******************************************************** 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 ) ) LAWTON CHILES, BOB MARTINEZ, ) BILL NELSON, and JIM SMITH ) ) Against Station WCIX-TV ) Miami, Florida ) MEMORANDUM OPINION AND ORDER Adopted: August 7, 1997Released: August 15, 1997 By the Commission: 1. The Commission has before it an Application for Review filed July 12, 1993, by Lawton Chiles, Bob Martinez, Bill Nelson, and Jim Smith, and their respective campaign committees ("Complainants") of an Order by the Chief, Mass Media Bureau, dismissing their complaint against Station WCIX-TV, Miami, Florida. Lawton Chiles, Bob Martinez, Bill Nelson, and Jim Smith, 8 FCC Rcd 4019 (MMB 1993) ("WCIX- TV"). Also before the Commission is an Opposition to Application for Review filed on July 27, 1993, by CBS, Inc. ("CBS"), licensee of Station WCIX-TV. I. BACKGROUND 2. Complainants alleged that Station WCIX-TV violated the lowest unit charge ("LUC") and comparable use provisions of Section 315(b) of the Communications Act of 1934, as amended (the "Act"), during the 1990 Florida primary and general election campaign periods. The Bureau found that the complaint failed to establish a prima facie case with respect to each of the alleged violations and, therefore, dismissed the complaint against Station WCIX-TV. 3. In their Application for Review, Complainants first argue that the Bureau should not have analyzed their complaint under the standards set forth in the Commission's Declaratory Ruling. They next argue that even if it were appropriate to apply the Declaratory Ruling's standards in this case, the Bureau erred in finding no prima facie case of LUC violations. II. DISCUSSION A. Allegations Regarding Standard for Review of WCIX-TV Complaint 4. Complainants contend that the Bureau erred in assessing their complaint under the "strict requirements" set forth in the Commission's Declaratory Ruling. Specifically, Complainants argue that because their complaint was filed prior to the release of the Declaratory Ruling, the Bureau should have "looked to the informal standards that existed prior to the Commission's assertion of exclusive jurisdiction." Application for Review at 2. They cite The Law of Political Broadcasting and Cablecasting: A Political Primer, 100 FCC 2d 1476 (1984) ("1984 Political Primer") as setting forth such "informal standards." In particular, they cite to paragraph 6 of the 1984 Political Primer which states that "[n]o special form is needed for filing complaints . . . the complainant should furnish all essential facts on which the complaint is based." 100 FCC 2d at 1478-79. 5. CBS responds that the Declaratory Ruling did not establish stricter standards with respect to LUC complaints. Rather, CBS argues that the Declaratory Ruling simply "formalized and elaborated" on the procedures for the filing and handling of such cases. Moreover, CBS contends that the Declaratory Ruling benefitted Complainants by granting direct discovery from broadcasters. CBS points out that Complainants availed themselves of such benefits by submitting a proposed discovery order after the release of the Declaratory Ruling. Finally, CBS contends that Complainants did not raise this argument below and, therefore, are precluded by 47 C.F.R.  1.115(c) from doing so now. 6. At the outset, we note that Complainants have not identified how they were prejudiced by application of the Declaratory Ruling's standards for the filing and handling of LUC complaints. We further note that the complaint in this case was evaluated using essentially the same standards as were in force before the issuance of the Declaratory Ruling. In any event, as CBS points out, Complainants did not raise this argument below, despite an opportunity to do so. They are therefore prohibited by 47 C.F.R.  1.115(c) from raising this issue now, and, for that reason, this aspect of the Application for Review is denied. B. Prima Facie Case Allegations 7. Complainants argue that even if the Commission determines that it was appropriate to analyze the complaint using the standards set forth in the Declaratory Ruling, it should nevertheless conclude that the Bureau erred in its application of those standards. Specifically, Complainants contend that the Bureau failed to draw all inferences in their favor as required by the Declaratory Ruling. In particular, Complainants state that the Bureau did not draw inferences in their favor with respect to disclosure obligations, intermediate rates, candidate-only fixed rates and product competition. Complainants, however, have not identified which inferences the Bureau should have drawn in their favor and how the failure to draw such inferences affected the Bureau's ultimate determination. In addition, as set forth in more detail below, we have reviewed the Bureau's analysis with respect to all of these alleged violations and conclude that the Bureau correctly found that the Complainants failed to establish a prima facie case. 8. Disclosure of Intermediate Rates. Complainants argue that Station WCIX's two-tiered political rate structure, in effect during the 1990 primary period, violated Section 315(b) of the Act because it failed to disclose the availability of intermediate rates. Complainants acknowledge that the Commission did not articulate broadcasters' affirmative duty to disclose all rates until after Florida's 1990 primary election. However, Complainants contend that if, as the Bureau has previously stated, disclosure obligations are implicitly required by Section 315(b) of the Act, then Station WCIX's failure to disclose must constitute a prima facie case of an LUC violation. 9. CBS contends that it would be "manifestly unfair" to penalize licensees for failing to comply with disclosure requirements which were not articulated at the time of the 1990 primary. Moreover, CBS states that the Bureau's ruling in this case is consistent with its handling of the 1990 audit in which the Bureau declined to sanction stations found to have offered a two-tiered rate structure without disclosing intermediate rates. In support of its position, CBS cites to Letter from Roy J. Stewart, Chief, Mass Media Bureau to CBS, Inc., Licensee of Television Station WCAU-TV, DA 91-1551 (December 12, 1991) ("WCAU-TV Letter") (inappropriate to impose a sanction for failure to disclose since Commission had not yet articulated affirmative duty to disclose). 10. The Commission has concluded that disclosure is "implicit in the obligations placed on broadcasters by the lowest unit charge requirements." Chronicle Publishing Company (KRON-TV), 6 FCC Rcd 7497, 7500 (1991). See also Outlet Communications (WXIN(TV)), 7 FCC Rcd 632, 634 n.9 (1992) ("WXIN"). Nonetheless, we believe that it would be unfair to hold licensees responsible for the failure to affirmatively disclose rates before we specifically articulated the requirement to do so. See WXIN, 7 FCC Rcd at 634 n.9; KRON-TV, 6 FCC Rcd at 7500. Moreover, in this case, there is no evidence that Complainants were confused or misled by Station WCIX's rate card or that the station impermissibly steered Complainants toward the purchase of higher rates. 11. In its discussion of WCIX's disclosure of intermediate rates, the Bureau noted that, "it appears that . . . Complainants purchased intermediate priced preemptible spots." WCIX-TV, 8 FCC Rcd at 4020. As both Complainants and CBS point out, the Bureau's conclusion in this regard was erroneous. The different rates identified by the Bureau did not represent different types of preemptible rates but, rather, reflected the sale of time on a weekly rotation versus a weekend-only basis. The Bureau's error, however, is without significance. The Bureau's decision did not turn on whether or not Complainants actually purchased spots sold at intermediate rates. Rather, the Bureau's decision was correctly based on the fact that Complainants neither alleged, nor provided, affidavits attesting to the fact that they requested rate information and that Station WCIX declined to convey such information, or that Complainants sought to purchase various levels of preemptible time and their requests were denied. Absent such evidence, we do not find that Station WCIX's rate structure and its failure to affirmatively disclose intermediate rates on its rate card, constituted a prima facie case of an LUC violation. 12. Our finding herein is distinguishable from the Bureau's decision in Conway Collis, Marian Bergeson, Dianne Feinstein, et al. (KCBS-TV), DA 97-513,  10, nn.10 and 12, released March 11, 1997 ("KCBS-TV"). KCBS-TV, Los Angeles, CA, is also a CBS owned and operated station which apparently utilized similar sales practices during the 1990 primary period as those used by Station WCIX-TV. KCBS- TV's rate card also listed a single, low preemptible rate and a higher-priced candidate-only non-preemptible rate. However, in that case, the record showed that KCBS-TV actually refused to sell candidates intermediate preemptible rates. Thus, the Commission concluded in KCBS-TV that, under those circumstances, a prima facie case of violation existed. The instant case more closely resembles WCAU-TV Letter, supra, involving another CBS owned and operated station which had a similar rate structure during the 1990 primary. In that case, the Bureau determined that the imposition of sanctions was unwarranted because no evidence was presented that WCAU-TV refused to sell candidates intermediately-priced preemptible time. 13. Candidate-Only Fixed Rate. The Bureau held that our 1988 Public Notice "recognized, and reasonably may have been interpreted as implicitly approving," the sale of a higher-priced candidate only time. WCIX-TV, 8 FCC Rcd at 4020. Thus, the Bureau concluded that Station WCIX's offer of such time did not constitute a prima facie case of LUC violation. Complainants do not now dispute this ruling. However, they contend that the candidate fixed rate is "as much as 375%" of the station's lowest unit rate and that such "outrageous pricing practices" constitute a prima facie case of LUC violation. As CBS correctly points out, this allegation was not raised below and, pursuant to 47 C.F.R.  1.115(c) may not be the subject of review. 14. Product Competition. Complainants argue that the Bureau erred in dismissing their claim that Station WCIX-TV violated Section 315(b) of the Act by failing to separate candidate spots. Product separation is part of Station WCIX-TV's standard contract for all advertisers and, Complainants contend, the Bureau's conclusion that separation guarantees should not be considered relevant for purposes of Section 315(b) of the Act "flies in the face of the 'most favored advertiser' standard." Application for Review at 14. Moreover, Complainants assert, that there is no basis for the Bureau's conclusion that in political campaigns there is no value in "product protection." Finally, Complainants attack the Bureau's statement in footnote 28 that "even if spot-separation guarantees were relevant for Section 315 purposes," there is no basis for relief in this case because Station WCIX-TV issued refunds to the particular candidates who were identified as not receiving notice of back-to-back political placements. WCIX-TV, 8 FCC Rcd at 4023, n.28. Complainants contend that the Bureau's statement is contrary to long standing Commission policy that post-election restitution to candidates does not excuse overcharges. Complainants further assert that allowing post- election rebates to excuse violations sets a "dangerous precedent" which will make it impossible to establish a prima facie case of an LUC violation where rebates have been made. 15. CBS argues that commercial separation policies are neither "significantly related to rates nor commonly used to distinguish between different classes of time." Opposition at 14. Thus, it asserts, that spot separations are properly not considered within the scope of Section 315(b) of the Act. Moreover, CBS agrees with the Bureau's conclusion that it could be difficult for broadcasters to guarantee political spot separation while maintaining compliance with equal opportunities and reasonable access requirements. 16. We uphold the Bureau's finding in this regard. Section 315(b) of the Act concerns rates and rate- related sales practices. As the Bureau correctly noted, as a general matter, spot separation guarantees are unlike make good and preemption policies in that they do not significantly affect the value of particular classes of time. Further, there is no evidence in the record to support Complainants' contention that in political campaigns there is any value in product protection. Although Complainants challenge the Bureau's conclusions in this regard, they do not provide any evidence supporting their claim. Moreover, we agree with the Bureau that if spot separation were required for political time it could jeopardize Section 315(b) equal opportunities and Section 312(a)(7) reasonable access requirements. Candidate demand for specific programs or dayparts is often extremely high, particularly near the conclusion of a campaign, and it would be difficult, if not impossible, for broadcasters to guarantee separation of candidate spots while maintaining compliance with equal opportunities and reasonable access requirements. Finally, contrary to Complainants' assertions, we do not read footnote 28 to suggest that post-election rebates excuse violations. Rather, that footnote merely points out that the candidates in question have already received refunds. In any event, WCIX's decision to issue rebates for these spots is irrelevant to our determination as to whether Complainants have established a prima facie case of an LUC violation because, as explained above, we have concluded that spot separation guarantees should not be considered as within the scope of the rate-related matters encompassed by Section 315(b) of the Act. 17. Accordingly, for the reasons set out above, Complainants' Application for Review is DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary