NOTICE ************************************************************************* NOTICE ************************************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Federal Communications Commission FCC 96-300 Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) Benchmark Radio Acquisition Fund IV ) Limited Partnership ) ) For Renewal of Licenses for ) File Nos. BR-950601XT Stations WTAR(AM)/WLTY-FM ) BRH-950601ZL Norfolk, Virginia ) ) and ) ) WKOC License Limited Partnership ) ) For Renewal of License of ) File No. BRH-950601YZ Station WKOC(FM)) Chesapeake, Virginia ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: July 2, 1996 Released: July 17, 1996 By the Commission: Commissioner Quello concurring in the result. I. INTRODUCTION 1. The Commission has before it for consideration: (i) license renewal applications for WTAR(AM)/WLTY-FM and WKOC(FM) (collectively referred to as "WTAR" or "licensee"); (ii) a Petition to Deny timely filed on August 15, 1995, by the Southern Region of the National Rainbow Coalition ("Rainbow"); (iii) the licensee's response to a staff letter of inquiry; and (iv) a Joint Request for Approval of Settlement Agreement filed by the licensees and Rainbow on December 1, 1995. II. BACKGROUND 2. Settlement Agreement. The Joint Request for Approval of Settlement Agreement seeks approval of the agreement, dismissal of the petition to deny, and grant of the stations' license renewal applications. We have reviewed the settlement agreement pursuant to 47 C.F.R.  73.3588 and Prevention of Abuses of the Renewal Process, 4 FCC Rcd 4780 (1989). We find that the settlement agreement complies with the Commission's rules and policies. Therefore, we grant the joint request and dismiss the petition to deny. As is our practice in all such cases, however, we reviewed the station's Equal Employment Opportunity (EEO) program and performance. See Section 309 of the Communications Act of 1934, as amended, 47 U.S.C.  309; see also Hilton Head Television, Inc., 10 FCC Rcd 1679 (1995). For the reasons that follow, we grant the applications subject to appropriate remedies and sanctions due to deficiencies in the licensee's EEO program. 3. Constitutionality of Commission's EEO Rule. The licensee contends that our EEO Rule is inconsistent with the holding in Adarand Constructors, Inc. v. Pena, 515 U.S. , 115 S. Ct. 2097 (1995) ("Adarand"). We disagree. Adarand addresses the constitutionality of a race-based preference program arising under federal law. The Supreme Court held that where questions arise as to a violation of the personal right to equal protection of the laws as a result of such programs, courts should evaluate such challenges by invoking the "strict scrutiny" standard of judicial review. Under strict scrutiny, racial classifications are constitutional only if they are narrowly tailored measures that further a compelling governmental interest. The requirements imposed by our EEO Rule, 47 C.F.R.  73.2080, are fundamentally different from a race-based preference program such as that at issue in Adarand. The Rule does not require that any person be hired or accorded a hiring preference based on racial or ethnic status. Rather, it requires that licensees make efforts to recruit minority and women applicants so that they will be ensured access to the hiring process. The ultimate decision as to whether to hire a particular applicant may be premised upon any non-discriminatory considerations, without regard to the applicant's race, ethnicity or gender status. Further, our Rule does not require licensees to hire any prescribed "quota" of minorities or women. Thus, our EEO Rule imposes no requirement that would operate to deprive any person of a benefit he or she might receive but for his or her race, ethnicity or gender. 4. We employ a two-step process in evaluating licensees' EEO efforts. In the first step, we seek to identify those licensees whose EEO efforts may be unsatisfactory so as to warrant further inquiry. Whether a licensee's employment profile as reflected in its Annual Employment Reports filed during the license term meets the processing guidelines is one factor considered in making this preliminary assessment, along with information contained in the renewal application, allegations raised by any petitions to deny or informal objections, and any other information available concerning the licensee's EEO record. We emphasize that these guidelines are used as an initial screening tool for determining the stations whose EEO programs might require further investigation. If the first step of review indicates that the station's EEO efforts are satisfactory, the station is found to be in compliance with our EEO Rule. In no situation are a station's efforts found to be unsatisfactory or is it found to have violated the EEO Rule solely because it does not meet the processing guidelines. Where we find that a station's efforts may be unsatisfactory, we will generally request additional information which is analyzed along with relevant pleadings to determine if, among other things, the station notifies sources of minority referrals when vacancies occur and engages in continous self-assessment of its EEO program; if, in light of the evidence, the station violated our EEO Rule; and, if it did, what sanctions or remedies may be appropriate. Compliance with the processing guidelines is not a factor in this second step analysis. Broadcast licensees whose employment profiles are below our processing guidelines have been renewed without sanction. 5. Accordingly, we find no basis for concluding that our process denies any person equal protection of the laws. Indeed, the licensee has not identified any person who arguably suffered such injury as a result of the provisions of our Rule. As the Court emphasized in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) ("Croson"), the right to equal protection is a personal right. In the absence of any provisions in our EEO Rule that abridge the personal rights of any person, we conclude that Adarand does not implicate our EEO program. Our reading of the scope of the Adarand decision is consistent with the interpretation of the case by the Department of Justice (DOJ). An analysis of the Adarand decision by DOJ states: Mere outreach and recruitment efforts . . . typically would not be subject to Adarand standards. Indeed, post-Croson cases indicate that such efforts are considered race neutral means of increasing minority opportunity. In some sense, of course, the targeting of minorities through outreach and recruitment campaigns involves race-conscious action. But the objective there is to expand the pool of applicants or bidders to include minorities, not to use race or ethnicity in the actual decision. If the government does not use racial or ethnic classifications in selecting persons from the expanded pool, Adarand ordinarily would be inapplicable. III. DISCUSSION 6. 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 EEO program reflecting positive and continuing efforts to recruit and promote qualified women and minorities. When evaluating EEO performance, the Commission focuses on the licensee's efforts to recruit and promote qualified women and minorities and the licensee's ongoing assessment of its EEO efforts. Such an assessment enables the licensee to take corrective action if qualified women and minorities are not present in the applicant pool. The Commission also focuses on any evidence of discrimination by the licensee. See Sections 73.2080(a), (b), and (c) of the Commission's Rules, 47 C.F.R.  73.2080(a), (b), and (c). 7. The stations' license renewal applications and inquiry response reveal that the licensee filled 45 full-time vacancies, including 38 for upper-level positions, from June 1, 1993, to October 1, 1995. The licensee's records indicate that it recruited for 25 of its 45 full-time positions. When recruitment occurred, it appears that WTAR used 11 minority specific recruitment sources, 10 general recruitment sources and 15 educational institutions as recruitment sources during the inquiry period. It received applications from 384 persons for its 45 overall full-time positions; 316 of these applicants were for 38 upper-level positions. 8. WTAR reported that 54 (14%) of the 384 applicants for its 45 overall full-time positions were minorities. Thirty-eight of the minority applicants listed four general recruitment sources; eight minority applicants cited three educational institutions; one minority applicant was a walk- in; four minority applicants came from unknown/unsolicited sources; and three minority applicants resulted from employee referrals. Minorities were present in 22 (48.9%) of the licensee's 45 overall applicant pools and 16 (42.1%) of the licensee's 38 upper-level applicant pools. 9. WTAR reported that it did not retain complete interviewee data. However, WTAR's inquiry response indicates that it interviewed 112 applicants for 45 full-time positions. In addition, 94 of these interviewees were for 38 upper-level positions. The stations' records reflect that 26 (23.2%) of their 112 interviewees were minorities. Minorities were present in 14 (31.1%) of the licensee's 45 interview pools. Additionally, minorities were present in 10 (26.3%) of the licensee's 38 upper-level interview pools. Finally, the licensee reported that it hired four minorities overall and that two of these hires were for upper-level positions. 10. Given the foregoing record, we conclude that no substantial question of discrimination is raised. However, we find WTAR's overall recruitment efforts deficient because the station failed to recruit for 20 (44%) of its 45 vacancies contrary to the requirements of Section 73.2080(c)(2) of our rules. Minorities were absent from a significant number of the licensee's applicant pools. Moreover, it appears that the licensee did not adequately self-assess as required by Section 73.2080(c)(5) of our rules. Hence, a forfeiture is warranted. 11. We believe that the record in the instant case is similar to, but more egregious than, that of the licensee of WPMI(TV), Mobile, Alabama. See Clear Channel Television, Inc., FCC 96- 128, released April 4, 1996. The licensee therein recruited for 25 (68%) of its 37 full-time vacancies. Although minorities comprised 25.5% of the Mobile, Alabama labor force, they appeared in only 32% of the licensee's applicant pools and 30% of its interview pools. Additionally, the station did not maintain records to identify the composition of its applicant and interview pools for 12 jobs. We found no discrimination but concluded that the licensee failed to recruit and self-assess in accordance with our EEO Rule. We renewed the license of WPMI(TV) subject to reporting conditions and issued a Notice of Apparent Liability for $10,000. 12. Both WTAR and WPMI(TV) failed to recruit for a significant percentage of job openings. Specifically, WTAR did not recruit for 20 (44%) of its full-time job vacancies, while WPMI(TV) did not do so for 12 (32%) of its vacancies. The stations' records reflect that when recruitment did not occur, minorities were usually not considered. Moreover, despite being located in areas where minorities constituted at least 25% of the labor force, WTAR failed to have a minority in 51% of its applicant pools while WPMI(TV) failed to have a minority in 68% of such pools. Given the dearth of minority applicants and the apparent lack of licensee response, it thus appears that neither licensee's self-assessment was adequate. Ultimately, because WTAR had more hiring opportunities and failed to recruit for a greater percentage of job openings than did WPMI(TV), we conclude that the forfeiture for WTAR should be higher than that imposed on the licensee of WPMI(TV). We will issue a Notice of Apparent Liability for $12,000. IV. CONCLUSION 13. Having reviewed all matters presented, we conclude that there are no substantial and material questions of fact and that a grant of the applications would be consistent with Section 309(k) of the Communications Act of 1934, as amended, 47 U.S.C.  309(k). Further, we find no evidence of employment discrimination. Thus, because the licensee is otherwise qualified, grant of the applications will serve the public interest. 47 U.S.C.  309(d)(2). However, we will grant the renewal subject to reporting conditions and issue a Notice of Apparent Liability for $12,000. V. ORDERING CLAUSES 14. ACCORDINGLY, IT IS ORDERED that the Joint Request for Approval of Settlement Agreement filed by the licensee of WTAR(AM)/WLTY-FM and WKOC(FM) and the Southern Region of the National Rainbow Coalition IS GRANTED and the settlement agreement IS APPROVED. 15. IT IS FURTHER ORDERED that the petition to deny filed by the Southern Region of the National Rainbow Coalition concerning the renewal applications of Stations WTAR(AM)/WLTY-FM and WKOC(FM) IS DISMISSED. 16. IT IS FURTHER ORDERED that the license renewal applications for Stations WTAR(AM)/WLTY-FM and WKOC(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 $12,000. 17. IT IS FURTHER ORDERED that the licensee submit to the Commission an original and one copy of the following information on June 1, 1997, June 1, 1998, and June 1, 1999: (a) For each report, two lists divided by full-time and part-time job vacancies during the 12 months preceding May 1, 1997 for the first report, May 1, 1998 for the second report, and May 1, 1999 for the third report, 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 lists should also note which recruitment sources were contacted; (b) A list of employees as of the May 1, 1997, payroll period for the first report, a list of employees as of the May 1, 1998, payroll period for the second report, and a list of employees as of the May 1, 1999, payroll period for the third report, by job title and FCC job category indicating full-time or part-time status (ranked from the highest paid classification), date of hire, sex and race or national origin; and (c) Details concerning the stations' 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 stations' EEO performance and their efforts thereunder. 18. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- copies of this Memorandum Opinion and Order to all parties. 19. The reports are to be filed with the Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 20. 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