11 FCC Red No. 6 Federal Communications Commission Record FCC 96-65

not the stations' good faith efforts to improve those num- Before the bers even though the Commission's EEO Rule emphasizes Federal Communications Commission a licensee's efforts. The licensee also argues that the Washington, D.C. 20554 NAACP's suggestion that the licensee should be ordered to demonstrate the sufficiency of its efforts over the past 15 years when the Commission has reviewed the licensee's In re Applications of program in intervening license renewals is gross overreach- ing. In its Reply, the NAACP maintains that EEO efforts are not a "safe harbor" from the consequences of having D.W.S., Inc. File Nos. BR-890720UD had no minority hires. BRH-890720UM

For Renewal of License for II. DISCUSSION Stations WDWS(AM)/WHMS-FM 4. Reconsideration is appropriate only where the peti- Champaign, Illinois tioner 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 MEMORANDUM OPINION AND ORDER present such matters. See WWIZ, Inc, 37 FCC 685, 686 (1964), aff'd sub non, Lorain Journal Co. t'. FCC, 351 F.2d Adopted: February 20, 1996; Released: March 5, 1996 824 (D.C. Cir. 1965) cert. denied, 383 U.S. 967 (1966); 47 C.F.R. Section 1.106. Applying this standard, we conclude By the Commission: that reconsideration is not warranted with respect to our disposition of the license renewal applications for WDWS(AM)/WHMS-FM. 1. The Commission has before it for consideration: (i) a timely filed petition by the Illinois State Conference of 5. In seeking reconsideration, the NAACP does not dis- Branches of the NAACP. including its respective branches pute any factual findings concerning the stations. Indeed. ("NAACP') requesting that the Commission reconsider its the NAACP does not challenge our decision in any way September 21, 1992, decision in Applications of D.W.S., insofar as it relates to the record before us concerning the Inc., 7 FCC Rcd 7170 (1992) ("D.W.S.") insofar as it grant- licensee's most recent (1982-1989) license term. Rather, it ed D.W.S., Inc.'s renewal applications without sanction for urges that we should conduct an inquiry into the licensee's Stations WDWS(AM)/WHMS-FM, Champaign, Illinois; (ii) record (luring prior license terms. Contrary to the an opposition thereto filed by the licensee; and (iii) the NAACP's assertion, we conside.red this contention in NAACP's reply thereto. In D.W.S., we denied a petition to reaching our decision. As we have repeatedly stated, re- deny filed by the NAACP alleging that the licensee violated consideration will not be granted for the purpose of debat- our Equal Employment Opportunity ("EEO") Rule. Sec- ing matters on which we have already deliberated and tion 73.2080 of the Commission's Rules, 47 C.F.R. § spoken. See, e.g., Isis Broadcast Group, 8 FCC Rcd 24 (Rev. 73 .2080. Bd. 1992). citing WWIZ. Moreover, in Policy Regarding Character Qualifications in Broadcast Licensing, 102 FCC 2d 1179, 1229 (1985) recon. granted in part, denied in part, 1 I. PLEADINGS FCC Rcd 421 (1986) appeal dismissed sub nom. Xational Association for Better Broadcasting t'. FCC, No. 86-1179 2. In its petition for reconsideration, the NAACP argues that the Commission erred by limiting its review of the (D.C. Cir. June 11. 1987), we held that ...... as a general licensee's EEO record to the most recent license term matter conduct which has occurred and was or should (1982 - 1989). It asserts that we ignored its contention that have been discovered by the Commission, due to informa- inquiry into the record of WDWS(AM)/WIIMS-FM for a tion within its control, prior to the current license term period extending back to 1975 was warranted because the should not he considered and that, even as to consideration stations employed no minorities in full-time positions in of past conduct indicating 'a flagrant disregard of the Com- eight years, no upper-level minorities for 12 years and no mission's regulations and policies.' a ten year limitation Blacks in full-time positions since 1980. The result in should apply." The policy reflects the "inherent inequity D. W.S. was supported by reference to United Broadcasting and practical difficulty" of requiring licensees to respond to Co., Inc., 100 FCC 2d 1574, 1577 (1985) (United). The allegations of greater age. a consideration particularly per- NAACP argues that United provides an insufficient basis to tinent in this context given the nature of the records that ignore a "fifteen year period of 1)oSsible (liscrimination." It may be necessary to respond to allegations of an EEO urges that consideration of such a pattern is pertinent to violation. The policy is applicable to the NAACP's allega- tion of a possible pattern of discrimination since discrimi- assessing similar misconduct in the most recent (license nation is an issue pertinent to an al)plicants character. term.' Bilingual Bicultural Coalition on Mass Media, Inc. '. FCC, 3. In its opposition. the licensee argues that the NAACP 595 F.2d 621. 628-29 (D.C. Cir. 1978). Ilere. the NAACP has failed to demonstrate any basis for reconsideration and justifies its position solely on the basis of statistical in- that its petition should he denied. The licensee contends formation contained in the Commission's files at the time that the NAACP's petition illustrates the NAACP's focus the prior renewals were granted. This information was not on the number of minorities employed at the stations and

The NAACP also advanced an argument that the Commis- listed in response to a staff inquiry. In its Reply, however, the sion should have considered a discrepancy between the minority NAACP conceded that this contention was erroneous and it recruitment sources listed in the renewal applications and those withdrew it.

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FCC 96-65 Federal Communications Commission Record 11 FCC Rcd No. 6

only available to the Commission for consideration in con- nection with the prior renewal applications, but was also available to the NAACP to frame objections to those ap- plications. Review of the licensees record was therefore properly limited to the most recent license term. The information long available in the Commission's files, stand- ing alone, does not suggest a flagrant disregard of the Commission's Rules that might justify a broader inquiry. Our EEO Rule does not prescribe a particular level of statistical performance that must be met and no other evidence of discrimination has been proffered. This is par- ticularly pertinent given that we have found no violation during the licensee's most recent license term and the NAACP has not identified any error in that finding based on the record as it stands.

III. CONCLUSION 6. Based on the foregoing, we find that the NAACP's petition for reconsideration does not meet the standards necessary for the Commission to reconsider its decision in D.W.S. to grant the renewal applications of WDWS(AM)IWHMS-FM and we will therefore deny it.

IV. ORDERING CLAUSES 7. Accordingly, IT IS ORDERED that the Petition for Reconsideration filed by the Illinois State Conference of Branches of the NAACP. including its respective branches, concerning the license renewal applications of WDWS(AM) and WHMS-FM, Champaign, Illinois, IS DE- NIED. 8. IT IS FURTHER ORDERED that the Mass Media Bureau send by Certified Mail--Return Receipt Requested- -copies of this Memorandum Opinion and Order to the Illinois State Conference of Branches of the NAACP and D.W.S., Inc.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

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