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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 Applications of ) ) Pacific and Southern Company, Inc. ) File No. BR-900802UP ) BRH-900802VK For Renewal of License for ) Stations KSDO(AM)/KSDO-FM ) San Diego, California ) MEMORANDUM OPINION AND ORDER Adopted: June 28, 1996 Released: July 10, 1996 By the Commission: 1. The Commission has before it an application for review timely filed on May 30, 1995, by Rosalee E. Sell regarding the Memorandum Opinion and Order ("MO&O") of the Chief, Mass Media Bureau, released April 28, 1995, in the above-captioned matter. By that action, the Commission granted unconditional renewal of the applications for KSDO(AM)/KSDO-FM, San Diego, California, and denied a Petition to Deny filed by Sell. Also before the Commission are an opposition to Sell's application for review filed by the licensee and Sell's reply thereto. I. BACKGROUND 2. Sell urged in her petition to deny that the renewal applications at issue should be denied or designated for hearing based on violations of our Equal Employment Opportunity (EEO) Rule, Section 73.2080 of the Commission's Rules, 47 C.F.R.  73.2080. The MO&O held that Sell had failed to make a prima facie case that the licensee violated our EEO Rule. It found that her petition raised primarily an individual allegation of discrimination that should be considered in the first instance by the Equal Employment Opportunity Commission (EEOC) pursuant to the Memorandum of Understanding Between the Federal Communications Commission and the Equal Employment Opportunity Commission, 70 FCC 2d 2320, 2330 (1978) ( "MOU"). Accordingly, her petition and all supplemental pleadings were forwarded to the EEOC. The MO&O also held that the Commission would take cognizance of any final determinations concerning employment discrimination. Further, the MO&O rejected a claim by Sell that the licensee had sought to exaggerate the presence of women on its staff in announcer positions by conducting on-the-air auditions of prospective female announcers coincidental with the filing of its renewal applications in 1983 and 1990. The MO&O found that even if this were true, it would not establish a prima facie case that the licensee violated our EEO Rule. Finally, the MO&O reviewed the licensee's record with respect to the recruiting of female employees as reflected in the licensee's 1990 EEO Program Report and its 1984 - 1990 Annual Employment Reports and found that the licensee's EEO program with respect to females was in compliance with our EEO Rule. 3. Sell's application for review first contends that review of the MO&O is warranted because it is inconsistent with appellate and Commission precedent, pursuant to Section 1.115(b)(2)(i ) of the Commission's Rules, 47 C.F.R.  1.115(b)(2)(i ). In support of her claim of inconsistency with precedent, Sell urges that the failure to consider her complaint of discrimination is inconsistent with the Commission's action in Catoctin Broadcasting Corp. of New York, FCC 86D-52, released August 22, 1986, aff'd 2 FCC Rcd 2126 (Rev. Bd. 1987), rev. den., 4 FCC Rcd 2553 (1989), recon. den.,4 FCC Rcd 6312 (1989), aff'd sub nom. Catoctin Broadcasting Corp. of New York v. FCC, 920 F.2d 1039, 1990 WL 212551 (D.C. Cir. 1990) (unpublished memorandum) ("Catoctin"). Sell asserts that, in Catoctin, we denied a renewal application as the result of considering a complaint alleging individual discrimination comparable to Sell's complaint here. She contends that the MO&O reflects a policy of assessing discrimination solely in terms of the comparison of the licensee's workforce statistics with those in the overall labor force in a manner that is inconsistent with Catoctin. Sell further objects to the finding that she failed to establish a prima facie case, asserting that, under Beaumont Branch of the NAACP v. FCC, 854 F.2d 501 (D.C. Cir. 1988) ("Beaumont"), it was sufficient for her to allege that she was a qualified female applicant and that the licensee had engaged in discriminatory practices. Sell also maintains that grant of the renewal applications would in any event have been inappropriate under the MOU prior to final resolution of her complaint by the EEOC. 4. Sell further contends that review of the MO&O is warranted because it reflects prejudicial procedural error, pursuant to Section 1.115(b)(2)(v ) of the Commission's Rules, 47 C.F.R.  1.115(b)(2)(v ). In support of her claim of prejudicial procedural error, Sell alleges that the staff violated Section 5(d) of the Communications Act of 1934, as amended, 47 U.S.C.  155(d), by failing to resolve this case within three months. Sell also alleges that the result reached by the MO&O reflects that the staff accorded preferential treatment to the licensee because it is a subsidiary of a large multiple station owner. 5. The licensee in its opposition urges that Catoctin is distinguishable since it involved egregious facts including pervasive misrepresentation by the licensee and no such substantial allegations have been presented here. The licensee also contends that the Commission properly refused to adjudicate an individual complaint of discrimination here, especially since it reviewed the stations' EEO efforts with respect to females and found them satisfactory. In her reply, Sell emphasizes her contention that Beaumont is the controlling precedent and that, pursuant thereto, a hearing concerning her allegations is required. II. DISCUSSION 6. It is our general policy that individual complaints of employment discrimination should be resolved in the first instance by the EEOC or other government agency and/or court established to enforce non-discrimination laws. Under this policy, the Commission will take cognizance of any final determination of employment discrimination. MOU, supra. This policy has been in place since well prior to the filing of Sell's petition to deny in November 1990. See, e.g. Application for Renewal of License of WNBC-TV, 5 FCC Rcd 2049 (1990); KSDK, Inc., 85 FCC 2d 797 (1981), recon. den., 88 FCC 2d 1443 (1982); Washington Radio, Inc., 88 FCC 2d 1200 (1982). Indeed, even prior to the MOU, it was our policy that individual complaints of employment discrimination should be resolved initially by the EEOC or the courts. Newhouse Broadcasting Corporation, 61 FCC 2d 528, 539-40 (1976). Our policy was developed primarily because Congress intended the EEOC to be principally responsible for the resolution of individual employment discrimination disputes and that efforts on our part to separately resolve such disputes would result in duplication of efforts. CBS, Inc., 59 FCC 2d 1127, 1132 (1976). The EEOC also may invoke an array of remedies designed to make whole a person found to have been the victim of discrimination; whereas our review relates to an applicant's qualifications to be a licensee. Bilingual Bicultural Coalition on Mass Media v. FCC, 595 F. 2d 621, 628 (D.C. Cir. 1978) ("Bilingual"). Our general policy does not, however, preclude us from considering facts relating to specific instances of alleged discrimination where the surrounding circumstances raise questions about a licensee's basic qualifications, such as an issue as to the truthfulness of its representations to the Commission. Indeed, in the MOU, we indicated that prior cases reflecting our policy ". . . never precluded collateral FCC investigation of employment matters in appropriate cases." MOU, supra, 70 FCC 2d at 2328 n. 12. 7. Sell's contention that the MO&O's reliance on our general policy is inconsistent with Catoctin and Beaumont is without merit. Both cases involved surrounding circumstances that raised separate questions as to the basic qualifications of the licensees. Catoctin concerned an issue as to the licensee's truthfulness. Beaumont involved a combination of circumstances, including the wholesale departure of minority employees, inconsistent or erroneous explanations for the departure by the licensee, and a deficient EEO recruitment program. Sell has failed to demonstrate that the facts alleged by her raise comparable concerns as to the licensee's basic qualifications. Accordingly, there is no inconsistency between the MO&O's referral of Sell's allegations to the EEOC in accordance with our general policy and the results reached in Catoctin and Beaumont. 8. In assessing whether a petitioner has made a prima facie case, we consider only the petition's specific allegations of fact that are supported by an affidavit of a person with personal knowledge thereof or that may be officially noticed. We must then determine whether, assuming the truth of such facts, a grant of the application would be prima facie inconsistent with the public interest. Section 309(d)(1) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d)(1); Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988). In the instant case, Sell alleged an individual complaint of employment discrimination that, pursuant to Commission policy, is appropriately resolved in the first instance by the EEOC. Sell did not allege facts such as licensee misrepresentation or the combination of factors present in Beaumont, for example, that would warrant Commission consideration of the circumstances pertaining to her complaint prior to an adverse finding by the EEOC or a court. Accordingly, the MO&O was correct in finding that Sell failed to establish that grant of the renewal applications would have been prima facie inconsistent with the public interest. 9. The MO&O undertook a review of the licensee's EEO program with respect to the recruitment and hiring of females and found that its efforts complied with our EEO Rule. Sell's application for review does not directly challenge the staff's conclusion, except to allege that the staff incorrectly based its conclusion on a mere comparison of the licensee's workforce with the local labor force statistics. This is incorrect since the staff also analyzed the 1990 EEO Program Report, which contained information as to the licensee's EEO recruitment practices, sources and results. Accordingly, Sell has alleged no rational basis for reversing the MO&O's conclusion that the licensee maintained an EEO program consistent with our Rule. 10. Sell also asserts that the MO&O failed to comply with the MOU, which she claims would have required the Commission to defer action on the instant renewal applications pending a ruling by the EEOC on her complaint. She premises this conclusion on Section IV of the MOU, which sets forth procedures that will be followed after an EEOC "reasonable cause" determination is made in connection with a complaint. 70 FCC 2d at 2331-32. Nothing therein, however, indicates that the Commission will necessarily defer action on an application pending a "reasonable cause" determination by the EEOC. Moreover, the Commission expressly retains its discretion even after a "reasonable cause" determination by the EEOC to either defer the case before it pending a final judicial determination or to proceed with appropriate administrative action prior to such a determination. 11. Sell further contends that the MO&O reflected prejudicial procedural error by failing to comply with an alleged "obligation" to rule on this case within three months premised on Section 5(d) of the Communications Act of 1934, as amended, 47 U.S.C.  155(d). This provision states that the Commission shall take actions to expedite the conduct of its business: ". . . with the objective of rendering a final decision (1) within three months from the date of filing in all original application, renewal, and transfer cases in which it will not be necessary to hold a hearing, and (2) within six months from the final date of the hearing in all hearing cases." By the plain language of this provision, however, the alleged "obligation" is in fact a non- mandatory "objective". In the case of contested broadcast renewal applications, compliance with this objective is an impossibility since petitions to deny are not required to be filed until three months after the filing of the original renewal application. Moreover, a further 50 day period for the filing of oppositions and replies is allowed. The only precedent cited by Sell is Telecommunications Research and Action Center v. FCC, 750 F. 2d 70 (D.C. Cir. 1984) ("TRAC"). That case involved a motion seeking a judicial order to compel agency action that had not yet occurred. TRAC is not applicable here since the agency has now acted. Sell has not shown prejudice by establishing that the result reached would likely have been different if action had occurred sooner. Nor has she been prejudiced because delay extinguished her rights before the EEOC. Pursuant to the MOU, her complaint, which we have referred to the EEOC, is deemed to have been filed with that agency on the same date it was filed with us, i.e., November 1, 1990. 12. Finally, Sell alleges that the denial of her petition was the product of preferential treatment accorded to the licensee because it is a subsidiary of a "politically influential" multiple station owner and that a different result would have ensued had the licensee been a "small fry". Sell's allegation is premised solely on speculation and innuendo loosely based on her erroneous contention that the circumstances here are similar to those that were found to warrant inquiry in Catoctin. As noted, the facts in Catoctin were substantially different than those in this case. We accordingly reject Sell's baseless allegation. III. CONCLUSION 13. We accordingly find that Sell has failed to establish that the MO&O is inconsistent with precedent or that the staff committed prejudicial procedural error. We will therefore deny her application for review. We emphasize, however, that, as indicated in the MO&O, we will take cognizance of any final determination by the EEOC, other governmental agency and/or court concerning complaints of employment discrimination by the licensee. IV. ORDERING CLAUSES 14. Accordingly, IT IS ORDERED that, pursuant to Section 1.115(g) of the Commission's Rules, the Application for Review filed on May 30, 1995, by Rosalee E. Sell IS DENIED. 15. IT IS FURTHER ORDERED that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- copies of this Memorandum Opinion and Order to Rosalee E. Sell and Pacific and Southern Company, Inc. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary