$// MO&O, KMPC/KLIT, LA/Glendale, CA, NAL, RC, FCC 94-360 //$ $/ 300.309 Action Upon Applications /$ $/ 300.503 Forfeitures in Cases of Rebates and Offsets /$ $/ 1.80 Forfeiture Proceedings /$ $/ 73.2080 Equal Employment Opportunity /$ $/ 73.3587 Procedure For Filing Informal Objections /$ FCC 94-360 Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) ) Golden West Broadcasters ) File Nos. BR-900727YI ) BRH-900727ZD For Renewal of License of ) Stations KMPC(AM)/KLIT(FM) ) Los Angeles/Glendale, California ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: December 30, 1994; Released: February 13, 1995 By the Commission: Commissioner Quello concurring in the result. I. INTRODUCTION 1. The Commission has before it for consideration: (i) license renewal applications for the two captioned radio stations; (ii) a Petition to Deny timely filed on November 1, 1990, by the National Hispanic Media Coalition and Jose Luis Sedano, a member of the NHMC (collectively "NHMC") against the captioned renewal applications; (iii) a Petition to Deny timely filed on November 1, 1990, by the California State Conference of Branches of the National Association For the Advancement of Colored People and various local NAACP branches (collectively "NAACP") and the National Black Media Coalition, the Bay Area Black Media Coalition and the Los Angeles Black Media Coalition (collectively "NBMC") against the captioned renewal applications; (iv) the licensee's opposition to the petitions; (v) the licensee's response to a staff inquiry; and (vi) various other pleadings. II. BACKGROUND 2. The NAACP/NBMC and the NHMC allege that the challenged stations violated our EEO Rule and policies. Accordingly, they request that we conduct an investigation of the employment practices of the stations pursuant to Bilingual Bicultural Coalition on Mass Media, Inc. v FCC, 595 F.2d 621 (D.C. Cir. 1978) (Bilingual) and designate the renewal applications for hearing. III. PLEADINGS 3. STANDING. The licensee of KMPC(AM)/KLIT(FM) challenges the standing of the NHMC and the NAACP/NBMC to petition to deny its renewal applications. The licensee argues that the statement submitted with NHMC's petition contains only generalized allegations and that the declarant, Jose Luis Sedano, does not claim to be a listener of the stations. Therefore, KMPC(AM)/KLIT(FM) argue that the NHMC should be considered an informal objector. The licensee also argues that the NAACP/NBMC should be considered informal objectors because their statements did not assert listenership or service area residency. Finally, it argues that the Los Angeles Black Media Coalition's (LABMC) claim of standing is also defective because the declaration submitted by its Chairperson is unsigned and, even if signed, would fail to establish standing because the declarant fails to state that she is a regular listener of the stations. 4. In challenging an application pursuant to Section 309(d) 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 applications would be prima facie inconsistent with [the public interest, convenience, and necessity]." 47 U.S.C. 309(d)(1). Astroline Com. Co. Ltd. Partnership v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (Astroline); Dubuque T.V. Limited Partnership, 4 FCC Rcd 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)(1). 5. Filed with the petition to deny were unsigned declarations under penalty of perjury from the Chairman of the NBMC and the Chairperson of the LABMC, the latter of whom states that she is a regular listener of KMPC(AM)/KLIT(FM). Subsequent to the licensee's opposition, the NBMC submitted a late-filed, signed declaration from the Chairperson of the LABMC. The petitioner's filing is untimely and it has not provided sufficient justification for its late filing. As we stated in Application of Certain Broadcast Radio Stations Serving Communities in the State of Florida, 3 FCC Rcd 1930 (1988), we will not acquiesce to the submission of late filings for nonsubstantial reasons. Accordingly, pursuant to Section 73.3587 of the Commission's Rules, 47 C.F.R. 73.3587, the NBMC will be considered an informal objector in its challenge against KMPC(AM)/KLIT(FM). 6. The petition contained a statement under penalty of perjury from the President of the California State Conference of the NAACP. However, the President does not state that he is either a listener of the challenged stations or a resident of the service area. The Commission has held previously that without such assertions, the declaration does not satisfy the standing requirements of the Act. See Applications of Certain Broadcast Stations Serving Communities in the States of Michigan and Ohio, 3 FCC Rcd 6944 (1988); see also Applications of KDEN Broadcasting Co., 55 Rad. Reg. 2d (P&F) 1311, 1311-1312 (1984). Accordingly, we hold that the NAACP lacks standing to petition to deny Stations KMPC(AM)/KLIT(FM) and we will treat its pleading as an informal objection. 7. Timely filed with NHMC's petition to deny was a declaration under penalty of perjury from Jose Luis Sedano, a member of the NHMC and a resident of the stations' service area. Contrary to the licensee's arguments, we find that this declaration complies with the requirement for establishing standing for the NHMC. See American Legal Foundation v. FCC, 808 F.2d 84 (D.C. Cir. 1987). We find, therefore, that the challenge filed by the NHMC constitutes a valid petition to deny against KMPC(AM)/KLIT(FM). 8. Prima Facie Case. The NAACP/NBMC and the NHMC derived their factual allegations from the licensee's EEO program and annual employment reports. Review of the licensee's EEO record led us initially to conclude that the NAACP/NBMC and the NHMC presented a prima facie case demonstrating that unconditional grant of the renewal applications would have been inconsistent with the public interest. Section 309(d)(1) of the Communications Act, 47 U.S.C.  309(d)(1). 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. 9. However, subsequent review of the NAACP/NBMC and the NHMC's EEO allegations, as well as the licensee's renewal applications, opposition and inquiry response, leads us to conclude that 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 applications 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. IV. DISCUSSION 10. 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 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 minorities and women and the licensee's ongoing assessment of its EEO efforts. Such an assessment enables the licensee to take corrective action if qualified minorities and women are not present in the applicant pool. The Commission also focuses on any evidence of discrimination by the licensee. See Sections 73.2080(b) and (c) of the Commission's Rules, 47 C.F.R.  73.2080(b) and (c). 11. When the renewal application indicates an absence of evidence of discrimination and a record of adequate EEO efforts, the application is granted, if otherwise appropriate. When it fails to evidence a record of adequate EEO efforts, the Commission may impose a variety of remedies and sanctions, such as reporting conditions, renewal for less than a full term, forfeiture, or a combination thereof. Further, the Commission will designate the renewal application for hearing where the facts so warrant. Amendment of Part 73 of the Commission's Rules Concerning Equal Employment Opportunity in the Broadcast Radio and Television Services, 2 FCC Rcd 3967 (1987); see also 4 FCC Rcd 1715 (1989) (request for clarification by the National Association of Broadcasters). See e.g., Beaumont, supra; Bilingual, supra. 12. Review of the licensee's renewal applications, oppositions and inquiry responses reveals that the stations had 62 full-time hiring opportunities, including 47 for upper-level positions, from January 1, 1987, through October 15, 1990. According to its renewal applications, the licensee indicates that it contacted the following general sources and received the cited minority referrals: the Los Angeles Times (1), six other general publications (0), 19 local colleges and universities (0), and 18 general organizations. The licensee reports contacting but receiving no minority referrals from the following minority and women's sources: the Japanese Daily News of Los Angeles, five other minority publications, the California Chicano News Media Association Job Bank, American Indian Employment and Training, the Los Angeles Black Media Coalition, six other minority organizations, the Hispanic Women's Council, Women in Film and Women at Work. The licensee also reports that it received five minority referrals from employees and that three additional minority referrals were walk-ins. The licensee did not affirmatively recruit for 26 (42%) of its 62 vacancies. Of the remaining 36 recruited jobs, for ten vacancies, it contacted one of the following general sources: the Seattle Mariners, an employment agency, Radio and Records Magazine, L.A. Times, on-air ads, another California radio station and the Southern California Broadcasters Association (SCBA). For six vacancies, it contacted the SCBA and Adweek. For 18 positions, the licensee contacted at least 34 general, 11 minority, one minority women's (the Hispanic Women's Council) and two women's sources. For its last two vacancies, occurring October 15, 1990 -- a month and a half before the stations' licenses expired -- the licensee contacted 45 general, 16 minority, one minority women's, two women's sources and the SCBA Employee Bulletin, a bi-weekly publication distributed to almost 200 sources, including minority and women's sources. 13. Of the 62 full-time positions, including 47 upper-level positions, the licensee did not know the number, race or gender of applicants for two upper-level positions. For the 60 overall positions with complete applicant data, the licensee had 169 applicants, 56 of whom were minorities (25 Blacks, 21 Hispanics, seven Asian/Pacific Islanders and three American Indians). For the 45 upper-level positions with complete applicant data, the licensee had 119 applicants, 18 of whom were minorities (nine Blacks, six Hispanics and three American Indians). Minorities were in the applicant pools for 26 overall and 14 upper-level positions. For the 62 overall positions, the licensee hired 18 minorities (nine Blacks, four Hispanics, three Asian/Pacific Islanders and two American Indians), including seven minorities (four Blacks, one Hispanic and two American Indians) for the 47 upper-level positions. 14. The NHMC contends that the licensee failed to implement a legally adequate program to employ Hispanics and other minorities and failed to meaningfully self-assess its inadequate EEO program. The NHMC asserts that the stations' 1990 Annual Employment Report reflects serious underemployment of minorities, especially Hispanics. It also argues that the licensee's renewal applications reflect manifest inadequacies in the licensee's EEO program because the applications list only nine (including eight in-house) minority referrals from all of its recruitment sources. The NHMC concludes that the licensee apparently obtained no minority referrals for many of its hiring opportunities. The NHMC contends that the stations had one of the poorest hiring records in 1990 of any major Los Angeles radio station, with only two minorities hired out of 13 positions during the renewal year, i.e., the 12-month period prior to filing the stations' renewal applications. The NHMC argues that the licensee has not addressed its failure to employ minorities adequately, especially Hispanics in upper-level positions. 15. The NAACP/NBMC argue that the stations' 1990 EEO program is inadequate on its face. They argue that there is no excuse for the stations' marginal EEO performance---hiring only two minorities and receiving only one minority referral from sources during the renewal year (July 1, 1989 to June 30, 1990)---given the large number of hiring opportunities (13) and the abundance of minorities in Los Angeles. The NAACP/NBMC contend that the total absence of minority referrals from the 65 sources listed in its renewal applications "could not have happened if the licensee had made even the most ephemeral attempts to encourage these organizations to refer candidates." The NAACP/ NBMC argue that the Commission should determine whether the stations' questionable EEO program combined with its failure to employ more than a token number of minorities is indicative of a deliberate violation of the EEO Rule or discrimination. 16. In response, the licensee states that it has engaged in good faith efforts to hire and promote minority employees and that the stations' employment profile during the past several years reflects these good faith efforts. The licensee contends that, although employment is only one aspect of the Commission's analysis, it should not be ignored because it is what the Commission's prescribed EEO recruiting procedures, such as recordkeeping and self-assessment, are designed to achieve. The licensee argues that minorities have been successfully recruited and hired at the stations even though the minority- specific sources contacted by the stations have not proven very productive. KMPC(AM)/KLIT(FM) states that it has contacted these sources as well as other organizations, entities and referral sources likely to refer minority and female applicants and has annually updated its list of sources. In an effort to improve the number of minority referrals received, the stations argue that they began placing ads in the SCBA Employment Bulletin, which is sent to almost 200 sources of potential minority applicants. 17. Our review of the record discloses no substantial and material questions of fact to warrant designation for hearing. Astroline, supra. We also find no evidence of discrimination. During the period under review, the licensee contacted recruitment sources, including minority organizations; received minority referrals; and interviewed and hired minorities for overall and upper-level positions. Therefore, renewal of the license is in the public interest. 18. However, we find KMPC(AM)/KLIT(FM)'s overall recruitment efforts deficient because the licensee failed to contact minority specific sources for almost half of its vacancies and minorities were absent from a significant number of the licensee's applicant pools. 47 C.F.R. 73.2080. These facts are particularly egregious because the Commission's staff had previously alerted the licensee in a 1984 renewal letter to the absence of Asian/Pacific Islanders and to the small number of Hispanics on its full-time staff. Further, at that time, the Commission's staff stated that it expected the licensee to make reasonable, good faith efforts to recruit Asian/Pacific Islander and Hispanic applicants during the coming license term. However, even though the record indicates no Asian/Pacific Islander applicants or hirees for upper-level positions, few Hispanic applicants, and only one Hispanic upper-level hire, the licensee's submission for the current license term did not indicate assessment of its program to better attract applicants from these groups or reasonable modification of its EEO program. 19. We believe that the record in the instant case is similar to, but more egregious than, that of the licensee of KSBW-TV, Salinas, California, in Application of KSBW License, Inc. For Renewal of License for Station KSBW-TV, Salinas, California, 9 FCC Rcd 6701 (1994) (KSBW-TV). The licensee therein affirmatively recruited for 71 of its 72 full-time positions but used minority sources for only 47 of its 72 full-time positions and failed to recruit minorities for a significant number of its vacancies. In addition, the licensee could not document applicant or interview pool data for each position. KSBW-TV hired fifteen minorities, including nine Hispanics (the dominant minority group), three American Indians, two Asians and one Black, all for upper-level positions. In that case, we concluded that the licensee failed to engage in adequate recruitment efforts and conduct meaningful self-assessment of its EEO program. The licensee received a $15,000 Notice of Apparent Liability and reporting conditions. 20. The record in this case indicates that the licensee recruited for only 36 of its 62 jobs and that minorities were present in only 26 applicant pools. In addition, KMPC(AM)/KLIT(FM) failed to contact minority sources for 42 (over two-thirds) of its vacancies. Further, even though no Asian/Pacific Islanders applied or were hired for upper-level positions and few Hispanics applied and only one was hired for an upper-level position, the licensee gave no indication that it assessed its program to attract more applicants from these groups or that it modified its EEO program accordingly. This occurred despite the fact that, at the time of the stations' last renewal, the staff sent the stations a letter highlighting its failure to employ these two minority groups in significant numbers. Overall, the licensee hired 18 minorities, including nine Blacks, four Hispanics, three Asian/Pacific Islanders and two American Indians. Of these, four of the Black, the two American Indians and one Hispanic were hired for upper-level positions. The Los Angeles - Long Beach MSA is 41.9% minority, including 24.4% Hispanic and 6.1% Asian/Pacific Islander. 21. Similarities exist between the above-cited stations' EEO records. Both licensees failed to contact minority specific sources for a significant number of their vacancies. In addition, both licensees failed to recruit minorities for a significant number of vacancies in areas with high percentages of minorities in the labor force. However, the licensee of KSBW-TV affirmatively recruited for almost all vacancies and, out of 63 upper-level hiring opportunities, hired nine Hispanics, the dominant minority group at 32% of the labor force. In contrast, the licensee of KMPC(AM)/KLIT(FM) failed to recruit affirmatively for almost half of its vacancies and hired only one Hispanic, the dominant minority at 24.4% of the labor force, for an upper-level position despite 47 upper-level hiring opportunities. The stations' location in an extremely significant MSA of 41.9% minorities, as well as the afore-mentioned letter from the staff, should have prompted KMPC(AM)/KLIT(FM) to increase their outreach efforts to include use of minority-specific sources when vacancies occurred. Further, the stations experienced a large hiring cycle during the last three years of the license term, which could have translated into increased numbers of minority applicants. Given the facts of this case and broadcasters' familiarity with our long-standing EEO rule, we feel that the circumstances in this case justify issuance of a Notice of Apparent Liability for $20,000. Accordingly, we will grant renewal subject to reporting conditions as set forth below and issue a Notice of Apparent Liability for $20,000. V. CONCLUSION 22. After reviewing the record before us, we find that no hearing is warranted and the renewal applications of KMPC(AM)/KLIT(FM) should be granted. However, the renewal applications of KMPC(AM)/KLIT(FM) will be granted subject to reporting conditions and a Notice of Apparent Liability of forfeiture for $20,000. VI. ORDERING CLAUSES 23. Accordingly, IT IS ORDERED that the Petition to Deny filed by the NHMC and its member, Jose Luis Seldano, against the renewal applications for Stations KMPC(AM)/KLIT(FM) IS DENIED. 24. IT IS FURTHER ORDERED that the Informal Objection filed by the NBMC and the NAACP against Stations KMPC(AM)/KLIT(FM) IS DENIED. 25. IT IS FURTHER ORDERED that the license renewal applications filed by Golden West Broadcasters for Stations KMPC(AM)/KLIT(FM) ARE GRANTED subject to reporting conditions as described herein and, pursuant to Section 503 of the Communications Act of 1934, as amended, 47 U.S.C.  503, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $20,000. 26. IT IS FURTHER ORDERED that the licensee of KMPC(AM)/KLIT(FM) submit to the Commission an original and one copy of the following information on August 1, 1995, August 1, 1996, and August 1, 1997: (a) For each report, please make two lists divided by full-time and part-time vacancies during the 12 months preceding the respective reporting dates, indicating the job title and FCC job category of the position, the race or national origin, sex and the referral source of each applicant for each and the race or national origin and sex of the person hired. The lists should also note which recruitment sources were contacted; (b) A list of employees as of the July 1, 1995, payroll period for the first report and as of the July 1, 1996, and July 1, 1997, payroll periods, for the second report and third reports by job title and FCC job category, indicating full-time or part-time status (ranked from highest paid classification), date of hire, sex and race or national origin; (c) Details concerning the stations' efforts to recruit minorities for each position filled during the 12-month period specified, including identification of sources used and indicating whether any of the applicants declined actual offers of employment. In addition, the licensee may submit any relevant information with regard to the station's EEO performance and efforts thereunder. 27. IT IS FURTHER ORDERED that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- one copy of this Memorandum Opinion and Order and Notice of Apparent Liability. 28. The reports are to be filed with the Acting Secretary of the Commission to the attention of the Mass Media Bureau's EEO Branch. Should the parties have any questions regarding this action, they may telephone the Mass Media Bureau's EEO Branch (202-632-7069). Regarding the forfeiture proceedings for KMPC(AM)/KLIT(FM), the licensee may take any of the actions set forth in Section 1.80 of the Commission's Rules, as summarized in the attachment to this Memorandum Opinion and Order and Notice of Apparent Liability. Any comments relating to the ability to pay should include those financial letters set forth in the attached note. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary