour, Smith,  d(#Mand Wilson by CBS Inc. by delivering them to the offices of Barnes, Browning, Tanksley &  d(#{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:  d(#K1) All advertising contracts executed by or on behalf of candidates for public office in connection with the 1990 primary election.  d(#2) All invoices, logs or other documents recording time, duration, or class of advertising time for  d(#each political advertisement ordered and/or aired on behalf of candidates for public office in connection with the 1990 primary election.  d(#3) Copies of invoices and contracts for, and program logs related to: all commercial time run  Xb- d(#on KCBSTV beginning on April 22, 1990 and running through June 5, 1990, (the 45 days preceding the primary election). This should include:  d(#a) All invoices, logs or other documents recording time, duration, or class of advertising time for  d(#each commercial spot aired, and, if not apparent from the preceding, documents reflecting all agency discounts provided by the station;  d(#b) All long term contracts that pertain to commercial spots, including make goods and bonus spots, that aired during this period;  d(#c) All addenda or memoranda relating to these invoices or contracts that alter or otherwise  d(#address the terms or provisions of any document subject to production pursuant to this document production order;  d(#\d) All orders for commercial spots aired during this period, including confirmation orders or contracts;  d(#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 "#0* % %00G""Ԍ d(#jf) All documents that describe the rate and other relevant terms (those that affect price or have  d(#a direct bearing on the characteristics, such as class of time, or any priorities against preemption,  d(#of each spot) of discount packages sold to commercial advertisers that included spots that aired during this period.  d(#M4. All documents used by KCBSTV to explain to its sales personnel or other employees or  d(#yagents dealing with political campaigns, or the agents of political campaigns, the application of  d(#the lowest unit charge provisions of Section 315(b) of the Communications Act. This should  d(#include any written policy statement(s) used by KCBSTV in 1990 which directly or indirectly related to KCBSTV's pricing policies.  d(# 5. All documents reflecting the existence, implementation, and results of any audit of rates  d(#ycharged to political advertisers performed by or on behalf of KCBSTV with respect to the 1990  d(#primary election, including any provision of rebates to such political advertisers, as well as all  d(#documents explaining or detailing the methodology used by in performing any such audit or providing any such rebates. "0* % %00"  X- ` `   APPENDIX B  X-  X- ` ` ADDITIONAL INFORMATION TO BE PROVIDED TO   d(#COMPLAINANTS COLLIS, BERGESON, FEINSTEIN, HAYES, VAN DE KAMP,  X- ` `  SEYMOUR, SMITH, AND WILSON  d(#Answers to the following interrogatories shall be provided to Complainants in accordance with the procedures set forth in this Order: 1) Describe how KCBSTV arrived at its LUC for the 1990 primary.  d(#2) Detail any actions taken by KCBSTV to ensure that political advertisers were, in fact, charged  d(#the lowest unit rate for the same class and amount of time during the same time periods which  d(#ran during the fortyfive days preceding the 1990 primary. This should include the identities of  d(#all individuals taking or participating in such action, identifying their position at KCBSTV, and  d(#should identify all documents which refer to or formed a part of KCBSTV's efforts to ensure that candidates received the LUC.  d(#Z3) 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.  d(#4) Provide a statement that explains any codes used by KCBSTV or its sales representatives to  d(#Mindicate the rate, section or class of spot identified in confirmation contracts, program logs, affidavits of actual broadcast or other documents relating to advertising rates.  d(#k5) Provide a statement that explains to what extent, if any, KCBSTV accorded any priorities  d(#Lagainst preemption to commercial advertisers who purchased time relevant to the 1990 primary  d(#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. "N0* % %00^"  X-] APPENDIX C  X- TIMETABLE FOR DISCOVERY AND POSTDISCOVERY ă First day of discovery period (30  X-days after release of this Order):hhCqpp  )Day 1 Documents in Appendix A and Answers to  XH-Written Interrogatories in Appendix B due:pp  )Day 1 Request by Complainants for further discovery (production of additional documents, answers to additional written interrogatories, and/or for the taking  X -of depositions) due: hhCqpp  )Day 15 Opposition by CBS Inc. to Complainants  Xy-request for further discovery due:hhCqpp  )Day 20 CBS Inc.'s request for discovery (production of documents, answers to written interrogatories,  X-and/or for the taking of depositions) due: pp  )Day 20 Opposition by Complainants  X-to CBS Inc.'s request for discovery due: qpp  )Day 27 Documents and answers to written interrogatories (if allowed by Bureau) pursuant to CBS Inc.s  Xe-request for discovery due:hhCqpp  )Day 45 Production of additional documents and/or answers to additional written interrogatories (if allowed by Bureau) pursuant to Complainants request for further discovery  X-due: ` `  hhCqpp  )Day 60  X -Final day of discovery period:hhCqpp  )Day 60 Complainants  X#-amended complaint due:hhCqpp  )Day 90"#0* % %00G""Ԍ X-ԙCBS Inc.'s answer to amended complaint due: pp  )Day 105 Joint notice of election of complaint resolution  X-procedure due: hhCqpp  )Day 116   ?_<#C\  P6QP#` `   #Xx6X@DQVIX@#