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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) Eagle Radio, Inc. ) File No. BRH-900402KG ) For Renewal of License of ) Station KEGL(FM), ) Fort Worth, Texas ) MEMORANDUM OPINION AND ORDER Adopted: February 11, 1997 Released: May 1, 1997 By the Commission: Chairman Hundt issuing a separate statement. 1. The Commission has before it a Petition for Reconsideration of Eagle Radio, Inc., 9 FCC Rcd 836 (1994) ("MO&O"), aff'd 9 FCC Rcd 1294 (1994) ("Reconsideration Order"), filed by the Texas State Conference of Branches of the NAACP and its respective branches ("NAACP") (the "NAACP Petition") and an Opposition to Petition for Reconsideration filed by Eagle Radio, Inc. ("Eagle"), licensee of Station KEGL(FM), Fort Worth, Texas. Also before the Commission are Petitions for Reconsideration filed by Tom Blackwell ("Blackwell") and Al Westcott ("Westcott") ("Blackwell and Westcott Petitions"), and Eagle's Oppositions thereto. In addition, we consider Blackwell's Reply to Opposition to Petition for Reconsideration. Finally, the Commission has before it a Petition for Declaratory Ruling filed by Eagle on August 11, 1994 ("Eagle Petition"). 2. By its MO&O, the Commission granted the application for renewal of license for Station KEGL(FM), Fort Worth, Texas, licensed to Eagle. In so doing, the Commission denied an informal objection filed by the National Black Media Coalition and a petition to deny filed by the NAACP, which alleged violations of the Commission's broadcast EEO Rule, Section 73.2080 of the Commission's Rules, 47 C.F.R.  73.2080. The Commission found that there were no substantial and material questions of fact warranting designation for hearing and no evidence of discrimination. However, the Commission found that the licensee's recruitment efforts were deficient and, on that basis, granted a short-term renewal, imposed reporting conditions, and issued a Notice of Apparent Liability for Forfeiture for $18,750. Shortly thereafter, on its own motion, the Commission reconsidered its decision in the MO&O because it had inadvertently failed to consider informal objections filed by Westcott and Blackwell, and the NAACP's comments thereon. Upon reconsideration, the Commission concluded that the Blackwell and Westcott Petitions did not raise any substantial and material question of fact requiring resolution in a hearing and affirmed its grant of Station KEGL(FM)'s renewal application. The NAACP Petition 3. The NAACP's Petition was filed on March 3, 1994, the day the Commission adopted its Reconsideration Order. The sole basis of the NAACP's Petition regarding Station KEGL(FM) concerns the Commission's failure to consider the informal objections filed by Westcott and Blackwell. Accordingly, since the Commission's Reconsideration Order specifically addressed the issues raised by the NAACP in its Petition, we dismiss the NAACP's Petition as moot. The Blackwell and Westcott Petitions 4. Both Blackwell and Westcott filed informal objections to the renewal of Station KEGL(FM) in early 1993, almost three years after the filing of the station's renewal application. Thus, neither Westcott nor Blackwell qualified as a petitioner to deny. See Section 309(d)(1) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d)(1); Section 73.3584 of the Commission's Rules, 47 C.F.R.  73.3584. Neither Blackwell nor Westcott refutes their status as informal objectors. 5. Section 405 of the Communications Act of 1934, as amended, 47 U.S.C.  405, states that any party to an order, decision, report, or action by the Commission or any other person aggrieved or whose interests are adversely affected, may petition for reconsideration. See also, Committee for Community Access v. FCC, 737 F.2d 74 (D.C. Cir. 1984); 47 C.F.R.  1.106. To qualify as a party, a petitioner for reconsideration must have filed a valid petition to deny against the application whose grant the petitioner now seeks to have reconsidered. Community Access; Gulfcoast Broadcasting, Inc. (WMMK-FM), 8 FCC Rcd 483 (1983); Montgomery County Broadcasting Corp., 65 FCC 2d 876 (1977). If the petition for reconsideration is filed by one who is not a "party to the proceeding, it shall state with particularity the manner in which the person's interests are adversely affected by the action taken, and shall show good reason why it was not possible for him to participate in the earlier stages of the proceeding." 47 C.F.R.  1.106(b)(1); see Community Access. 6. The Westcott Petition. As an informal objector, Westcott lacks standing to file the instant Petition because he was not a "party to the proceeding" within the meaning of Section 405 of the Communications Act and Section 1.106 of the Commission's Rules. Moreover, Westcott has not demonstrated that he was adversely affected by the Commission's MO&O. We therefore dismiss Westcott's Petition for failure to comply with the procedural requirements of Section 1.106 of the Commission's Rules. 7. The Blackwell Petition. Blackwell, as an informal objector, is also not a "party" to this proceeding. However, arguably, he has demonstrated that he has been adversely affected by our decision. Blackwell is a listener of Station KEGL and he resides within the station's service area. Further, Blackwell claims that he has been harassed by employees of Station KEGL and that the acts of harassment occurred after the due date for filing a petition to deny. Thus, it was impossible for him to have filed a timely petition to deny. Nevertheless, Blackwell has not presented any arguments or evidence in his Petition which warrants reconsideration. Reconsideration is appropriate only 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 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)("WWIZ"); 47 C.F.R.  1.106(c). 8. Blackwell argues that the Commission gave "short shrift" to his informal objection. Specifically, he contends that the Commission ignored his allegations, only addressing them after already reaching its decision. While the Commission did overlook Blackwell's pleading in reaching its initial decision, the Commission specifically reconsidered its MO&O to address the informal objections filed by Blackwell and Westcott. In so doing, the Commission fully reviewed and addressed all of Blackwell's allegations before deciding to reaffirm its earlier action granting the renewal application for Station KEGL. 9. Blackwell does not present any new evidence in his Petition which requires a different decision. All of Blackwell's arguments were fully considered in reaching our decision below, and we correctly determined that they did not provide sufficient grounds to order a hearing. Reconsideration will not be granted for the purpose of debating matters on which we have already deliberated and spoken. See, e.g., Isis Broadcasting Group, 8 FCC Rcd 24 (Rev. Bd. 1992), citingWWIZ. Accordingly, Blackwell's Petition is denied. The Eagle Petition for Declaratory Ruling 10. In its Petition, Eagle requests that the Commission issue a declaratory ruling withdrawing its Policy Statement, 9 FCC Rcd 929 (1994), which adopted standards for assessing forfeitures for violations of the broadcast Equal Employment Opportunity (EEO) rule (the "EEO Policy Statement"). Eagle argues that withdrawal of the EEO Policy Statement is warranted as a result of the decision by the United States Court of Appeals for the District of Columbia Circuit in United States Telephone Association v. FCC, 28 F.3d 1232 (D.C. Cir. 1994) ("USTA"). In USTA, the Court set aside the Commission's general forfeiture guidelines set forth in Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991), recon. denied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd 6215 (1993) ("Policy Statement"), holding that the forfeiture schedule should have been put out for public comment under the Administrative Procedure Act. Eagle contends that the EEO Policy Statement should have been put out for public comment as well and that, consistent with USTA, it should be withdrawn. Further, Eagle argues that the forfeiture and sanctions imposed against it in the MO&O must be vacated since they were based on the EEO Policy Statement. Specifically, Eagle argues that because of the NAACP's appeal pending in the United States Court of Appeals for the District of Columbia Circuit (see footnote 1, supra), the MO&Oremains "subject to review" and the Commission is obligated to reconsider the sanctions imposed against it, looking to the forfeiture policies in place prior to the adoption of the EEO Policy Statement. 11. On February 16, 1996, the Commission released an Order and Notice of Proposed Rule Making, Streamlining Broadcast Rule and Policies, 11 FCC Rcd 5154 (1996) ("EEO Order and NPRM"), requesting comment on proposed guidelines for imposing forfeitures for EEO Violations and vacating the 1994 EEO Policy Statement. In so doing, the Commission referenced pending Petitions for Declaratory Ruling, including Eagle's Petition, and held that it would reconsider any decisions which relied on the EEO Policy Statement and which "are still pending before the Commission due to, for example, pending Petitions for Reconsideration and/or Requests for Mitigation of Forfeiture filed by the licensee." EEO Order and NPRM at  48. 12. Eagle is not entitled to reconsideration of the forfeiture imposed against it as it filed no timely petition seeking reconsideration, remission or rescission of its forfeiture. Section 405 of the Communications Act of 1934, as amended, and Section 1.106 of the Commission's Rules, require that petitions for reconsideration be filed within thirty days from the release of a decision. 47 U.S.C.  405; 73 C.F. R.  1.106. Eagle did not file a timely petition for reconsideration, and its Motion for Declaratory Ruling, which is, in effect, a late petition for reconsideration, was not filed until August 11, 1994, over five months after the Commission issued its Reconsideration Order. Absent extraordinary circumstances, the Commission is barred by statute from entertaining a belated petition for reconsideration. See Gardner v. FCC, 530 F.2d 1086 (D.C. Cir. 1976). The U. S. Court of Appeals for the District of Columbia Circuit has made it clear that such circumstances must be highly unusual and that the Gardner decision should be narrowly construed. Reuters Limited v. FCC, 781 F.2d 946 (D.C. Cir. 1986). In Gardner, reconsideration was warranted because the Commission failed to give notice to the party of its action and the party was not represented by legal counsel. No such compelling circumstances exist here. 13. Further, on February 21, 1994, Eagle voluntarily and without protest, paid its forfeiture. Eagle had the option of seeking reconsideration of the MO&O. Eagle chose not to do so, even though an appeal of the Commission's Policy Statement was pending in the United States Court of Appeals for the District of Columbia Circuit. 14. Moreover, the fact that timely petitions for reconsideration were filed by others does not require us to consider Eagle's late-filed request. Eagle itself has not preserved any right for reconsideration. Further, the Commission is not required to consider Eagle's arguments on its own motion. Although it is within the Commission's discretion to consider such arguments sua sponte, the Commission is not obligated to do so. See Portland Cellular Partnership, 9 FCC Rcd 3291 (1994). In this case, there is no countervailing public right or interest which would warrant reconsideration at this late date. 15. Finally, even though the EEO Policy Statement has been vacated, Eagle is not entitled to a refund of the forfeiture amount. Eagle paid its forfeiture within twenty days of release of the Notice of Apparent Liability, prior to the issuance of a Forfeiture Order. See 47 C.F.R.  1.80(f)(4). Eagle had the right not to pay the forfeiture until a United States District Court had ordered the payment and such order had become final. WIYN Radio, Inc., 59 FCC 2d 424 (1976); 47 U.S.C.  503 and 504. In the absence of such a final order, the assessment of a forfeiture could not have been used against Eagle. 47 U.S.C.  504 (c). Where, as in this case, a party voluntarily pays a forfeiture or claim, it is not entitled to a refund, even if the basis upon which that claim is levied is later found to be invalid. See U.S. v. Edmonston, 181 U.S. 500, 510-511 (1901); Little v. Bowers, 134 U.S. 547, 554-55 (1890); District of Columbia v. McFall, 188 F.2d 991 (D.C. Cir. 1951); Pure Oil Co. v. Tucker, 164 F. 2d 945, 947-48 (8th Cir. 1947). See also, Pleasant Broadcasting v. FCC, 564 F.2d 496, 498 (D.C. Cir. 1977). Cf. NAB v. FCC, 554 F.2d 1118, 1128 (D.C. Cir. 1976) (fees assessed for filings and grant of certain necessary authorizations are not voluntary as failure to pay such fees would result in denial or withdrawal of the authorization at issue). 16. Accordingly, IT IS ORDERED that the NAACP's Petition for Reconsideration IS DISMISSED AS MOOT. 17. IT IS FURTHER ORDERED, that Westcott's Petition for Reconsideration is DISMISSED. 18. IT IS FURTHER ORDERED, that Blackwell's Petition for Reconsideration is DENIED. 19. IT IS FURTHER ORDERED, that Eagle's Petition for Declaratory Ruling is DENIED IN PART, in so far as it concerns the renewal of Station KEGL and the sanctions imposed against it in the MO&O. That part of Eagle's Petition which seeks vacation of the EEO Policy Statement was GRANTED in the EEO Order and NPRM. 20. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested, copies of this Memorandum Opinion and Order to the NAACP, Eagle, Blackwell, and Westcott. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary Statement of Chairman Reed H. Hundt Today the Commission has issued a Memorandum Opinion and Order concerning radio station KEGL(FM), Fort Worth Texas. I note that among the items before the Commission in connection with this matter is a Petition for Reconsideration filed by Mr. Al Westcott. Although Mr. Wescott's Petition is disposed of in the Commission's Memorandum Opinion and Order, I am issuing this statement in order to respond to the argument in his Petition that I should have recused myself from this proceeding. I have consulted with the Office of General Counsel on this matter and concluded that it is wholly legal and appropriate for me to participate in this proceeding. The Standards of Ethical Conduct for Employees of the Executive Branch (5 C.F.R. 2635 at 2635.502) require that Federal officials consider recusing themselves from certain adjudicatory-type matters in which an individual with whom they have a "covered relationship" is a party or represents a party. The class of individuals with whom a "covered relationship" exists is "any person for whom the employee has, within the last year, served as an ... attorney, consultant, contractor or employee." (5 C.F.R. 2635.502(b)(iv)). Neither I nor my former law firm, Latham & Watkins, have been attorneys for KEGL. Therefore, nothing in part 2635.502 requires or even suggests that I should recuse myself from the KEGL license renewal proceeding itself. Mr. Westcott asserts that recusal is nevertheless required because his informal objection incorporated indecency complaints naming both Station KEGL and Station WLUP, a station that he indicates is currently represented by Latham & Watkins. I note that Latham & Watkins has never represented Station WLUP before the Commission with respect to the indecency complaints filed by Mr. Westcott in this proceeding. Moreover, I did not represent station WLUP as attorney for the station during the one year prior to the Commission's taking action in this matter. Therefore, Mr. Westcott's allegations against WLUP are not a reason for considering recusal. Likewise, Mr. Westcott's reference to the requirement in 47 C.F.R. 19.735-204(e)(3) that a Federal official recuse himself from participating "in any matter in which a person from whom he has accepted employment, or with whom he is negotiating for employment, has a financial interest" is not applicable to this case. Section 19.735-204(e)(3) was superseded by 5 C.F.R. 2635.601 on February 3, 1993. Both sections apply to situations in which an official has an arrangement for or is negotiating prospective employment. In this instance, I terminated my relationship with Latham & Watkins before taking action on any matter before the Commission.