WPC. 2BVTZ #|d)?xxxXVbXx6X@DQX@HP LaserJet 4/4MScript_230_1HPLAS4.WRSSx  @,, @[X@2@ ZP #|dHP LaserJet 4/4MScript_230_1HPLAS4.WRSSd  @8;,, @[@  Ш2vpdkk?a8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# 2vtka2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# 2 7   -a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# 2D    k a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p 2Tv v FTech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala1DocumentgDocument Style Style\s0  zN8F I. ׃  a5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . 2C4a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   2u3a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:d<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"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@(\Z+R."5@^(1<who claimed to be a listener to or service area resident of the stations. Thus, the NAACP's petition to deny was dismissed and treated as an informal objection. _  X- x 3. Section 405 of the Communications Act of 1934, as amended, 47 U.S.C.  405, states that  xxany party to an order, decision, report or action by the Commission or any other person aggrieved  X- xor whose interests are adversely affected, may petition for reconsideration. See also, Committee  Xv- xfor Community Access v. FCC, 737 F.2d 74 (D.C. Cir. 1984) ("Community Access"); 47 C.F.R.  x 1.106. To qualify as a party, a petitioner for reconsideration must have filed a valid petition  xkto deny against the application whose grant the petitioner now seeks to have reconsidered.  X1- xyGulfcoast Broadcasting, Inc. (WMMKFM), 8 FCC Rcd 483 (1993) ("Gulfcoast");  Montgomery  X - xCounty Broadcasting Corp., 65 FCC 2d 876 (1977) ("Montgomery"). If the petition for  xreconsideration is filed by one who is not a "party to the proceeding, it shall state with  xiparticularity the manner in which the person's interests are adversely affected by the action taken,  x.and shall show good reason why it was not possible for him to participate in the earlier stages  X -of the proceeding." 47 C.F.R.  1.106(b)(1); see Community Access, 737 F.2d at 84.  X -Tă  X- x= 4. Because the NAACP's petition to deny was not supported by a declaration as required by  Xy- x>47 U.S.C.  309(d)(1), we properly dismissed it. See Gulfcoast, 8 FCC Rcd at 483; Broadcast  Xb- xStations Serving the State of Florida, 3 FCC Rcd 1930 (1988). As an informal objector, the  xNAACP lacks standing to bring the instant petition because it is not a "party to the proceeding"  xwithin the meaning of Section 405 of the Communications Act and Section 1.106 of the  xCommission's Rules. Moreover, the NAACP's petition for reconsideration has not demonstrated  X- xthat its interests were adversely affected by our decision in SLO, nor has it demonstrated that it  xwas not possible for it to participate as a petitioner to deny in the earlier stages of the  xproceeding. Hence, we find that the NAACP has not complied with the procedural requirements  X- xof Section 1.106. See Montgomery, 65 FCC 2d at 877; 47 C.F.R.  1.106. Therefore, we dismiss the NAACP's petition for reconsideration.  X-  Xe- n Licensee's Petition for Reconsideration and Response to NAL ă  X7- x= 5. In SLO, we concluded that a hearing was not required because no substantial and material  x<question of fact existed. The licensee had recruited, hired and employed minorities and there was  xLno evidence of employment discrimination. We found, however, that KKCB(AM)/KSLYFM's  x{recruitment efforts were deficient and that the stations failed to conduct meaningful self xMassessment of their EEO program. Accordingly, we granted shortterm license renewals for KKCB(AM) and KSLYFM and imposed reporting conditions upon the licensee to monitor future" 0*&&"  X- xcompliance with the Commission's Equal Employment Opportunity ("EEO") rule.]=~ yOy-ԍ #X\  P6G;P#San Luis Obispo Ltd. sold KSLYFM to Digisphere Broadcasting Ltd. ("Digisphere") on February 24, 1994 (File No. BALH931013GJ). In light of the sale of KSLYFM to Digisphere, the licensee now holds the license for only KKCB(AM). On July 25, 1995, the licensee filed an application for renewal of license for Station KKCB(AM). Because the staff will determine in reviewing that application whether renewal for the remainder of the term will serve the public interest, the licensee's request that we reconsider the shortterm  yOa-renewal granted in SLO is moot.#d6X@`7@# #]\  PCP#See Lotus Communications, Inc., FCC 966, released March 20, 1996.#o\  PCXP#] Further,  X- xZrelying upon the guidelines set forth in Standards for Assessing Forfeitures for Violations of EEO  X- x Rules, 9 FCC Rcd 929 (1994) ("EEO Policy Statement"), we issued an NAL in the amount of $25,000.   xj 6. In seeking rescission or mitigation of the forfeiture amount in the NAL, the licensee argues  xthat its EEO violations are predominantly of a recordkeeping nature and that the penalties  X_- ximposed pursuant to the EEO Policy Statement were improperly applied retroactively. Although  xacknowledging its failure to document its practices, the licensee disputes our characterization of  xits EEO program as deficient in view of its actual minority hirings during the license period. The  xlicensee contends that its minority hirings demonstrate that its EEO program was successful and  x/undeserving of sanctions. The licensee argues, however, that if we decide that a forfeiture  xremains appropriate, we should reduce or rescind the amount because of its financial condition.  xSpecifically, the licensee states that it incurred a substantial loss on the sale of KSLYFM in 1994 and that its tax returns for 1990, 1991, and 1992, demonstrate its poor financial condition.   x 7. We find that reduction of the forfeiture amount is warranted. Furthermore, in its application  xfor renewal of license, the licensee indicates that KKCB(AM)'s fulltime staff now includes fewer  xthan five fulltime employees. Thus, we also determine that a waiver of the reporting conditions  XK-is warranted.,K@=~ yO<-ԍ #X\  P6G;P#Cf. 47 C.F.R. Section 73.3612; FCC Form 396 (submission of detailed information is not required  yO-when a station employs fewer than five fulltime employees.#d6X@`7@#,  X- x 8. In adopting the EEO Policy Statement, we proposed the use of nonbinding guidelines for  X- xassessing forfeitures for violations of our broadcast EEO rule.  We had issued general forfeiture  X- 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  X- xgrant of renewal for less than a full term. Policy Statement, Standards for Assessing Forfeitures,  X- x6 FCC Rcd 4695 (1991), recon. denied, 7 FCC Rcd 5339, revised, 8 FCC Rcd 6215 (1993)  X- x("Policy Statement"). The issuance of the EEO Policy Statement resulted from the deletion of  X|- x!the broadcast EEO violation category from our general forfeiture guidelines. See Policy  Xe- xStatement, 8 FCC Rcd at 6215 n. 1.  The EEO Policy Statement did not modify any part of the  XN-EEO rule. See Streamlining Broadcast EEO Rule and Policies, 11 FCC Rcd 5154 (1996). _"70*&&{"Ԍ 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.  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  Xv- x\E. Kennard, July 13, 1994. In Streamlining Broadcast EEO Rule and Policies, we vacated the  X_- xEEO 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.   x> 10. In determining a forfeiture, we take into consideration the relevant statutory factors in  xSection 503(b)(2) of the Communications Act, including the nature, circumstances, extent and  xgravity of the violations, and the licensee's record of compliance with our rules. In our  xevaluation, we consider the station's size, number of hiring opportunities, composition of the  xlocal labor force, recruitment patterns, applicant and interview pools, assessment and record X - xAkeeping. E. g., Stauffer Communications, Inc., 10 FCC Rcd 5060, 5061. After such consideration, we conclude that a forfeiture of $12,000 is appropriate.   x 11. We find that the record in the instant case is similar to the record involving the licensee  XK- xof Station KGWNTV, Cheyenne, Wyoming. See Stauffer Communications, Inc., 10 FCC Rcd  x5060 (1995). There, we granted renewal subject to reporting conditions, and issued a $12,000  x@NAL. During the 19881993 license term, KGWNTV had between 42 and 45 fulltime  xemployees. The local labor force included 13% minorities. From April 1, 1990 to April 1, 1993,  xthe licensee had 26 fulltime hiring opportunities. The licensee was unable to verify recruitment  xfor 11 of the station's vacancies and apparently attracted minority applicants for only two of its  xopenings. The licensee did not maintain sufficient records to show the results of its recruitment  xcontacts and consequently could not adequately selfassess its EEO program as required by the Commission's EEO rule.   x 12. During the 19831990 license term, Stations KKCB(AM)/KSLYFM had a fulltime work  xforce of between 18 and 22 fulltime employees. The San Luis Obispo labor force included  xL12.7% minorities. The licensee verified that it recruited from general recruitment sources for 52  xsales and office positions but could not verify its specific recruitment efforts concerning the  xremaining 20 positions. The licensee was also unable to provide documentation of the  xcomposition of its applicant and interview pools for any particular opening. The licensee could  xshow that minorities were in 13 of the 72 applicant and interview pools. However, this  xinformation was derived from the stations' hiring of 13 minorities and not as a result of the  xmaintenance of adequate employment and recruitment records as contemplated by the EEO rule"!0*&& "  X- xselfassessment requirement. See Section 73.2080(c)(5) of the Commission's Rules. These  X-essential facts are undisputed in the licensee's petition for reconsideration.=~ yOb-ԍ #X\  P6G;P# Indeed, in response to our inquiry seeking information about its EEO program, the licensee stated: "Unfortunately, specific information with respect to the number of applicants and the referral sources of each individual who applied for the positions at the stations ... is not available." In its instant submission, the licensee reiterates that "SLO admitted in its response to the staff letter of inquiry that it had failed to maintain during all portions of its tenure detailed records which reflected the number, race and sex of referrals and interviewees for  yOJ-these positions."#d6X@`7@#   x 13. The Cheyenne and San Luis Obispo MSA minority labor forces are comparable  xyCheyenne's is 13% and San Luis Obispo's is 12.7%. Both licensees' lacked specific information  xjabout applicants, interviewees, and recruitment contacts, information the Commission believes  xxbetter enables licensees to selfassess the effectiveness of their recruitment efforts. Although the  xCheyenne station was larger, the San Luis Obispo stations had more hiring opportunities. Thus,  xon balance, we believe that the same forfeiture as that imposed on the Cheyenne station is warranted, that is, $12,000. _  x 14. We are not persuaded that the fine should be rescinded or reduced below $12,000 due to  x[the licensee's financial condition. A claim of financial hardship can be a mitigating factor to be  xweighed against the imposition of a forfeiture. 47 U.S.C. Section 504 (b)(2)(D). However, the  x-information submitted by the licensee in response to the NAL was, at the time of submission, out  X -of date and inadequate.   x 15. First, the tax returns for 19901992 involve financial information for a period of time more  xthan one year prior to the licensee's response to the NAL even though the licensee was advised  xin the attachment to the NAL that any statement concerning inability to pay "should contain no  xdata older than one year from the date of your response." Moreover, even if the material had  xjbeen timely, the tax returns do not reflect profit and loss information which demonstates actual  xfinancial condition. Second, the sale of KSLYFM at what the licensee claims was a substantial  xloss does not establish that the licensee is unable to pay a $12,000 forfeiture. Again, beyond the  xylicensee's claim that a loss was incurred, there is no accompanying data to demonstrate current  xcash flows and other indicia of actual financial condition. Thus, there is no basis for determining  x[the licensee's ability to pay. Finally, the licensee has not shown that any other factors warrant  X- xreduction or rescission.@=~ yO -ԍ #X\  P6G;P#See Benito Rish, 10 FCC 2862, 2861 (1995) ("Rish"). In Rish, the Commission reduced the forfeiture imposed on a daytimeonly AM radio station (WREM(AM)) from $10,000 to $2,500, because of the licensee's showing of unprofitability and the small size of the Monticello, Maine community, which has only 425  yO"-residents. The Commission also noted in Rish that the station was the only AM station licensed in the Monticello market. By contrast, San Luis Obispo has a population of 45,000, and is served by five AM radio  yOl$-stations. #d6X@`7@# We, therefore, deny its request that the forfeiture amount be reduced or the NAL be rescinded because of financial condition. "| 0*&&"Ԍ xЙ 16. Accordingly, IT IS ORDERED, that the petition for reconsideration filed by the NAACP IS DISMISSED.   X- xN 17. IT IS FURTHER ORDERED, that San Luis Obispo Limited Partnership's Petition for  xReconsideration of the shortterm renewal is dismissed as moot; the reporting conditions are  xwaived; and the portion constituting the response to the NAL IS GRANTED TO THE EXTENT DISCUSSED HEREIN AND IS OTHERWISE DENIED.   x> 18. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the Communications Act of  X1- x1934, as amended, 47 U.S.C. Section 503(b), that the licensee FORFEIT to the United States  X - xthe sum of twelve thousand dollars ($12,000) for willful and repeated violations of Section  xz73.2080 of the Commission's Rules, 47 C.F.R. Section 73.2080. Payment of the forfeiture may  xbe made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission.   x. 19. 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 San Luis Obispo Limited Partnership.  Xb-_Аh_hhFEDERAL COMMUNICATIONS COMMISSION   _hhWilliam F. Caton _hhActing Secretary  X|-#Xw PE37XP#  r5N-#d6X@`7@#