WPC/ 2?BJZECourier3|j#Xj\  P6G;9XP#HP LaserJet 4M (PCL) (Add) RM 7310HL4MPCAD.PRSx  @\&!3pX@ X-#Xj\  P6G;9XP#2,qKXCourierTimes New Roman"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd<?xxx,>fx6X@`7X@7jC:,9Xj\  P6G;XP\ @^.$h'j;U7G;A7 WW kXN:\WINDOWS.31\wpcset.bif2^ nKx Z3|j"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP LaserJet 4M (PCL) (Add) RM 7310HL4MPCAD.PRSXj\  P6G;\&!3pXP2U%OKtK K Times New RomanTimes New Roman Bold"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""FCC 2d 1090 (1982) (Scott & Davis), which was cited in the MO&O. Finally, New South states   that Wilkinson "should bear the burden of explaining" the apparent inconsistencies in his  Xv*  submissions to the Commission (citing In the Matter of TeleSTAR, Inc., 3 FCC Rcd 2860, 2861  X_*  B(1988) (TeleSTAR); In re Application of Metroplex Communications of Florida, Inc., 96 FCC  XH*  2d 1090 (1984) (Metroplex)). In TeleSTAR, the Commission assigned the burdens of proof and  X1*  proceeding with respect to charges of misconduct to the applicant. In Metroplex, the licensee's renewal application was designated for hearing.  X *  7.` ` In response to New South's claims concerning Radioactive's conduct as licensee   Fof KMYY(FM), Radioactive argues that the postgrant activity of Radioactive as licensee of   KMYY(FM) could not have had any bearing on the Commission's decision to grant the   application which New South is challenging. Also, Radioactive states that New South's affidavit   is based on hearsay, and that the organizations listed in its Program Report are illustrative, and   do not represent any commitment to contact any particular organization. Radioactive also states   Lthat Wilkinson has already explained the apparent inconsistencies between his statements, and that   New South has only speculated as to an intent to deceive by Wilkinson. Finally, Radioactive   argues that if New South's allegations had been made concerning a licensee "attempting to avoid   sanction from some serious wrongdoing," New South's contentions would have merit. In the   8instant case, argues Radioactive, New South has alleged a failure to comply by a "minority  owned, minorityprogrammed, and predominantly minoritystaffed radio station." In reply, New   ZSouth states that Radioactive has failed to rebut the evidence of misrepresentation, lack of candor, and EEO noncompliance by Wilkinson.  X*F III. DISCUSSION ă   Xe*  8.` ` New South has not documented its allegation that Wilkinson misrepresented the   number of vacancies which occurred during his tenure as general manager of KYEAFM. New   South's allegation was unsupported, as it did not provide a declaration or affidavit stating that   &there were 17 hires during Wilkinson's tenure. Rather, with its Reply to Opposition to Petition  X *  to Deny, New South provided 17 names on a list signed by three unidentified individuals.M  ? yO *  0#X\  P6G;P#Ѝ New South's petition for reconsideration included an attachment of three lists, again purporting to show (with   "numbers somewhat inconsistent with those in its previous submission) that Wilkinson had understated the number   of hires. The lists purported to reflect the fulltime employees hired during the general management of Wilkinson. The first list included 16 names, the second list included seven names, and the third list had eight names.M   Although New South provided statements under penalty of perjury to support its   ^misrepresentation allegation with its Petition for Reconsideration, this late submission could not   provide a basis for reconsideration. A petition for reconsideration may be granted where it   4presents facts not known or existing until after the petitioner's last opportunity to present such"!,((hh "  X*  matters. 47 C.F.R.  1.106(c); WWIZ. In this case, New South was aware of this evidence when   tit filed its Reply to Opposition to Petition to Deny, as the three individuals who submitted   statements under penalty of perjury with the petition for reconsideration are the same three   individuals who signed the list of names submitted with the Reply to Opposition to Petition to  X*  Deny. Accordingly, the MO&O was correct in finding that New South did not provide documentation in a timely manner regarding its allegation of misrepresentation.  X_*  n9.` ` We find to be without merit New South's argument that Wilkinson misrepresented   to the Commission his basis for counting only seven hires when he cited requirements for   inclusion as an "employee" that allegedly conflicted with the requirements used by the Louisiana   Department of Labor. Although New South provides a letter from the Louisiana Department of   0Labor attesting to requirements that differ from the requirements as Wilkinson said he understood   Jthem, this submission cannot provide a basis for grant of the application for review. An   application for review will not be granted where it relies on fact or law "upon which the  X *  "designated authority" has not been afforded an opportunity to pass. 47 C.F.R.  1.115(c); Kenny  X *  D. Hopkins, 67 RR 2d 580 (1990). Here, New South could have presented its misrepresentation   allegation in a reply to Radioactive's opposition to petition for reconsideration. However, New South declined to file a reply. Accordingly, review of this allegation is denied.  XK*   10.` ` Also, New South did not document its claim that Station KYEAFM failed to   recruit for each vacancy. The statement submitted in support of its allegation demonstrated only   >that Kelly, in his capacity as program director, was unaware of any recruitment efforts by Station   KYEAFM. Therefore, this statement does not support the alleged violation of our EEO rule. Accordingly, the staff correctly rejected this allegation.  X*  h 11.` ` Next, there is no evidence that Wilkinson's submissions to the Commission,   particularly his assertions regarding the filings of Annual Employment Reports for KYEAFM,   demonstrate misrepresentation. Misrepresentation involves false statements of fact made with an  X|*  0intent to deceive. Fox River Broadcasting, Inc., 93 FCC 2d 127, 129 (1983). The proponent has  Xe*  zthe burden of proof to make a prima facie showing of an intent to deceive. See Scott & Davis.   Here, New South did not demonstrate an intent on the part of Wilkinson to make   misrepresentations to the Commission. Moreover, New South did not establish that this possible   filing defect, standing alone, raised a substantial and material question of fact as to Radioactive's   qualifications to become the licensee of KMYY(FM). Further, Radioactive explained that the   inconsistencies in its 1995 Annual Employment Report were caused by a clerical mistake.  X*  4Carelessness is not misrepresentation absent an intent to deceive. See Applications of Gary D.  X *  Terrell, 102 FCC 2d 787 (1985). Indeed, New South concedes that "it is not clear what motive"   Wilkinson had for misrepresenting regarding the 1995 Annual Employment Report. Accordingly,   lNew South has failed to establish that Wilkinson had any intent to deceive, and, thus, its claims of misrepresentation were properly rejected.  XQ%*  , 12.` ` We find to be without merit New South's claim that KMYY(FM)'s use of only   ha few of the sources listed in its Model Program Report constitutes misrepresentation. The Model  X#'*  Program Report requires the listing of sources which the applicant "proposes" to use. See"#',((hh%"   Guidelines to the Model EEO Program, Form 395A. Indeed, a licensee may modify its EEO   8program, and change its sources throughout the license term as part of its selfassessment.   Therefore, we reject New South's allegations that Radioactive's contact with only some sources  X*  indicates misrepresentation. We also disagree that the MO&O improperly compared the facts  X*  herein to the record in Scott & Davis. The MO&O did not cite Scott & Davis to compare the  X*  &underlying facts of this case to the record in Scott & Davis. The MO&O cited Scott & Davis   for the proposition that the party alleging misrepresentation has the burden of proof to make a  X_*prima facie showing of an intent to deceive. See MO&O at 45.  X1*   13.` ` Finally, we reject New South's contention that Wilkinson should bear the burden   lof proof with regard to the allegation of misrepresentation. As indicated earlier, New South, as  X *  ^the party raising the allegation, has the burden of proof. See Scott & Davis. Here, New South  X *  has failed to make a prima facie showing of an intent to deceive by Wilkinson. It concedes as   ~much in stating that "it appears that Wilkinson has dissembled at best and perhaps, at worst,   affirmatively misrepresented and lied to the Commission." Indeed, in the absence of a finding   Fof failure to comply with our EEO rule, there is no basis for finding that Radioactive had an   papparent motive to deceive. Moreover, the cases which New South cites are inapposite. In  Xy*  TeleSTAR, the Commission remanded a proceeding for further evidentiary hearing, and allocated   the burden of proof to the applicant only after an Administrative Law Judge's finding in an Initial   Decision that the applicant had made misrepresentations to the Commission. The assignment  X4*  application herein was never designated for hearing. In Metroplex, evidence of conflicting   "statements, in addition to an intent to deceive the Commission, warranted designation for hearing.  X*  *In this case, however, for the reasons stated supra, New South has not made a prima facie   Bshowing of misrepresentation on the part of Wilkinson. Accordingly, New South's reliance on  X*TeleSTAR and Metroplex is misplaced.  X*}D IV. CONCLUSION ă  X|*   14.` ` We accordingly find that New South has failed to establish that the MO&O is   Binconsistent with precedent or that it is based on an erroneous finding. We will therefore deny its application for review."N,((hhN"  X*` ` 6- V. ORDERING CLAUSES ă  X*  L15.` ` Accordingly, IT IS ORDERED that, pursuant to Section 1.115(g) of the   &Commission's Rules, 47 C.F.R. Section 1.115(g), the Application for Review filed on May 31,  X*1996, by New South Communications, Inc. IS DENIED .  Xv*  @16.` ` IT IS FURTHER ORDERED that the Mass Media Bureau send by Certified Mail  X_*ԩ Return Receipt Requested copies of this Memorandum Opinion and Order to all parties. ` `  hhCqFEDERAL COMMUNICATIONS COMMISSION ` ` hhCqWilliam F. Caton ` ` hhCqActing Secretary