WPC_J 2HBX 3|P  (TT)CourierPC2XDXP\  P6QXPTimes New Roman (TT)o\  PCXPozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`l2CC!CCPRCddYYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddoddYYYYYzYzYzYddddddPdCdCCCdNdz8zRdddCRoNoNNF2[dCYddddd7>d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddndddddddTimes Roman4/4MtScriptitional)HPLAS4.WRSSXP\  P6Q,,g 6XP2 z Z3|P HP LaserJet 4/4MtScriptitional)HPLAS4.WRSSXP\  P6Q,,g 6XP2 vSpk9Times RomanTimes Roman Boldew Roman (Bold) (TT)a8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  2kAvt\a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# 2   ?  a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  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I.   a7TechnicalTechnical 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)Documentg2KeO4PleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:d<d<$YYdCCddooCYdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd7PC2X DXP\  P6QXP.7UC2XxXU4  pQXy.C8*XC\  P6QP.y.G8*XG4  pQCCddCdC]]](<(((x((((((((((C!Wd<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd2F@9@+=@k@@C"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCdddddd((((01(<CW]]](<WQAM(AM)/WKIS(FM), citing our 1985 approval of WQAM(AM)'s studio relocation to Hollywood.  X -  26.` ` Second, Sunshine contends that the Commission's reliance on Michigan/Ohio, in   determining the appropriate labor force for WQAM(AM)/WKIS(FM), is misplaced. Specifically,  X -  it notes that Michigan/Ohio dealt with a single television station whereas this case involves two   commonlyowned radio stations licensed to two different MSAs and choosing to colocate their  X-  studios in a third MSA. Further, it argues that the logic of Michigan/Ohio should have   /compelled approval of the continued reliance by the stations on the Fort Lauderdale MSA.   Sunshine argues that it located its main studio in Hollywood for legitimate business reasons and not to avoid EEO responsibilities.  X-  7.` ` Third, Sunshine argues that the Commission's decision to use Miami statistics is   arbitrary and capricious because Miami statistics are the least relevant. In this regard, Sunshine   jclaims that its recruitment efforts in Miami have been unproductive, that there is an absence of   public transportation to Sunshine's studio, and that job applicants from Miami would have to   travel from 15 to 25 miles to the stations. Sunshine also states that the vast majority of its   =workforce is drawn from the Fort Lauderdale, Hollywood and Boca Raton areas, not the Miami MSA.  Xe-  #8.` ` Finally, Sunshine argues that the Commission's use of Miami statistics is at odds  XN-  <with its deregulatory policies and, in particular, its efforts to ease the plight of AM broadcasters.:AN$ X-  Ѝ #C\  P6QP#Sunshine specifically cites to the following cases: Notice of Proposed Rulemaking, MM Docket No. 87267,  yO-  5 FCC Rcd 4381 (1990) (technical assignment criteria for AM broadcast stations); First Report and Order, MM  yOx-  JDocket No. 877, 4 FCC Rcd 1723 (1989) (broadcast multiple ownership rules); Report and Order, MM Docket No. 86406, 2 FCC Rcd 3215 (1987) (main studio rules).:  X7-  It argues that our decision in Miami deprives it of the full efficiency benefits (including the filing   of consolidated annual employment reports) it has been able to enjoy for its AM station by colocating it with a stronger FM station.  X-3 IV. DISCUSSION ă  X!-  9.` ` Reconsideration is appropriate 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"",))qq!"  X-  the petitioner's last opportunity to present such matters. See WWIZ, Inc., 37 FCC 685, 686  X-  (1964), aff'd sub nom. Lorain Journal v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert denied, 383 U.S. 967 (1966); 47 C.F.R. 1.106(c). Sunshine has failed to make such a showing.  X-  10.` ` Sunshine's argument that Miami did not address material issues is without merit.  X-  \The licensee relies on Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970),  Xv-  ycert. denied, 403 U.S. 923 (1971), where the court held that an agency must articulate the crucial   Lfacts and the rationale for its decisions. The decision at issue here is the Commission's choice   of the relevant labor force for future evaluations of the stations' EEO efforts. In accordance with  X1-  Greater Boston Television Corp., the Commission did state the crucial facts and the rationale for  X -  >its decision in Miami. See, Miami at 4900, n.14. The Commission supported its decision by  X -  xciting Michigan/Ohio and noting where the stations recruited, their service areas, and the location   of WQAM(AM)'s transmitter. The allegedly material issues referenced by Sunshine had and have   no significant bearing on the Commission's decision as to the proper labor force for future  X -  evaluations of the stations' EEO efforts. Nothing in our decision in Miami affects Sunshine's   authority to operate these stations from a single main studio in Hollywood. Moreover, Sunshine's   voluntary operation of these stations from a Hollywood studio and the benefits to the AM station   !are irrelevant to the issue of the relevant labor force for EEO purposes. With respect to   Sunshine's inquiries as to which labor force data would be used to evaluate its EEO efforts, it   is well settled that a person relying on informal advice given by Commission staff does so at its  X4-  own risk. See Texas Media Group, Inc., 5 FCC Rcd 2851, 2852 (1990), aff'd sub. nom. Malkan  X-  MFM Associates v. FCC, 935 F.2d 1313 (D.C. Cir. 1991). At any rate, as noted at paragraph 4,  X-  -supra, the Fort Lauderdale FL MSA was used by the Commission to evaluate the subject renewal   .applications. Thus, Sunshine was not penalized for its reliance on Fort Lauderdale labor force data.  X-  A11.` ` Sunshine's argument that our reliance on Michigan/Ohio is misplaced lacks merit.   OInitially, we note that Sunshine's argument is premised on its misinterpretation of the  X|-  Commission's decision in Michigan/Ohio. Contrary to Sunshine's interpretation, it is not the   location of a broadcast station's main studio, in and of itself, which determines the relevant labor  XN-  jforce to be used in evaluating a station's EEO efforts. Rather, the essence of the Commission's  X7-  ruling in Michigan/Ohio was that, where a station is licensed to and/or operated from more than   one MSA, the Commission will use the labor force statistics for the MSA which has the larger  X -  minority labor force in its initial evaluation of the station's EEO efforts. See Michigan/Ohio, 3   FCC Rcd at 6950, n.21. The reason is that the Commission will not permit licensees to evade their EEO responsibilities because of the location of their studios.  X!-  `12.` ` A station's community of license is considered its geographic location. See 47   C.F.R. 73.1120. To determine the relevant labor force for EEO purposes, the Commission looks   to the MSA in which the station's community of license is located. If a station is not licensed   to a community located within an MSA, the Commission looks to the labor force statistics for  XQ%-  /the county in which the community is located. In Michigan/Ohio, Station WUAB(TV) was  X:&-  licensed to a community in the LorainElyria, Ohio MSA, which had a 10.7% minority labor   >force, but its main studio was located within the Cleveland, Ohio, MSA, which had a 17.8%   minority labor force. The Commission used LorainElyria, Ohio labor force statistics in its initial" (,))qq&"   evaluation of WUAB's EEO efforts. However, we advised the licensee that if the station's main   studio continued to be located near the area with the larger minority labor force, the Commission  X-  would review future EEO efforts in light of the larger minority presence. See Michigan/Ohio,   3 FCC Rcd at 6950, n.22. The Commission also stated that, where a station voluntarily moves   [its studio location, including its main studio, from its community of license to an area of higher   minority concentration, we would take cognizance of that fact in assessing the adequacy of the  Xv-  station's overall EEO efforts. See Michigan/Ohio, 3 FCC Rcd at 6950, n.21. In addition, the   Commission noted that it would not permit licensees to avoid their EEO responsibilities by  XH-  claiming that their new location includes fewer minorities. AH$ X -  Ѝ #C\  P6QP#In Michigan/Ohio and in Miami, the Commission did not explore why the main studio for these stations was  yO -  moved to an area outside of the stations' community of license. Thus, there is no support for any argument that EEO   Kobligations in these situations will be changed merely because there is an identifiable business justification for the studio relocation.  Id. Thus, contrary to Sunshine's  X1-  erroneous interpretation of Michigan/Ohio, it is the size of the minority labor force within the  X -  various MSAs involved, and not the location of the main studio per se, which determines the   relevant labor force for EEO purposes. Moreover, contrary to Sunshine's apparent assumptions,   the fact that this case involves two commonlyowned radio stations which are licensed to   communities in two MSAs and operated from a studio in a third MSA also is irrelevant. The  X -  principles set forth in Michigan/Ohio are not limited to cases involving single television stations   which are licensed to communities in one MSA but which choose to locate their main studios   .in different MSAs. Regardless of the number and type of broadcast stations or the number of   MSAs in which the stations' communities of license and/or studios are located, the Commission,   in determining the appropriate labor force for EEO purposes, will look to the MSA which has the more significant minority labor force.  X-  13.` ` Sunshine's criticism that the Miami MSA does not correspond to the community   Kof license for the FM station is irrelevant. Because the AM and the FM stations file consolidated   xannual employment reports, they must, by necessity, be evaluated by reference to only one MSA,   even though the stations are licensed to communities in two different MSAs and their common  X-  studio is located in a third MSA.$A$ XC-  ZЍ #C\  P6QP#We will evaluate two stations as a single unit for EEO purposes where the stations operate from a common   location for the entire license term; where the same person has overall responsibility for the implementation of both  yO-  EEO programs; and where many of the staff perform work for both stations. See Alabama/Georgia Broadcast  yO-Stations, 95 FCC 2d 1, 5 (1983). $ The principles enunciated in Michigan/Ohio require the single   {MSA to be the one with the larger minority presence. Accordingly, we reject Sunshine's  X-  arguments that our reliance on Michigan/Ohio is misplaced and that application of the decision  X|-  in Michigan/Ohio should have resulted in the use of Fort Lauderdale labor force statistics in the future.  X7-  o14.` ` Next, we find that Sunshine's argument that Miami labor force statistics are the   least relevant because of the unproductiveness of its Miami recruitment sources also lacks merit.   xSunshine argues that, despite contact with several recruitment sources in Miami, the vast majority   >of its workforce is drawn from the Fort Lauderdale, Hollywood and Boca Raton, areas. The",))qq"   KCommission has previously held that the standard for use of an alternative labor force is a "three  part test: distance of the station from areas with significant minority population in the MSA,   commuting difficulties, and the lack of success of previous recruitment efforts. [citations  X-  omitted]." Buckley Broadcasting Corporation, 9 FCC Rcd 2099, 2101 (1994). Sunshine did not  X-  specifically request use of alternative labor force data nor could it.y$ X-  yЍ #C\  P6QP#Sunshine apparently assumed that the Fort Lauderdale MSA was the appropriate labor force as an initial   matter. Thus, it did not specifically request that this MSA be used as an alternative. In its opposition to NAACP's petition to deny and inquiry response, however, Sunshine did assert that its Miami sources were unproductive. Our review of its inquiry   response reveals that Sunshine apparently did not use sources aimed at the minority population   zof Miami for 34 of its 78 fulltime vacancies, including 33 of its 56 upperlevel positions from   ZFebruary 1985 through October 1, 1988. Thus, Sunshine apparently had not engaged in extensive  XH-  recruitment efforts aimed at areas of minority concentration in Miami. Nonetheless, Sunshine  X1-  had hired a Hispanic male referred by MiamiDade Community College for a promotion assistant   position. In addition, Sunshine's 1990, 1991 and 1992 EEO Progress Reports, filed pursuant to  X -  the Commission's order in Miami, indicate that a Black female referred by Miami Tech was hired  X -  Mas a Public Affairs Director in December 1990, $ X-Ѝ #C\  P6QP#See EEO Progress Report dated October 1, 1991. and a Hispanic female referred by the Miami  X -  Herald was hired as a traffic assistant in November 1991.  $ X@-  Ѝ #C\  P6QP#See Amended EEO Progress Report dated December 11, 1992. Our review of Sunshine's 1990, 1991, and  yO)-  1992 EEO reports, which were filed pursuant to the Commission's order in Miami, indicates that Sunshine failed to   <list the gender, recruitment source, and race or national origin of all of its applicants as required in the reporting  yO-  conditions set forth in Miami. Thus, the extent to which Sunshine was able to attract minorities from recruitment sources aimed at the areas of minority concentration in Miami is unclear.  Accordingly, it appears that, contrary to Sunshine's assertions, its Miami recruitment sources have been somewhat productive.  X-  #15.` ` Finally, Sunshine's argument that our decision to use Miami labor force statistics   Lis inconsistent with our policies to ease the plight of AM broadcasters lacks merit. Nothing in  Xb-  xour decision in Miami deprives Sunshine of its authority to continue to operate WQAM(AM) and   ?WKIS(FM) from its main studio in Hollywood or to continue to file consolidated annual  X4-  [employment reports. y4 $ Xp-  [Ѝ #C\  P6QP#The telegram dated November 25, 1985, in which the Commission notified Sunshine of its approval of   WQAM(AM)'s studio relocation, does not address the relevant labor force issue or any other aspect of Sunshine's EEO program with respect to either station WQAM(AM) or WKIS(FM). Thus, our decision to use Miami labor force statistics for EEO purposes   does not deprive Sunshine of the benefits that the Commission intended to result from the   modification of its main studio, multiple ownership, and technical criteria rules with respect to   LAM broadcasters. Moreover, nothing in any of the cases cited by Sunshine modifies the EEO   [obligations of licensees who choose to take advantage of the opportunities provided by these   lpolicies. Lastly, nothing in these cases modifies the Commission's standard of review in   =determining whether a licensee of any broadcast station has complied with our broadcast EEO Rule. "| ,))qq"Ԍ X-2 V. CONCLUSION ă  X-  `16.` ` After consideration of all arguments put forth in Sunshine's petition for limited  X-  reconsideration, as addressed above, we find that the conclusion in Miami that the Miami labor   force is the relevant labor force by which we will evaluate WQAM(AM)/WKIS(FM)'s EEO  X-efforts in the future is appropriate.   $ X-  iЍ #C\  P6QP#An issue relating to the appropriate labor force to be used by broadcast stations in the Miami, Florida, area   yhas also been raised in a Joint Request filed on June 15, 1994, by CBS Inc., Channel 39 Licensee Inc., Viacom   International Inc. (formerly Combined Broadcasting of Miami, Inc.), NBC Subsidiary (WTVJ) Inc., PostNewsweek   Stations of Florida, Inc. and Sunbeam Television Corporation, each of which is the licensee of a television station licensed to Miami. The matters raised by the television licensees will be resolved in a separate proceeding.  X_-  a17.` ` As we did in Michigan/Ohio, "[w]e reiterate, however, that comparison of a   .station's employment profile to the appropriate labor force is only the initial step of our review   iin order that our attention will be directed to those stations needing closer scrutiny. Our principal   focus is on the station's efforts to recruit and promote qualified minorities and females, and to   assure that equal opportunities are afforded to employees and job applicants." 3 FCC Rcd at 6945.  X - VI. ORDERING CLAUSE X!ZLSX!ZL ă  X-  18.` ` Accordingly, IT IS ORDERED that the Petition for Limited Reconsideration filed  Xy-by Sunshine Wireless Company, Inc. IS DENIED.   XK-  19.` ` IT IS FURTHER ORDERED , that the Mass Media Bureau send by Certified  X4-Mail Return Receipt Requested copies of this Memorandum Opinion and Order to all parties.  X-` ` hh, FEDERAL COMMUNICATIONS COMMISSION ` ` hh,William F. Caton ` ` hh,Acting Secretary