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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 Application of ) ) Buckley Broadcasting Corporation ) File No. BR-910131WD ) For renewal of license for ) Station WOR(AM) ) New York, New York ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORD ER Adopted: August 12, 1996 Released: August 15, 1996 By the Commission: 1. The Commission has before it: (1) our Memorandum Opinion and Order and Notice of Apparent Liability in Buckley Broadcasting Corporation, 9 FCC Rcd 2099 (1994) ("MO&O"); (2) a Petition for Reconsideration and Response to Notice of Apparent Liability ("Response") filed by Buckley Broadcasting Corporation ("Buckley"). For the reasons that follow, we will grant Buckley's Response to the extent indicated herein and deny it in all other respects. We thus reduce the forfeiture for station WOR from $23,750 to $14,000 and continue to require the submission of EEO reports. 2. In the MO&O, we concluded that no substantial and material questions of fact existed. The licensee recruited, interviewed and hired minorities, and we found no evidence indicating that the licensee engaged in discrimination. Accordingly, we concluded that grant of the application was in the public interest. However, we found that the licensee's efforts to recruit minorities were deficient. In addition, we concluded that the licensee had not engaged in meaningful self- assessment of the station's EEO 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 apparent EEO rule violations warranted imposition of significant sanctions. We therefore renewed the license of WOR, subject to reporting conditions, and issued a Notice of Apparent Liability for $23,750. Buckley's Response 3. Buckley contends that because it made "good faith" efforts to attract and hire minorities during the license term, it fully complied with the Commission's EEO rule. Buckley therefore believes that the Commission's decision should be reconsidered and vacated, that the forfeiture should be remitted, and that the reporting requirements should be removed. 4. Buckley objects to the Commission's application of the EEO Policy Statement to WOR. In seeking rescission of the forfeiture, Buckley argues that the penalties imposed upon WOR are invalid because the Commission retroactively applied the 1994 EEO Policy Statement to conduct that occurred in 1991. Additionally, Buckley submits that its record is entitled to be reviewed under the regulations in effect at the time of its renewal application. See Greene v. United States, 376 U.S. 149, 160 (1964). Finally, the licensee cites Melody Music, Inc. v. FCC, 345 F.2d 730 (D.C. Cir. 1965), for the proposition that similarly situated applicants should be treated in the same manner by the Commission. Citing Beasley Broadcast Group, 4 FCC Rcd 6198 (M.M. Bur. 1989); Certain Broadcast Stations Serving the State of Arkansas, 6 FCC Rcd 4938 (1991), Buckley claims that similar conduct by other licensees decided at or about the same time as Buckley's renewal in 1991 resulted in far less onerous sanctions. 5. Reconsideration is appropriate only where the petitioner either shows 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). Because, as explained more fully herein, Buckley did not fully comply with the Commission's EEO Rule, we conclude that reconsideration of the reporting conditions is not warranted. However, with respect to the amount of the forfeiture, we conclude that recalculation is necessary. 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, Standard for Assessing Forfeitures, 6 FCC Rcd 4695 (1991), recon. denied, 7 FCC Rcd 5339, revised 8 FCC Rcd 6215 (1993) ("Policy Statement"). 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, 11 FCC Rcd 5154 (1996). 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 received requests to withdraw the EEO Policy Statement until it, too, was made available for public comment. In Streamlining Broadcast EEO Rule and Policies, we vacated the EEO Policy Statement. In addition, we advised licensees that we would follow our recent practice of making forfeiture decisions by relying on case precedent. Accordingly, we will recalculate the forfeiture utilizing our pre-January 1994 process of stare decisis. 8. To determine the applicable forfeiture for WOR, we rely on case precedent which takes 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 Buckley's record of compliance with our rules. In our evaluation, we consider the station's size, number of hiring opportunities, the nature of the local labor force, recruitment patterns, applicant and interview pools, assessment and record-keeping. E.g., Stauffer Communications, Inc., 10 FCC Rcd 5060, 5061 (1995). Furthermore, we note that in 1989, Congress substantially increased the dollar amounts of our forfeiture authority. Pub. L. No. 101-239, 103 Stat. 2131. Pursuant to Section 503(b)(2), the forfeiture penalty now assessed against a broadcaster may "not exceed $25,000 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $250,000 for any single act or failure to act." See 47 U.S.C.  503(b)(2). The increased forfeiture authority justifies higher forfeitures than might have been imposed under our previous forfeiture authority. 9. In light of all the foregoing, we reject Buckley's suggestion that we did not review its conduct under regulations in effect at the time of its renewal application. Specifically, in the MO&O, we applied the broadcast EEO Rule (Section 73.2080) to Buckley's conduct and determined that Buckley had repeatedly failed to comply with the recruitment and self-assessment provisions of the rule. We therefore properly determined that a forfeiture was warranted. The EEO Policy Statement was used merely to determine the amount of the forfeiture. In addition, we reject Buckley's claim that similar conduct by other licensees resulted in far less onerous sanctions. The decisions cited by Buckley relied upon our previous forfeiture authority (see n. 1, supra), which, as noted, was substantially less than the authority available to determine Buckley's forfeiture. 10. In recalculating the forfeiture, we conclude that the record of WOR is similar to, but less egregious than, that of the licensee of WLAE-TV, New Orleans, Louisiana. See Educational Broadcasting Foundation, Inc., 10 FCC Rcd 3974 (1995). There we issued a Notice of Apparent Liability for $15,000 and renewed the license subject to reporting conditions. From 1989 to 1992, the station had between 31 and 39 full-time employees. The New Orleans MSA had a minority labor force of 32.5%. During an inquiry period ending in May 1992, the licensee had 24 full-time job vacancies. The licensee could document recruitment activity for only 14 of those jobs. The licensee could demonstrate that minorities were present in five applicant/interview pools. We concluded that the licensee apparently failed to recruit for each job vacancy, failed to keep adequate records, and failed to engage in meaningful self-assessment of its EEO program. 11. The record here indicates that the licensee had 61 full-time employees in 1991. The New York City MSA had 37.8% minorities in the labor force. During the period under review, October 23, 1989, through February 2, 1991, the station had 14 hiring opportunities. The licensee's records indicate that it recruited for ten of the vacancies and that only six of the 14 applicant/interview pools contained minorities. None of the minority-specific recruitment sources contacted referred any applicants. 12. WLAE-TV and WOR are located in areas where minorities constitute more than 30% of the labor force. Although both licensees made some recruitment efforts that resulted in applications from qualified minorities, the licensee of WLAE-TV recruited for only 58% of its job hires and attracted minorities to only five (21%) applicant/interview pools. The licensee of WOR recruited for approximately 70% of its openings, while minorities appeared in six (43%) of its 14 applicant/interview pools. Given the above, we conclude that both licensees engaged in inadequate recruitment and that both failed to self-assess adequately. However, we believe that Buckley's actions were less egregious, given its greater recruitment efforts and the smaller number of jobs it filled. Accordingly, we find that the appropriate forfeiture for Buckley is $14,000. Moreover, the reporting conditions imposed upon Station WOR(AM) will remain unaffected. 13. Accordingly, IT IS ORDERED, that Buckley Broadcasting Corporation's Petition for Reconsideration and Response to Notice of Apparent Liability IS GRANTED TO THE EXTENT INDICATED HEREIN AND IS OTHERWISE DENIED. 14. IT IS FURTHER ORDERED, that, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C. Section 503(b), Buckley Broadcasting Corporation, for station WOR(AM), FORFEIT to the United States the sum of fourteen thousand dollars ($14,000) for willful and repeated violations of 73.2080 of the Commission's Rules, 47 C.F.R. 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. 15. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail-- Return Receipt Requested, a copy of this Memorandum Opinion and Order and Forfeiture Order to Buckley Broadcasting Corporation. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary