FCC 94-107 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In re Applications of ) ) Lotus Communications, Inc. ) ) For Renewal of License for ) File No. BRH - 900801WE Station KFSD(FM) ) San Diego, California ) ) University of ) Southern California ) ) For Renewal of License for ) File No. BRED - 900731YO Station KUSC(FM) ) Los Angeles, California ) ) MEMORANDUM OPINION AND ORDER AND NOTICES 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 for the above-captioned radio stations in California; (ii) a Petition to Deny timely filed on November 1, 1990, by the California State Conference of Branches of the NAACP and various local NAACP branches (collectively "NAACP"), the National Black Media Coalition, the Bay Area Black Media Coalition, and the Los Angeles Black Media Coalition (collectively "NBMC") against the renewal applications of the captioned broadcast stations; (iii) oppositions from the licensees; (iv) the licensees' responses to staff letters of inquiry; and (v) other pleadings. II. BACKGROUND 2. The NAACP/NBMC allege that the challenged stations violated our Equal Employment Opportunity (EEO) Rule and policies. Accordingly, both organizations request that we conduct an investigation of the stations' employment practices pursuant to Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC, 595 F.2d 621 (D.C. Cir. 1978) (Bilingual), designate the renewal applications for hearing and, thereafter, deny the applications. The licensees charge that the NAACP/NBMC have 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. KFSD(FM) argues that the NAACP/NBMC's pleading should be dismissed for lack of standing because neither organization filed a statement from a member who listens to the station or who is a resident of San Diego. KUSC(FM) challenges the NAACP's pleading and requests its dismissal because it does not support the factual allegations in the pleading with affidavits from individuals with personal knowledge of the station's employment matters. It adds that none of the declarations submitted with the petition refer to KUSC(FM). 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 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 knowledge of the facts alleged. 47 U.S.C.  309(d)(1). 5. Submitted with the NAACP petition is a statement under penalty of perjury from Jose DeSosa, the president of the California State Conference of the NAACP. However, Mr. DeSosa does not state that he is either a listener of the challenged stations or a resident of the service areas. The Commission has previously held that without such assertions, the declaration does not satisfy the standing requirements of the Act. Accordingly, we hold that the NAACP lacks standing to petition the renewal applications for KFSD(FM) and KUSC(FM), and, thus, we will treat its pleading as an informal objection pursuant to 47 C.F.R.  73.3587. See Michigan/Ohio Broadcast Renewals, 3 FCC Rcd 6944 (1988); see also KDEN Broadcasting Company, 55 Rad. Reg. 2d (P&F) 1311, 1311-12 (1984). 6. Filed with the petition to deny was an unsigned declaration under penalty of perjury from the chairman of the National Black Media Coalition. He does not claim to be a listener of the challenged stations or a resident of the service areas. Thus, his declaration does not satisfy the standing requirements of the Act. Therefore, we hold that the NBMC lacks standing to petition the renewal application for station KFSD(FM), and we will treat its pleading as an informal objection in accordance with 47 C.F.R.  73.3587. See Michigan/Ohio, supra; see also KDEN, supra. IV. DISCUSSION 7. PRIMA FACIE CASE. The NAACP/NBMC derived their factual allegations from the licensees' EEO programs and annual employment reports. Review of the licensees' EEO records led us initially to conclude that the NAACP/NBMC presented a prima facie case against the stations, demonstrating that unconditional grant of the renewal applications would have been inconsistent with the public interest. 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, supra. 8. Review of the NAACP/NBMC's EEO allegations, as well as the licensees' oppositions 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. However, we will grant renewal with appropriate remedies and sanctions. 9. 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), 47 C.F.R. Sections 73.2080(b) and 73.2080(c). 10. 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. KFSD(FM), San Diego 11. Review of the licensee's renewal application, inquiry response and opposition reveals that KFSD(FM) hired 15 full-time, including 13 upper-level, employees during the three-year review period July 1, 1987, to June 30, 1990. Five of the 15 full-time positions and four of the 13 upper-level full-time positions were filled in the 12-month period prior to the filing of the renewal application. KFSD(FM) states that it bi-annually advises several organizations of its need for qualified minority and female applicants, but it did not indicate that those contacts were for specific positions. Among the 35 recruitment sources used were 12 minority groups, seven women's organizations, five employment services, four newspapers (including two with minority circulations), three educational institutions, three community groups and one trade organization. In its renewal application, the station indicates that for the 12-month period prior to filing the renewal it received 16 minority referrals from these sources: San Diego Union/Tribune (5), El Mexicana (7), Chicano Federation (1), Mexican American Opportunity Federation (2) and current employees (1). The station provides the following information regarding the referral sources of 14 of its full-time hires: employee referrals (five, including one minority), walk- ins (four), S.D. Union Newspaper (two), re-hire (one), intra- company transfer (one) and an advertising agency client referral (one). 12. The station explains that it is unable to "supply a list of all referral sources contacted for each position filled, the race of each person interviewed for a position and the number of applications received for each position." However, according to its inquiry response, overall it attracted 296 applicants, including 38 minorities (20 Hispanics, nine Blacks, nine Asian- Pacific Islanders). Two Hispanics were hired (13%), including one for an upper-level vacancy (8%). 13. The NAACP/NBMC argue that KFSD(FM)'s EEO efforts were inadequate and that the licensee has "amassed a record of token minority employment since 1985." They note that the licensee failed to hire a minority for any of the upper-level jobs during the renewal year (i.e., the twelve-month period that precedes renewal of the license, August 1, 1989, to July 31, 1990). Moreover, the NAACP/NBMC fault the licensee for not proposing additional EEO efforts despite attracting only 16 minority applicants predominately from newspaper advertisements. 14. KFSD(FM) responds to the NAACP/NBMC's criticism of token minority employment, stating that it has employed at least one minority during each year of its license term. It adds that due to the small staff size, the loss of one minority employee can affect the station's employment profile and compliance with the Commission's processing guidelines. The licensee does not directly respond to the NAACP/NBMC's complaint regarding minority upper-level hires, but indicates that its EEO efforts have proceeded uninterruptedly and that it has been "somewhat successful" in attracting minorities. KFSD(FM) argues that the NAACP/NBMC have no foundation for its criticism of the licensee's referral sources, including newspapers, and that the NAACP/NBMC do not suggest any recruitment sources that the station failed to use. Lastly, regarding assessment, KFSD(FM) indicates that its corporate vice president reviews EEO policy several times a year to ensure that bi-annual contacts are made with female and minority organizations and notifies the station when its efforts need improvement. 15. Our review of the record discloses no substantial and material questions of fact warranting designation for hearing. See Astroline, supra. Nor do we find any evidence of employment discrimination because KFSD(FM) recruited, attracted and hired minorities during the license term. Accordingly, renewal of license is in the public interest. 16. However, we find KFSD(FM)'s overall recruitment efforts deficient because it failed to recruit so as to attract an adequate pool of minority applicants for at least 66% (10 jobs) of its 15 full-time vacancies. The record indicates that minorities were in only two (13%) of the licensee's overall applicant and interview pools. Further, only one (8%) of the 13 upper-level applicant and interview pools included a minority. Hence, it appears that minorities were absent from 87% of the overall applicant and interview pools and 92% of the upper-level applicant and interview 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, or otherwise conducted meaningful self- assessment of its program. In this regard, it is unclear the extent to which the licensee recruited for specific positions or contacted minority sources for specific positions. Moreover, we are troubled by KFSD(FM)'s inability to confirm its license term employment activity due to the absence of adequate record- keeping. Accordingly, a base forfeiture of $12,500 and reporting conditions are warranted. See Policy Statement, FCC 94-27 (released January 31, 1994). 17. 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-level full-time positions renders its EEO efforts egregiously deficient warranting an upward forfeiture adjustment of $6,250. Further, the combination of the above and the location of the stations in an area which includes a large minority labor force (22.6%) justifies an upward adjustment of $6,250. Based on the licensee's overall program deficiencies, a total forfeiture of $25,000 is warranted, along with a short term renewal. See Policy Statement, supra. 18. However, we note that the licensee hired minorities during the review period at a rate equal to 50% of the minority representation in San Diego for the period July 1, 1987, to October 1990. Thus, a $6,250 downward adjustment in the forfeiture is appropriate. See Policy Statement, supra. Based on the foregoing, we will renew the licenses for a short term, impose reporting conditions and issue a Notice of Apparent Liability for $18,750. KUSC(FM), Los Angeles 19. Review of the licensee's renewal application, inquiry response and opposition indicates it hired 19 full-time, including 12 upper-level, employees during the three-year review period August 1, 1987, to July 31, 1990. From the station's inquiry response it appears that KUSC(FM) attracted six minority referrals: three from the University of Southern California, one from a minority employee, one from an industry referral, and one from Pacific Public Radio. 20. KUSC(FM) explains that it maintains "systematic communication, both orally and in writing" with sources of qualified minorities and female candidates when positions are posted with the University of Southern California (USC). It states that its recruitment contacts include 24 female and minority organizations, 12 educational institutions, three employment services and three media outlets. The licensee concedes that existing station records do not reflect the number of referrals from recruitment sources, a problem which it attributes to its failure to oversee station personnel properly. KUSC(FM) states that its recruitment sources are contacted by USC and USC Radio Personnel offices. It indicates that most of its applicants are referred by the Los Angeles Times, office postings and walk-in applicants. The station provides no applicant flow data; however, it reports 137 interviewees, including 30 minorities for overall job vacancies (17 Blacks, seven Asian-Pacific Islanders, five Hispanics, one American Indian) and 87 upper-level interviewees, including nine minorities (five Blacks, four Asian-Pacific Islanders). Overall, minorities were in 11 of the 19 overall interview pools and five of the 12 upper-level interview pools. Hispanics were in three of the 11 minority inclusive job pools. For its 19 full-time jobs, KUSC(FM) hired six minorities (three Blacks, one American Indian, one Hispanic, one Asian-Pacific Islander), including three minorities for upper-level positions (two Blacks, one Asian-Pacific Islander). 21. Calling KUSC(FM)'s 1990 EEO program inadequate "on its face," the NAACP asserts that the licensee has no excuse for its years of marginal EEO performance. The NAACP notes that KUSC(FM) is a large station (see note 11, supra) which has experienced a high turnover and that there is no shortage of well-qualified minorities in Los Angeles to perform any job in communications. It criticizes the station for several omissions in its renewal application: 1) failing to report specific minority referrals; 2) neglecting to make visual observations of its referrals; and 3) omitting the specific number of female applicants for its job vacancies. The NAACP argues that the station's stated reasons for its minority recruitment difficulties, which KUSC(FM) has attributed to its classical format and competition from other stations in the market, reflect a "stereotyped, backward view of minorities in the media," which, according to the NAACP, is the real reason so few minorities are employed at KUSC(FM). 22. KUSC(FM) responds that the NAACP has provided no specifics to support its charge that the station's EEO program is inadequate "on its face." Regarding the lack of specificity in its renewal application, the licensee states that its new record- keeping procedures should correct the problem of inadequate oversight of its personnel staff. The station acknowledges that it has experienced high turnover since its 1988 change to a classical format, but denies that its employment policies are the result of racial stereotyping and tokenism. KUSC(FM) states that other area employers pay more and it is difficult to compete with motion picture studios, commercial broadcasters and newspapers. Also, according to the licensee, the change in format "narrowed the field of eligible candidates for our on-air and support staff even more." KUSC(FM) indicated that the discrepancy between the percentage of minorities in the labor force and its employment profile is due to those limiting factors. The station added that it was dissatisfied with the progress of its EEO program and implemented new recruitment and record-keeping measures on December 1, 1990. 23. Our review of the record discloses no substantial and material questions of fact warranting designation for hearing. See Astroline, supra. We also find no evidence of discrimination. During the three-year review period, KUSC(FM) attracted, interviewed and hired minorities. Therefore, renewal of the license is in the public interest. 24. However, we find KUSC(FM)'s overall recruitment efforts deficient because it failed to recruit so as to attract an adequate pool of minority applicants for at least 66% (13 jobs) of its 19 full-time positions. Although the licensee did not maintain applicant pool data, the record indicates that minorities were in 11 (58%) of the licensee's interview pools. Thus, it appears minorities were absent from 42% of the interview pools. Notwithstanding the absence of minorities from the interview pools as noted above, it does not appear that the licensee consistently engaged in efforts to attract minorities or otherwise conducted meaningful self-assessment of its program. Although KUSC(FM) stated that some aspects of its program emphasize Hispanics (24.4% of the Los Angeles-Long Beach MSA), the record evidences inadequate efforts toward the MSA's dominant minority group. Moreover, it appears that complete applicant flow data was either lost or never maintained. Accordingly, a base forfeiture of $12,500 and reporting conditions are warranted. See Policy Statement, supra. 25. In addition, the location of the station in an area which includes a large minority labor force (41.9%) warrants an upward forfeiture adjustment of $11,250. Based on the licensee's overall program deficiencies, a total forfeiture of $23,750, as well as reporting conditions is appropriate. 26. However, we note that the licensee hired minorities during the review period at a rate equal to 50% of the minority representation in the Los Angeles-Long Beach MSA for the period August 1, 1987, to July 31, 1990. Thus, a $6,250 downward adjustment in the forfeiture is appropriate. See Policy Statement, supra. Based on the foregoing, we will renew the license subject to reporting conditions and issue a Notice of Apparent Liability for $17,500. V. CONCLUSION 27. Upon review of the record, we find that grant of the renewal applications is in the public interest. The license for KFSD(FM) is renewed for less than a full term subject to reporting conditions and issuance of a Notice of Apparent Liability for $18,750. We will renew the license for KUSC(FM) subject to reporting conditions and issue a Notice of Apparent Liability for $17,500. VI. ORDERING CLAUSES 28. Accordingly, IT IS ORDERED that the informal objections filed by the California State Conference of Branches of the NAACP and its affiliate branches, and the National Black Media Coalition against the renewal application for Station KFSD(FM) ARE DENIED. 29. IT IS FURTHER ORDERED that the informal objection filed by the California State Conference of Branches of the NAACP and its affiliate branches against the renewal application for Station KUSC(FM) IS DENIED. 30. IT IS FURTHER ORDERED that the license renewal application for Station KFSD(FM) IS GRANTED FOR A SHORT TERM ending December 1, 1995, 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. 31. IT IS FURTHER ORDERED that the license renewal application for Station KUSC(FM) IS GRANTED subject to the reporting conditions specified herein, and pursuant to Section 503, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $17,500. 32. IT IS FURTHER ORDERED that the licensees of Stations KFSD(FM) and KUSC(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 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 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 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 of 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. 33. 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. 34. The reports are to be filed with the Acting Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 35. 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, 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