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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission FCC 97-89 Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) ) Tri-State Broadcasting Company, Inc. ) File No. BRCT-930401KS ) For Renewal of License of ) Station KTSM-TV ) El Paso, Texas ) ) ) Gulf Coast Broadcasting Company ) File No. BRCT-930330KH ) For Renewal of License of ) Station KRIS-TV ) Corpus Christi, Texas ) ) MEMORANDUM OPINION AND ORDER Adopted: March 13, 1997; Released: March 20, 1997 By the Commission: 1. The Commission has before it for consideration: (i) an Application for Review filed on October 2, 1995, by the League of United Latin American Citizens, through its Texas state conference ("LULAC"); (ii) the licensees' oppositions to LULAC's application for review; and (iii) LULAC's reply thereto. LULAC seeks review of the Memorandum Opinion and Order ("MO&O") of the Chief, Mass Media Bureau, released September 1, 1995, in the above-captioned matter. The MO&O held that LULAC had failed to make a prima facie case that the licensees violated our Equal Employment Opportunity Rule (EEO) Rule, 47 C.F.R.  73.2080. The MO&O unconditionally granted the renewal applications for KTSM-TV, El Paso, Texas, and KRIS-TV, Corpus Christi, Texas, and denied LULAC's petition to deny. For the reasons that follow, we deny the application for review. 2. LULAC argues that the Commission should reverse the decision in the MO&O to grant KTSM-TV's and KRIS-TV's renewal applications and instead designate them for hearing with a view toward denying them. LULAC presents two main contentions for the Commission to review: (a) the Commission should use 1990 instead of 1980 Census data in evaluating EEO programs of Texas television stations, whose renewal applications were due by April 1, 1993; and (b) the Commission's EEO processing guidelines for large television stations, especially those in markets with a large percentage of minorities in the relevant labor force, should be changed (i) by comparing the percentage of minorities employed by the station to 100% parity with the station's minority labor force, instead of the current 50% of parity, and (ii) by applying a chi-square test to stations' minority hiring and employment numbers to determine the probability of discrimination in hiring practices. In addition, LULAC argues that the Commission should investigate both stations' employment practices pursuant to Bilingual Bicultural Coalition on Mass Media v. FCC, 595 F.2d 621 (D.C. Cir. 1978) (Bilingual). In this regard, LULAC criticizes the licensees' EEO records for the same reasons outlined in the petition to deny, e.g., that they have weak EEO recruitment programs as evidenced by their failure to employ an adequate percentage of minorities. 3. The licensees respond that LULAC's arguments should be rejected and that its application for review should be dismissed or denied. They correctly contend that the Commission began applying labor force statistics from the 1990 Census only to license renewal applications filed after May 31, 1993. See EEO Branch of MMB To Use 1990 U.S. Census Data, Public Notice # 32651 (April 12, 1993). Furthermore, the licensees argue accurately that the Commission has previously rejected arguments to use 1990 Census data for renewals filed prior to June 1, 1993. SeeSage Broadcasting Corporation, 10 FCC Rcd 4429, 4430 (1995) ("Sage"); Golden West Broadcasters, 10 FCC Rcd 1602, 1604 n.8 (1995) ("Golden West"). They maintain that it is unfair for them to be evaluated using 1990 figures when those statistics were not announced until after they filed for renewal. In addition, the licensees correctly submit that the Commission uses 50% of parity as a processing guideline, not 100% of parity; that they employed minorities during their license terms above 50% of parity whether 1980 or 1990 Census data are used; and that, in any event, the Commission focuses on licensees' recruitment efforts and not on the number of minorities they hire or employ. 4. The licensee of KTSM-TV also correctly contends that the Commission has previously considered arguments to change its processing guidelines to 100% of parity and has rejected them. See Spectacor Broadcasting, L.P., 9 FCC Rcd 1729, 1730 n.5 (1993) ("Spectacor"). In addition, the licensee argues that the Commission should reject LULAC's request to change processing guidelines for large stations because LULAC failed to explain how it defines "large" or why it believes KTSM-TV is large. Furthermore, the licensee contends that LULAC failed to define or justify the use of a chi-square test to determine probability of discrimination. The licensee maintains that many other tests could determine probabilities, and hiring and employment numbers alone do not account for relevant factors like qualifications of applicants. Both licensees also argue that a Bilingual inquiry is unnecessary for them because, as the Commission found in the MO&O, they have complied with our EEO Rule. 5. In its response to the licensees, LULAC argues that using 1990 Census data to evaluate these licensees' EEO programs does not harm them because they presumably use current demographic data for selling air time and they must know current figures whether or not the Commission releases Census data. LULAC also argues that it wants the Commission to use a chi- square test as only part of its analysis of stations' EEO performance and as an aid to determining the need for a Bilingual inquiry. 6. After consideration of the above, we find without merit LULAC's arguments that we should use labor force data from the 1990 Census in evaluating these stations' programs or that we should, in this proceeding, change our processing guidelines and procedures. In the MO&O, the Bureau rejected LULAC's arguments for using 1990 data and applied 1980 Census figures. LULAC has failed to persuade us that this ruling, which is consistent with Commission precedent, should be altered. See Sage; Golden West. In addition, a renewal proceeding, unlike a rulemaking proceeding, is not the proper forum for requesting changes in Commission procedures such as use of the 1990 Census and processing guidelines, or for seeking adoption of a chi-square analysis and a new standard for evaluating large stations. See Spectacor; see also, Amendment of Part 1 - EEO Forfeiture Guidelines, 11 FCC Rcd 5154 (1996). 7. LULAC also did not provide evidence that the Bureau erred in finding that LULAC failed to present a prima facie case against renewal for KTSM-TV or KRIS-TV on EEO grounds. The licensees' records show that they recruited for and attracted minorities and women. The Bureau found that there was no evidence that the licensees violated our EEO Rule or that they discriminated. LULAC has failed to provide evidence to the contrary. 8. The Mass Media Bureau has already considered the licensees' EEO records and determined that both stations are in compliance with our EEO Rule. LULAC's application for review does not specify any factor warranting further Commission consideration, nor does it demonstrate that the Bureau erred in its assessment of the stations' EEO efforts. See 47 C.F.R.  1.115(b)(2). 9. After consideration of the application for review and all other arguments and evidence, we find that LULAC has not shown that the Bureau's ruling was incorrect and, thus, no basis exists to warrant review. Accordingly, IT IS ORDERED, that, pursuant to Section 1.115(g) of the Commission's Rules, the Application for Review filed on October 2, 1995, by LULAC IS DENIED. 10. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- copies of this Memorandum Opinion and Order to Tri-State Broadcasting Company, Inc., Gulf Coast Broadcasting Company, and LULAC. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary