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Before the Federal Communications Commission FCC 94-17 Washington, D.C

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Before the Federal Communications Commission FCC 94-17 Washington, D.C Before the Federal Communications Commission FCC 94-17 Washington, D.C. 20554 In re Applications of EAGLE RADIO, INC. For Renewal of License of BRH-900402ZG Station KEGL(FM) Fort Worth, Texas DENNIS ELAM, TRUSTEE FOR BAKCOR BROADCASTING, INC., DEBTOR For Renewal of Licenses of BR-900330VY Stations KMND/KNFM(FM) BRH-900330WF Midland, Texas KTEM RADIO, INC. For Renewal of Licenses of BR-900320UM Stations KTEM/KPLE(FM) BRH-900320UN Temple, Texas WALKER COUNTY COMMUNICATIONS, INC. For Renewal of Licenses of BR-900327VJ Stations KSAM/KSAM-FM BRH-900327VI Huntsville, Texas RADIO SUNGROUP OF TEXAS, INC. For Renewal of License of BRH-900327UR Station KYKX(FM) Longview, Texas 1 KSAM-FM©s call sign was changed from KHUN(FM) effective December 6, 1991. 836 MEMORANDUM OPINION & ORDER AND NOTICES OF APPARENT LIABILITY Adopted: January 31, 1994 Released: February 1, 1994 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) license renewal applications from the above-listed radio stations in Texas; (ii) a Petition to Deny timely filed by the Texas State Conference of Branches of the NAACP, its various chapters in the stations© service areas (collectively "NAACP") and the National Black Media Coalition (NAACP/NBMC) against the above-listed stations; 3 (iii) oppositions filed by the licensees; (iv) the licensees© responses to staff letters of inquiry; (v) a Joint Request for Approval of Settlement Agreement filed by the NAACP and the licensee of Stations KMND/KNFM(FM); (vi) a Joint Request for Approval of Settlement Agreement filed by the NAACP and the licensee of Stations KTEM/KPLE(FM); and (vii) a Joint Request for Withdrawal of Petition to Deny filed by the NAACP and the licensee of Stations KSAM/KSAM-FM. II. BACKGROUND 2. NAACP/NBMC allege that the challenged stations violated our Equal Employment Opportunity (EEO) Rule and policies. Accordingly, they request that we conduct an investigation of the employment practices of the stations pursuant to Bilingual Bicultural Coalition gn Mass Media, Inc. v. FCC. 595 F.2d 621 (D.C. Cir. 1978) (B\ljngual) and designate the renewal The National Black Media Coalition is challenging the renewal application of only Station KEGL(FM). NAACP also challenged the renewal applications for Stations KBIL/KBIL-FM in San Angelo; KGNC/KMLT(FM) in Amarillo; KEBE/KOOKFM) in Jacksonville; and KGVL/KIKT(FM) in Greenville. NAACP and NBMC also challenged KNUZ/KQUE(FM) in Houston, Texas. The Commission terminated Station KBIL(AM)©s authority to operate and deleted its call sign by letter dated June 10, 1992. Station KBIL-FM©s renewal and assignment applications were granted subject to EEO reporting as well as non EEO-related conditions. See Application for License^ Renewal of Station KBIL-FM San Angelo, Texas. 7 FCC Red 5292 (1992) . The EEO records of the other stations will be reviewed in a separate order. 837 applications for hearing. III. PLEADINGS 3. Settlement Agreements. On February 9, 1993, the NAACP and the licensee of Stations KMND/KNFM(FM) filed a Joint Request for Approval of Settlement Agreement which, the parties state, resolves all allegations raised in the petition to deny. We have reviewed the settlement agreement pursuant to 47 C.F.R. Section 73.3588 and Formulation of Policies and Rules Relating to Broadcast Renewal Applicants. Competing Applicants and Other Participants to the Comparative Renewal Process and to the Prevention of Abuses of the Renewal Process, 4 FCC Red 4780 (1989) (Renewal Policies Order). We find that the settlement agreement complies with the Commission©s rules and policies and, therefore, the petition is dismissed. As is our practice in all cases, we reviewed the stations© Equal Employment Opportunity (EEO) Program and performance pursuant to Section 309 of the Communications Act of 1934, as amended, 47 U.S.C. § 309. We find that the licensee did not engage in affirmative recruitment efforts for a substantial number of vacancies and failed to maintain adequate records for self-assessment. We will, therefore, grant renewal subject to appropriate remedies and sanctions as discussed below. 4. In addition, on January 25, 1991, NAACP and the licensee of Stations KTEM/KPLE(FM) filed a Joint Request for Approval of Settlement Agreement which the parties state resolves all allegations raised in the petition to deny. We have reviewed the settlement agreement pursuant to 47 C.F.R. § 73.3588 and Renewal Policies Order, supra and find that the settlement agreement complies with the Commission©s rules and policies. Accordingly, the petition is dismissed. As is our practice in all cases, we reviewed the stations© Equal Employment Opportunity (EEO) Program and performance pursuant to 47 U.S.C. § 309. We find that the licensee did not engage in affirmative recruitment efforts for a substantial number of vacancies and failed to maintain adequate records for self-assessment. We will, therefore, grant renewal subject to appropriate remedies and sanctions as discussed below. 5. KSAM/KSAM-FM Withdrawal of Petition. On August 3, 1990, NAACP and the licensee of Stations KSAM/KSAM-FM filed a Joint Request for Withdrawal of Petition to Deny. The parties indicate that there is no settlement agreement and both have submitted properly sworn declarations of no consideration pursuant to 47 C.F.R. § 73.3588 and Renewal Policies Order, supra. We find that NAACP©s request for withdrawal complies with the Commission©s rules and policies and, therefore, the petition is dismissed. Nonetheless, as is our practice in all cases, we reviewed the stations© EEO Program and performance pursuant to 47 U.S.C. § 309 and found that the licensee did not make sufficient efforts to recruit minorities and did not self-assess its program. 838 Accordingly, we will grant renewal subject to appropriate remedies and sanctions as discussed below. 6. Standing. In challenging an application pursuant to Section 309(d)(1) of the Communications Act, a petitioner must demonstrate party in interest status. In addition, 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). See also Astroline Communications Co. Ltd. Partnership v. FCC. 857 F.2d 1556 (D.C. Cir. 1988) (Astroline); Application of Dubuoue T.V. Limited Partnership and Sage Broadcasting Corporation of Dubuque. Iowa for Assignment of Television License for KDUB-TV, Dubuaue, Iowa, 4 FCC Red 1999 (1989). The allegations, except for those of which official notice may be taken, must be supported by the affidavit of a person with personal knowledge of the facts alleged. 47 U.S.C. § 309(d)(l). 7. NAACP timely submitted declarations under penalty of perjury from the Presidents of the Fort Worth Branch regarding KEGL(FM) and the Longview Branch regarding KYKX(FM). Both declarations are from listeners of the respective stations. They comply with the requirement for establishing standing for the designated branch and the Texas State Conference of Branches of the NAACP. See American Legal Foundation v. FCC. 808 F.2d 84 (D.C. Cir. 1987). We find, therefore, that the challenge filed by NAACP constitutes a valid petition to deny against stations KEGL(FM) and KYKX(FM). 8. Finally, regarding Station KEGL(FM), the pleading contained a statement under penalty of perjury from the Chairman of NBMC, a resident of the Washington, D.C. area. He does not claim to be a listener of the station, but states that NBMC members are listeners. NBMC does not provide an affidavit from a local resident as is required for an organization seeking standing as a party in interest. See Application of Certain Broadcast Stations Serving Communities in the State of Louisiana, 7 FCC Red 1503 (1991) ; Standing of a Party to Petition to Deny. 82 FCC 2d 89, 98 (1980). Therefore, we will treat NBMC©s challenge as an informal objection. See 47 C.F.R. § 73.3587. IV. DISCUSSION 9. Prima Facie Case. NAACP/NBMC derived their factual allegations from the licensees© EEO programs and annual employment reports. Review of each licensee©s EEO record led us initially to conclude that NAACP/NBMC presented a prima facie case demonstrating that unconditional grant of the renewal applications would have been inconsistent with the public interest. See Section 309(d)(1) of the Communications Act, 47 839 U.S.C. § 309(d)(l); Astroline. supra. Further inquiry was therefore necessary. See Beaumont Branch of the NAACP and the National Black Media Coalition v. FCC. 854 F.2d 501, 506 (D.C. Cir. 1988) (Beaumont); Bilingual, supra. 10. However, subsequent review of NAACP/NBMC©s EEO allegations, as well as each licensee©s renewal application, opposition and inquiry responses, leads us to conclude that there are no substantial and material questions of fact warranting designation for hearing. In addition, we find no evidence of employment discrimination. Thus, grant of each application will serve the public interest. 47 U.S.C. § 309(d)(2). Astroline. supra. Accordingly, we will grant renewal, but with appropriate remedies and sanctions. All forfeiture sanctions imposed herein will be based on the guidelines for forfeitures pertaining to EEO violations adopted in Policy Statement. FCC# 94-27 (Adopted January 31, 1994) . 11. Section 73.2080 of the Commission©s Rules requires that a broadcast licensee refrain from employment discrimination and establish and maintain an affirmative action program reflecting positive and continuing efforts to recruit, employ and promote qualified women and minorities. When evaluating EEO performance, the Commission focuses on the licensee©s efforts to recruit, employ and promote qualified women and minorities and the licensee©s ongoing assessment of its EEO efforts. Such an assessment enables the licensee to take corrective action if qualified women and minorities are not present in the applicant pool.
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