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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 ) ) Trinity Christian Center of ) File No. BRCT-930730KF Santa Ana, Inc. d/b/a/ Trinity ) Broadcasting Network ) ) For Renewal of License of ) Station KTBN-TV ) Santa Ana, California ) MEMORANDUM OPINION AND ORDER Adopted: April 10, 1997 Released: April 16, 1997 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration an Application for Review timely filed on March 6, 1996, by the National Association for the Advancement of Colored People and the League of United Latin American Citizens, through their California State Conferences (collectively, "NAACP/LULAC"). NAACP/LULAC seek review of the Memorandum Opinion and Order("MO&O") of the Chief, Mass Media Bureau, released February 5, 1996, in the above-captioned matter. The MO&O held that NAACP/LULAC failed to make a prima facie case that Trinity Christian Center of Santa Ana, Inc. d/b/a Trinity Broadcasting Network ("TBN"), the licensee of KTBN-TV, Santa Ana, California, violated our Equal Employment Opportunity ("EEO") Rule, 47 C.F.R.  73.2080. The MO&O therefore denied NAACP/LULAC's petition to deny, but did not grant the renewal of KTBN-TV's license due to pending non-EEO matters. Also before the Commission are TBN's opposition to the application for review and NAACP/LULAC's reply thereto. For the reasons that follow, we deny the application for review. II. BACKGROUND 2. In the MO&O, the Mass Media Bureau rejected NAACP/LULAC's allegations that KTBN-TV's hiring pools contained few minorities throughout the license term and that minorities were "virtually purged" from KTBN-TV's workforce between 1991 and 1992 when the number of minorities in upper-level positions declined from 16 to 10. As evidence of these allegations, NAACP/LULAC provided a numerical chart reflecting KTBN-TV's employment record throughout the license term. However, as noted in the MO&O, the chart indicated that minorities were present on the station's workforce throughout the license term, that minority employment at the station generally increased throughout the license term, and that minority employment at the station attained its highest level in 1993. Consequently, the Bureau found that the chart did not support NAACP/LULAC's allegations that KTBN-TV had minority deficient hiring pools or that minorities had been "purged" from the station. 3. The Bureau also rejected NAACP/LULAC's argument that KTBN-TV engaged in no EEO activity until 1993, when the renewal application of TBN's Miami affiliate, WHFT(TV),was designated for hearing. The renewal application for WHFT(TV) was designated for hearing in Trinity Broadcasting of Florida, Inc., 8 FCC Rcd 2475 (1993), recon. denied, 9 FCC Rcd 2567 (1994) ("TBF"), to determine whether TBN or its affiliates or principals had used National Minority TV, Inc. as a "front" to evade the Commission's multiple ownership rules and LPTV minority preference policies. The MO&O found that NAACP/LULAC had presented no evidence of KTBN- TV's alleged EEO noncompliance prior to 1993. In addition, the Bureau denied NAACP/LULAC's request that the renewal application for KTBN-TV be designated for hearing based on disqualifying issues matching those designated in TBF. The Bureau noted that the Commission had indicated in TBF that if the issues designated in TBF are ultimately resolved against TBN or its affiliates, the Commission would then determine what actions are appropriate in connection with stations licensed to the relevant entities. 4. NAACP/LULAC present three arguments in their application for review. First, NAACP/LULAC assert that the Commission may not deny a petition to deny, thereby cutting off the hearing and appellate rights of the petitioner, without deciding a disqualifying issue raised by the petitioner. NAACP/LULAC state that their petition to deny squarely raised the question of whether TBN is qualified to operate KTBN-TV in light of its "misconduct," and that this question "was appropriately raised in relation to KTBN-TV, the flagship station of TBN, at whose facilities the misconduct was conceived and concealed." By denying the petition to deny, NAACP/LULAC argue, the MO&O prematurely cut off their right to participate in the hearing the Commission is required to hold on the question of whether TBN is qualified to operate KTBN-TV. NAACP/LULAC request that the Commission decline to grant any applications of TBN or its affiliates, including the renewal application for KTBN-TV, until it has made a final determination as to whether TBN and its affiliates are qualified to be Commission licensees. 5. Second, NAACP/LULAC contend that the Bureau failed to consider their allegation that minorities were underrepresented in KTBN-TV's hiring pools. NAACP/LULAC note, in this regard, that the MO&O found that "minorities were present on the station's workforce throughout the license term and minority employment generally increased throughout the license term." MO&O at 4. NAACP/LULAC assert that "making EEO compliance determinations primarily on evidence which is limited to considering how many minorities were employed risks converting EEO compliance to a quota system." Instead, NAACP/LULAC argue, the Bureau should have considered the extent to which minorities were included in KTBN-TV's hiring pools. 6. Third, NAACP/LULAC assert that KTBN-TV's EEO performance during 1993, when TBN's Miami affiliate was designated for hearing, is not useful evidence in predicting TBN's future EEO compliance. NAACP/LULAC state that it appears likely that KTBN-TV hired minorities in 1993 to protect itself from the intense scrutiny attendant to the designation for hearing of the renewal application for WHFT(TV). Thus, NAACP/LULAC aver that the Bureau erred in permitting KTBN- TV's 1993 minority hiring to immunize TBN from review of its extremely poor pre-1993 EEO record, particularly with respect to the unexplained loss of six minority employees between 1991 and 1992. 7. In its opposition, TBN asserts that NAACP/LULAC have presented no new material or evidence to support their claim that KTBN-TV failed to comply with the EEO Rule. Rather, TBN says, NAACP/LULAC are merely rearguing what was considered and rejected in the MO&O. Moreover, TBN argues that it would be contrary to the Commission's decision in TBF to delay grant of any applications of TBN or its affiliates pending final resolution of the issues raised in the WHFT(TV) renewal proceeding. III. DISCUSSION 8. We find no merit in NAACP/LULAC's argument that the renewal application for KTBN-TV should be designated for hearing on disqualifying issues matching those designated in TBF and that we should refrain from granting any applications of TBN or its affiliates pending final action on the renewal application for WHFT(TV). In TBF, we stated that "although the issues being specified in this case are not limited to the operation of WHFT(TV), we are not prepared, at this time, to conclude that they are so fundamental that they would affect the qualifications of [TBN or its affiliates] to hold any station license." 8 FCC Rcd at 2481. We therefore concluded that we would not require TBN or its affiliated licensees to file for early renewal and that we would not institute revocation proceedings against their stations during the pendency of WHFT(TV)'s renewal proceeding. Id. While an Initial Decision in that proceeding has been issued, the matters under consideration have not been finally resolved. NAACP/LULAC have failed to persuade us to alter our decision in TBF. Accordingly, we uphold the Bureau's decision not to designate the renewal application for KTBN-TV for hearing based on the same disqualifying issues that were specified in TBF. Regarding NAACP/LULAC's argument that their hearing rights have been cut off prematurely, we note that NAACP/LULAC may file a petition for leave to intervene in accordance with Section 1.223 of the Commission's Rules, 47 C.F.R.  1.223, in the event that we ultimately decide to designate the renewal application for KTBN-TV for hearing based on our findings in the WHFT(TV) renewal proceeding. 9. We also reject NAACP/LULAC's contention that the Bureau failed to consider their allegation that minorities were underrepresented in KTBN-TV's hiring pools. In support of this contention, NAACP/LULAC quote the Bureau's statement in the MO&O that "minorities were present on the station's workforce throughout the license term and minority employment generally increased throughout the license term." MO&O at 4. However, this quoted language does not, as alleged by NAACP/LULAC, establish that the Bureau made its EEO compliance determination based "primarily" on the number of minorities employed by KTBN-TV. Rather, reading the statement in context, it is clear that the Bureau was simply addressing the numerical chart submitted by NAACP/LULAC as evidence of their allegations that KTBN-TV had minority deficient hiring pools and that minorities had been "purged" from the station between 1991 and 1992. Elsewhere in the MO&O, the Bureau noted that KTBN-TV had attracted 93 minority candidates for the 34 full- time positions filled during the period under review. MO&O at 3. These minority applicants were attracted as a result of KTBN-TV's contacts with, among other groups, four general sources, three educational sources, and four minority-specific sources. Of 34 total hires, the licensee reported that minorities were present in 14 (41%) of the 34 overall hiring pools and eight (50%) of the 16 upper- level hiring pools. Thus, NAACP/LULAC has failed to show either a material error or omission in the Bureau's review of KTBN-TV's efforts in this regard. 10. Finally, we find no merit in NAACP/LULAC's argument that the Bureau should have disregarded KTBN-TV's EEO performance during 1993, when TBN's Miami affiliate was designated for hearing. NAACP/LULAC have proffered no evidence to support their allegation that KTBN-TV hired minorities in 1993 to protect itself from the scrutiny attendant to the designation for hearing of WHFT(TV)'s renewal application. In fact, the record shows that only three of the 14 minorities hired for full-time positions at KTBN-TV during the period under review were hired after the renewal application for WHFT(TV) was designated for hearing in April 1993. Moreover, as noted in the MO&O, NAACP/LULAC's petition to deny contained no evidence to support their claim that KTBN-TV did not begin to comply with the EEO Rule until 1993. MO&O at 4. To the contrary, the Bureau found that KTBN-TV had recruited for 33 of its 34 full-time vacancies during the period July 30, 1990 to November 30, 1993. In addition, NAACP/LULAC presented no facts evidencing that KTBN-TV made greater EEO efforts in the five months between WHFT-TV's designation for hearing (April 1993) and KTBN-TV's filing for renewal (September 1993). Accordingly, we conclude that NAACP/LULAC's application for review does not specify any factor warranting further Commission consideration, nor does it demonstrate that the Bureau erred in its assessment of KTBN-TV's EEO efforts. See 47 C.F.R.  1.115(b)(2). IV. ORDERING CLAUSES 11. After consideration of the Application for Review and all other arguments and evidence, we find that NAACP/LULAC have not shown that the Bureau's ruling was incorrect and, thus, no basis exists to warrant review. Accordingly, IT IS ORDERED that, pursuant to Section 1.115(g) of the Commission's Rules, the Application for Review filed on March 6, 1996, by NAACP/LULAC IS DENIED. 12. IT IS FURTHER ORDERED that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- copies of this Memorandum Opinion and Order to all parties. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary