******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 Applications of ) ) DAVIDSON COUNTY )File Nos. BR-950801XA BROADCASTING COMPANY, INC. ) and BRH-950801WP ) For Renewal of Licenses of ) Stations WLXN(AM)/WWGL-FM, ) Lexington, North Carolina ) MEMORANDUM OPINION AND ORDER Adopted: August 7, 1997Released: August 13, 1997 By the Commission: I. INTRODUCTION 1.The Commission has before it for consideration: (i) a Petition for Reconsideration of our decision in In re Applications of Davidson County Broadcasting Company, Inc. for Renewal of Licenses of Stations WLXN(AM)/WWGL-FM, Lexington, North Carolina, 12 FCC Rcd 3375 (1997) ("MO&O"), filed by the Rainbow-PUSH Coalition ("Rainbow"); (ii) an opposition to Rainbow's petition filed by Davidson County Broadcasting Company, Inc. ("Davidson"), licensee of Stations WLXN(AM)/WWGL-FM; and (iii) Rainbow's reply thereto. II. BACKGROUND/PLEADINGS 2.In the MO&O, we concluded that a hearing was not warranted because no substantial and material questions of fact existed. Specifically, we found that there was no evidence that the licensee engaged in employment discrimination. The licensee recruited, interviewed, and extended offers of employment to minorities. The licensee recruited for most of its vacancies (six of eight full-time vacancies), using general and minority-specific recruitment sources, and minorities were present in four of five of the station's applicant and interview pools. Accordingly, we granted the license renewal applications for Stations WLXN(AM)/WWGL-FM and denied Rainbow's petition to deny the renewal applications. However, because the licensee did not engage in meaningful self-assessment of its equal employment opportunity ("EEO") program, we granted the stations' renewal applications subject to an admonishment. 3.In support of its petition for reconsideration, Rainbow contends that the Commission erred in failing to find evidence of intentional discrimination in employment by the stations and in failing to order a hearing. Specifically, Rainbow argues that the Commission failed to consider three pieces of evidence which Rainbow asserts demonstrate an intent to discriminate: (1) the stations' decision to replace an employee using only personal sources without outside recruitment; (2) the stations' argument that its EEO efforts should be evaluated using labor force statistics for Davidson County rather than for the Greensboro -- Winston Salem -- High Point Metropolitan Statistical Area ("Greensboro MSA"); and (3) the stations' statement that minorities had expressed concerns about the stations' format in rejecting employment opportunities. 4.In response, Davidson contends that the "evidence" highlighted by Rainbow was considered by the Commission and does not support a finding of intentional discrimination. Specifically, Davidson points out that its deviation from standard recruiting practices was limited to two positions and that it recruited for all other positions utilizing sources of potential minority referrals. It argues that Rainbow's attempt to impute an intent to discriminate from the stations' effort to fill this position is "specious." In response to Rainbow's assertion that the stations "never intended to hire minorities," Davidson states that "the stations did in fact offer employment to minorities which were [sic] turned down." With respect to Rainbow's argument that the stations' reference to comments made by prospective employees regarding the stations' format was a pretext to avoid EEO recruitment, Davidson states that the stations merely restated "real concerns that had been expressed by one or more minority candidates with respect to relocation to Davidson County to work at the Stations." Moreover, Davidson continues, the statement referenced by Rainbow is not relevant to the merits of the stations' EEO program. Davidson maintains that because Rainbow has not supplied any basis for reconsideration of the Commission's order, Rainbow's petition for reconsideration must be rejected. 5.In its reply, Rainbow notes that Davidson admits that it opted out of its EEO procedures to fill the sales manager position. Rainbow contends that the licensee's request for an alternative labor force "was so absurd" that it could not have been made in good faith and, in Rainbow's view, serves as a pretext to avoid the requirement that it recruit minorities commensurate with their representation in the market. Finally, Rainbow states that if it is material that the stations offered jobs to minorities, the Commission should expect the stations to prove the minorities' existence. III. DISCUSSION 6.Reconsideration is appropriate only where the petitioner either shows 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. Buckley Broadcasting Corporation, 11 FCC Rcd 9611, 9612 (1996) [citing 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). As further explained below, we find that Rainbow has not presented any arguments or evidence in its petition which warrants reconsideration of our disposition of Davidson's applications for renewal of licenses of Stations WLXN(AM)/WWGL-FM. 7.Rainbow's first basis for reconsideration -- that the stations failed to engage in outside recruitment for the sales manager position -- was fully considered in reaching our decision. See MO&O, 12 FCC Rcd at 3381-83. Although the stations should have conducted outside recruitment efforts for this position as our EEO Rule requires, 47 C.F.R.  73.2080, we found that this did not serve as an adequate basis for finding an intent to discriminate when viewed in the context of the stations' overall record. Moreover, we determined that because the stations recruited for six of eight of their vacancies, used general and minority sources, and included minorities in their applicant and interview pools, renewal of the stations' licenses was in the public interest. 8.As its second basis for reconsideration, Rainbow cites the licensee's argument in its Opposition to Rainbow's Petition to Deny that the appropriate labor force for evaluating the stations' EEO performance is Davidson County rather than the Greensboro MSA. Rainbow argues that the licensee's "bizarre choice of market definition was really an excuse-in-waiting to cover for the fact that it never intended to hire minorities." We find this argument to be without merit because it is speculative and unsupported by any evidence. Furthermore, the record reflects that the licensee reported, under penalty of perjury, that it offered three full-time positions to minorities who declined to accept the offers. See Opposition to Petition to Deny at 10 & Exhibit A (Declaration of Greeley N. Hilton, Jr., Vice-President of Davidson County Broadcasting Company, Inc.); MO&O, 12 FCC Rcd at 3382. 9.As its final basis for reconsideration, Rainbow cites a statement made in the licensee's Opposition to Petition to Deny as "indicative of a predisposition to stereotyping." The statement alluded to by Rainbow was made by the licensee in connection with its assertion that the appropriate labor force for evaluating the stations' EEO performance should be Davidson County rather than the Greensboro MSA. Rainbow argues that the licensee's reference to comments made by prospective minority employees regarding the stations' formats indicates a hidden agenda on the part of the stations to intentionally discriminate against minorities. We also find this argument to be without merit because it is speculative and unsupported by any evidence. 10.The evidence that Rainbow directs us to was fully considered in reaching our decision below, and we correctly determined that it did not provide sufficient grounds to mandate a hearing. Accordingly, because Rainbow has not demonstrated that our original decision contained material error or omission, the petition for reconsideration is denied. IV. ORDERING CLAUSES 11.ACCORDINGLY, IT IS ORDERED that the Petition for Reconsideration filed by the Rainbow-PUSH Coalition concerning the license renewal applications of Stations WLXN(AM)/WWGL-FM IS DENIED. 12.IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Order be sent to the Rainbow-PUSH Coalition and Davidson Broadcasting Company, Inc., by Certified Mail -- Return Receipt Requested. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary