$// MO&O, WWCT(FM), Peoria, IL, Recon, FO, FCC 95-13 //$ $/ 300.309 Action Upon Applications /$ $/ 300.503 Forfeitures in Cases of Rebates and Offsets /$ $/ 300.504 Provisions Relating to Forfeitures $/ 1.47 Service of Documents and Proof of Service /$ $/ 1.80 Forfeiture Proceedings /$ $/ 73.2080 Equal Employment Opportunity /$ $/ 73.3584 Procedure For Filing Petitions To Deny /$ FCC 95-13 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) ) License Renewal Application ) File No. BRH-890801XT of Central Illinois ) Broadcasting Company For ) Station WWCT(FM) ) Peoria, Illinois ) MEMORANDUM OPINION AND ORDER AND NOTICE OF FORFEITURE Adopted: January 9, 1995; Released: February 14, 1995 By the Commission: Commissioner Quello concurring in the result. I. INTRODUCTION 1. The Commission has before it for consideration: (i) a Petition by the Illinois State Conference of Branches of the NAACP, including its respective branches (hereinafter NAACP), requesting, among other things, that the Commission reconsider both its decision not to grant the NAACP petitioner status and its decision to grant Central Illinois Broadcasting Company's renewal application, as set forth in Applications of D.W.S., Inc., 7 FCC Rcd 7170 (1992) (D.W.S.); (ii) the licensee's opposition to the petition; (iii) the NAACP's reply to the opposition; (iv) a Notice of Apparent Liability (NAL) of forfeiture for $10,000 issued on September 21, 1992, to Central Illinois Broadcasting Company, licensee of Station WWCT(FM), Peoria, Illinois, as part of the Commission's disposition of the NAACP's petition to deny filed against that station, D.W.S., supra; (v) a March 16, 1990, letter denying the NAACP standing as to WWCT(FM) and (vi) various other pleadings. 2. First, the NAACP requests that the Commission reconsider its decision to deny the NAACP standing as a petitioner against WWCT(FM). Second, the NAACP alleges that WWCT(FM) violated the Commission's Equal Employment Opportunity (EEO) Rule and policies and that the Commission erred when it granted the station's renewal application. It requests that the Commission reconsider its decision, designate the renewal application for hearing and thereafter deny it. For reasons discussed below, we dismiss the NAACP's petition for reconsideration and affirm our original grant of the renewal application. In addition, we will impose a Notice of Forfeiture in the amount of $10,000 for EEO violations occurring at Station WWCT(FM). II. STANDING 3. On August 1, 1989, the license renewal application for WWCT(FM) was filed at the Commission. Petitions to deny the renewal application were due to be filed on or before November 1, 1989. 47 C.F.R  73.3584. On November 1, 1989, the NAACP filed a petition to deny against WWCT(FM). Attached to the petition was a certificate of service in which the counsel for the NAACP certified that a copy of the petition had been delivered on November 1, 1989, to Edward Reddy, Esquire, counsel for WWCT(FM). On December 19, 1989, the licensee WWCT(FM) filed a Motion for Return of Petition to Deny stating that Edward Reddy had never represented the licensee and that neither it nor its actual attorney, Lawrence Bernard, Jr., Esquire, had been served with the NAACP's November 1, 1989, petition to deny. Therefore, it argued that the petition should be returned without consideration because the NAACP failed to timely serve a copy of the petition to deny on the licensee as required by Section 309(d)(1) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d)(1) and Section 1.47 of the Communications Act, 47 C.F.R.  1.47. On December 29, 1989, the NAACP filed an opposition to this motion in which it admitted to serving the wrong attorney but argued that the motion should be denied because the licensee had received notice of the petition, was therefore not prejudiced by the NAACP's erroneous service and the NAACP service error was made in good faith. In support of its argument, the NAACP cited several Commission cases. However, our review indicated that these cases were factually distinguishable from the present case and, therefore, unpersuasive. On March 16, 1990, the Commission sent a letter to the licensee, sending additional copies to its attorney and the NAACP's counsel, stating that the NAACP would be considered an informal objector against WWCT(FM) because the NAACP's petition was procedurally defective as to WWCT(FM). Letter from Charles W. Kelley, Chief, Enforcement Division, to Bruce T. Foster, President, Central Illinois Broadcasting Co., Inc., (March 16, 1990). In D.W.S., the Commission upheld this ruling. 4. In its petition for reconsideration, the NAACP requests that the Commission reconsider its decision and grant it standing as petitioner. It puts forth the same arguments as in its December 29, 1989, pleading and these arguments have already been considered and rejected by the Commission. Although it also cites several additional Commission decisions in support of those arguments, we find these cases to be factually distinguishable from the present case and, therefore, unpersuasive. In United Communications Corp., 54 RR 2d 22 (1983) and Dena Pictures, Inc., 90 FCC 2d 105 (1982), the document in question was properly mailed but never delivered. In KSAY Broadcasting Co., 45 FCC 2d 348 (1974), parties were served only four days late. In Tri- Cities Broadcasting Co., 3 RR 2d 1021 (1964), although its legal counsel was not served, party's engineering counsel was served and the Commission stated that a bona fide effort was made to adhere to the requirements of the Commission's Rules. Thus, in each of the above-cited cases, there was a good faith effort to comply with the Commission's Rules. In contrast, as discussed in para. 3, supra, the NAACP in the instant case never mailed or otherwise served notice on the licensee. Moreover, there do not appear to be any acceptable extenuating circumstances for the NAACP's failure to serve the licensee, see supra note 1. An additional case cited by the NAACP did not involve the service of a petition to deny on a licensee. In Newton Broadcasting Co., 38 FCC 865 (1965), the Commission found that, despite a delay in filing, a hearing examiner had properly granted a party's petition for leave to amend its application for authority to construct and operate new broadcast stations. 5. Because we are denying the NAACP's request to overturn our previous decision regarding its status as an informal objector, it has no standing to bring this petition for reconsideration of our decision involving WWCT(FM). Therefore, its petition against the station is dismissed. 47 C.F.R.  1.106(b)(1). Redwood Microwave Association Inc., Mount Sanhedrin, Pratt Mountain and Mt. Pierce, California, 61 FCC 2d 442 (1976); Montgomery County Broadcasting Corp., Montgomery City, Missouri, 65 FCC 2d 875 (1977); University of North Carolina, 4 FCC Rcd 2780 (1989). III. NOTICE OF FORFEITURE 6. In D.W.S., supra, the Commission sets out a record of inadequate EEO efforts at WWCT(FM). Review of the station's renewal application and inquiry response revealed that the licensee failed to attract qualified minority applicants; failed to hire any minorities for its 13 hiring opportunities; and failed to alter its list of recruitment sources or otherwise self-assess its EEO program in any meaningful way. 7. The licensee's payment or response was due October 21, 1992. It has not yet responded to the September 21, 1992, NAL. Therefore, the Commission imposes a Notice of Forfeiture for $10,000 on WWCT(FM). IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED that the petition for reconsideration filed by the NAACP against WWCT(FM) IS DISMISSED. 9. IT FURTHER IS ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), that Central Illinois Broadcasting Company FORFEIT to the United States the sum of ten thousand dollars ($10,000) for violation of the Commission's EEO Rule. 47 C.F.R.  73.2080. Full payment of the forfeiture may be made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission within 30 days of the release date of this Order. In regard to this forfeiture proceeding, the licensee may take any of the actions set forth in Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80 and Section 504(a) of the Communications Act of 1934, as amended, 47 U.S.C.  504(a), as summarized in the attachment to this Memorandum Opinion and Order and Notice of Forfeiture. 10. IT IS FURTHER ORDERED that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- one copy of this Memorandum Opinion and Order and Notice of Forfeiture to all parties. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary