Federal Communications Commission FCC 96-273

Before the Federal Communications Commission Washington, D.C 20554

In re Application of

Valley Public Television, Inc. ) BRET-930729KL ) For Renewal of License of ) Station KVPT(TV) ) Fresno, )

MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABDLTTY

Adopted: June 20, 1996; Released: July 22, 1996

By the Commission: Commissioner Quello concurring in the result

1. The Commission has before it for consideration: (i) a license renewal application for KVPT(TV), a noncommercial educational ; (ii) a Petition to Deny the application timely filed by the California State Conference of Branches of the National Association for the Advancement of Colored People (NAACP) and the League of United Latin American Citizens, through its California State Board of Directors (LULAC); (iii) an opposition by the licensee; and (iv) the licensee©s response to a staff inquiry. The NAACP and LULAC allege that the licensee violated the Commission©s Equal Employment Opportunity (EEO) Rule and policies. They request that the Commission designate the licensee©s renewal application for hearing with a view toward denying it. The licensee maintains that it has followed the requirements of the Commission©s EEO Rule and policies and that it deserves unconditional renewal. For the reasons that follow, we deny the NAACP©s petition, dismiss LULAC as a petitioner, and grant the application subject to appropriate remedies and sanctions due to deficiencies in the licensee©s EEO program.

Background/Pleadings

2. In challenging an application pursuant to Section 309(d) of the Communications Act of 1934, as amended, 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).(l). Astroline Com. Co. Ltd. Partnership v. FCC. 857 F.2d 1556 (D.C. Cir. 1988) (Astroline©) Dubuoue T.V. Limited Partnership. 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.

8953 Federal Communications Commission FCC 96-273

§ 309(d)(l).

3. Standing. Timely filed with the petition to deny was a declaration under penalty of perjury from an NAACP member who is the membership chairperson of the Fresno, California Branch of the NAACP. She states that she is a resident of the service area of KVPT(TV) and a regular viewer of the station. Although the Fresno NAACP Branch was not listed among the parties to the petition to deny, the president of the Fresno Branch wrote the Commission on March 3, 1994, requesting that his branch be removed as a party to this proceeding and stating that his branch did not oppose the grant of KVPT(TV)©s renewal application. However, the California NAACP state organization has not asked to withdraw the petition, nor has the Fresno membership chairperson asked to withdraw her supporting declaration. Although the Fresno Branch president purports to act on behalf of his branch, the membership chairperson©s declaration is still valid because it has not been withdrawn, the declarant filed it as an NAACP member and not merely as an official of the Fresno Branch, and she did not state that she was filing on behalf of the Branch alone. We therefore find that this declaration complies with the requirements for establishing standing for the NAACP and that its pleading constitutes a valid petition to deny KVPT(TV)©s renewal application.

4. Following the filing of its petition, LULAC filed a supporting declaration under penalty of perjury from the president of the Hanford, California Council of LULAC. She states that she is a regular viewer of the station. However, her declaration was untimely filed and we find LULAC©s explanation that it had "telephonic transmission" problems to be an insufficient justification. As we stated in Florida Renewals. 3 FCC Red 1930 (1988), we will not acquiesce to the submission of late filings absent extraordinary circumstances. We therefore find that LULAC has failed to establish petitioner status. See NAB Petition for Rulemakine . 82 FCC 2d 89, 98-99 (1980). Accordingly, we will dismiss LULAC as a petitioner. See 47 U.S.C. § 309(d)(l); 47 C.F.R. § 73.3584(d).

5. Prima Facie Case. The NAACP derived its factual allegations from the licensee©s EEO program and annual employment reports. The licensee argues that the NAACP failed to raise specific allegations of fact sufficient to establish a prima facie showing that grant of the renewal application would be inconsistent with the public interest. Section 309(d)(l) of the Communications Act, 47 U.S.C. § 309(d)(l); Astroline. In this regard, the licensee contends that the NAACP©s arguments that minority recruitment and employment were inadequate are erroneously based on 1990 Census data. The licensee submits that if the Commission evaluates KVPT(TV)©s EEO program using 1980 data, it should find that the NAACP has failed to make a prima facie case against renewal. However, we evaluate the licensee©s EEO efforts by reference to 1980 data for the first four years of its license term and 1990 data for the 1993 Annual Employment Report.1 After considering the NAACP©s allegations and evaluating the

1 The Commission uses 1990 Census data for all license renewal applications filed after May 31, 1993, and for 1993 Annual Employment Reports. See EEO Branch of MMB to Use 1990 U.S. Census Data, Public

8954 Federal Communications Commission FCC 96-273 licensee©s renewal application and annual employment reports, we find as a threshold matter that the NAACP has made a prima facie showing against grant of the renewal application.

6. Although we conclude that the NAACP has made a prima facie showing, we further conclude that, after review of the NAACP©s EEO allegations, as well as the licensee©s renewal application, opposition, and inquiry response, there are no substantial and material questions of fact warranting designation for a hearing. In addition, we find no evidence that the licensee engaged in discrimination. Thus, grant of the application will serve the public interest. 47 U.S.C. § 309(d)(2); Astroline. However, for the reasons which follow, grant of renewal will be subject to appropriate remedies and sanctions.

Discussion

7. Section 73.2080 of the Commission©s Rules, 47 C.F.R. § 73.2080, requires that a broadcast licensee refrain from employment discrimination and establish and maintain an EEO program reflecting positive and continuing efforts to recruit and promote qualified women and minorities. When evaluating EEO performance, the Commission focuses on the licensee©s efforts to recruit 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. The Commission also focuses on any evidence of discrimination by the licensee. See Sections 73.2080(a), (b), and (c) of the Commission©s Rules, 47 C.F.R. §§ 73.2080(a), (b), and (c).

8. The station©s 1993 EEO Program Report, opposition, and inquiry response reveal that the licensee filled 11 full-time vacancies, including seven for upper-level positions, from December 23, 1990, to October 21, 1993. The licensee recruited for all of the vacancies, using six minority-oriented sources (four of which were Hispanic sources), one female source, and various general sources such as the Fresno Bee, which was the source of nine of its 11 hires and all of its minority hires. The licensee reports that it received 14 minority referrals as follows: Fresno Bee (6), Private Industry Council (3), California Sta