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BR-900322UE ) BRH-900322UD For renewal of license for ) Stations KEBE(AM)/KOOI(FM) ) Jacksonville, Texas ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: May 29, 1996Released: June 12, 1996 By the Commission: 1. The Commission has under consideration: (1) its Memorandum Opinion and Order and Notice of Apparent Liability in Stauffer Communications, Inc., 9 FCC Rcd 879 (1994)("Stauffer"); (2) a petition for reconsideration of that decision filed by the Texas State Conference of Branches of the NAACP, including its respective local branches (collectively "NAACP"); (3) a petition for reconsideration of that decision filed by Waller Broadcasting, Inc. ("WBI" or "licensee"), licensee of the stations; (4) and related pleadings. For the reasons that follow, we deny the petition for reconsideration by the NAACP. However, we grant the licensee's petition to the extent indicated herein and deny it in all other respects. We recalculate the proposed forfeiture and reduce it from $31,250 to $12,000. 2. In Stauffer, we found no evidence that WBI, the licensee of Stations KEBE(AM)/KOOI(FM), had engaged in discrimination. We also concluded that no substantial and material questions of fact existed. Accordingly, we granted the stations' renewal applications. However, we found that the licensee's recruitment efforts were deficient. The licensee failed to affirmatively recruit for 25 percent of its hires and failed to contact minority sources for 56 of its 57 hires despite the fact that few minority applicants resulted from the use of general sources. As an apparent consequence, minorities were absent from 77 percent of the overall applicant and interview pools and 81 percent of the upper-level applicant and interview pools. We concluded that the licensee did not consistently engage in efforts to attract minorities or otherwise conduct meaningful self-assessment of its program. Referring to the guidelines set forth in Standards for Assessing Forfeitures for Violations of EEO Rules, 9 FCC Rcd 929 (1994) ("EEO Policy Statement"), we concluded that the licensee's EEO rule violations warranted imposition of a forfeiture and reporting conditions. We therefore renewed the KEBE(AM)/KOOI(FM) licenses only for a short-term and issued a Notice of Apparent Liability ("NAL") for $31,250. Stauffer, 9 FCC Rcd at 888. NAACP's Petition for Reconsideration 3. 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). In seeking reconsideration, the NAACP does not allege any facts not previously considered. However, it argues that material error occurred because Stauffer failed to designate WBI's applications for hearing. In support, the NAACP cites the EEO Policy Statement, which stated that "[i]f previous sanction and remedies included a short-term renewal, the renewal will be designated for hearing and possible forfeiture of $250,000." 9 FCC Rcd at 935. The NAACP observes that, although Stauffer recited that the stations had received short- term renewals in 1980, a hearing was not ordered. 4. We reject this argument. The EEO Policy Statement contained non-binding guidelines for determining what action, if any, we should take when we encountered EEO rule violations. Thus, we were not required to order a hearing even when a violator had previously been sanctioned. In any event, we have vacated the EEO Policy Statement. See Streamlining Broadcast EEO Rule and Policies, 11 FCC Rcd 5154 (1996). Therefore, any alleged failure to follow that policy statement can not now support a claim of error. Cf. Syracuse Peace Council, 2 FCC Rcd 5043 (1987) (subsequent history omitted). Finally, we concluded in Stauffer, and we continue to believe, that no substantial and material questions of fact exist with respect to the KEBE(AM)/KOOI(FM) renewal applications. Accordingly, we conclude that Stauffer's grant of the stations' applications was not error. WBI's Petition for Reconsideration 5. In seeking reconsideration, WBI argues that Stauffer erred by relying on the EEO Policy Statement to conclude that WBI violated Commission rules. WBI further contends that Stauffer illegally determined the forfeiture by using the EEO Policy Statement. WBI submits that its applications should have been granted without EEO reporting conditions. WBI also argues that the forfeiture should be remitted or substantially reduced. Finally, it contends that should a forfeiture be imposed, it should be rescinded or substantially reduced because a forfeiture would impose severe financial hardship upon WBI. In support of this argument, the licensee has submitted documentation regarding its ability to pay, for which it requests confidentiality. For the reasons that follow, we conclude that, because EEO rule violations occurred, reconsideration is warranted only with respect to the amount of the forfeiture. 6. 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 Broadcast EEO Rule and Policies. 7. 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 forfeiture decisions by relying on case precedent to resolve the decisional case. Consistent with that approach, we will recalculate the forfeiture imposed on WBI. 8. In determining a forfeiture, we take into consideration the relevant statutory factors in Section 503(b)(2) of the Communications Act, including the nature, circumstances, extent and gravity of the violation, and the licensee's record of compliance with our rules. In our evaluation, we consider the station's size, number of hiring opportunities, composition of the local labor force, recruitment patterns, applicant and interview pools, assessment and record-keeping. E.g., KSBW License, Inc., 9 FCC Rcd at 6703. After such consideration, we conclude that a forfeiture of $12,000 is appropriate. 9. In reaching the specified amount, we have determined that WBI's record is similar to, but less egregious than, that of Station WNRW(TV), Winston-Salem, North Carolina. See Act III Broadcasting of Nashville, Inc., 11 FCC Rcd 1174 (1995). For that station, we granted renewal, subject to reporting conditions, and issued a $15,000 NAL. During the license term, the station had between 30 and 37 full-time employees. The local labor force included 17.8% minorities. During the period July 31, 1988 through July 31, 1991, the station filled 29 full-time vacancies. The licensee contacted recruitment sources for 14 of the vacancies. The licensee could not verify the composition of any of its applicant and interview pools; however, it appeared that minorities appeared in four (or 14%) of the interview pools, including one pool (or 5%) for an upper-level job. 10. Stations KEBE(AM)/KOOI(FM) had between 16 and 27 full-time employees. The local labor force included 21.3% minorities. During a three year, four month period ending July 31, 1990, the stations filled 57 full-time jobs. The licensee recruited for 43 (75%) of the vacancies. In addition, the licensee annually contacted minority organizations. Thirteen (or 23%) of the 57 applicant pools, including 10 of the 52 (or 19%) upper-level vacancies, contained minorities. According to the licensee, it also used training programs to attract entry-level minority employees; however, it is unclear whether such programs actually resulted in applicants for full- time positions. 11. Although the minority component of the Jacksonville labor force was greater than that of Winston-Salem, Stations KEBE(AM)/KOOI(FM) were smaller than Station WNRW(TV). Moreover, WBI, the licensee of KEBE(AM)/KOOI(FM), recruited more diligently and kept better records of its EEO efforts than did the licensee of WNRW(TV). Nevertheless, WBI did not recruit for each vacancy and did not revise its recruiting practices despite the relative paucity of minority applicants for full-time positions. Considering the facts of this case, we find that WBI repeatedly violated the recruitment and self-assessment subparts of our EEO rule and that the appropriate forfeiture is $12,000. 12. In so concluding, we have fully considered the licensee's submissions regarding its ability to pay. Generally, those documents reveal that the licensee had a net profit during two of the three years, while the final year's documents reflect monies advanced to a licensee principal. In view of these circumstances, we do not believe any reduction in the amount of the forfeiture because of ability to pay is appropriate. Moreover, because we continue to find that WBI's record warrants monitoring, the reporting conditions imposed in Stauffer will remain unaffected. 13. Accordingly, IT IS ORDERED, that the petition for reconsideration filed by the NAACP IS DENIED. 14. IT IS FURTHER ORDERED, That WBI's Petition for Reconsideration IS GRANTED TO THE EXTENT INDICATED HEREIN AND IS OTHERWISE DENIED. 15. IT IS FURTHER ORDERED, that WBI's request for confidentiality IS GRANTED, and that the financial documents submitted with its petition for reconsideration SHALL BE KEPT CONFIDENTIAL pursuant to Sections 0.457 and 0.459 of the Commission's Rules. 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 WBI FORFEIT to the United State the sum of twelve thousand dollars ($12,000) 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 may be made by mailing to the Commission a check or similar instrument payable to the Federal Communications 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 the NAACP and to WBI. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary