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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) University of Southern California ) File No. BRH-900801WE For Renewal of License for ) Station KUSC(FM) ) Los Angeles, California ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: May 22, 1996; Released: June 13, 1996 By the Commission: Commissioner Quello concurring in the result. 1. The Commission has before it for consideration: (i) our decision in Lotus Communications Inc., 9 FCC Rcd 2117 (1994) ("Lotus"), wherein we granted the license renewal application for station KUSC(FM), a noncommercial station in Los Angeles, California; (ii) a Petition for Reconsideration of that decision filed by the California State Conference of Branches of the NAACP, including its San Diego and Los Angeles branches (collectively "NAACP"); and, (iii) a Petition for Reconsideration (including a response to the NAL) filed by the University of Southern California ("licensee"), the licensee of noncommercial station KUSC(FM). For the reasons that follow, we dismiss the petition for reconsideration by the NAACP. However, we grant the licensee's request to the extent indicated herein and deny it in all other respects. Specifically, we have recalculated and affirm the forfeiture amount and impose a forfeiture in the amount of $17,500. 2. In Lotus, the Commission reviewed the Equal Employment Opportunity (EEO) Program of the licensee of station KUSC(FM) and concluded that no substantial and material question of fact existed and that grant of its renewal application would serve the public interest. We did, however, find that KUSC(FM)'s overall EEO efforts were deficient. Minorities were absent from 8 of 19 interview pools, including seven of 12 upper-level interview pools. We also found that despite the large minority presence in the relevant labor force, KUSC(FM) failed to keep applicant pool data throughout the course of the license term, failed to consistently engage in efforts to attract minorities and failed to conduct meaningful self assessment of its EEO efforts. Referring to the guidelines set forth in Standards for Assessing Forfeitures for Violations of EEO Rules, 9 FCC Rcd 929 (1994) ("EEO Policy Statement"), we concluded that the licensee's violation of our EEO Rule warranted imposition of a forfeiture and reporting conditions. We therefore renewed KUSC(FM)'s license with a Notice of Apparent Liability ("NAL") for $17,500 and reporting conditions. I. BACKGROUND NAACP's Petition for Reconsideration 3. Section 405 of the Communications Act of 1934, as amended, 47 U.S.C.  405, states that any party to an order, decision, report or action by the Commission or any other person aggrieved or whose interests are adversely affected, may petition for reconsideration. See Committee for Community Access v. FCC, 737 F.2d 74 (D.C. Cir. 1984); 47 C.F.R.  1.106. To qualify as a party, a petitioner for reconsideration must have filed a valid petition to deny against the application in question. Gulfcoast Broadcasting, Inc., 8 FCC Rcd 483 (1993). If the petition for reconsideration is filed by one who is not a "party to the proceeding, it shall state with particularity the manner in which the person's interests are adversely affected by the action taken, and shall show good reason why it was not possible for him to participate in the earlier stages of the proceeding." 47 C.F.R.  1.106(b)(1); See Community Access, 737 F.2d at 84. 4. In Lotus, the NAACP's petition to deny the license renewal application of Station KUSC(FM) was not supported by a declaration and thus, we treated the NAACP as an informal objector. See Section 309(d)(1) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d)(1). See also, 47 C.F.R.  73.3584. As an informal objector, the NAACP lacks standing to bring the instant petition because it is not a "party to the proceeding" within the meaning of Section 405 of the Communications Act and Section 1.106 of the Commission's Rules. Moreover, NAACP's petition for reconsideration has not demonstrated that its interests were adversely affected by our decision in Lotus, nor has it demonstrated that it was not possible for it to participate as a petitioner in the earlier stages of the proceeding. For these reasons, we find that the NAACP has not complied with procedural requirements of Section 1.106 of our rule and thus, we will dismiss the NAACP's petition for reconsideration. University of Southern California's Pleading 5. KUSC(FM) contends that the Commission, through its decision in Lotus, introduced new standards for evaluating a broadcaster's EEO program. It states that the Commission switched from an employment based standard to a recruitment based standard. The licensee contends that the standards set forth in Lotus force licensees to recruit minorities irrespective of their qualifications. Furthermore, the licensee argues that it satisfied its EEO obligations under the standards in effect during the license period because it hired minorities at a rate equal to or greater than their representation in the relevant labor force. Finally, the licensee concludes that the $17,500 NAL imposed against KUSC(FM) was legally unjustified and factually insupportable. 6. Additionally, the licensee maintains that the NAL should be rescinded because the station recently discovered new documentation that reflects two additional minority inclusive interview pools. It notes that the new data reveals that minorities were actually interviewed for 13 of 19 interview pools, instead of 11 of 19. It explains that this data was not discovered previously because KUSC(FM) had a difficult time locating referral, applicant and interviewee data. It further explains that the records were not readily available because the minority manager responsible for maintaining applicant flow data kept poor records and may have destroyed some data when he was terminated by KUSC(FM). 7. The station further maintains that the progress reports submitted on four occasions from May 1991 through June 1993 should have been considered in our initial EEO review instead of being overlooked as post-term efforts. It contends that there is a sufficient nexus between "KUSC(FM)'s substantially compliant in-term EEO Program and its post-term progress reports" and thus, they should be considered as evidence of the station's good faith. It also contends that the reports contained all of the data required by reporting conditions and imposing additional requirements on KUSC(FM) is harsh. It adds that the progress reports demonstrate that KUSC(FM)'s EEO program is operating successfully and thus, the reporting conditions imposed on the licensee were unnecessary. 8. Finally, KUSC(FM) argues that the Commission erred in Lotus by utilizing the EEO Policy Statement to determine the station's forfeiture. It argues that the EEO Policy Statement amounts to an abrupt shift in EEO policy and was enforced without notice or explanation. It adds that, at a minimum, the Policy Statement should not have been applied retroactively. For these reasons, the licensee contends that the policy statement was illegal and should be abandoned by the Commission. II. DISCUSSION 9. We reject KUSC(FM)'s argument that the decision in Lotus introduced new EEO standards for examining a broadcaster's EEO performance and that such standards cause stations to recruit aimlessly and hire unqualified minorities. Our EEO Rule, 47 C.F.R.  73.2080, was not changed by Lotus or the EEO Policy Statement. The Rule requires broadcast licensees to establish and maintain an EEO program that reflects positive and continuing efforts to recruit and promote qualified minorities and women. We have never required stations to hire or employ a specific number of minority employees. See Equal Employment Opportunity Broadcast Report and Order, 2 FCC Rcd 3967 (1987). Consequently, we are not persuaded that our focus on recruitment efforts in Lotus enunciated a new standard for EEO evaluation. We have enforced our EEO Rule by examining a licensee's EEO recruitment, documentation and self-assessment efforts. We expect broadcasters to hire the most qualified individual, irrespective of gender, ethnic origin or race. 10. Additionally, we are not persuaded that the discovery of new interview data impacts our decision in Lotus. The station received an NAL and reporting conditions in Lotus for its insufficient efforts to recruit minorities, its failure to fully document and retain EEO program records, as well as its failure to fully self-assess its efforts. Therefore, the station's failure to attract minority interviewees represented one deficient aspect of an overall defective EEO program. Consequently, even if the station's submission had been timely, the new discovery of interview data for two positions, alone, would not change our decision in Lotus. As we stated in Lotus: "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." 9 FCC Rcd at 2120. The new information does not invalidate that conclusion. Indeed, the fact that the instant records were not found until after a decision on the licensee's renewal application indicates that the records were not used during the license term for their intended purpose of facilitating the ongoing self- assessment of the licensee's EEO efforts. 11. We reject the suggestion that the licensee's record is mitigated by the mismanagement or misconduct of a former employee. A broadcast licensee is responsible for the conduct of its employees, including compliance with the requirements of our EEO Rule. Trustees of the University of Pennsylvania, 69 FCC 2d 1394 (1978). 12. Finally, we find that the licensee's statements regarding the Commission's treatment of its post-term EEO efforts are unwarranted. In Lotus, we did not consider the station's post- term EEO evidence because it is our policy not to review such evidence at all if the station's term EEO record is so deficient that it, standing alone, would warrant denial of renewal or other sanctions. Rust Communications Group, Inc., 73 FCC 2d 39, 53 (1979). Because we have determined that the licensee's EEO Rule violations warrant a forfeiture, KUSC(FM)'s EEO efforts made outside of the license term do not mitigate its deficient EEO record. 13. With respect to KUSC(FM)'s argument that the Commission illegally determined the forfeiture by using the EEO Policy Statement, we conclude that reconsideration is warranted only to the extent that we will revisit the amount of the forfeiture. In adopting the EEO Policy Statement, we proposed the use of non-binding guidelines for assessing forfeitures for violations of our broadcast EEO rule. We had issued general forfeiture guidelines to identify those situations that could lead to a forfeiture and to identify criteria that might be used to increase or decrease the base amount of the forfeiture which might result in grant of renewal for less than a full term. Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991), recon. denied, 7 FCC Rcd 5339, revised, 8 FCC Rcd 6215 (1993) ("Policy Statement"). The issuance of the EEO Policy Statement resulted from the deletion of the broadcast EEO violation category from our general forfeiture guidelines. See Policy Statement, 8 FCC Rcd at 6215 n.1. The EEO Policy Statement did not modify any part of the EEO rule, 47 C.F.R.  73.2080. See Streamlining Broadcast EEO Rule and Policies, 11 FCC Rcd 5154 (1996). 14. In United States Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994) ("USTA"), the court set aside our general forfeiture guidelines. The USTA decision concluded that the forfeiture schedule should have been put out for comment under the Administrative Procedure Act. Following the USTA decision, we have received requests to withdraw the EEO Policy Statement until it is likewise made available to the public for comment. See, e.g., Petition for Declaratory Ruling by Eagle Radio, Inc. (field August 11, 1994); Letter from Henry L. Baumann to William E. Kennard, July 13, 1994. In Streamlining Broadcast EEO Rule and Policies, we vacated the EEO Policy Statement and advised licensees that we would follow our recent practice of making forfeiture decisions by relying on case precedent. Accordingly, we will recalculate the forfeiture imposed on the licensee. 15. In determining a forfeiture, we look to case precedent, taking into consideration the relevant statutory factors in Section 503(b)(2) of the Communications Act, including the nature, circumstances, extent and gravity of the violation, and the licensee's record of compliance with our rules. In our evaluation, we consider the station's size, number of hiring opportunities, MSA size, recruitment patterns, applicant and interview pools, assessment and record-keeping. E.g., KSBW License, Inc., 9 FCC Rcd 6701, 6703 (1994). After such consideration, we conclude that a forfeiture of $17,500 is appropriate. 16. In reaching the specified amount, we have determined that the licensee's record is similar to, although less egregious than, that of the licensee of KNUZ/KQUE(FM), Houston, Texas. See Texas Coast Broadcasters, Inc., FCC No. 96-23, released February 6, 1996 ("KNUZ/KQUE(FM)"). In KNUZ/KQUE(TV), the minority labor force was 31.7%. The record indicates that the stations contacted some recruitment sources for 43 of 46 job openings. The licensee provided no applicant or interviewee data. The licensee identified referral sources for only six of its 46 hires. Additionally, its recruitment efforts resulted in few minority referrals. The Commission renewed the license subject to reporting conditions and issued an NAL for $18,500 because the station failed to self-assess its EEO efforts, neglected to submit full information regarding its referral sources and made minimal efforts to attract minorities. 17. In the instant case, Station KUSC(FM) is located in an area with a 41.9% minority labor force. It maintained minimal recruitment data and provided no data regarding productive referral sources. The original record indicates that minorities were in 11 of 19 interview pools. Although the licensee used some minority sources, it failed to self-assess and modify its use of these sources based on their ability to attract qualified Hispanic applicants. Dolcom Broadcasting, Inc., 7 FCC Rcd 5978 (1992). 18. Although both stations failed to retain complete applicant data and failed to self- assess their EEO efforts, we feel that KUSC(FM)'s EEO record is less egregious than that of the licensee in KNUZ/KQUE(FM). KNUZ/KQUE(FM) had more than twice the number of hires of KUSC(FM). Moreover, KUSC(FM) did retain some interviewee data while KNUZ/KQUE(FM) neglected to collect any applicant or interviewee data. Nevertheless, KUSC(FM)'s failure to retain applicant data manifests its failure to keep the kind of documentation needed for effective self-assessment. In view of all of the foregoing factors, we find that KUSC(FM)'s rule violations warrant a Notice of Apparent Liability in the amount of $17,500. The reporting conditions imposed in Lotus will remain unaffected. III. ORDERING CLAUSES 19. Accordingly, IT IS ORDERED, that the Petition for Reconsideration filed by the NAACP IS DISMISSED. 20. IT IS FURTHER ORDERED that the relief requested in the response to the NAL filed by the University of Southern California IS GRANTED TO THE EXTENT INDICATED HEREIN AND IS OTHERWISE DENIED. 21. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), that the University of Southern California FORFEIT to the United States the sum of seventeen thousand and five hundred dollars ($17,500) for failing to comply with the Commission's EEO provisions, 47 C.F.R.  73.2080. Payment of the forfeiture may be made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission within 30 days from the release date of this Order. 22. IT IS FURTHER ORDERED that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- copies of this Memorandum Opinion and Order and forfeiture order to the NAACP and to University of Southern California. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary