NOTICE ***************************************************************** ******** NOTICE ***************************************************************** ******** This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** Federal Communications Commission FCC 96-247 Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) First Greenville Corporation ) File Nos. BR-900330WY ) BRH-900330WL For renewal of license for ) Stations KGVL(AM)/KIKT(FM) ) Greenville, Texas ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: May 29, 1996 Released: June 12, 1996 By the Commission: 1. The Commission has under consideration: (1) our Memorandum Opinion and Order and Notice of Apparent Liability in Stauffer Communications, Inc., 9 FCC Rcd 879 (1994) ("Stauffer"); (2) a Petition for Reconsideration of Stauffer filed by the Texas State Conference of Branches of the NAACP ("NAACP"); (3) an Opposition to Petition for Reconsideration filed by First Greenville Corporation, licensee of Stations KGVL(AM)/KIKT(FM) ("First Greenville"); (4) the NAACP's reply to the opposition filed by First Greenville; and (5) First Greenville's request to rescind the forfeiture. For the reasons that follow, we deny the NAACP's petition for reconsideration with respect to KGVL(AM)/KIKT(FM). However, we recalculate the proposed forfeiture and reduce it from $37,500 to $6,000. We reduce the forfeiture both because the licensee's record so warrants and because the licensee has demonstrated an inability to pay a higher forfeiture. 2. In Stauffer, we found no evidence that First Greenville had engaged in discrimination at Stations KGVL(AM)/KIKT(FM). We further concluded that no substantial and material questions of fact existed to warrant a hearing. Accordingly, we denied the NAACP's petition to deny and granted the stations' renewal applications. 3. However, we found serious deficiencies in the stations' EEO program. It appeared that First Greenville had engaged in outside recruitment for only 16 of 67 full-time vacancies. In addition, First Greenville apparently did not maintain any applicant or interview pool information for any of its 67 vacancies. First Greenville claimed that, because of an absence of minority employees in 1988, it contacted local minority groups and leaders. However, there was no indication that those contacts resulted in applications from minorities. The licensee also periodically requested organizations and schools to refer minority applicants. However, it did not link any such request to a particular job vacancy. In view of the foregoing, we concluded that First Greenville had not consistently engaged in efforts to attract minorities or otherwise conducted meaningful self- assessment of the stations' EEO program. Accordingly, the renewal grants were for less than a full-term and subject to EEO reporting conditions. Finally, applying the guidelines set forth in Standards for Assessing Forfeitures for Violations of EEO Rules, 9 FCC Rcd 929 (1994) ("EEO Policy Statement"), we issued a Notice of Apparent Liability ("NAL") to First Greenville for $37,500 for willful and repeated violations of the Commission's EEO Rule. 47 C.F.R.  73.2080. NAACP's Petition for Reconsideration 4. In seeking reconsideration, the NAACP does not dispute any factual finding concerning the stations. Nonetheless, the NAACP argues that grants of renewal were premature. The NAACP contends that there are "still far too many unanswered questions" and that the Commission's investigation was not meaningful. It further submits that the Commission failed to address the significance of the licensee's "possibly stereotypical" beliefs that the stations' proximity to Dallas and low wage scale adversely affected their ability to recruit and hire employees. The NAACP argues that what the licensee meant was that minorities prefer big-city employment and require high wages. The NAACP concludes that had the Commission fully understood the licensee's beliefs and considered them in conjunction with the licensee's egregious failure to implement the stations' EEO program, the Commission should have inferred intentional discrimination and designated the applications for hearing. 5. 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). Reconsideration will not be granted for the purpose of debating matters on which we have already deliberated and spoken. See, e.g., Isis Broadcast Group, 8 FCC Rcd 24 (Rev. Bd. 1992), citing WWIZ. In this regard, we fully considered First Greenville's record in Stauffer. That record reflected few efforts to recruit minorities or to self- assess. However, there was, and continues to be, no evidence of employment discrimination. In so concluding, we reject as unfounded the suggestion that the licensee's beliefs about the reasons for its inability to recruit and hire employees raise a substantial and material question of fact, either when considered alone or in conjunction with the licensee's implementation of the stations' EEO program. Considering the entire record, we find that, at worst, the licensee's statements are nothing more than a post hoc rationalization for its failure to attract, hire and retain minorities; they do not constitute evidence of employment discrimination. We therefore conclude that reconsideration is not warranted with respect to our disposition of the license renewal applications for KGVL/KIKT(FM). First Greenville's Request to Rescind the Forfeiture 6. First Greenville does not dispute that it violated our EEO rule, nor does it contest the propriety of short-term renewals and reporting conditions. However, it does submit that the proposed forfeiture should be rescinded in light of its competitive and financial circumstances. First Greenville contends that payment of the proposed forfeiture would be "catastrophic." First Greenville asserts that the stations operate with the lowest power levels set by the Commission in a small community covered by approximately 40 higher-powered stations broadcasting from the Dallas area and that the stations have stayed on the air only because its sole shareholder continuously contributes money to cover the stations' operating losses. First Greenville submits that payment of a substantial forfeiture will adversely affect its ability to serve the needs of its listeners because such payment would reduce resources otherwise available for its news operations. Finally, First Greenville argues that the forfeiture was invalid because the EEO Policy Statement was applied retroactively and without notice. 7. In determining a forfeiture amount, we are required to take into account the nature, circumstances, extent and gravity of the violation. In addition, with respect to the violator, we are to consider the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require. Section 503(b)(2)(D) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b)(2)(D). See also, Section 1.80(b)(4) of the Commission's Rules, 47 C.F.R.  1.80(b)(4). Considering all the pertinent circumstances, we conclude that a forfeiture of $6,000 is appropriate. 8. In adopting the EEO Policy Statement, we proposed the use of non-binding guidelines for assessing forfeitures for violations of our broadcast EEO rule. We had issued general forfeiture guidelines to identify those situations that could lead to a forfeiture and to identify criteria that might be used to increase or decrease the base amount of the forfeiture and that might result in grant of renewal for less than a full term. Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991), recon. denied, 7 FCC Rcd 5339, revised, 8 FCC Rcd 6215 (1993) ("Policy Statement"). The issuance of the EEO Policy Statement resulted from the deletion of the broadcast EEO violation category from our general forfeiture guidelines. See Policy Statement, 8 FCC Rcd at 6215 n. 1. The EEO Policy Statement did not modify any part of the EEO rule. See Streamlining Broadcast EEO Rule and Policies, 11 FCC Rcd 5154 (1996). 9. In United States Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994) ("USTA"), the court set aside our general forfeiture guidelines. The USTA decision concluded that the forfeiture schedule should have been put out for comment under the Administrative Procedure Act. Following the USTA decision, we have received requests to withdraw the EEO Policy Statement until it is likewise made available to the public for comment. See, e.g., Petition for Declaratory Ruling by Eagle Radio, Inc. (filed August 11, 1994); Letter from Henry L. Baumann to William E. Kennard, July 13, 1994. In Streamlining Broadcast EEO Rule and Policies, we vacated the EEO Policy Statement and advised licensees that we would follow our recent practice of making forfeiture decisions by relying on case precedent to resolve the decisional case. 10. In our evaluation, we consider the station's size, composition of the local labor force, number of hiring opportunities, recruitment patterns, applicant and interview pools, assessment and record-keeping. E.g., KSBW License, Inc., 9 FCC Rcd at 6703. In reaching the specified amount, we have determined that First Greenville's record is similar to that of the licensee of KIDY(TV), San Angelo, Texas. See Sage Broadcasting Corporation, 10 FCC Rcd 4429 (1995) ("Sage"). There we granted a short term renewal, subject to the submission of an EEO report, and issued a $25,000 NAL. During its 1988-1993 license term, Station KIDY(TV) had between 25 and 31 full-time employees. The local labor force included 24.1% minorities. During a three year four month period ending August 1, 1993, the station filled 41 full-time jobs. Apparently, the station recruited for only 10 of the 41 vacancies (24%) and contacted minority sources for only one opening. The licensee obtained only one minority applicant for a lower-level position. The licensee did not add recruitment sources until shortly before the license expired. Finally, the licensee did not maintain sufficient records to enable it self-assess the effectiveness of its recruitment efforts. 11. During the 1983-1990 license terms, the staff of Stations KGVL(AM)/KIKT(FM) varied between 13 and 21 full-time employees. The local labor force included 13.4% minorities. During a three year four month period ending July 31, 1990, the stations filled 67 full-time vacancies. First Greenville's records indicate that it recruited for only 16 or 24% of those vacancies. Minorities were known to be present in only one applicant and interview pool. The licensee apparently did not maintain any information as to the race, national origin, sex and referral source of its applicants and the persons interviewed. 12. Station KIDY(TV) had more employees and was located in an area with a greater minority presence than Stations KGVL(AM)/KIKT(FM). Although the licensee of KGVL(AM)/KIKT(FM) had more hiring opportunities, both it and the licensee of KIDY(FM) had a substantial number of jobs to fill, yet both recruited for slightly less than one quarter of their full-time vacancies. Both licensees made virtually no effort to contact minority-specific sources despite the virtual absence of minority referrals. Finally, although Station KIDY(TV)'s licensee self-assessed its EEO program and Stations KGVL(AM)/KIKT(FM)'s licensee did not, the former's self- assessment did not occur until the month preceding the preparation and submission of its renewal application and long after the licensee should have been aware that its recruitment practices needed modifying. Both stations failed to maintain adequate EEO records. Given the facts of this case, we would set the forfeiture at $20,000. 13. As noted, however, the licensee has also asked us to consider its ability to pay. Our review of the licensee's financial documents leads us to conclude that the stations' expenses, without regard for depreciation, have generally exceeded their income, and that the licensee's sole shareholder has funded those losses. The licensee's submissions further reflect that its sole stockholder does not receive any income whatsoever from the stations and that he has lent the stations considerable sums. The AM station operates at 1 kW power on an unlimited basis, while the FM is a Class A. Stations KGVL(AM)/KIKT(FM) are the only stations licensed to Greenville, the principal business center of Hunt County. Hunt County is now part of the Dallas, Texas, Primary Metropolitan Statistical Area. 14. In Benito Rish, 10 FCC Rcd 2861 (1995), the Commission reduced a $10,000 forfeiture to $2,500, inter alia, because the licensee's station (Station WREM(AM), Monticello, Maine) was a 5 kW directional daytime-only station licensed to a community of 425. The Commission concluded that, in light of those circumstances and the station's apparently unprofitable history, a forfeiture of $2,500 would adequately deter future misconduct. Here, too, Stations KGVL(AM)/KIKT(FM) have apparently suffered significant financial setbacks. On the other hand, the stations' power and location makes their inherent value significantly greater than that of Station WREM. Considering all of the circumstances, we conclude that a reduction of the forfeiture is appropriate. Accordingly, we reduce the forfeiture to $6,000. 15. Accordingly, IT IS ORDERED, that the petition for reconsideration filed by the NAACP with respect to KGVL/KIKT(FM) IS DENIED. 16. IT IS FURTHER ORDERED, that First Greenville's request for confidentiality IS GRANTED, and that the financial documents submitted with its response to the NAL SHALL BE KEPT CONFIDENTIAL pursuant to Sections 0.457 and 0.459 of the Commission's Rules. 17. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C. Section 503(b), that First Greenville Corporation FORFEIT to the United States the sum of six thousand dollars ($6,000) for the willful and repeated violations of Section 73.2080 of the Commission's Rules, 47 C.F.R. Section 73.2080. Payment of the forfeiture may be made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission. 18. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail-- Return Receipt Requested, copies of this Memorandum Opinion and Order and Forfeiture Order to the NAACP and to First Greenville Corporation. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary