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A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#Xj\  P6G; XP##X\  P6G;IP#X01Í ÍX01Í Í#Xj\  P6G; XP#Ldddddd8@d<@d<DDppdDDxddzHxxHkddDpd<"dxtldxxd"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/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"">400000000009>9+@04242079$4+<744440-909020!!!4002-2--42O4020(($4+90-+!!94)0400000000000G2-2-2-2-2-744040404094949494-004240402-40220044002-2-2-2-442-7-7077-7-94944444$42++)7474444(4)0(N$2+00020000-00000000t0>77+0c<<&&209<!!&>>400000000009>9+@04242079$4+<744440-909020!!!4002-2--42O4020(($4+90-+!!9-002240000000>00-$000000+0000000222224744444049999224000000G-----0400000+04444-27PC2X DXP\  P6QXPxy.K8?XqK\  P@QP.7UC2XxXU4  pQXW!0(X h0\  P6QhPxI-!&X,-\  P@Q,Ps4dddX9d6X@DQ@?xxxX9/Xx6X@DQX@2\)9-7jC:, Xj\  P6G;XPy.X80,IX\  P6G;P7nC:,Xn4  pG;Xy.\80, [\4  pG;W!@(#,9h@\  P6G;hPH5!,,5\  P6G;,P<r5ddd,%sd6X@`7@<?xxx,%>fx6X@`7X@  &~x `  Times New RomanTimes New RomanTimes New Roman BoldCourier X- X   Q X-w  Federal Communications Commission`u(#FCC 9747 ă  yxdddy v3#X\  P6G;IP# Before the Federal Communications Commission  yO} Washington, D.C. 20554 ă  X -#Xj\  P6G; XP#In re Application ofR#Xj\  P6G; XP#) R)  X-Eagle Radio, Inc.R)hppFile No. BRH900402KG R) For Renewal of License ofR) Station KEGL(FM),R) Fort Worth, TexasR) T  X# -  MEMORANDUM OPINION AND ORDER TP  X-X` hp x (#%'0*,.8135@8:fX@##Xj\  P6G; XP#( filed  xby the Texas State Conference of Branches of the NAACP and its respective branches  x("NAACP") (the "NAACP Petition") and an Opposition to Petition for Reconsideration filed by  x[Eagle Radio, Inc. ("Eagle"), licensee of Station KEGL(FM), Fort Worth, Texas. Also before the  xCommission are Petitions for Reconsideration filed by Tom Blackwell ("Blackwell") and Al  xZWestcott ("Westcott") ("Blackwell and Westcott Petitions"), and Eagle's Oppositions thereto. In  xLaddition, we consider Blackwell's Reply to Opposition to Petition for Reconsideration. Finally,  xthe Commission has before it a Petition for Declaratory Ruling filed by Eagle on August 11, 1994 ("Eagle Petition").  X-  x2. By its MO&O, the Commission granted the application for renewal of license for  x.Station KEGL(FM), Fort Worth, Texas, licensed to Eagle. In so doing, the Commission denied  xan informal objection filed by the National Black Media Coalition and a petition to deny filed  x/by the NAACP, which alleged violations of the Commission's broadcast EEO Rule, Section  x73.2080 of the Commission's Rules, 47 C.F.R.  73.2080. The Commission found that there  xwere no substantial and material questions of fact warranting designation for hearing and no  x\evidence of discrimination. However, the Commission found that the licensee's recruitment  xefforts were deficient and, on that basis, granted a shortterm renewal, imposed reporting  x!conditions, and issued a Notice of Apparent Liability for Forfeiture for $18,750. Shortly"$,))ZZ#"  X- xythereafter, on its own motion, the Commission reconsidered its decision in the MO&O because  xjit had inadvertently failed to consider informal objections filed by Westcott and Blackwell, and  xthe NAACP's comments thereon. Upon reconsideration, the Commission concluded that the  x\Blackwell and Westcott Petitions did not raise any substantial and material question of fact  xrequiring resolution in a hearing and affirmed its grant of Station KEGL(FM)'s renewal application.  XH-U The NAACP Petition ĐTP   x3. The NAACP's Petition was filed on March 3, 1994, the day the Commission adopted  X - xits Reconsideration Order. The sole basis of the NAACP's Petition regarding Station KEGL(FM)  X - xconcerns the Commission's failure to consider the informal objections filed by Westcott and  X - xLBlackwell. 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.  Xy-  The Blackwell and Westcott Petitions  Xb-T P   nx4. Both Blackwell and Westcott filed informal objections to the renewal of Station  x.KEGL(FM) in early 1993, almost three years after the filing of the station's renewal application.  X- xThus, neither Westcott nor Blackwell qualified as a petitioner to deny. See Section 309(d)(1)  xof the Communications Act of 1934, as amended, 47 U.S.C.  309(d)(1); Section 73.3584 of the  xCommission's Rules, 47 C.F.R.  73.3584. Neither Blackwell nor Westcott refutes their status as informal objectors.   x5. Section 405 of the Communications Act of 1934, as amended, 47 U.S.C.  405, states  xthat any party to an order, decision, report, or action by the Commission or any other person  X|- xaggrieved or whose interests are adversely affected, may petition for reconsideration. See also,  Xe- x0Committee for Community Access v. FCC, 737 F.2d 74 (D.C. Cir. 1984); 47 C.F.R.  1.106.  xTo qualify as a party, a petitioner for reconsideration must have filed a valid petition to deny  X7- xagainst the application whose grant the petitioner now seeks to have reconsidered. Community  X - x<Access; Gulfcoast Broadcasting, Inc. (WMMKFM), 8 FCC Rcd 483 (1983); Montgomery County  X - x>Broadcasting Corp., 65 FCC 2d 876 (1977). If the petition for reconsideration is filed by one  xwho is not a "party to the proceeding, it shall state with particularity the manner in which the  xperson's interests are adversely affected by the action taken, and shall show good reason why it  xwas not possible for him to participate in the earlier stages of the proceeding." 47 C.F.R.   X!-1.106(b)(1); see Community Access.  X#-  x6. The Westcott Petition. As an informal objector, Westcott lacks standing to file the  xxinstant Petition because he was not a "party to the proceeding" within the meaning of Section 405  xyof the Communications Act and Section 1.106 of the Commission's Rules. Moreover, Westcott"Q%,-(-(ZZ $"  X- xhas not demonstrated that he was adversely affected by the Commission's MO&O.Um yOy-ԍ #X\  P6G;IP#Westcott is not a listener of Station KEGL, nor does he reside within the station's service area. Further,  yOA-his informal objection did not include a declaration from a listener or service area resident.#Xj\  P6G; XP#U We therefore  xdismiss Westcott's Petition for failure to comply with the procedural requirements of Section  X-1.106 of the Commission's Rules .  X-  "x 7. The Blackwell Petition. Blackwell, as an informal objector, is also not a "party" to  xithis proceeding. However, arguably, he has demonstrated that he has been adversely affected by  xjour decision. Blackwell is a listener of Station KEGL and he resides within the station's service  X_- xarea. Further, Blackwell claims that he has been harassed by employees of Station KEGL and  XH- xthat the acts of harassment occurred after the due date for filing a petition to deny.  "x   "x Thus, it was  X1- ximpossible for him to have filed a timely petition to deny  "x . "x  Nevertheless, Blackwell has not  xOpresented any arguments or evidence in his Petition which warrants reconsideration.  x<Reconsideration is appropriate only where the petitioner shows either a material error or omission  xin the original order or raises additional facts not known or not existing until after the petitioner's  X - x>last opportunity to present such matters. See WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub  X - xnom., Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S. 967  X -(1966)("WWIZ"); 47 C.F.R.  1.106(c).   x8. Blackwell argues that the Commission gave "short shrift" to his informal objection.  xKSpecifically, he contends that the Commission ignored his allegations, only addressing them after  xalready reaching its decision. While the Commission did overlook Blackwell's pleading in  X4- xreaching its initial decision, the Commission specifically reconsidered its MO&O to address the  xinformal objections filed by Blackwell and Westcott. In so doing, the Commission fully reviewed  xand addressed all of Blackwell's allegations before deciding to reaffirm its earlier action granting the renewal application for Station KEGL.   x9. Blackwell does not present any new evidence in his Petition which requires a different  xdecision. All of Blackwell's arguments were fully considered in reaching our decision below,  xand we correctly determined that they did not provide sufficient grounds to order a hearing.  xReconsideration will not be granted for the purpose of debating matters on which we have already  Xe- xdeliberated and spoken. See, e.g., Isis Broadcasting Group, 8 FCC Rcd 24 (Rev. Bd. 1992),  XN-citing WWIZ. Accordingly, Blackwell's Petition is denied.  X -  The Eagle Petition for Declaratory Ruling ĐTP  X-   x 10. In its Petition, Eagle requests that the Commission issue a declaratory ruling  X - xwithdrawing its Policy Statement, 9 FCC Rcd 929 (1994), which adopted standards for assessing  X!- xyforfeitures for violations of the broadcast Equal Employment Opportunity (EEO) rule (the "EEO  X"- xPolicy Statement"). Eagle argues that withdrawal of the EEO Policy Statement is warranted as  xa result of the decision by the United States Court of Appeals for the District of Columbia Circuit"# ,-(-(ZZe""  X- x>in United States Telephone Association v. FCC, 28 F.3d 1232 (D.C. Cir. 1994) ("USTA"). In  X- xkUSTA, the Court set aside the Commission's general forfeiture guidelines set forth in Policy  X- xStatement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991), recon. denied, 7 FCC  X- xRcd 5339 (1992), revised, 8 FCC Rcd 6215 (1993) ("Policy Statement"), holding that the  x/forfeiture schedule should have been put out for public comment under the Administrative  X- xProcedure Act. Eagle contends that the EEO Policy Statement should have been put out for  Xv- xpublic comment as well and that, consistent with USTA, it should be withdrawn. Further, Eagle  X_- xargues that the forfeiture and sanctions imposed against it in the MO&O must be vacated since  XH- xthey were based on the EEO Policy Statement. Specifically, Eagle argues that because of the  xNAACP's appeal pending in the United States Court of Appeals for the District of Columbia  X - xCircuit (see footnote 1, supra), the MO&O remains "subject to review" and the Commission is  xZobligated to reconsider the sanctions imposed against it, looking to the forfeiture policies in place  X -prior to the adoption of the EEO Policy Statement.  X -  Ox 11. On February 16, 1996, the Commission released an Order and Notice of Proposed  X - xRule Making, Streamlining Broadcast Rule and Policies, 11 FCC Rcd 5154 (1996) ("EEO Order  X- x\and NPRM"), requesting comment on proposed guidelines for imposing forfeitures for EEO  Xy- xViolations and vacating the 1994 EEO Policy Statement. In so doing, the Commission referenced  xpending Petitions for Declaratory Ruling, including Eagle's Petition, and held that it would  XK- xreconsider any decisions which relied on the EEO Policy Statement and which "are still pending  xbefore the Commission due to, for example, pending Petitions for Reconsideration and/or  X-Requests for Mitigation of Forfeiture filed by the licensee." EEO Order and NPRM at  48.   !x 12. Eagle is not entitled to reconsideration of the forfeiture imposed against it as it filed  xyno timely petition seeking reconsideration, remission or rescission of its forfeiture. Section 405  x[of the Communications Act of 1934, as amended, and Section 1.106 of the Commission's Rules,  x-require that petitions for reconsideration be filed within thirty days from the release of a decision.  x47 U.S.C.  405; 73 C.F. R.  1.106. Eagle did not file a timely petition for reconsideration, and  xits Motion for Declaratory Ruling, which is, in effect, a late petition for reconsideration, was not  Xe- xfiled until August 11, 1994, over five months after the Commission issued its Reconsideration  XN- xOrder. Absent extraordinary circumstances, the Commission is barred by statute from  X7- xyentertaining a belated petition for reconsideration. See Gardner v. FCC, 530 F.2d 1086 (D.C. Cir.  x/1976). The U. S. Court of Appeals for the District of Columbia Circuit has made it clear that  X - x=such circumstances must be highly unusual and that the Gardner decision should be narrowly  X- xconstrued. Reuters Limited v. FCC, 781 F.2d 946 (D.C. Cir. 1986). In Gardner, reconsideration  xwas 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.   x 13. Further, on February 21, 1994, Eagle voluntarily and without protest, paid its  X#- xforfeiture. Eagle had the option of seeking reconsideration of the MO&O. Eagle chose not to  Xh$- xydo 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. "#',-(-(ZZ%"   x 14. Moreover, the fact that timely petitions for reconsideration were filed by others does  xnot require us to consider Eagle's latefiled request. Eagle itself has not preserved any right for  xreconsideration. Further, the Commission is not required to consider Eagle's arguments on its  X- xown motion. Although it is within the Commission's discretion to consider such arguments sua  X- xsponte, the Commission is not obligated to do so. See Portland Cellular Partnership, 9 FCC Rcd  x3291 (1994). In this case, there is no countervailing public right or interest which would warrant reconsideration at this late date.  XH-  x15. Finally, even though the EEO Policy Statement has been vacated, Eagle is not entitled  xto a refund of the forfeiture amount. Eagle paid its forfeiture within twenty days of release of  X - xMthe Notice of Apparent Liability, prior to the issuance of a Forfeiture Order. See 47 C.F.R.   x1.80(f)(4). Eagle had the right not to pay the forfeiture until a United States District Court had  X - xordered the payment and such order had become final. WIYN Radio, Inc., 59 FCC 2d 424  x(1976); 47 U.S.C.  503 and 504. In the absence of such a final order, the assessment of a  X - x[forfeiture could not have been used against Eagle. 47 U.S.C.  504 (c).  Where, as in this case,  xa party voluntarily pays a forfeiture or claim, it is not entitled to a refund, even if the basis upon  X- xwhich that claim is levied is later found to be invalid. See U.S. v. Edmonston, 181 U.S. 500,  Xy- x510511 (1901); Little v. Bowers, 134 U.S. 547, 55455 (1890); District of Columbia v. McFall,  Xb- x!188 F.2d 991 (D.C. Cir. 1951); Pure Oil Co. v. Tucker, 164 F. 2d 945, 94748 (8th Cir. 1947).  XK- x/ See also, Pleasant Broadcasting v. FCC, 564 F.2d 496, 498 (D.C. Cir. 1977). Cf. NAB v. FCC,  x>554 F.2d 1118, 1128 (D.C. Cir. 1976) (fees assessed for filings and grant of certain necessary  xauthorizations are not voluntary as failure to pay such fees would result in denial or withdrawal of the authorization at issue).  X-  x16. Accordingly, IT IS ORDERED that the NAACP's Petition for Reconsideration IS DISMISSED AS MOOT.  X-  ~x17. IT IS FURTHER ORDERED, that Westcott's Petition for Reconsideration is DISMISSED.  XN-  ~x18. IT IS FURTHER ORDERED, that Blackwell's Petition for Reconsideration is DENIED.  X -  x19. IT IS FURTHER ORDERED, that Eagle's Petition for Declaratory Ruling is  xDENIED IN PART, in so far as it concerns the renewal of Station KEGL and the sanctions  X- ximposed against it in the MO&O. That part of Eagle's Petition which seeks vacation of the EEO  X -Policy Statement was GRANTED in the EEO Order and NPRM. "!,-(-(ZZ "   Ox20. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail  xԩ Return Receipt Requested, copies of this Memorandum Opinion and Order to the NAACP, Eagle, Blackwell, and Westcott.    x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam F. Caton x` `  hhActing Secretary  "x " ,-(-(ZZ "  "x   X- Statement of Chairman Reed H. Hundtă   0xToday the Commission has issued a Memorandum Opinion and Order concerning radio  xstation KEGL(FM), Fort Worth Texas. I note that among the items before the Commission in  xconnection with this matter is a Petition for Reconsideration filed by Mr. Al Westcott. Although  xMr. Wescott's Petition is disposed of in the Commission's Memorandum Opinion and Order, I  xyam issuing this statement in order to respond to the argument in his Petition that I should have recused myself from this proceeding.   NxI have consulted with the Office of General Counsel on this matter and concluded that it  xis wholly legal and appropriate for me to participate in this proceeding. The Standards of Ethical  X - xConduct for Employees of the Executive Branch (5 C.F.R. 2635 at 2635.502) require that  x=Federal officials consider recusing themselves from certain adjudicatorytype matters in which  xan individual with whom they have a "covered relationship" is a party or represents a party. The  xclass of individuals with whom a "covered relationship" exists is "any person for whom the  xemployee has, within the last year, served as an ... attorney, consultant, contractor or employee."  x (5 C.F.R. 2635.502(b)(iv)). Neither I nor my former law firm, Latham & Watkins, have been  xattorneys for KEGL. Therefore, nothing in part 2635.502 requires or even suggests that I should recuse myself from the KEGL license renewal proceeding itself.   xMr. Westcott asserts that recusal is nevertheless required because his informal objection  xincorporated indecency complaints naming both Station KEGL and Station WLUP, a station that  xjhe indicates is currently represented by Latham & Watkins. I note that Latham & Watkins has  xnever represented Station WLUP before the Commission with respect to the indecency complaints  xfiled by Mr. Westcott in this proceeding. Moreover, I did not represent station WLUP as attorney  x]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.   0xLikewise, Mr. Westcott's reference to the requirement in 47 C.F.R. 19.735204(e)(3) that  xLa Federal official recuse himself from participating "in any matter in which a person from whom  xhe has accepted employment, or with whom he is negotiating for employment, has a financial  xkinterest" is not applicable to this case. Section 19.735204(e)(3) was superseded by 5 C.F.R.  xz2635.601 on February 3, 1993. Both sections apply to situations in which an official has an  X- xarrangement 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.