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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:d<d<$YYdCCddooCYd<d<+oodCCddddCod<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"5@^*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ*7777CE7SSxJxJxJxJxJooJfJfJfJfJ7.7.7.7.xSxSxSxSxSxSxSxSxSxSxJxSxSxSxSxS]SxSxJxJoJoJoJfJfJfJxSxSxxSxSxSxSCS7S777SAxSf.fExSxSxSxo7oE]A]AN:*LS7JSSSSS.4}}S2S}277JJS77SS7J72t7[[[[^ee*C`^.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7DSS77S^*7*.SSSSSSSSSS..^^^Jxooxf]xx7Axfxx]xo]fxxxxf7.7NS7JSJSJ7SS..S.SSSS7A.SSxSSJP!PZ7SJSS7]777JJ:S7A7xx*7SSSS!S7.S^7SC[227`L*724S}}}Jxxxxxxoffff7777xxxxxxx^xxxxxx]SJJJJJJoJJJJJ....SSSSSSS[SSSSSSS?xxxX/Xx6X@DQX@6?xxxXXx `NQX.7UC2X+xXU4  pQX7PC2XH DXP\  P6QXPy.C8*XHC\  P6QP.y.G8*X+G4  pQW!0(XH h0\  P6QhP"5@^*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW*7777CE7S]xSxSxSxSxSxxJoJoJoJoJA.A.A.A.x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxJxJxJoJoJoJSSSS]]C]A]A7A]S]o.oEx]x]SxxJxJ]A]AN:*ZS7SSSSSS27}}S2}}S}277SSS77SS7S72t7[[[[_ee*C`_.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*7]SS.77S_*7*.SSSSSSSSSS77___SxoxxofASoxfx]oxxxxo7.7aS7S]J]J7S].7].]S]]JA7]SxSSJB%BW7SSSS7]777SS:S7A7xx*7SSSS%S7}2S_7}SC[227`Z*727S}}}SxxxxxxxooooAAAAxx_xxxxxf]SSSSSSxJJJJJ....S]SSSSS[S]]]]S]2@8\;RG?"5@^(1<WP MultinationalB Ro} | ؐEU؃&WVvG!FV XA   }#XU4  pQxX# Federal Communications Commission #o\  PC DXP# #XP\  P6Q DXP# FCC 96247 ă   yxdddy  X'vf#C\  P6QP##]\  PCP#Before the z  Federal Communications Commission  yO'c7Washington, D.C. 20554 #o\  PC DXP#у   XR4\In re Applications of hhCq) ` `  hhCq)  X$4First Greenville CorporationhhCq)File Nos. BR900330WY  X 4` `  hhCq)pp BRH900330WL  X4For renewal of license forhhCq)  X 4Stations KGVL(AM)/KIKT(FM)hhCq)  X 4Greenville, Texas hhCq)  ? A#Xx6X@DQ/X@# B Đ Xy '\ #Xj\  P6G; DXP#| MEMORANDUM OPINION AND ORDER  Xb 'AND FORFEITURE ORDER#x6X@`7/X@#у  XA#Xj\  P6G; DXP#Adopted: May 29, 1996#x6X@`7/X@# hhCq#Xj\  P6G; DXP#Released:#x6X@`7/X@# #o\  PC DXP# June 12, 1996#x6X@K/X@#  X4 #Xj\  P6G; DXP#By the Commission:#x6X@`7/X@#  Xu4 xR#XP\  P6Q DXP# 1. The Co#XP\  P6Q DXP#mmission has under consideration: (1) our Memorandum Opinion and Order and  X^4 x~Notice of Apparent Liability in Stauffer Communications, Inc., 9 FCC Rcd 879 (1994)  XG4 x/("Stauffer"); (2) a Petition for Reconsideration of Stauffer filed by the Texas State Conference  X04 xof Branches of the NAACP ("NAACP");y0a X4 x| Ѝ#Xj\  P6G; DXP# #X\  P6G;P#Both Stauffer and the NAACP's petition for reconsideration affect license renewal applications in addition  x to those filed by First Greenville Corporation. In this order, we address the petition for reconsideration only insofar  yOZ'as it relates to KGVL(AM)/KIKT(FM).#Xj\  P6G; DXP# (3) an Opposition to Petition for Reconsideration filed  xby First Greenville Corporation, licensee of Stations KGVL(AM)/KIKT(FM) ("First Greenville");  x(4) the NAACP's reply to the opposition filed by First Greenville; and (5) First Greenville's  xrequest to rescind the forfeiture. For the reasons that follow, we deny the NAACP's petition for  xreconsideration with respect to KGVL(AM)/KIKT(FM). However, we recalculate the proposed  xforfeiture and reduce it from $37,500 to $6,000. We reduce the forfeiture both because the  xlicensee's record so warrants and because the licensee has demonstrated an inability to pay a higher forfeiture.   Xa4 x 2. In Stauffer, we found no evidence that First Greenville had engaged in discrimination at  xuStations KGVL(AM)/KIKT(FM). We further concluded that no substantial and material  xquestions of fact existed to warrant a hearing. Accordingly, we denied the NAACP's petition to deny and granted the stations' renewal applications.   x 3. However, we found serious deficiencies in the stations' EEO program. It appeared that First  xVa X4 }#XU4  pQxX# Federal Communications Commission #o\  PC DXP# #XP\  P6Q DXP# FCC 96247 ă   yxdddy  X4 Greenville had engaged in outside recruitment for only 16 of 67 fulltime vacancies. In addition,X" 0*((!3'#X  xjFirst Greenville apparently did not maintain any applicant or interview pool information for any  X- xjof its 67 vacancies. First Greenville claimed that, because of an absence of minority employees  xin 1988, it contacted local minority groups and leaders. However, there was no indication that  xthose contacts resulted in applications from minorities. The licensee also periodically requested  xorganizations and schools to refer minority applicants. However, it did not link any such request  xto a particular job vacancy. In view of the foregoing, we concluded that First Greenville had not  xconsistently engaged in efforts to attract minorities or otherwise conducted meaningful self xyassessment of the stations' EEO program. Accordingly, the renewal grants were for less than a  x.fullterm and subject to EEO reporting conditions. Finally, applying the guidelines set forth in  X1- xStandards for Assessing Forfeitures for Violations of EEO Rules, 9 FCC Rcd 929 (1994) ("EEO  X - xMPolicy Statement"), we issued a Notice of Apparent Liability ("NAL") to First Greenville for  x$37,500 for willful and repeated violations of the Commission's EEO Rule. 47 C.F.R.  73.2080.   X - ] NAACP's Petition for Reconsideration  X -  x 4. In seeking reconsideration, the NAACP does not dispute any factual finding concerning the  xstations. Nonetheless, the NAACP argues that grants of renewal were premature. The NAACP  xcontends that there are "still far too many unanswered questions" and that the Commission's  x[investigation was not meaningful. It further submits that the Commission failed to address the  xKsignificance of the licensee's "possibly stereotypical" beliefs that the stations' proximity to Dallas  x[and low wage scale adversely affected their ability to recruit and hire employees. The NAACP  xjargues that what the licensee meant was that minorities prefer bigcity employment and require  xhigh wages. The NAACP concludes that had the Commission fully understood the licensee's  xbeliefs and considered them in conjunction with the licensee's egregious failure to implement the  xMstations' EEO program, the Commission should have inferred intentional discrimination and  X-designated the applications for hearing.   xz 5. Reconsideration is appropriate only where the petitioner shows either a material error or  x[omission in the original order or raises additional facts not known or not existing until after the  Xe- x.petitioner's last opportunity to present such matters. See WWIZ, Inc., 37 FCC 685, 686 (1964),  XN- xaff'd sub nom., Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S.  X7- x967 (1966) ("WWIZ"); 47 C.F.R.  1.106(c). Reconsideration will not be granted for the purpose  X - xof debating matters on which we have already deliberated and spoken. See, e.g., Isis Broadcast  X - xGroup, 8 FCC Rcd 24 (Rev. Bd. 1992), citing WWIZ. In this regard, we fully considered First  X- xGreenville's record in Stauffer. That record reflected few efforts to recruit minorities or to self xassess. However, there was, and continues to be, no evidence of employment discrimination.  xIn so concluding, we reject as unfounded the suggestion that the licensee's beliefs about the  xreasons for its inability to recruit and hire employees raise a substantial and material question of  xfact, either when considered alone or in conjunction with the licensee's implementation of the  xstations' EEO program. Considering the entire record, we find that, at worst, the licensee's  Xh$- x\statements are nothing more than a post hoc rationalization for its failure to attract, hire and"h$0*%%hh(#"  x[retain minorities; they do not constitute evidence of employment discrimination. We therefore  xconclude that reconsideration is not warranted with respect to our disposition of the license renewal applications for KGVL/KIKT(FM).  X-  First Greenville's Request to Rescind the Forfeiture ă  x 6. First Greenville does not dispute that it violated our EEO rule, nor does it contest the  xpropriety of shortterm renewals and reporting conditions. However, it does submit that the  xjproposed forfeiture should be rescinded in light of its competitive and financial circumstances.  xFirst Greenville contends that payment of the proposed forfeiture would be "catastrophic." First  xGreenville asserts that the stations operate with the lowest power levels set by the Commission  x=in a small community covered by approximately 40 higherpowered stations broadcasting from  xthe Dallas area and that the stations have stayed on the air only because its sole shareholder  xcontinuously contributes money to cover the stations' operating losses. First Greenville submits  x=that payment of a substantial forfeiture will adversely affect its ability to serve the needs of its  xlisteners because such payment would reduce resources otherwise available for its news  X- xoperations. Finally, First Greenville argues that the forfeiture was invalid because the EEO  Xy-Policy Statement was applied retroactively and without notice.   XK- x 7. In determining a forfeiture amount, we are required to take into account the nature,  x=circumstances, extent and gravity of the violation. In addition, with respect to the violator, we  xLare to consider the degree of culpability, any history of prior offenses, ability to pay, and such  xother matters as justice may require. Section 503(b)(2)(D) of the Communications Act of 1934,  X- xas amended, 47 U.S.C.  503(b)(2)(D). See also, Section 1.80(b)(4) of the Commission's Rules,  x47 C.F.R.  1.80(b)(4). Considering all the pertinent circumstances, we conclude that a forfeiture of $6,000 is appropriate.   X- x 8. In adopting the EEO Policy Statement, we proposed the use of nonbinding guidelines for  xassessing forfeitures for violations of our broadcast EEO rule. We had issued general forfeiture  xyguidelines to identify those situations that could lead to a forfeiture and to identify criteria that  xymight be used to increase or decrease the base amount of the forfeiture and that might result in  X7- xgrant of renewal for less than a full term. Policy Statement, Standards for Assessing Forfeitures,  X - x6 FCC Rcd 4695 (1991), recon.Ġdenied, 7 FCC Rcd 5339, revised, 8 FCC Rcd 6215 (1993)  X - x("Policy Statement"). The issuance of the EEO Policy StatementĠresulted from the deletion of  X- xNthe broadcast EEO violation category from our general forfeiture guidelines. See Policy  X- xStatement, 8 FCC Rcd at 6215 n. 1. The EEO Policy Statement did not modify any part of the  X -EEO rule. See Streamlining  GY1of Broadcast EEO Rule and Policies, 11 FCC Rcd 5154 (1996).   X"- x 9. In United States Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994) ("USTA"), the  X#- xcourt set aside our general forfeiture guidelines. The USTA decision concluded that the forfeiture  xschedule should have been put out for comment under the Administrative Procedure Act. "h$0*%%hh(#"  X- xFollowing the USTA decision, we have received requests to withdraw the EEO Policy Statement  X- xuntil it is likewise made available to the public for comment. See, e.g., Petition for Declaratory  X- xRuling by Eagle Radio, Inc. (filed August 11, 1994); Letter from Henry L. Baumann to William  X- x\E. Kennard, July 13, 1994. In Streamlining  GY2of Broadcast EEO Rule and Policies, we vacated the  xEEO Policy Statement and advised licensees that we would follow our recent practice of making  X-forfeiture decisions by relying on case precedent to resolve the decisional case.   X_- x 10. In our evaluation, we consider the station's size, composition of the local labor force,  xnumber of hiring opportunities, recruitment patterns, applicant and interview pools, assessment  X1- xand recordkeeping. E.g., KSBW License, Inc., 9 FCC Rcd at 6703. In reaching the specified  xkamount, we have determined that First Greenville's record is similar to that of the licensee of  X - xKIDY(TV), San Angelo, Texas. See Sage Broadcasting Corporation, 10 FCC Rcd 4429 (1995)  X - x("Sage"). There we granted a short term renewal, subject to the submission of an EEO report,  xand issued a $25,000 NAL. During its 19881993 license term, Station KIDY(TV) had between  x.25 and 31 fulltime employees. The local labor force included 24.1% minorities. During a three  xyear four month period ending August 1, 1993, the station filled 41 fulltime jobs. Apparently,  xthe station recruited for only 10 of the 41 vacancies (24%) and contacted minority sources for  xonly one opening. The licensee obtained only one minority applicant for a lowerlevel position.  xThe licensee did not add recruitment sources until shortly before the license expired. Finally, the  XK- xlice nsee did not maintain sufficient records to enable it selfassess the effectiveness of its  X4-recruitment efforts.   x\ 11. During the 19831990 license terms, the staff of Stations KGVL(AM)/KIKT(FM) varied  x0between 13 and 21 fulltime employees. The local labor force included 13.4% minorities.  xDuring a three year four month period ending July 31, 1990, the stations filled 67 fulltime  x{vacancies. First Greenville's records indicate that it recruited for only 16 or 24% of those  xvacancies. Minorities were known to be present in only one applicant and interview pool. The  x>licensee apparently did not maintain any information as to the race, national origin, sex and referral source of its applicants and the persons interviewed.   x= 12. Station KIDY(TV) had more employees and was located in an area with a greater minority  x-presence than Stations KGVL(AM)/KIKT(FM). Although the licensee of KGVL(AM)/KIKT(FM)  x=had more hiring opportunities, both it and the licensee of KIDY(FM) had a substantial number  xof jobs to fill, yet both recruited for slightly less than one quarter of their fulltime vacancies.  x.Both licensees made virtually no effort to contact minorityspecific sources despite the virtual  xabsence of minority referrals. Finally, although Station KIDY(TV)'s licensee selfassessed its  xEEO program and Stations KGVL(AM)/KIKT(FM)'s licensee did not, the former's self xassessment did not occur until the month preceding the preparation and submission of its renewal  X"- xapplication and long after the licensee should have been aware that its recruitment practices  xneeded modifying. Both stations failed to maintain adequate EEO records. Given the facts of this case, we would set the forfeiture at $20,000. "h$0*%%hh(#"Ԍ xԙ 13. As noted, however, the licensee has also asked us to consider its ability to pay. Our  X- x.review of the licensee's financial documents  Ob< xЍ #X\  P6G;P#The licensee has requested that its financial submissions be kept confidential. We grant this request.  X:-#Xj\  P6G;XP#  leads us to conclude that the stations' expenses,  xZwithout regard for depreciation, have generally exceeded their income, and that the licensee's sole  xshareholder has funded those losses. The licensee's submissions further reflect that its sole  xstockholder does not receive any income whatsoever from the stations and that he has lent the  xistations considerable sums. The AM station operates at 1 kW power on an unlimited basis, while  xthe FM is a Class A. Stations KGVL(AM)/KIKT(FM) are the only stations licensed to  xGreenville, the principal business center of Hunt County. Hunt County is now part of the Dallas, Texas, Primary Metropolitan Statistical Area.   X - x 14. In Benito Rish, 10 FCC Rcd 2861 (1995), the Commission reduced a $10,000 forfeiture  X - xZto $2,500, inter alia, because the licensee's station (Station WREM(AM), Monticello, Maine) was  xa 5 kW directional daytimeonly station licensed to a community of 425. The Commission  xconcluded that, in light of those circumstances and the station's apparently unprofitable history,  xa forfeiture of $2,500 would adequately deter future misconduct. Here, too, Stations  xKGVL(AM)/KIKT(FM) have apparently suffered significant financial setbacks. On the other  xhand, the stations' power and location makes their inherent value significantly greater than that  xof Station WREM. Considering all of the circumstances, we conclude that a reduction of the forfeiture is appropriate. Accordingly, we reduce the forfeiture to $6,000.   X6- x#x6Nhez7 XH## Xj\  P6G;XP# 15. Accordingly, IT IS ORDERED, that the petition for reconsideration filed by the NAACP with respect to KGVL/KIKT(FM) IS DENIED.   x 16. IT IS FURTHER ORDERED, that First Greenville's request for confidentiality IS  xGRANTED, and that the financial documents submitted with its response to the NAL SHALL  xzBE KEPT CONFIDENTIAL pursuant to Sections 0.457 and 0.459 of the Commission's Rules.  x> 17. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the Communications Act of  X~- x=1934, as amended, 47 U.S.C. Section 503(b), that First Greenville Corporation FORFEIT to the  xLUnited States the sum of six thousand dollars ($6,000) for the willful and repeated violations of  x|Section 73.2080 of the Commission's Rules, 47 C.F.R. Section 73.2080. Payment of the  xforfeiture may be made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission. " Q0*%%hh"  x. 18. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail Return  xjReceipt Requested, copies of this Memorandum Opinion and Order and Forfeiture Order to the NAACP and to First Greenville Corporation.  X-JxĐ  X` hp x (#%'0*,.8135@8: