NOTICE ************************************************************************* NOTICE ************************************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) KTEM RADIO, INC. ) File Nos. BR-900320UM ) BRH-900320UN For Renewal of License for Stations ) KTEM(AM) and KPLE(FM), Temple, Texas ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: May 23, 1996; Released: June 4, 1996 By the Commission: I. INTRODUCTION 1. The Commission has before it a Response to Notice of Apparent Liability and Petition for Reconsideration of Eagle Radio, Inc., 9 FCC Rcd 836 (1994), filed March 3, 1994, by KTEM Radio, Inc., the former licensee of Stations KTEM(AM) and KPLE(FM), Temple, Texas. For the following reasons, we reduce the proposed forfeiture that we initially imposed for KTEM Radio, Inc.'s apparent violations of our Equal Employment Opportunity ("EEO") Rule, 47 C.F.R.  73.2080. II. BACKGROUND 2. In Eagle Radio, Inc. we granted KTEM Radio, Inc.'s captioned renewal applications for a short-term; imposed reporting conditions upon KTEM Radio, Inc., to monitor future compliance with the Commission's EEO rule; and issued a Notice of Apparent Liability to KTEM Radio, Inc. in the amount of $25,000 for apparent EEO rule violations. Petitioner urges that the sanctions and remedies imposed were improper since they were premised on the application of policy changes that occurred after the filing of petitioner's renewal applications in 1990. Thus, petitioner notes that, in 1991, we adopted the Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991), recon. denied, 7 FCC Rcd 5339, revised, 8 FCC Rcd 6215 (1993) ("Policy Statement") and thereafter, in 1994, we adopted the Standards for Assessing Forfeitures for Violations of EEO Rules, 9 FCC Rcd 929 (1994) ("EEO Policy Statement"), which petitioner states had the effect of substantially increasing the amount of forfeitures and the likelihood of short-term renewal. It contends that the sanctions and remedies imposed upon it as a result of these actions (including the forfeiture, the short-term renewal and the reporting conditions) were substantially greater than those imposed in other cases decided in the 1990-1991 period. 3. Petitioner further notes that, in 1992, Congress adopted an amendment to Section 503 (b) (6) of the Communications Act of 1934, as amended, 47 U.S.C.  503 (b) (6), that modified the statute of limitations period during which broadcasters remained subject to a forfeiture. Petitioner complains that this amendment had the effect of permitting its renewal applications to remain pending until after the adoption of the EEO Policy Statement, whereas under the former language of Section 503 (b) (6), the period during which a forfeiture could have been assessed would have expired prior to the adoption of the EEO Policy Statement. Petitioner urges that the combined result of the amendment and the adoption of the EEO Policy Statement was to subject it to a significantly increased forfeiture amount and an increased likelihood of short-term renewal which constituted new and unanticipated obligations from those in place during the stations' license terms. III. DISCUSSION 4. In adopting the EEO Policy Statement, we proposed the use of non-binding guidelines for assessing forfeitures for violations of our broadcast EEO rule. We had issued general forfeiture guidelines to identify those situations that could lead to a forfeiture and to identify criteria that might be used to increase or decrease the base amount of the forfeiture and that might result in grant of renewal for less than a full term. Policy Statement. The EEO Policy Statement was issued because, in 1993, we had deleted the broadcast EEO violation category from our general forfeiture guidelines and announced that we would issue a further policy statement on broadcast EEO matters in the future. See Policy Statement, 8 FCC Rcd at 6215 n. 1. The EEO Policy Statement did not modify any part of the EEO rule. See Streamlining Broadcast EEO Rule and Policies, FCC 96-49, released February 16, 1996. 5. In United States Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994) ("USTA"), the court set aside our general forfeiture guidelines. The USTA decision concluded that the forfeiture schedule should have been put out for comment under the Administrative Procedure Act. Following the USTA decision, we received requests to withdraw the EEO Policy Statement until it is likewise made available to the public for comment. See, e.g., Petition for Declaratory Ruling by Eagle Radio, Inc. (filed August 11, 1994); Letter from Henry L. Baumann to William E. Kennard, July 13, 1994. In Streamlining Broadcast EEO Rule and Policies, we vacated the EEO Policy Statement and advised licensees that we would follow our recent practice of making forfeiture decisions by relying on case precedent. Accordingly, we will recalculate the forfeiture imposed on the licensee. 6. In determining the amount of a forfeiture, we look to case precedent, taking into consideration the relevant statutory factors in Section 503(b)(2) of the Communications Act of 1934, as amended, including the nature, circumstances, extent and gravity of the violations, and the licensee's record of compliance with our rules. Furthermore, we consider the station's size, the available labor force, number of hiring opportunities, recruitment patterns, applicant and interview pools, and assessment and record-keeping practices. E. g., Stauffer Communications, Inc., 10 FCC Rcd 5060, 5061 (1995). 7. We believe that the record in the instant case is similar to that of the licensee of WNRW-TV, Winston-Salem, North Carolina, in In re Application of Act III Broadcasting of Nashville, Inc., 11 FCC Rcd 1172 (1995). The licensee of WNRW-TV could document recruitment for only 14 of its 29 overall vacancies and 9 of its 19 upper-level vacancies during the pertinent reporting period. Moreover, the licensee failed to maintain complete applicant and interview flow data sufficient to permit meaningful self-assessment of its recruitment efforts. We granted renewal subject to reporting conditions and issued a Notice of Apparent Liability for $15,000. 8. KTEM Radio, Inc.'s recruitment and self-assessment practices are similar to those of the licensee of WNRW-TV. Thus, the licensee here was unable to document recruitment for 15 of its 35 full-time vacancies (all upper-level) during the pertinent review period. It also failed to maintain complete applicant and interview flow data sufficient to permit meaningful self- assessment of its recruitment efforts. Accordingly, we conclude that a forfeiture in the amount of $15,000 is appropriate in this case as well. 9. The amount of the forfeiture has been determined on the basis of case precedent, which was the method utilized for assessing forfeitures during the stations' license terms. Accordingly, the objection that we have unfairly applied the method set forth in the EEO Policy Statement to conduct predating its adoption is moot. The amount of the forfeiture here is nonetheless greater than the amounts in the 1990-1991 cases cited by petitioner. However, this reflects that Congress in 1989 amended our forfeiture authority to permit substantially higher forfeitures. The 1990-1991 cases cited by petitioner related to stations whose licenses expired prior to the adoption of the 1989 amendment and forfeitures were assessed in light of the pre- 1989 limit. Because petitioner's licenses expired after 1989, the instant forfeiture does not raise an issue as to the unfair application of a post-term policy. Finally, petitioner's objection to the imposition of reporting conditions and a short-term renewal is also moot. Since the release of Eagle Radio, Inc., both KTEM(AM) and KPLE(FM) have been sold. The new licensees have filed the required renewal applications and submitted the required EEO reports. Because the current licensees of KTEM(AM) and KPLE(FM) have discharged their application and reporting obligations under Eagle Radio, Inc., it is unnecessary to consider any remaining questions as to the propriety of those requirements. IV. ORDERING CLAUSES 10. ACCORDINGLY, IT IS ORDERED, that the Response to Notice of Apparent Liability and Petition for Reconsideration, filed March 3, 1994, by KTEM Radio, Inc., is GRANTED to the extent indicated, and is otherwise DENIED. 11. IT IS FURTHER ORDERED, that the forfeiture amount is reduced for the reasons stated herein. In this respect, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, that KTEM Radio, Inc. SHALL FORFEIT to the United States the sum of fifteen thousand dollars ($15,000) for the willful and repeated violations of Section 73.2080 of the Commission's Rules, 47 C.F.R. Section 73.2080. Payment of the forfeiture shall be made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission. 12. IT IS FURTHER ORDERED, that the Mass Media Bureau shall send by Certified Mail -- Return Receipt Requested -- a copy of this Memorandum Opinion and Order and Forfeiture Order to KTEM Radio, Inc. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary