FCC 94-105 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In re Applications of ) ) Sun Mountain Broadcasting, Inc. ) File Nos. BR - 900530YW ) BRH - 900530ZF For Renewal of Licenses for ) Stations KISN/KISN-FM ) Salt Lake City, Utah ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: April 20, 1994 ; Released: April 28, 1994 By the Commission:Commissioner Quello concurring and issuing a statement. I. INTRODUCTION 1. The Commission has before it for consideration: (i) license renewal applications filed by Sun Mountain Broadcasting, Inc., for stations KISN/KISN-FM, Salt Lake City, Utah; (ii) a Petition to Deny timely filed on September 4, 1990, by the Idaho/Nevada/Utah State Conference of Branches of the NAACP and by various local NAACP branches (collectively "NAACP") against the renewal applications of these broadcast stations; (iii) an opposition to the petition to deny filed by the licensee; and (iv) the licensee's responses to staff letters of inquiry. II. BACKGROUND 2. The NAACP alleges that the challenged stations violated our Equal Employment Opportunity (EEO) Rule and policies. Accordingly, it requests that we conduct an investigation of KISN/KISN-FM's employment practices pursuant to Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC, 595 F.2d 621 (D.C. Cir. 1978) (Bilingual). The NAACP also requests that the Commission designate the renewal applications for hearing and deny the applications. The licensee charges that the NAACP has presented no evidence of discrimination, that the records indicate compliance with the Commission's EEO Rule, and that unconditional renewal is warranted. III. PLEADINGS 3. STANDING. 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 application would be prima facie inconsistent with [the public interest, convenience and necessity]." 47 U.S.C.  309(d)(1); Astroline Communications Co. 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). 4. Submitted with the petition to deny was a declaration under penalty of perjury from the President of the Salt Lake City Branch of the NAACP, indicating that she listens to Stations KISN/KISN-FM. Accordingly, we hold that the Idaho/Nevada/Utah State Conference of Branches of the NAACP and its Salt Lake City affiliate branch have satisfied the requirements for standing. American Legal Foundation v. FCC, 808 F.2d 84 (D.C. Cir. 1987); see also, Petition for Rule Making to Establish Standards for Determining the Standing of a Party to Petition to Deny a Broadcast Application, 82 FCC 2d 89 (1980) (citing Warth v. Seldin, 422 U.S. 490, 511 (1975)). IV. DISCUSSION 5. PRIMA FACIE CASE. The NAACP derived its factual allegations from the licensee's EEO program and annual employment reports. Review of the licensee's EEO records led us initially to conclude that the NAACP presented a prima facie case against the two stations, demonstrating that unconditional grant of the renewal applications would have been inconsistent with the public interest. See Section 309(d)(1) of the Communications Act of 1934, 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 Bicultural Coalition v. FCC, 595 F.2d 621 (D.C. Cir. 1978) (Bilingual). 6. However, subsequent review of the NAACP's EEO allegations, as well as the licensee's renewal applications, opposition and inquiry responses, leads us to conclude that there are no substantial and material questions of fact warranting designation for hearing. In addition, we find no evidence of employment 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. 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 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. Sections 73.2080 (b) and 73.2080 (c). 8. When the renewal application indicates an absence 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 sanctions or remedies, such as reporting conditions, renewal for less than a full term, forfeiture, or a combination thereof. Further, the Commission will designate the application for hearing if 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) (Broadcast EEO), petition for recon. pending; see also 4 FCC Rcd 1715 (1989) (request for clarification by the National Association of Broadcasters). See e.g., Beaumont, supra; Bilingual, supra. 9. Review of the licensee's renewal applications, inquiry responses and opposition reveals that during the period April 1, 1987, through March 31, 1990, the licensee had 13 full-time hiring opportunities, all for upper-level positions. To recruit for these positions, the licensee used the following general and minority sources: the Utah Job Service, local radio stations, employee referrals, Hispanic Affairs Office, internal postings, walk-in applicants, NAACP, YWCA/Women In Jeopardy, and Women's Resource Center. The licensee did not report any minority referrals from its recruitment sources for the 13 full-time positions. It appears that the licensee used from two to five of its recruitment sources, plus walk-in applicants, internal job postings, and employee referrals, to fill 12 jobs. The licensee did not recruit for the thirteenth vacancy. The licensee reported 93 applicants and 93 interviewees. Only one minority, a Black male walk-in, applied, and was interviewed for, an upper- level position. No minorities were hired for the 13 full-time job openings which arose during the three-year reporting period. 10. The NAACP criticizes the licensee for not adhering to the EEO program outlined in its 1985 assignment applications. According to the NAACP, the licensee promised use of the Division of Indian Affairs, the NAACP, the Governor's Black Advisory Council, and the Weber Council of Spanish Speaking Organizations. Notwithstanding its extensive minority recruitment list, NAACP argues that the licensee's record never evidenced meaningful contact with any of those sources. It adds that, although the licensee had three interns as a result of its college internship programs, none were minority. Lastly, the NAACP asserts that the licensee reported no minority hires and only one minority applicant in the renewal year, i.e., April 1, 1989, to March 31, 1990. 11. The licensee responds that it regularly contacted a substantial number of minority and women's organizations to locate qualified applicants. It adds that, although the NAACP was one of its recruitment contacts, the NAACP never referred applicants to the stations. Regarding the NAACP's assertions that its internship program does not include minorities, the licensee states that minorities comprise only five percent of the college students in Utah. The licensee does not respond directly to the NAACP's charges of low applicant flow and the absence of minority hires in the renewal year. However, it does point out that the NAACP fails to acknowledge the "small minority population in the Salt Lake City MSA and the consequent difficulties in recruiting and hiring qualified minorities." Although the licensee considers its recruitment efforts, "an aggressive program of EEO practices," KISN/KISN-FM states that its program has not produced a higher percentage of minority employees due to the small minority representation in the Salt Lake City labor force. The licensee further asserts that its minority recruitment efforts are hampered by the fact that a substantial percentage of the area's minorities are employed in manufacturing and are not likely candidates for broadcast employment. The licensee also explains that only 52% of Hispanics aged 25 and older have a high school diploma which is a requirement for most of the stations' jobs. 12. Our review of the record discloses no substantial and material questions of fact warranting designation for hearing. See Astroline, supra. The licensee engaged in some recruitment efforts and interviewed a minority applicant for an upper-level vacancy. In addition, we find no evidence of employment discrimination. Therefore, grant of the renewal is in the public interest. 13. However, the licensee's recruitment efforts were deficient. Specifically, it failed to recruit so as to attract an adequate pool of minority applicants for at least 66% (9 jobs) of its 13 full-time vacancies. The record revealed that minorities were included in only one (7.6%) of the licensee's overall and upper- level applicant and interview pools. Thus, minorities were absent from 92.4% of the overall and upper-level pools. Notwithstanding the absence of minorities from the applicant and interview pools as noted above, it does not appear that the licensee consistently engaged in efforts to attract minorities, particularly Hispanics, the dominant minority in the labor force here, or otherwise conducted meaningful self-assessment of its program. In this regard, although the licensee recruited for 12 of its 13 full-time positions, it used minority-specific sources for only seven (58%) of those recruited vacancies, and reported no minority referrals. Despite the dearth of minority referrals from its general and minority-specific sources, the licensee did not identify new recruitment organizations, or otherwise modify its efforts. Accordingly, a base forfeiture of $12,500 and reporting conditions are appropriate. See Policy Statement, FCC 94-27 (released January 31, 1994). 14. In addition, the licensee's failure to recruit so as to attract an adequate pool of minority applicants for at least 33% of the overall and upper-four full-time positions indicates egregiousness, warranting an upward forfeiture adjustment of $6,250. Therefore, we will renew the licenses subject to reporting conditions and issue a Notice of Apparent Liability for $18,750. V. CONCLUSION 15. Upon review of the record and the arguments submitted by all parties, we find no hearings are warranted and that renewal of the licenses is appropriate. However, renewal is subject to reporting conditions and issuance of a Notice of Apparent Liability for $18,750. VI. ORDERING CLAUSES 16. Accordingly, IT IS ORDERED that the Petition to Deny filed by the Idaho/Nevada/Utah State Conference of Branches of the NAACP and its affiliate branches IS DENIED. 17. IT IS FURTHER ORDERED that the license renewal applications for KISN/KISN-FM ARE GRANTED subject to the reporting conditions specified herein, and pursuant to Section 503, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $18,750. 18. IT IS FURTHER ORDERED that the licensee of Stations KISN/KISN-FM submit to the Commission an original and one copy of the following information on June 1, 1995, June 1, 1996, and June 1, 1997: (a) For each report, please make two lists divided by full- time and part-time job vacancies during the twelve months preceding the respective reporting dates, indicating the job title and FCC job category, date of hire, the race or national origin, sex and the referral source of each applicant for each job and the race or national origin and sex of the person hired. The list should also note which recruitment sources were contacted; (b) A list of all employees as of the May 1, 1995, payroll period for the first report and as of the May 1, 1996, and May 1, 1997, payroll periods for the second 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; and (c) Details concerning the station's efforts to recruit minorities for each position filled during the 12- month periods specified, including identification or sources used and indicating whether any of the applicants declined actual offers of employment. In addition, the licensee may submit any information it believes relevant regarding the station's EEO performance and its efforts thereunder. 19. 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 to all parties. 20. The reports are to be filed with the Acting Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 21. Should you have any questions regarding this action or require further information concerning employment reports, you may call the Mass Media Bureau's EEO Branch at (202) 632-7069. With respect to the forfeiture proceeding, the licensee may take any of the actions set forth in Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, as summarized in the attachment to this Order. Any comments concerning the ability to pay should include those financial items set forth in the attachment. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary