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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Federal Communications Commission FCC 96-239 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In re Application of ) ) Culver Communications Corp., Inc. ) File No. BR-910125UX ) For Renewal of License for ) Station WLVL(AM) ) Lockport, New York ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORD ER Adopted: May 24, 1996 Released: June 25, 1996 By the Commission: 1. The Commission has before it: (1) our Memorandum Opinion and Order and Notice of Apparent Liability in Beacon Broadcasting Corporation, 9 FCC Rcd 2132 (1994) ("Beacon"); (2) a Petition for Reconsideration of that decision filed by the New York State Conference of Branches of the NAACP (hereinafter "NAACP"); (3) an "Opposition to Petition for Reconsideration" filed by Culver Communications Corp., Inc. ("licensee"); and (4) a "Response to Notice of Apparent Liability" ("NAL") filed by the licensee. For the following reasons, we deny the NAACP's petition for reconsideration. We also grant the licensee's response to the NAL to the extent indicated herein and deny it in all other respects. We thus recalculate the forfeiture and reduce it from $12,500 to $4,000. 2. In Beacon, we found no evidence that the licensee engaged in discrimination. We also found, however, that the licensee's recruitment and self-assessment efforts were deficient. Accordingly, we granted WLVL(AM)'s renewal application subject to reporting conditions, and relying on the guidelines set forth in Standards for Assessing Forfeitures for Violations of EEO Rules, 9 FCC Rcd 929 (1994) ("EEO Policy Statement"), issued a $12,500 NAL for apparent violations of the Commission's EEO rule, Section 73.2080 of the Commission's Rules, 47 C.F.R.  73.2080. Beacon, 9 FCC Rcd at 2135. 3. In seeking reconsideration, the NAACP does not dispute any essential factual finding concerning Station WLVL(AM). Rather, the NAACP contends that we did not properly investigate whether the licensee's minority hiring record owed to inadvertence or discrimination. In this regard, the NAACP submits that because the licensee failed to recruit or hire a single minority during the license term, and because it failed to use any minority recruitment sources in Niagara or in Buffalo, New York, it must have deliberately chosen not to hire minorities. Finally, the NAACP argues that the Commission apparently did not consider the absence of minorities in the applicant and interviewee pools for any of the part-time hirings during the review period. The NAACP concludes that the Commission was compelled by the record to investigate whether the licensee, in fact, discriminated by intentionally avoiding the hiring of minorities. 4. The licensee opposes the NAACP's petition for reconsideration on several grounds. First, the licensee argues that the Commission considered the entire record in reaching its determinations, and that nothing provided by the NAACP in its reconsideration petition alters the initial record. Second, the licensee contends that the NAACP is simply wrong in its assertion that no minority recruitment sources were contacted. Indeed, the licensee states that the Commission found in Beacon that it had contacted the Niagara Community Action Program (NIACAP) for recruitment in connection with 6 of its 7 vacancies, and the licensee submits that NIACA P is predominantly a minority-oriented source. 5. Reconsideration is appropriate only where the petitioner shows either a material error or omission in the original order or raises additional facts not known or not existing until after the petitioner's last opportunity to present such matters. See WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S. 967 (1966); 47 C.F.R.  1.106(c). Applying this standard, we conclude that reconsideration of our decision to renew the license of WLVL(AM) without further investigation is unw arranted. 6. Furthermore, viewing the entire record, we reaffirm our conclusions that a hearing is not warranted and that there were no substantial questions left unanswered. Because of the small percentage of minorities in the Niagara County labor force (5.9%), and the licensee's verified attempts to recruit for 6 of its 7 vacancies, we disagree with the NAACP's assertion that questions of discrimination by the licensee were raised and warranted further investigation. Moreover, we specifically sought and reviewed information about WLVL(AM)'s recruitment efforts. That information disclosed that the licensee recruited from a number of sources for 6 of its 7 full-time job vacancies. Although we normally focus on a licensee's efforts to fill full- time vacancies in assessing EEO compliance, we consider all relevant evidence in determining whether a substantial and material question of fact exists. In the EEO context, such evidence includes, among other things, the minority composition of the local labor force, the number of hiring opportunities a station had during a representative period, the licensee's recruitment efforts, and the types of jobs filled. Here, after taking into account that the minority presence in the labor force is relatively small and that the licensee recruited for 6 of the 7 full-time vacancies during the review period and used sources that could be expected to refer minorities such as NIACAP, the University of Buffalo, and Buffalo State University, we conclude that the licensee's minority hiring record does not raise a substantial question of discrimination. Nothing in the NAACP's submissions leads us to believe that such a question exists. We therefore deny reconsideration. 7. In its Response to the NAL, the licensee argues that the penalties imposed pursuant to the EEO Policy Statement are invalid because that statement should have been put out for comment and because the penalties referenced therein were improperly applied retroactively. The licensee further submits that not only did the Commission apparently fail to consider NIACAP as a minority recruitment source in Niagara County, the record also shows that the University of Buffalo and Buffalo State University, additional organizations listed in Beacon as being contacted by the licensee, have substantial minority enrollments. As such, the licensee suggests that each should have been considered in assessing its minority recruitment efforts. 8. We find that reduction of the forfeiture amount is warranted. 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, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991), recon. denied, 7 FCC Rcd 5339, revised, 8 FCC Rcd 6215 (1993) ("Policy Statement"). The issuance of the EEO Policy Statement resulted from the deletion of the broadcast EEO violation category from our general forfeiture guidelines. 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 Broadc ast EEO Rule and Policies, 11 FCC Rcd 5154 (1996). 9. 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 have 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 forefeiture decisions by relying on case precedent. Accordingly, we will r ecalculate the forfeiture imposed on the licensee. 10. In determining a forfeiture, we look to case precedent, taking into consideration the relevant statutory factors in Section 503(b)(2) of the Communications Act, including the nature, circumstances, extent and gravity of the violations, and the licensee's record of compliance with our rules. In our evaluation, we consider the station's size, number of hiring opportunities, MSA size, recruitment patterns, applicant and interview pools, assessment and record-keeping. E. g., Stauffer Communications, Inc., 10 FCC Rcd 5060 (1995). After such consideration, we conclude that a forfeiture of $4,000 is appropriate. 11. We find that the record in the instant case is similar to, but less egregious, than the record involving the licensee of stations KDYL/KSFI-FM, Salt Lake City, Utah. See Holiday Broadcasting Company, 10 FCC Rcd 4500 (1995); recon. denied, 11 FCC Rcd 1125 (1996). There, we granted stations KDYL/KSFI-FM full-term renewal subject to reporting conditions, and issued an $8,000 NAL. During the review period ending May 31, 1990, stations KDYL/KSFI- FM had an overall full-time staff of 21 to 24 employees, and hired 16 full-time employees. The labor force included 7.5% minorities. KDYL/KSFI-FM was able to verify recruitment for 14 of its 16 vacancies, but apparently attracted only one minority applicant for one of its openings. Because no other minorities responded to its recruitment attempts and the licensee took no action to increase minority interest, we found that the licensee's recruitment was deficient and that it had not adequately self-assessed its EEO program as required by the Commission's EEO rule. 12. By comparison, WLVL(AM) had a full-time work force of between 9 and 14 full- time employees during the review period. The Niagara County labor force included 5.9% minorities. The licensee verified that it recruited for 6 of its 7 vacancies, but that it attracted only one minority as the result of a referral from another local station. These essential facts are undis puted in the licensee's Response to the NAL. 13. The Salt Lake City and Niagara County MSA minority labor forces are comparable - Salt Lake City's is 7.5% and Niagara's is 5.9%. Both licensees had deficient recruitment practices and failed to adequately self-assess their respective recruitment efforts. Furthermore, although both licensees contacted recruitment sources for a substantial portion of their vacancies, each obtained virtually no minority referrals in response to their respective recruitment activities. Nevertheless, neither proposed to alter its recruitment practices. We thus find that the licensee's self-assessment is similarly inadequate and that a forfeiture is warranted. However, in determining the amount, we find that the licensee's actions in this case are less serious. First, the local availability of minorities (5.9%) for Station WLVL(AM) was less than their local availability (7.5%) for the comparison case stations. Second, the licensee filled only seven full- time jobs during the review period as compared to the 16 filled by the comparison case licensee. Finally, Station WLVL(AM) was a smaller operation than the comparison stations, having never more than 14 full-time employees, while Stations KDYL/KSFI-FM had between 21 and 24 full- time employees. Thus, we conclude that a forfeiture of $4,000 is warranted. 14. Accordingly, IT IS ORDERED, that the petition for reconsideration filed by the NAACP IS DENIED. 15. IT IS FURTHER ORDERED, that Culver Communication Corp., Inc.'s Response to NA L IS GRANTED TO THE EXTENT DISCUSSED HEREIN AND IS OTHERWISE DENIE D. 16. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C. Section 503(b), that the licensee FORFEIT to the United States the sum of four thousand dollars ($4,000) for willful and repeated violations of Section 73.2080 of the Commission's Rules, 47 C.F.R. Section 73.2080. Payment of the forfeiture may be made by mailing to the Commission a check or similar instrument payable to the Federal Commu nications Commission. 17. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail- - Return Receipt Requested, copies of this Memorandum Opinion and Order and Forfeiture Order to th e NAACP and to Culver Communications Corp., Inc. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary