NOTICE ************************************************************************* NOTICE ************************************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of) ) ) Furniture City Broadcasting Corporation ) File Nos. BR-890601YB ) BRH-890601YC For Renewal of License of ) Stations WFUR/WFUR-FM) Grand Rapids, Michigan ) ) MEMORANDUM OPINION AND ORDER Adopted: September 26, 1996; Released: October 18, 1996 By the Commission: 1. The Commission has before it pleadings requesting reconsideration of our decisions in Liggett Broadcast, Inc., 7 FCC Rcd 4520 (1992) (Liggett), and Lanser Broadcasting Corporation, 7 FCC Rcd 4254 (1992) (Lanser). In Liggett, we denied a petition to deny filed by the Michigan State Conference of Branches of the National Association for the Advancement of Colored People (NAACP) and granted various renewal applications, including those filed by Furniture City Broadcasting Corporation (Furniture City or licensee) for Stations WFUR/WFUR- FM, Grand Rapids, Michigan. We granted WFUR/WFUR-FM's renewals subject to reporting conditions and issued a $7,500 Notice of Apparent Liability (NAL) for apparent violations of the Commission's EEO Rule, 47 C.F.R.  73.2080. Finally, we denied the NAACP's request to order the early filing of renewal applications of seven stations which were co-owned with stations named in the petition to deny. See Liggett, 7 FCC Rcd at 4524-4525 n.3. In Lanser, in addition to denying the NAACP's petition to deny against the stations named in that order, we declined the NAACP's request to commence an investigation of the EEO practices of all licensees in the Grand Rapids, Michigan market. For the reasons discussed herein, we grant the licensee's request for rescission of the NAL but deny the remainder of the licensee's request. We also deny the NAACP's petitions for reconsideration. 2. In its "Request for Rescission of Proposed Forfeiture and Reporting Requirements," Furniture City argues that the NAL is barred by Section 503(b)(6) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b)(6), and by Section 1.80(c)(1) of the Commission's Rules, 47 C.F.R.  1.80(c)(1). Furniture City notes that the NAL is based upon activities which last occurred on May 20, 1989 -- more than three years prior to the release of the July 17, 1992, NAL. Furniture City claims further that the Commission mistakenly placed more emphasis on the level of success the stations had than on their EEO efforts. It submits that the stations' record is not comparable to that outlined in WROV Broadcasters, Inc., 4 FCC Rcd 6157 (1989) (WROV), relied upon by the Commission in Liggett. Furniture City argues that in WROV, that station used three recruitment sources for only seven of 65 openings while WFUR/WFUR-FM used 16 sources in addition to on-air ads and employee referrals for its six openings. Finally, Furniture City contends that Liggett erroneously found that the licensee interviewed all but one male applicant for upper-level jobs and all but one female applicant for lower-level jobs. It submits that its part-time and full-time hiring data show otherwise. 3. In seeking reconsideration of our decision to grant renewal of license for Stations WFUR/WFUR-FM, the NAACP asserts that the Commission erred by not sanctioning the licensee for its failure to recruit and hire Blacks. It also argues that the Commission wrongly "appeared to rely with approval" on the licensee's practice of sending a form letter twice a year to minority sources while general sources allegedly received notices of specific openings. The NAACP asserts that this is not a legitimate form of recruitment. The NAACP requests that the Commission reconsider its decision and order a hearing. 4. In seeking reconsideration of Liggett, the NAACP also urges that the Commission order the early filing of renewal applications for seven stations that were co-owned with stations named in its petition to deny the applications of various Michigan and Ohio radio stations. In seeking reconsideration of Lanser, the NAACP argues that we irrationally denied its request for a market-wide investigation. DISCUSSION 5. Reconsideration is appropriate where the petitioner shows either a material error or omission 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). Applying this standard, we conclude that reconsideration of Lanser is inappropriate, but we will rescind the NAL imposed in Liggett, as discussed below. 6. The NAL. We agree with Furniture City that the NAL is barred by the statute of limitations provisions of former Section 503(b)(6) of the Communications Act, as amended, 47 U.S.C.  503(b)(6). At the time the NAL was issued, on July 17, 1992, Section 503(b)(6) stated that a forfeiture penalty shall not be imposed if the violation being sanctioned occurred three years prior to the date the required notice is issued. See also, former Section 1.80(c)(1) of the Commission's Rules. The last hiring data considered by the Commission occurred on or before May 20, 1989, which was more than three years prior to release of the NAL. Therefore, the NAL was barred by the then-applicable statute of limitations, and the licensee's request for rescission of the NAL will be granted. See Bloomington Twin Cities Broadcasting Corporation, FCC 96-299 at para. 15, released July 24, 1996. 7. The Stations' EEO Record. Furniture City claims that we focused on the lack of success of its EEO efforts rather than the efforts themselves. We disagree. The emphasis in Liggett was on the licensee's almost negligible recruitment and its inadequate self-assessment. As stated in Liggett, the licensee should have considered its lack of success as a relevant factor in its self-assessment, but apparently it failed to do so. Moreover, we found that there was virtually no recruitment of women for upper-level jobs. See Liggett at 4523. 8. The licensee's further argument, that its record was significantly better than that of the licensee in WROV, is also without basis. Although the licensee in WROV had more hiring opportunities and used fewer sources than the licensee of WFUR/WFUR-FM, Furniture City mistakenly credits itself with contacting 16 sources (in addition to on-air ads) for all six of its openings. In fact, it sent a notice to its minority sources for only one of its openings and to its general sources for only lower-level openings. Moreover, whatever Furniture City's policy was concerning job notices, it apparently sent specific notices only once. In any event, licensees are required to recruit women and minorities for all openings. See 47 C.F.R.  73.2080(c)(2). The licensee's practice of sending general notices to sources without a specific job being available, absent additional recruitment efforts, is inadequate recruitment under our EEO Rule. Furthermore, WROV's record is similar to that of WFUR/WFUR-FM because both licensees had deficient recruitment efforts toward women. Although the records of the licensee and WROV are not identical, they are comparable for the reasons we stated in Liggett, and we find WROV to be appropriate precedent. Finally, in claiming that the Commission erred in its evaluation of male and female applicants being considered for upper- and lower-level jobs, respectively, the licensee includes part-time hires. However, as in this case, the Commission focuses principally on full-time hires. See License Renewal Applications, 7 FCC Rcd 6045, 6046 (1992) [concerning Station WFSQ(FM), Tallahassee, Florida]. Thus, there was no mistake in the Commission's figures. 9. The NAACP's Petition for Reconsideration. We also find that the NAACP petition for reconsideration fails to justify any change in Liggett. The NAACP points to no evidence of discrimination, nor does it otherwise raise any substantial and material question of fact about the EEO record of Stations WFUR/WFUR-FM. Moreover, Liggett clearly sanctioned the licensee for deficient recruitment efforts with respect to both minorities and women. Finally, the NAACP's allegation that the owner of WFUR/WFUR-FM sent notices of specific jobs only to non-minority sources is not supported by the record. In his statement, the owner claimed that he sent a notice about a specific job to a number of organizations and attached a list that indicated that at least three were minority organizations. 10. In the case of the NAACP's request that we order the early filing of renewal applications for stations co-owned with those named in the petition, we continue to believe that the NAACP has not presented a "compelling reason" to do so. See Liggett, 7 FCC Rcd at 4524- 25 n.3. In this regard, the NAACP has presented no evidence that any of the licensees have discriminated against minorities or otherwise failed to comply with our EEO Rule. Therefore, we deny this request. 11. Likewise, we continue to believe that a market-wide investigation of the EEO practices of Grand Rapids, Michigan licensees would serve no useful purpose. As we stated in Lanser, our focus is on individual licensees, not markets. In any event, following the NAACP's petition to deny, we sent inquiry letters to nine Grand Rapids stations. We imposed reporting conditions on seven licensees whose efforts were deemed questionable. Consequently, EEO reports have been filed annually for three years by the seven licensees. The NAACP submits no information suggesting that the investigation it requests would warrant changes in our decisions regarding the Grand Rapids licensees. 12. After consideration of all of the above, we conclude that the only change warranted in Liggett as it pertains to WFUR/WFUR-FM is to rescind the NAL. We otherwise reject the licensee's arguments in its response to the NAL and also deny the NAACP's petition for reconsideration. Furthermore, we deny the NAACP's request that stations listed in its petition to deny be required to file early renewal applications. Finally, we also deny the NAACP's request that we conduct a market-wide investigation of stations in Grand Rapids, Michigan. ORDERING CLAUSES 13. Accordingly, IT IS ORDERED, that the portion of Furniture City's pleading requesting rescission of the notice of apparent liability for forfeiture IS GRANTED and the proposed forfeiture IS RESCINDED. 14. IT IS FURTHER ORDERED that both the licensee's pleading requesting unconditional renewal of its licenses and the NAACP's petition for reconsideration ARE 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 Furniture City and the NAACP. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary