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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In re Application of ) ) Retlaw Enterprises, Inc. ) File No. BRCT-931001LC ) For Renewal of License for ) Station KIMA-TV ) Yakima, Washington ) MEMORANDUM OPINION AND ORDER Adopted: May 21, 1996; Released: June 20, 1996 By the Commission: 1. The Commission has before it for consideration: (i) the above-captioned license renewal application for television station KIMA-TV, Yakima, Washington; (ii) a Petition to Deny timely filed on January 3, 1994, by the Washington/Oregon State Conference of Branches of the NAACP, through its Portland, Benton/Franklin and Yakima branches ("NAACP"); and (iii) an opposition filed by the licensee. I. BACKGROUND 2. The NAACP alleges that KIMA-TV violated our Equal Employment Opportunity (EEO) Rule and policies. Accordingly, it requests that we conduct an investigation of the station's employment practices pursuant to Bilingual Bicultural Coalition on Mass Media v. FCC, 595 F.2d 621 (D.C. Cir. 1978) and designate the renewal application for hearing. The licensee opposes the NAACP's allegations, urging that it has failed to establish any violations of our EEO requirements and that unconditional renewal of the license should be granted. 3. In challenging an application pursuant to Section 309(d) of the Communications Act of 1934, as amended, a petitioner must, as a threshold matter, submit "specific allegations of fact sufficient to show that the petitioner is a party in interest and that a grant of the application would be prima facie inconsistent with [the public interest, convenience, and necessity]." 47 U.S.C.  309(d)(1); Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (Astroline); Dubuque T.V. Limited Partnership, 4 FCC Rcd 1999 (1989). The allegations, except for those of which official notice may be taken, must be supported by an affidavit of a person or persons with personal knowledge of the facts. 47 U.S.C.  309(d)(1). 4. Standing. Submitted with the petition is a statement under penalty of perjury supplied by an NAACP member and officer who affirms that he is a regular viewer of KIMA-TV and would be aggrieved if the petition is not granted. We find that this declaration meets our requirements for standing. See NAB Petition for Rulemaking, 82 FCC 2d 89 (1980). Accordingly, we hold that the NAACP has petitioner status with respect to station KIMA-TV. 5. Prima Facie Case. The allegations in the petition are premised on the licensee's EEO program and annual employment reports. We do not find that the NAACP has established a prima facie case sufficient under Section 309(d)(1) of the Communications Act. For reasons that will be discussed below, the petition fails to make specific allegations of fact that would, if true, demonstrate that grant of the application would be inconsistent with the public interest. 6. Having reviewed all matters presented, we conclude that there are no substantial and material questions of fact warranting designation for hearing. Further, we find no evidence of employment discrimination. Thus, since the licensee is otherwise qualified, grant of the application will serve the public interest. II. DISCUSSION 7. Section 73.2080 of the Commission's Rules requires that a broadcast licensee refrain from employment discrimination and establish and maintain an equal opportunity program reflecting positive and continuing efforts to recruit and promote qualified women and minorities. When evaluating EEO performance, the Commission focuses on the licensee's efforts to recruit and promote qualified women and minorities and the licensee's ongoing assessment of its EEO efforts. Such an assessment enables the licensee to take corrective action if qualified women and minorities are not present in the applicant pool. The Commission also focuses on any evidence of discrimination by the licensee. See Sections 73.2080(a), (b) and (c). 8. A review of KIMA-TV's 1993 EEO Program Report reveals that, for the renewal year period of October 1, 1992 to September 30, 1993, KIMA-TV listed as recruitment sources three publications of interest to women and minorities, three educational institutions and two minority organizations. KIMA-TV received seven minority referrals from these sources. During the renewal year, KIMA-TV hired ten employees, five of whom were upper-level (it is not indicated how many were in full-time positions). KIMA-TV reported two minority hires, one of whom was upper-level. One promotion (minority) was reported during the period. 9. The NAACP's petition is premised on minority employment statistics as reported in the licensee's 1986 - 1993 Annual Employment Reports. The NAACP asserts that the licensee's statistical profile "has improved (albeit slowly) in recent years". It notes, however, that the station started from ground zero and has still just barely achieved 50 % of parity with the number of minorities in the labor force. It also argues that the most significant increase occurred in "the 11th hour of the license term" (presumably a reference to the renewal year). Without articulating its argument in this respect, the NAACP cites National Black Media Coalition v. FCC, 775 F.2d 342 (D.C. Cir. 1985) ("NMBC"). However, we can conjecture that it would have us accord diminished significance to the licensee's late-term record. The NAACP also asserts that nothing in the licensee's 1993 EEO Program Report provides confidence that the station's slow rate of improvement will continue. It further contends that nothing in the 1993 EEO Program Report makes clear that minority organizations are contacted whenever jobs are open. Finally, the NAACP notes that it has also filed a petition to deny the renewal application of another station operated by the licensee, KEPR-TV, Pasco, Washington. It urges that this warrants inquiry with respect to KIMA-TV since questions are raised as to a systematic failure to comply with our EEO Rule and as to common policies at both stations (citing Heritage- Wisconsin Broadcasting Corp., 8 FCC Rcd 5607 (1993) ("Heritage")). 10. We find that the NAACP has failed to make a prima facie case that the grant of KIMA-TV's renewal application would be inconsistent with the public interest as required by Section 309(d)(1) of the Act, 47 U.S.C.  309(d)(1). In its petition to deny, the NAACP does not make specific allegations that would require further consideration nor does it allege facts that would establish a violation of the Commission's EEO Rule. See Astroline. Moreover, we conclude that there is no evidence of discrimination. The licensee has recruited minority applicants. In addition, we have found no deficiencies in KIMA-TV's EEO program which would warrant a sanction or remedy. 11. Apart from KIMA-TV's statistical record of minority employment, the NAACP does not make any specific allegations of fact. The NAACP articulates no objection to the current statistical performance of KIMA-TV, which it characterizes as "improving". It only complains that the station has been slow in achieving its current level of performance. However, this would not suffice, standing alone, to establish a violation of our EEO Rule or to provide a basis for finding that the grant of renewal is inconsistent with the public interest. This is particularly so since our primary concern is with the licensee's recruitment efforts rather than its statistical record. Further, reliance on NBMC is misplaced since that case concerned the issue of whether improvements after the license term could remedy a deficient performance during the license term. However, KIMA-TV has not proferred evidence of improvements after the license term. The NAACP's concern as to whether KIMA-TV's record will continue to improve is purely speculative and does not amount to a specific allegation of fact. Similarly speculative is the NAACP's complaint that it is not clear that the licensee contacted minority organizations in connection with every hire. Finally, there is no basis for the NAACP's suggestion that alleged EEO deficiencies at another station operated by the licensee warrant inquiry into KIMA-TV's EEO record . Assuming arguendo, that we were to find an EEO deficiency at the commonly- owned KEPR-TV, no evidence of like EEO practices at KIMA-TV has been provided. Thus, Heritage is not controlling. In that case, all stations operated by a licensee were considered because they were subject to related transfer of control applications. Nonetheless, each station was considered separately based upon the facts pertaining to the respective station. Different results were reached with respect to each of the stations. Therefore, Heritage does not support the NAACP's contention that we should consider the alleged deficiencies at KEPR-TV in connection with the instant renewal application for KIMA-TV. III. CONCLUSION 12. Based upon the record, we find that a hearing is not warranted. Therefore, we will deny the petition filed by the NAACP and, finding the licensee to be otherwise qualified, we will grant unconditional renewal for KIMA-TV. IV. ORDERING CLAUSES 13. Accordingly, IT IS ORDERED that the Petition to Deny filed by the Washington/Oregon State Conference of Branches of the NAACP, through its Portland, Benton/Franklin and Yakima branches, regarding KIMA-TV IS DENIED. 14. IT IS FURTHER ORDERED, that the renewal application filed by Retlaw Enterprises, Inc. for Station KIMA-TV IS GRANTED. 15. IT IS FURTHER ORDERED, that copies of this Memorandum Opinion and Order be sent by Certified Mail -- Return Receipt Requested -- to the Washington/Oregon State Conference of Branches of the NAACP and Retlaw Enterprises, Inc. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary