**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Application of )

)

Southern Broadcast Corporation of Sarasota ) BRCT-961001UL

)

For Renewal of License of )

Station WWSB(TV) )

Sarasota, Florida )

Facility ID No. 61251 )

**MEMORANDUM OPINION AND ORDER**

**Adopted: January 4, 2001** **Released: February 5, 2001**

By the Commission:

####  I. INTRODUCTION

1.  Number range level0Number range level1Number range level2Number
    range level3Number range level4Number range level5Number range
    level6Number range level7The Commission has before it for
    consideration: (i) an application for review timely filed on June 5,
    2000, by the Manatee County (Florida) Branch of the NAACP
    (\"NAACP\") regarding the *Memorandum Opinion and Order* (*MO&O*) of
    the Chief, Mass Media Bureau, adopted May 5, 2000 in the
    above-captioned matter;[^1] (ii) an opposition thereto filed by
    Southern Broadcasting Corporation of Sarasota ("Southern"), licensee
    of television station WWSB(TV), Sarasota, Florida; (iii) the
    NAACP\'s reply to the opposition; and (iv) a request for official
    notice filed by the NAACP. The *MO&O* granted the above captioned
    renewal application for WWSB(TV), and dismissed a petition to deny
    filed by the NAACP which alleged that Southern violated the
    Commission\'s Equal Employment Opportunity (EEO) Rule, Section
    73.2080(a) of the Commission\'s Rules, 47 C.F.R. § 73.2080(a), by
    discriminating against certain Black employees.

    **II. BACKGROUND**

2.  The NAACP filed its petition to deny the WWSB(TV) renewal
    application on January 2, 1997, alleging that the licensee of
    WWSB(TV) engaged in unlawful discrimination, as detailed in the
    *MO&O*. Thereafter, the licensee filed an opposition on March
    21, 1997. After extensions of time, the NAACP filed its Reply on
    June 11, 1997. Citing extensive new matter in the NAACP's Reply, the
    licensee filed a Response to Petitioner's Reply on September
    26, 1997. On December 12, 1997, the NAACP filed a Reply to Response
    to Petitioner's Reply. On January 23, 1998, the licensee filed a
    Contingent Response to Reply, citing new allegations in the NAACP's
    December 12, 1997 Reply. On February 4, 1998, a conference call was
    held by the Chief, EEO Branch, and counsel for both parties in which
    it was indicated that the NAACP's December 12, 1997, Reply would be
    treated as the last authorized pleading. The case thus would
    ordinarily have been ripe for resolution. However, on April 14,
    1998, the U.S. Court of Appeals for the District of Columbia Circuit
    issued its decision in *Lutheran Church -- Missouri Synod v. FCC*,
    141 F.3d 344, *pet. for reh'g denied*, 154 F.3d 487, *pet for reh'g
    en banc denied*, 154 F.3d 494 (D.C. Cir. 1998) ("*Lutheran
    Church*"). The Court held that the EEO program requirements of
    former Section 73.2080(b) and (c) of the Commission's Rules were
    unconstitutional as applied to minorities because aspects of those
    provisions pressured stations to make race-based hiring decisions.
    The Court also expressed concerns regarding the Commission's
    authority to promulgate an employment nondiscrimination rule and
    remanded the matter to the Commission to address those concerns.
    After conducting a rulemaking, the Commission reaffirmed its
    authority to promulgate a nondiscrimination rule in *Review of the
    Commission's Broadcast and Cable Equal Employment Opportunity Rules
    and Policies and Termination of the EEO Streamlining Proceeding*, 15
    FCC Rcd 2329 (2000) ("*Report and Order*"). The *Report and Order*
    became effective on April 18, 2000. 45 Fed. Reg. 24654 (2000). On
    May 5, 2000, the Chief, Mass Media Bureau, adopted the *MO&O* in
    this proceeding.

3.  [Bureau *MO&O*]{.underline}. The *MO&O* dismissed the NAACP's
    petition to deny because it failed to make a *prima facie* case as
    required by Section 309(d)(1) of the Communications Act of 1934, as
    amended (the \"Act\"). Pursuant thereto, a petitioner to deny 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*\"). The *MO&O* premised this conclusion on
    the fact that the NAACP's petition to deny was based on unresolved
    individual complaints of employment discrimination. It cited
    Commission precedent holding that such complaints should ordinarily
    be resolved in the first instance by the Equal Employment
    Opportunity Commission ("EEOC") or other governmental agency and/or
    court established to enforce nondiscrimination laws. *See Pacific
    and Southern Company, Inc.*, 11 FCC Rcd 8503, 8505-06 (1996)
    ("*Pacific*"); *CBS, Inc.*, 59 FCC 2d 1127, 1132 (1976) ("*CBS*").
    The *MO&O* acknowledged that in *Pacific*, we indicated that the
    general policy does not preclude consideration of an individual
    discrimination complaint in all circumstances. However, it did not
    find that the circumstances set forth in NAACP's petition to deny
    warranted a departure from our general policy, especially since
    NAACP's petition relied heavily on the contention that the alleged
    discrimination might also reflect a deficient EEO program under
    requirements that were later held unconstitutional in *Lutheran
    Church*.

4.  In analyzing the NAACP's petition, the *MO&O* considered only the
    facts alleged in its petition to deny. It found that allegations
    contained in later pleadings were not pertinent to determining
    whether NAACP had made a *prima facie* case in its initial petition
    to deny, citing *Blue Ridge Public Television*, 12 FCC Rcd 4634,
    4637 n. 5 (1997) ("*Blue Ridge*"). The *MO&O* also decided the case
    on the basis of the Rule and applicable precedent in effect when the
    alleged acts of discrimination occurred. It thus did not take into
    account policies articulated in the *Report and Order* because it
    found that any changes were prospective in nature.

5.  The *MO&O* also considered two allegations other than
    discrimination. Both of these allegations were raised in pleadings
    filed after the petition to deny and, accordingly, the *MO&O* found
    that they could not cure the defects in the petition to deny, citing
    *Blue Ridge*.

6.  The first allegation concerned two memoranda from the licensee to
    its employees. In the first memorandum, the licensee requested that
    all of its employees include the station's counsel in any
    discussions they might have with counsel for the NAACP. In the
    second memorandum, the licensee clarified that only managers were
    required to include the station's counsel and that other employees
    were free to talk with the NAACP's counsel without the presence of
    the station's counsel, if they so chose. The NAACP alleged that
    these memoranda were an abuse of the Commission's process because
    they were an attempt to intimidate prospective witnesses. The *MO&O*
    rejected this contention, finding that the memoranda did not on
    their face reflect an intent to intimidate prospective witnesses and
    the NAACP had failed to present any evidence raising a substantial
    and material question of fact that the licensee had in fact taken
    adverse actions against any actual or prospective witnesses.

7.  The second allegation was that David Collins, the station's former
    News Director, had made statements reflecting racial prejudice and
    sexism in private conversations with two former station employees.
    The NAACP urged that issues were warranted as to whether the
    licensee knew of Collins' racist attitudes and whether it
    deliberately failed to report this fact to the Commission. The
    *MO&O* rejected this contention, finding that the NAACP failed to
    present evidence raising a substantial and material question of fact
    that the licensee knew of Collins' alleged attitudes or that his
    alleged prejudice resulted in employment decisions that adversely
    impacted women or minorities at WWSB(TV).

8.  The *MO&O* accordingly concluded that the NAACP had failed to make a
    *prima facie* case and dismissed its petition to deny for failure to
    meet the requirements of Section 309(d) of the Act. It nonetheless
    noted that, pursuant to the *Memorandum of Understanding Between the
    Federal Communications Commission and the Equal Employment
    Opportunity Commission*, 51 Fed. Reg. 21798 (1986) ("*MOU*"), the
    Commission acts as a receiving agency for the EEOC regarding charges
    of discrimination against broadcasters. The *MO&O* accordingly
    indicated that complaints submitted in this proceeding that had not
    been previously submitted to the EEOC would be referred to that
    agency.[^2] The *MO&O* also required the licensee to report the
    resolution of any discrimination charges within 30 days, recognizing
    that the Commission would view seriously any final determination
    that the licensee engaged in unlawful discrimination.

9.  [Application for Review]{.underline}. The NAACP's application for
    review first faults the *MO&O* for failing to set forth all of the
    allegations contained in all of its pleadings. It next asserts that
    its allegations would require a hearing as to whether Southern
    engaged in systematic discrimination against Black journalists.
    Thus, it contends that evidence such as it proffered would be
    adequate under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
    § 2000e *et seq.* ("Title VII") to establish a *prima facie* case
    sufficient to shift the burden from the complainant to the employer,
    citing *McDonnell Douglas Corporation v. Green*, 411 U.S. 792 (1973)
    ("*McDonnell*").[^3] The NAACP also urges that Commission precedent
    dictates a finding of a *prima facie* case, citing *Leflore
    Broadcasting Co., Inc.*, 46 FCC 2d 980 (1974) ("*Leflore*"); *Rust
    Communications Group, Inc.*, 53 FCC 2d 355 (1975) ("*Rust*"); *New
    Mexico Broadcasting Co., Inc.*, 54 FCC 2d 126 (1975) ("*New
    Mexico*"); *Federal Broadcasting System, Inc.*, 59 FCC 2d 356 (1976)
    ("*Federal*"); *Catoctin Broadcasting of New York, Inc.*, FCC
    85-155, 50 Fed. Reg. 19229 (1985) ("*Catoctin*"); and *Black
    Broadcasting Coalition of Richmond v. FCC*, 556 F. 2d 59 (D.C.
    Cir. 1977) ("*Richmond*"). It therefore contends that the result
    reached in the *MO&O* constitutes an unexplained departure from the
    Commission's own controlling authorities. The NAACP also disputes
    the *MO&O*'s characterization of its petition to deny as having
    relied heavily on the contention that its discrimination allegations
    might also reveal violations of the EEO program requirements of
    former Section 73.2080(b) and (c) of the Commission's Rules that
    were invalidated by *Lutheran Church*. The NAACP argues that it
    "scarcely complained of" EEO program violations by the licensee. The
    NAACP further contends that it is unfair to place on it the burden
    of proving that WWSB(TV) News Director David Collins harbored racist
    and sexist attitudes because he was an agent of the licensee and the
    licensee can therefore be charged with knowledge of his attitudes.
    The NAACP also contends that the *MO&O* erred in not considering the
    "zero tolerance" policy articulated in the *Report and Order*.

10. The NAACP additionally asserts that the EEOC cannot be relied upon
    to resolve the issues concerning alleged discrimination at WWSB(TV)
    because relief may be precluded by the applicable Title VII statute
    of limitations. Thus, the NAACP suggests that the EEOC failed to
    make a probable cause of discrimination finding in Oldham's case
    because it considered some of her key allegations time-barred under
    Title VII. The only basis cited for this conclusion is the NAACP's
    "information and belief." The NAACP also suggests that the
    allegations of other complainants "probably" are time-barred under
    Title VII. The NAACP compares this situation to the situation of
    broadcasters with fewer than the 15 employees needed to trigger EEOC
    jurisdiction under Title VII.

11. Finally, the NAACP disagrees with the *MO&O*'s rejection of its
    allegations concerning witness intimidation. It urges that inquiry
    was warranted based on evidence that some employees may have elected
    not to cooperate with the NAACP's investigation because of a
    perception arising from the licensee's memoranda that it might
    retaliate against them if they provided adverse information to the
    NAACP.

12. The NAACP also requests that we hold oral argument in this case. It
    asserts that oral argument would illuminate the issues, expand
    public understanding of the policies, and provide an opportunity to
    sort out the allegations with both parties' counsel.

13. The licensee, in its opposition, generally supports the result
    reached by the *MO&O*. It also suggests that the NAACP's application
    for review exceeds the limit of 25 double-spaced pages specified in
    Section 1.115(f) of the Commission's Rules. Thus, although the
    NAACP's application for review is 22 pages in length, the licensee
    notes that much of it is single-spaced so that it would likely
    exceed 25 pages if properly double-spaced. In its reply, the NAACP
    asserts that the rules permit the use of single-spacing to set out
    background material. It otherwise urges that an expeditious hearing
    on the allegations presented is warranted.

    **III. DISCUSSION**

14. In general, individual complaints of employment discrimination do
    not suffice to make a *prima facie* case that grant of a renewal
    application would be inconsistent with the public interest.
    *Pacific*. This is based on the Commission\'s general policy that
    such complaints should ordinarily be resolved in the first instance
    by the Equal Employment Opportunity Commission (\"EEOC\") or other
    governmental agency and/or court established to enforce
    non-discrimination laws. *Pacific*; *Application for Renewal of
    License of WNBC-TV*, 5 FCC Rcd 2049 (1990); *Washington Radio,
    Inc.*, 88 FCC 2d 1200 (1982); *KSDK, Inc.*, 85 FCC 2d 797 (1981),
    *recon. den., 88 FCC 2d 1443* (1982); *Newhouse Broadcasting
    Corporation*, 61 FCC 2d 528, 539-40 (1976); and *CBS*. The primary
    basis for this policy is the fact that Congress intended the EEOC to
    be principally responsible for the resolution of individual
    employment discrimination disputes and that efforts on our part to
    resolve such disputes separately would result in duplication of
    efforts. *Pacific; CBS, Inc*. Not only is such duplication wasteful,
    but it raises the possibility of inconsistent results in proceedings
    going forward before different agencies or courts. Further, as
    indicated in *CBS*, the Commission does not have the expertise to
    duplicate the functions assigned by Title VII to the EEOC or state
    fair employment agencies.

15. Our policy with respect to discrimination complaints is only one of
    several circumstances in which we will not inquire into arguably
    relevant alleged misconduct unless it has first been adjudicated by
    an agency or court with primary responsibility in the pertinent
    area. For instance, we will generally not designate an application
    for hearing based on alleged non-FCC misconduct such as fraudulent
    representation to another government agency or commission of a
    felony in the absence of an adjudication. *See Policy Regarding
    Character Qualifications in Broadcast Licensing*, 102 FCC 2d
    1179 (1986) *as modified by* 5 FCC Rcd 3252 (1990). We indicated in
    *Pacific* that our general policy does not preclude consideration of
    facts relating to unadjudicated allegations of discrimination where
    surrounding circumstances raise questions about a licensee\'s basic
    qualifications. We conclude, however, that the *MO&O* properly
    resolved the issues in this proceeding consistent with our general
    policy.

16. The NAACP initially urges that the *MO&O* erred in failing to set
    forth all of its allegations, including those in pleadings filed
    subsequent to the petition to deny. However, this is immaterial
    because the NAACP has not alleged in any of its pleadings that a
    final determination of discrimination has been made by the EEOC or
    other agency or court charged with responsibility for enforcing
    Title VII. Thus, the NAACP misperceives the basis for the ruling.
    The decision in the *MO&O* was based on the general policy that
    allegations of discrimination should be resolved in the first
    instance by the EEOC or other appropriate agency or court. In the
    absence of a finding of discrimination, the mere pendency of a
    complaint is generally insufficient to meet the *prima facie*
    showing requirement applicable to a petition to deny pursuant to the
    Act. *See MO&O*, paragraph 10. This policy applies irrespective of
    whether the facts alleged would, in themselves, suffice to raise a
    question of discrimination. Therefore, the *MO&O* properly made no
    finding on that question. Nor do we. Also, in light of our policy,
    it is unnecessary to address whether the standard for finding a
    *prima facie* case in Title VII cases is relevant to the standard
    for the finding of a *prima facie* case under Section 309 of the
    Act.

17. The NAACP cites precedent that it asserts to be inconsistent with
    the *MO&O*'s conclusion. However, as outlined below, our review of
    the cited cases finds its contentions are misplaced.

18. *Leflore* primarily concerned allegations of violations of then
    applicable programming requirements. An issue as to violation of the
    then applicable EEO Rule was specified; however, there is little
    discussion of the basis for the action, and *Leflore* is therefore
    of little precedential value. In *Rust*, an issue was specified
    primarily because of alleged violations of the then applicable EEO
    program requirements. *Rust* did not find the discrimination
    complaint before it sufficient, standing alone, to justify the
    issue. *New Mexico*, as noted by the NAACP, involved an allegation
    that the licensee had made racist remarks to a prospective applicant
    suggesting that it would not hire minorities. However, *New Mexico*
    also found that the allegation did not raise a substantial and
    material question of fact warranting a hearing because the licensee
    in fact did hire minorities and women. An issue was specified
    because of unrelated deficiencies in the licensee's EEO program
    efforts. *Federal*, as noted by the NAACP, involved an allegation
    that the licensee used and separately filed "male" and "female"
    application forms. However, *Federal* did not specify a hearing
    issue based on this allegation. Again, an issue was specified based
    on unrelated deficiencies in the licensee's EEO program efforts. The
    specification of an issue in *Catoctin* resulted from concern as to
    possible misrepresentation in a pleading filed with the Commission
    by the licensee. Thus, the licensee denied having discriminated
    against an individual whereas other evidence reflected that the
    licensee's sole stockholder had made a racially derogatory remark
    concerning her. In *Richmond*, the Court found that a hearing was
    warranted because of the pendency of two discrimination complaints;
    the failure of the station to hire minorities; and doubt as to
    whether the licensee had an "affirmative action program" that
    "systematically and positively encourages minority hiring, training,
    and advancement . . ." The circumstances here are not comparable. In
    sum, the *MO&O* conclusions are not inconsistent with the precedent
    cited by the NAACP.

19. The NAACP also objects to the characterization of its petition to
    deny as having relied heavily on the proposition that a finding of
    discrimination would also suggest violations of the EEO program
    requirements of former Section 73.2080(b) and (c). We believe the
    *MO&O* was correct. Thus, at p. 9-10 of its petition to deny under
    the heading "Policy Questions," the NAACP suggests that the
    misconduct it alleges would extend to violations of the program
    requirements, as well as the nondiscrimination requirement. It cites
    former Section 73.2080(b)(3), which required examination of
    personnel policies and practices to ensure that no group is
    inadvertently screened out; former Section 73.2080(b)(4), which
    required a continuing program to exclude all unlawful forms of
    discrimination from personnel policies and practices; former Section
    73.2080(b)(5), which required continuing efforts to ensure equality
    of opportunity in all organizational units, occupations, and levels
    of responsibility; and former Section 73.2080(c)(5), which required
    ongoing self-assessment of a licensee\'s EEO efforts. The *MO&*O
    correctly found that, in light of *Lutheran Church*, we cannot
    consider these allegations.

20. We also do not find that the alleged prejudice of former News
    Director David Collins warrants a departure from our general policy.
    The NAACP contends that Collins' alleged prejudice should be
    attributed to the licensee because Collins was an agent of the
    licensee. However, the NAACP has not submitted evidence raising a
    substantial and material question of fact that Collins engaged in
    any actionable conduct reflecting this alleged prejudice. We also
    agree with the *MO&O* that no evidence has been submitted raising a
    substantial and material question of fact that the licensee in fact
    knew of Collins' alleged attitudes and withheld that information
    from the Commission.

21. The *MO&O* also correctly declined to consider the policies,
    including our "zero tolerance" policy, articulated in the *Report
    and Order* in connection with the new EEO Rule adopted therein.[^4]
    The rules *and* policies adopted by the *Report and Order* apply
    prospectively. Therefore, we need not reach the question as to
    whether a different result would be warranted under the policies
    articulated in the *Report and Order*.

22. The NAACP also contends that reliance on the EEOC is unwarranted
    because some complaints or some contentions may be barred by the
    statute of limitations applicable to the EEOC. However, the NAACP's
    claim that some or all of the complaints submitted by it are
    time-barred under Title VII is vague and undocumented. Further, even
    if the NAACP is correct, it does not follow that we should
    necessarily entertain the matters that the EEOC will not. If the
    allegations are untimely for Title VII purposes, it would be
    inconsistent with our longstanding general policy, that
    discrimination complaints must be pursued initially before the EEOC
    or other agency and/or court established to enforce
    non-discrimination laws, to accord parties the option to file
    complaints in the first instance with this agency after passage of
    applicable Title VII statute of limitations provisions. For the
    Commission to assert jurisdiction to resolve individual charges of
    employment discrimination as an alternative to the EEOC after the
    expiration of the applicable Title VII statute of limitations would
    have the effect of extending that statutory deadline, which we
    decline to do. Nor is this situation analogous to complaints that
    are never subject to the EEOC's jurisdiction because the licensee
    has fewer than 15 employees. *See* 42 U.S.C. § 2000e(b). The NAACP
    does not allege that the EEOC lacked jurisdiction over the matters
    it seeks to raise. Rather, it appears that the EEOC would have had
    jurisdiction but for the complainants' possible failure to invoke it
    in a timely manner.

23. We also find no error in the *MO&O*'s disposition of the NAACP's
    request for an abuse of process issue arising from witness
    intimidation. The NAACP faults the station for initially issuing a
    memorandum asking all employees to include the station's counsel in
    any conversation they might have with the NAACP's counsel. A second
    memorandum issued shortly thereafter clarified that only management
    employees were required to include the station's counsel in any
    interview. It further stated that non-managerial employees could
    choose whether or not to be interviewed by the NAACP and the choice
    "will not affect your employment situation with the Station in any
    way." The *MO&O* correctly found that the memoranda on their face do
    not reflect an intent to intimidate employees and that no evidence
    had been presented raising a substantial and material question of
    fact that the licensee had in fact taken adverse action against any
    employee. The NAACP asserts that some employees may have perceived
    the first memorandum (it does not address the second memorandum) as
    threatening. However, even if true, that is insufficient to raise a
    question as to whether the licensee attempted to abuse the
    Commission's processes in the absence of evidence of an improper
    intent or abusive actions on the part of the licensee itself.

    **III. CONCLUSION**

24. We accordingly find that the NAACP has failed to establish that the
    *MO&O* is inconsistent with precedent or the record in this case or
    that the staff committed prejudicial procedural error. Also, in
    light of the foregoing, we do not believe that oral argument would
    serve a useful purpose in this proceeding. We will therefore deny
    the NAACP's application for review.[^5] We emphasize, however, as
    indicated in the *MO&O*, we will take cognizance of any final
    determination by the EEOC, other governmental agency and/or court
    relating to employment discrimination by the licensee.

#  IV. ORDERING CLAUSES

25. Accordingly, **IT IS ORDERED**, that, pursuant to Section 1.115(g)
    of the Commission's Rules, the application for review filed by the
    NAACP **IS DENIED**.

26. **IT IS FURTHER ORDERED** that copies of this *Memorandum Opinion
    and Order* be sent to the licensee and the NAACP by Certified Mail
    \-- Return Receipt Requested.

**FEDERAL COMMUNICATIONS COMMISSION**

Magalie Roman Salas

Secretary

## ATTACHMENT

**Before the**

**Federal Communications Commission**

##### Washington, D.C. 20554

In re Application of )

)

)

Southern Broadcast Corporation of Sarasota ) BRCT-961001UL

)

For Renewal of License of )

Station WWSB(TV) )

Sarasota, Florida )

)

**MEMORANDUM OPINION AND ORDER**

**Adopted**: **May 5, 2000**

By the Chief, Mass Media Bureau:

##  I. INTRODUCTION

1.  Number range level0Number range level1Number range level2Number
    range level3Number range level4Number range level5Number range
    level6Number range level7The Commission, by the Chief, Mass Media
    Bureau, pursuant to delegated authority, has before it for
    consideration: (i) the license renewal application for Station
    WWSB(TV);[^6] (ii) a Petition to Deny the application timely filed
    on January 2, 1997, by the Manatee County (Florida) Branch of the
    NAACP (\"NAACP\")[^7]; (iii) an opposition by the licensee; (iv) the
    NAACP\'s reply to the opposition; and (v) other pleadings. The NAACP
    alleges that the licensee violated the Commission\'s Equal
    Employment Opportunity (EEO) Rule, Section 73.2080 of the
    Commission\'s Rules, 47 C.F.R. § 73.2080, by discriminating against
    certain Black employees. It requests that the Commission investigate
    the instances of alleged discrimination and 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, that it has
    never discriminated against its employees, and that it deserves
    unconditional renewal.

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27. Initially, in *Lutheran Church -- Missouri Synod v. FCC*, 141 F.3d
    344, *pet. for reh'g denied*, 154 F.3d 487, *pet for reh'g en banc
    denied*, 154 F.3d 494 (D.C. Cir. 1998) ("*Lutheran Church*"), the
    United States Court of Appeals for the District of Columbia Circuit
    held that the EEO program requirements of the EEO Rule are
    unconstitutional. With respect to the non-discrimination provision
    of the EEO Rule, the court remanded to the Commission to determine
    whether it has authority to enforce a non-discrimination rule.
    *Lutheran Church*, 141 F.3d at 356-57. The Commission thereafter
    proposed and requested comment concerning a new broadcast EEO rule
    and policies. *Review of the Commission's Broadcast and Cable Equal
    Employment Opportunity Rules and Policies and Termination of the EEO
    Streamlining Proceeding*, 13 FCC Rcd 23004 (1998) ("*NPRM*"). The
    *NPRM* tentatively concluded that the Commission has authority to
    retain the anti-discrimination provisions of the broadcast EEO Rule.
    The Commission determined that it has jurisdiction to enforce
    anti-discrimination requirements in adopting a revised EEO Rule in
    *Review of the Commission's Broadcast and Cable Equal Employment
    Opportunity Rules and Policies and Termination of the EEO
    Streamlining Proceeding*, FCC 00-20, released February 2, 2000
    ("*Report and Order*"). Accordingly, consideration of the instant
    allegations of employment discrimination is now appropriate. Thus,
    the court in *Lutheran Church* did not invalidate the
    anti-discrimination provision of the EEO Rule as it stood at the
    time of the alleged acts of discrimination, and the Commission has
    now determined that a requirement prohibiting discrimination is
    within its jurisdiction. However, the rules and policies adopted by
    the *Report and Order* are prospective in nature. *Washington
    Broadcasting Company*, 14 FCC Rcd 16999, 17000 n. 1 (1999).
    Therefore, we will assess the allegations in light of the Rule and
    related precedent applicable at the time the acts of discrimination
    allegedly occurred.

#  II. DISCUSSION

28. In challenging an application pursuant to Section 309(d)(1) of the
    Communications Act of 1934, as amended (the \"Act\"), a petitioner
    to deny must, as a threshold matter, submit \"specific allegations
    of fact sufficient to show that a grant of the application would be
    [prima facie]{.underline} 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\"). In assessing whether a petitioner
    has made a *prima facie* case, we consider only the petition\'s
    specific allegations of fact that are supported by an affidavit of a
    person with personal knowledge thereof or that may be officially
    noticed. We must then determine whether, assuming the truth of such
    facts, a grant of the application would be *prima facie*
    inconsistent with the public interest. Section 309(d)(1) of the Act;
    *Astroline*. For the reasons set forth below, we find that the NAACP
    has failed to make a *prima facie* case as required by Section
    309(d)(1) of the Act.

29. [Allegations of Discrimination]{.underline}. In its Petition to
    Deny, the NAACP states that \"WWSB(TV)\'s Program appears to comply
    with the EEO Rule.\" It nonetheless urges that, in practice, the
    licensee\'s EEO program is a \"sham.\" This allegation is based on
    four declarations under penalty of perjury by present or former
    station employees who are Black females and claim to have been
    discriminated against on the basis of their race and/or gender.

30. The first declarant, Vickie Oldham, is a part-time employee
    responsible for producing a public affairs program. Oldham asserts
    that the present station General Manager, unlike his predecessor,
    has not provided adequate support for her program. She also alleges
    that she has otherwise not been treated in the same manner as White
    employees and has not received consideration for a news anchor
    position, although, she contends, she is qualified for such a
    position. She attributes these circumstances to racial
    discrimination. Kyleelise Holmes-Thomas, the second declarant, is a
    former station employee who alleges racial discrimination because
    she was denied the position of producer for certain programs,
    although she was, in her estimation, qualified for the position and
    had in fact held it on a *de facto* basis for a period of time.
    After failing to receive the producer opportunity, Holmes-Thomas
    resigned her position at the station because she felt her
    opportunities thereafter would be limited. She also suggests that
    discrimination existed at the station because she was denied the
    opportunity to assist the first declarant on a volunteer basis and,
    because a Black reporter was not considered for an anchor position
    which went to a White female who, in Holmes-Thomas\' opinion, was
    less qualified. The third declarant, Sharon Lawson, is a former
    WWSB(TV) photographer who alleges that she was denied promotion to a
    position as a reporter based on her gender. She resigned her
    position at WWSB(TV) to accept a reporter position at another
    station. The fourth declarant, Cynthia Myers, is employed as a
    director, character generator, and audio technician at WWSB(TV). She
    does not allege in the Petition to Deny that she was the victim of
    any specific act of discrimination, but supports allegations made by
    Oldham and Holmes-Thomas.[^8]

31. On March 12, 1997, the NAACP submitted a supplement to its Petition
    to Deny consisting of an affidavit of Arnetta Hilton, who was hired
    November 6, 1996, as a part-time studio camera operator, after
    working at the station as an intern. The supplement was untimely
    since any petition to deny the WWSB(TV) license renewal was due by
    January 2, 1997.[^9] Because we find that the NAACP failed to make a
    *prima facie* case in its Petition to Deny, further matters raised
    in supplemental pleadings will not be considered in assessing
    whether the NAACP has made a *prima facie* case. *Blue Ridge Public
    Television*, 12 FCC Rcd 4634, 4637 n.5 (1997) (\"*Blue Ridge*\"). In
    any event, Hilton\'s declaration only supports some of the
    allegations made in other declarations and expresses Hilton\'s
    concern as to whether equal opportunities are available for
    minorities at WWSB(TV). She does not allege any specific acts of
    discrimination against herself.

32. Pursuant to the anti-discrimination provision of the EEO Rule in
    effect when the alleged discrimination occurred, it was the
    Commission's general policy that individual complaints of employment
    discrimination do not suffice to make a *prima facie* case that
    grant of a renewal application would be inconsistent with the public
    interest. *Pacific and Southern Company, Inc.*, 11 FCC Rcd 8503,
    8505-06 (1996) (\"*Pacific*\"). This is based on the Commission\'s
    policy that such complaints should ordinarily be resolved in the
    first instance by the Equal Employment Opportunity Commission
    (\"EEOC\") or other governmental agency and/or court established to
    enforce non-discrimination laws. The primary basis for this policy
    is the fact that Congress intended the EEOC to be principally
    responsible for the resolution of individual employment
    discrimination disputes and that efforts on our part to resolve such
    disputes separately would result in duplication of efforts.
    *Pacific*; *CBS, Inc.*, 59 FCC 2d 1127, 1132 (1976).

33. The NAACP notes that, in 1992, Congress adopted special provisions
    concerning television EEO requirements. *See* Section 334 of the
    Act. However, the provisions adopted did not encompass any
    additional Commission responsibilities in connection with the
    resolution of individual complaints of employment discrimination.

34. The Commission indicated in *Pacific* that its general policy does
    not preclude consideration of facts relating to specific instances
    of discrimination where surrounding circumstances raise questions
    about a licensee\'s basic qualifications. However, we do not find
    that the NAACP has alleged facts that would warrant a departure from
    the general policy as reflected in *Pacific*. Thus, in its Petition
    to Deny, the NAACP relies heavily upon its contention that the
    discrimination complaints, if proven, might also reflect a deficient
    EEO program under the Commission\'s EEO Rule. However, we need not
    reach this contention because we could not in any event consider
    allegations insofar as they relate to the EEO program requirements
    held unconstitutional in *Lutheran Church*.

35. In sum, the NAACP\'s Petition to Deny fails to raise a *prima facie*
    case as required by Section 309(d)(1) of the Act. Its allegations
    consist only of charges of individual discrimination that, under
    Commission policy, will generally be considered only after a final
    determination by the EEOC or other agency or court responsible for
    administering anti-discrimination laws. Further, the NAACP has
    failed to allege in its Petition to Deny facts that would, if true,
    justify a departure from the general policy.

36. [Alleged Abuse of Process]{.underline}. In its Reply to the
    Opposition to the Petition to Deny, the NAACP presents copies of two
    memoranda to station employees allegedly written by the current
    general manager of the station regarding discussions related to this
    case. The first memorandum, dated April 4, 1997, states in part,
    \"In order to protect the interests of the Station\'s licensee,
    Southern Broadcast Corporation of Sarasota, I ask that you include
    the Station\'s attorney . . . . in any conversations you have with
    counsel for the NAACP.\" The second memorandum, dated May 6, 1997,
    states that managers at the station must have station\'s counsel
    present if they discuss the case with the NAACP\'s counsel but that
    other employees may discuss the case with the NAACP, if they so
    choose, with or without station\'s counsel present, again at the
    employee\'s option. It also states that no station employee is
    required to discuss the case with the NAACP. The NAACP provides a
    declaration under penalty of perjury from Oldham, the first
    complainant referenced above, stating that eight of ten current and
    former station employees who had scheduled interviews with the NAACP
    to discuss this case prior to issuance of the memoranda cancelled
    the interviews because they were afraid that it would hurt their
    careers. The NAACP states that two of the individuals who had
    scheduled interviews did complete their interviews, but it contends
    that the station improperly intimidated employees and former
    employees from offering information to the NAACP by issuing the two
    memoranda described above.

37. This allegation, first interposed in a supplemental pleading, does
    not cure the NAACP's failure to make a *prima facie* case in its
    Petition to Deny. *See Blue Ridge*. In any event, we do not find
    that the facts alleged would, if true, demonstrate that grant of
    renewal would be inconsistent with the public interest. The language
    of the memoranda does not reflect an intent to intimidate employees
    for the purpose of deterring their participation in this proceeding
    and the NAACP has presented no evidence raising a substantial and
    material question of fact that the licensee has in fact taken
    adverse actions against any actual or prospective witnesses. The
    NAACP cites a June 5, 1997, incident in which Cynthia Myers was
    disciplined for inappropriate remarks to department heads. She
    indicates a belief that the incident was retaliation for her
    involvement in the NAACP\'s Petition to Deny. However, her belief is
    speculative and does not constitute personal knowledge, as required
    by Section 309(d)(1) of the Act, especially since the incident
    occurred five months after her involvement in the Petition to Deny
    became known to the licensee.

38. [Allegations Concerning David Collins]{.underline}. In a Reply to
    Response to Petitioner\'s Reply,[^10] the NAACP submits declarations
    from two former employees of WWSB(TV). They allege that David
    Collins, the station\'s former News Director, made statements in
    private conversations with them that reflect racial prejudice. The
    NAACP accordingly urges that an issue is warranted as to whether the
    licensee knew of Collins\' alleged racism and deliberately failed to
    report it to the Commission.

39. Again, because the NAACP\'s Petition to Deny failed to make a *prima
    facie* case, this allegation does not serve to cure that deficiency.
    *See Blue Ridge*. Moreover, the pleading containing this allegation
    was filed on December 12, 1997, over 11 months after the January 2,
    1997, deadline for the filing of petitions to deny. The NAACP has
    failed to submit a justification for supplementing its Petition to
    Deny over 11 months late. Possibly, it had only recently procured
    the declarations containing the allegations. However, it has not
    demonstrated why it was unable to conduct its investigation in a
    timelier manner. Nonetheless, we have reviewed the allegations and
    find that they would be insufficient to support the requested issue,
    even if it were properly before us. The NAACP has not submitted a
    sworn statement based on personal knowledge alleging that the
    licensee was aware of Collins\' attitudes, assuming *arguendo* that
    they were correctly described by the declarants, or that it
    deliberately withheld information concerning the matter from the
    Commission. The NAACP urges that someone connected with the licensee
    \"must have known.\" It also contends that the licensee would have
    learned of the matter if it maintained an effective EEO program.
    More importantly, the NAACP has not proffered specific, documented
    allegations of fact to demonstrate that Collins' alleged racial
    prejudice ever resulted in employment related decisions that
    adversely impacted women or minorities at WWSB(TV). Thus, both
    contentions are speculative and do not constitute specific
    allegations of fact supported by an affidavit of a person with
    personal knowledge, as required by Section 309(d)(1) of the Act.

40. [Disposition of the NAACP\'s Petition to Deny]{.underline}. In light
    of the foregoing, we conclude that the NAACP has failed to make a
    *prima facie* case as required by Section 309(d)(1) of the Act.
    Accordingly, the Petition to Deny is legally deficient and we will
    therefore dismiss it. *See* Section 73.3584(d) of the Commission\'s
    Rules, 47 C.F.R. § 73.3584(d). However, pursuant to the *Memorandum
    of Understanding Between the Federal Communications Commission and
    the Equal Employment Opportunity Commission*, 51 Fed. Reg.
    21798 (1986) ("*MOU*"), the Commission acts as a receiving agency
    for the EEOC regarding charges of discrimination against
    broadcasters. One of the complainants included in the NAACP\'s
    Petition to Deny, Oldham, has filed a complaint with the EEOC.[^11]
    The remaining complainants -- Holmes-Thomas, Lawson, Myers, and
    Hilton -- have not filed complaints with the EEOC. Therefore, in
    accordance with the *MOU*, we are referring the claims of the other
    complainants, along with the NAACP\'s arguments concerning them, to
    the EEOC. Furthermore, by copy of this Order, we are notifying the
    licensee of this action. In accordance with our policy, we will take
    cognizance of a final determination regarding employment
    discrimination. Because we would view seriously any final
    determination that the licensee engaged in unlawful discrimination,
    we will require the licensee to expeditiously report any final
    determinations in proceedings involving charges of discrimination,
    as reflected in the Ordering Clauses below.

41. As a final matter, on January 22, 1998, the NAACP and the
    Rainbow/Push Coalition (\"Rainbow\") filed a motion to designate
    Rainbow as a successor to the NAACP in this proceeding. The request
    is based on the fact that counsel for the NAACP is liquidating his
    private law practice in order to become Special Counsel for Rainbow.
    However, since we are dismissing the Petition to Deny filed by the
    NAACP, the requested substitution of parties is moot. In any event,
    we would not find the cited justification sufficient to allow
    Rainbow, in effect, to file a petition to deny over one year after
    the applicable deadline.

42. After carefully considering all of the above, we find that there are
    no substantial and material questions of fact warranting designation
    for hearing and that grant of the application would be consistent
    with Section 309(k) of the Communications Act of 1934, as amended,
    47 U.S.C. § 309(k). Thus, because the licensee is otherwise
    qualified, grant of the renewal application will serve the public
    interest. 47 U.S.C. § 309(d)(2).

#  III. ORDERING CLAUSES

43. Accordingly, **IT IS ORDERED**, that the Petition to Deny filed by
    the NAACP **IS DISMISSED**.

44. **IT IS FURTHER ORDERED** that the license renewal application filed
    by Southern Broadcast Corporation of Sarasota for Station WWSB(TV)
    **IS GRANTED**.

45. **IT IS FURTHER ORDERED** that discrimination allegations made by
    Holmes-Thomas, Lawson, Myers, and Hilton, and related pleadings,
    will be referred to the EEOC, as described in paragraph 15 above.

46. **IT IS FURTHER ORDERED** that Southern Broadcast Corporation of
    Sarasota submit to the Commission a complete report on the final
    resolution of Vickie Oldham\'s charge of discrimination, the charges
    of discrimination being referred to the EEOC pursuant to paragraphs
    15 and 20 hereof, and any other proceedings that may be brought
    involving charges of discrimination by the licensee, within 30 days
    after a resolution is reached.

47. The reports are to be filed with the Secretary of the Commission for
    the attention of the Mass Media Bureau\'s EEO Staff.

48. **IT IS FURTHER ORDERED** that copies of this *Memorandum Opinion
    and Order* be sent by Certified Mail -- Return Receipt Requested --
    to the licensee, the NAACP, and the Rainbow/PUSH Coalition.

49. This action is taken under delegated authority pursuant to Section
    0.283 of the Commission's Rules, 47 C.F.R. § 0.283.

**FEDERAL COMMUNICATIONS COMMISSION**

Roy J. Stewart

Chief, Mass Media Bureau

[^1]: Because the *MO&O* was not published, a copy is attached hereto.

[^2]: One of the complainants, Vickie Oldham, had filed a complaint with
    the EEOC. On August 16, 1999, the Tampa Area Office of the EEOC
    issued a Dismissal and Notice of Rights with respect to Oldham's
    complaint indicating that it was unable to conclude that the
    information obtained established a violation of statutes enforced by
    the EEOC. The EEOC also notified Oldham of her right to bring suit.
    On November 15, 1999, Oldham filed a suit against the licensee and
    other defendants in the United States District Court for the Middle
    District of Florida (*Oldham v. Southern Broadcast Corporation of
    Sarasota, et al.,* Case No. 8:99-CV-2615-T-23F) alleging Title VII
    violations. The matter remains pending.

[^3]: Under *McDonnell*, a complainant must show that he belongs to a
    racial minority; that he applied and was qualified for a job for
    which an employer was seeking applicants; that he was rejected; and
    that, after his rejection, the position remained open and the
    employer continued to solicit applicants of the complainant's
    qualifications.

[^4]: In the *Report and Order*, we indicated that we would determine on
    a case-by-case basis whether, given the unique circumstances in each
    instance, the evidence was indicative of discrimination or other EEO
    violations that would warrant action by the Commission prior to an
    adjudication by the EEOC or a court. We cited as examples of
    evidence that might, under certain circumstances, warrant
    consideration even in the absence of an adjudication well-supported
    allegations of discrimination made by a large number of individuals
    or allegations of discrimination that shock the conscience or are
    particularly egregious. In addition, we indicated that a pattern of
    deliberate and systematic violations of the EEO program requirements
    might be considered as evidence of discrimination where such
    practices have the effect of denying women and minorities access to
    job opportunities. 15 FCC Rcd at 2362.

[^5]: The licensee urges that the application for review be dismissed
    because it violates the page limit of 25 double spaced pages
    specified by Section 1.115(f) of the Commission's Rules. We agree
    that the NAACP exceeded the page limit. Although only 22 pages long,
    the NAACP's application for review includes nearly nine pages of
    single spaced text and 26 single spaced footnotes. Section 1.49(a)
    of the Commission's Rules cautions counsel "against employing
    extended single spaced passages or excessive footnotes to evade
    prescribed pleading lengths." However, in light of our disposition
    of this matter, we do not believe any purpose would be served by
    dismissing the application for review or requiring the NAACP to
    submit a reformatted version.

[^6]: The station\'s license term ended February 1, 1997.

[^7]: The NAACP has requested to withdraw as the Petitioner to Deny if
    we approve another party as its successor. As discussed in paragraph
    16, *infra*, we find this request to be moot because we are
    dismissing the Petition to Deny. We will continue to treat the NAACP
    as the filing party.

[^8]: In a declaration attached to the NAACP\'s Reply to Opposition to
    Petition to Deny, Myers indicated that she came to realize
    subsequent to the filing of the Petition to Deny that she was a
    victim of racial discrimination. She cited the fact that she did not
    receive a director\'s position for which she felt herself qualified
    and her perception of being treated differently from similarly
    situated White employees.

[^9]: Because WWSB(TV)\'s license expired on February 1, 1997, any
    petition to deny was due by January 2, 1997 (given that January 1,
    1997, was a holiday) pursuant to Section 73.3584(a) of the
    Commission\'s Rules as it relates to Section 73.3516(e) thereof.

[^10]: The licensee filed a motion to strike this pleading. However, in
    view of our disposition of this matter, we find that the motion to
    strike is moot.

[^11]: On August 16, 1999, the Tampa Area Office of the EEOC issued a
    Dismissal and Notice of Rights with respect to Oldham's complaint
    indicating that it was unable to conclude that the information
    obtained established a violation of statutes enforced by the EEOC.
    The EEOC also notified Oldham of her right to bring suit. On
    November 15, 1999, Oldham filed a suit against the licensee and
    other defendants in the United States District Court for the Middle
    District of Florida (*Oldham v. Southern Broadcast Corporation of
    Sarasota, et al.,* Case No. 8:99-CV-2615-T-23F) alleging Title VII
    violations. The matter remains pending.