******************************************************** 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 ) ) Citicasters Co. ) ) For Renewal of Licenses for ) KSDO(AM), San Diego, California ) File Nos. BR-970801CX KKBH-FM, San Diego, California ) BRH-970801ZN KPOP(AM), San Diego, California ) BR-970801XN KGB-FM, San Diego, California ) BRH-970801G6 KOGO(AM), San Diego, California ) BR-970801XO KKLQ-FM, San Diego, California ) BRH-970801ZM KIOZ(FM), San Diego, California ) BRH-970801XV ) and ) ) Jacor Broadcasting of San Diego, Inc.) ) For Renewal of License for ) KHTS(FM), El Cajon, California ) File No. BRH-970801ZO) MEMORANDUM OPINION AND ORDER Adopted: February 8, 1999 Released: February 23, 1999 By the Commission: 1. The Commission has before it for consideration: (i) the above-referenced applications for renewal of licenses filed by Citicasters Co. ("Citicasters") and Jacor Broadcasting of San Diego, Inc. (collectively "Jacor-San Diego"); (ii) a Petition to Deny filed by the Rainbow-PUSH Coalition ("Rainbow"); (iii) Jacor-San Diego's opposition thereto; (iv) Rainbow's reply to the opposition; (v) a Motion For Leave to File Supplemental Response filed by Jacor-San Diego; (vi) a Joint Request for Approval of Settlement Agreement ("Joint Request") filed by Rainbow and HBC San Diego License Corp.; and (vii) various other pleadings. 2. On July 23, 1998, Rainbow and HBC San Diego License Corp., assignee of Stations KKBH- FM and KKLQ-FM, filed a Joint Request which seeks approval of the settlement agreement, dismissal of Rainbow's petition to deny as it pertains to Stations KKBH-FM and KKLQ-FM, and grant of the renewal applications for these stations. We have reviewed the settlement agreement and related affidavits pursuant to Section 73.3588 of the Commission's Rules, 47 C.F.R.  73.3588, and Prevention of Abuses of the Renewal Process, 4 FCC Rcd 4780 (1989), and find that the agreement complies with the Commission's Rules and policies. Therefore, we grant the Joint Request and dismiss Rainbow's petition insofar as it relates to Stations KKBH-FM and KKLQ-FM. 3. In challenging an application pursuant to Section 309(d) of the Communications Act of 1934, as amended, a petitioner must, as a threshold matter, submit "specific allegations of fact sufficient to show that . . . a grant of the application would be prima facie inconsistent with [the public interest, convenience, and necessity]." 47 U.S.C.  309(d)(1); Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) ("Astroline"); Dubuque T.V. Limited Partnership, 4 FCC Rcd 1999 (1989). The allegations, except for those of which official notice may be taken, must be supported by an affidavit of a person with personal knowledge of the facts alleged. 47 U.S.C.  309(d)(1). 4. Rainbow alleges violations of the outreach provisions of the Commission's equal employment opportunity ("EEO") Rule, Sections 73.2080(b) and (c) of the Commission's Rules. However, the United States Court of Appeals for the District of Columbia Circuit has found the outreach portions of the EEO Rule to be unconstitutional. Lutheran Church - Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998), petition for reh'g denied, 154 F.3d 487, petition for reh'g en banc denied, 154 F.3d 494 (D.C. Cir. 1998) ("Lutheran Church"). The court's mandate has issued. Therefore, Rainbow's allegations, even if true, fail to make a prima facie case, given that the requirements allegedly violated have been ruled unconstitutional and are therefore no longer enforceable. 5. Rainbow also alleges that the licensee has violated Section 73.2080(a) of the Commission's Rules, which prohibits employment discrimination by broadcast licensees. We have evaluated Rainbow's allegations in this regard and conclude that the allegations do not raise a prima facie case that Jacor-San Diego engaged in discrimination. Rainbow states that the licensee's "abysmal" employment statistics may be "attributable to discrimination." The data submitted by Rainbow concerning the percentage of minorities currently employed by the licensee, even if accurate, is not prima facie evidence of discrimination. Nor does our own review of the record reveal any evidence raising a substantial and material question that Jacor-San Diego engaged in employment discrimination. 6. Accordingly, we will deny the Petition to Deny with respect to Stations KSDO(AM), KPOP(AM), KGB-FM, KOGO(AM), KIOZ(FM), and KHTS(FM). Moreover, after reviewing the entire record before us, we conclude that there are no substantial and material questions of fact warranting designation for hearing and that unconditional grant of the renewal applications for Stations KSDO(AM), KKBH-FM, KPOP(AM), KOGO(AM), KKLQ-FM, KHTS(FM), KGB-FM, and KIOZ(FM) would be consistent with Section 309(k) of the Communications Act of 1934, as amended, 47 U.S.C.  309(k). See Astroline. In addition, for this reason, Jacor-San Diego's Motion for Leave to File Supplemental Response is moot. 7. ACCORDINGLY, IT IS ORDERED that the Petition to Deny filed by Rainbow concerning the renewal applications of KKBH-FM and KKLQ-FM IS DISMISSED. 8. IT IS FURTHER ORDERED that the Joint Request for Approval of Settlement Agreement filed by Rainbow and HBC San Diego License Corp. IS GRANTED to the extent consistent with this Memorandum Opinion and Order and the settlement agreement IS APPROVED. 9. IT IS FURTHER ORDERED that the Petition to Deny filed by Rainbow concerning the renewal applications of Stations KSDO(AM), KPOP(AM), KGB-FM, KOGO(AM), KIOZ(FM), and KHTS(FM) IS DENIED. 10. IT IS FURTHER ORDERED that the Motion For Leave to File Supplemental Response filed by Jacor-San Diego IS DISMISSED AS MOOT. 11. IT IS FURTHER ORDERED that the license renewal applications of Jacor-San Diego, for Stations KSDO(AM), KKBH-FM, KPOP(AM), KOGO(AM), KKLQ-FM, KHTS(FM), KGB-FM, and KIOZ(FM) ARE GRANTED. 12. IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Order be sent by Certified Mail -- Return Receipt Requested -- to Jacor-San Diego, HBC San Diego License Corp., and Rainbow. 13. IT IS FURTHER ORDERED that the Chief, Mass Media Bureau, is delegated authority to issue decisions in broadcast renewal proceedings where petitions to deny allege violations of the outreach provisions of the Commission's EEO Rules, Sections 73.2080(b), and (c), 47 C.F.R.  73.2080(b), and (c), and/or where petitions to deny fail to make a prima facie case in alleging violations of the Commission's anti- discrimination Rule, Section 73.2080(a), until further notice. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary