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X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` 2  y % a3DocumentgDocument Style Style B b  ?  1.  a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h 2   c < a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p a1DocumentgDocument Style StyleXqq   l ^) I. ׃  2s+: eeDoc InitInitialize Document Style  0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgTech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . 2bSa2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   23a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . PleadingHeader for numbered pleading paperP@n   $] X X` hp x (#%'0*,.8135@8:d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCddddddexplanation. It adds that, at a minimum, the Policy Statement should not have been applied  xretroactively. For these reasons, the licensee contends that the policy statement was illegal and should be abandoned by the Commission.  X-  X- II. DISCUSSION ăpp  X- ` x9.` ` We reject KUSC(FM)'s argument that the decision in Lotus introduced new EEO  xKstandards for examining a broadcaster's EEO performance and that such standards cause stations  xto recruit aimlessly and hire unqualified minorities. Our EEO Rule, 47 C.F.R.  73.2080, was  X- xnot changed by Lotus or the EEO Policy Statement. The Rule requires broadcast licensees to  x<establish and maintain an EEO program that reflects positive and continuing efforts to recruit and  xpromote qualified minorities and women. We have never required stations to hire or employ a  XN- xLspecific number of minority employees. See Equal Employment Opportunity Broadcast Report  X7- xand Order, 2 FCC Rcd 3967 (1987). Consequently, we are not persuaded that our focus on  X - x[recruitment efforts in Lotus enunciated a new standard for EEO evaluation. We have enforced  xour EEO Rule by examining a licensee's EEO recruitment, documentation and selfassessment  xefforts. We expect broadcasters to hire the most qualified individual, irrespective of gender, ethnic origin or race.  X!- ` x10.` ` Additionally, we are not persuaded that the discovery of new interview data  X"- xjimpacts our decision in Lotus. The station received an NAL and reporting conditions in Lotus  xfor its insufficient efforts to recruit minorities, its failure to fully document and retain EEO  xkprogram records, as well as its failure to fully selfassess its efforts. Therefore, the station's  x.failure to attract minority interviewees represented one deficient aspect of an overall defective  x!EEO program. Consequently, even if the station's submission had been timely, the new  X#'- xdiscovery of interview data for two positions, alone, would not change our decision in Lotus.  X (- xAs we stated in Lotus: "Notwithstanding the absence of minorities from the interview pools as" (,))qq&"  xnoted above, it does not appear that the licensee consistently engaged in efforts to attract  xminorities or otherwise conducted meaningful selfassessment of its program." 9 FCC Rcd at  x2120. The new information does not invalidate that conclusion. Indeed, the fact that the instant  xrecords were not found until after a decision on the licensee's renewal application indicates that  xthe records were not used during the license term for their intended purpose of facilitating the ongoing selfassessment of the licensee's EEO efforts.  X_- ` x11.` ` We reject the suggestion that the licensee's record is mitigated by the  xmismanagement or misconduct of a former employee. A broadcast licensee is responsible for  x>the conduct of its employees, including compliance with the requirements of our EEO Rule.  X -Trustees of the University of Pennsylvania, 69 FCC 2d 1394 (1978).   X - ` x12.` ` Finally, we find that the licensee's statements regarding the Commission's  X - xtreatment of its postterm EEO efforts are unwarranted. In Lotus, we did not consider the  xstation's postterm EEO evidence because it is our policy not to review such evidence at all if  x/the station's term EEO record is so deficient that it, standing alone, would warrant denial of  X- xrenewal or other sanctions. Rust Communications Group, Inc., 73 FCC 2d 39, 53 (1979).  xlBecause we have determined that the licensee's EEO Rule violations warrant a forfeiture,  x KUSC(FM)'s EEO efforts made outside of the license term do not mitigate its deficient EEO record.  X- ` x13.` ` With respect to KUSC(FM)'s argument that the Commission illegally determined  X- xthe forfeiture by using the EEO Policy Statement, we conclude that reconsideration is warranted  X- xonly to the extent that we will revisit the amount of the forfeiture. In adopting the EEO Policy  X- xKStatement, we proposed the use of nonbinding guidelines for assessing forfeitures for violations  x{of our broadcast EEO rule. We had issued general forfeiture guidelines to identify those  xsituations that could lead to a forfeiture and to identify criteria that might be used to increase or  xdecrease the base amount of the forfeiture which might result in grant of renewal for less than  X|- xa full term. Policy Statement, Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991),  Xe- xrecon. denied, 7 FCC Rcd 5339, revised, 8 FCC Rcd 6215 (1993) ("Policy Statement"). The  XN- xissuance of the EEO Policy Statement resulted from the deletion of the broadcast EEO violation  X7- xcategory from our general forfeiture guidelines. See Policy Statement, 8 FCC Rcd at 6215 n.1.  X - xMThe EEO Policy Statement did not modify any part of the EEO rule, 47 C.F.R.  73.2080. See  X -Streamlining Broadcast EEO Rule and Policies, 11 FCC Rcd 5154 (1996).  X- ` x14.` ` In United States Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994)  X - x("USTA"), the court set aside our general forfeiture guidelines. The USTA decision concluded  xthat the forfeiture schedule should have been put out for comment under the Administrative  X"- xyProcedure Act. Following the USTA decision, we have received requests to withdraw the EEO  X#- xyPolicy Statement until it is likewise made available to the public for comment. See, e.g., Petition  Xh$- x0for Declaratory Ruling by Eagle Radio, Inc. (field August 11, 1994); Letter from Henry L.  XQ%- x0Baumann to William E. Kennard, July 13, 1994. In Streamlining Broadcast EEO Rule and  X:&- xLPolicies, we vacated the EEO Policy Statement and advised licensees that we would follow our  xrecent practice of making forfeiture decisions by relying on case precedent. Accordingly, we will recalculate the forfeiture imposed on the licensee. " (,))qq&"Ԍ X- ` ԙx15.` ` In determining a forfeiture, we look to case precedent, taking into consideration  xzthe relevant statutory factors in Section 503(b)(2) of the Communications Act, including the  x<nature, circumstances, extent and gravity of the violation, and the licensee's record of compliance  xwith our rules. In our evaluation, we consider the station's size, number of hiring opportunities,  xMSA size, recruitment patterns, applicant and interview pools, assessment and recordkeeping.  X- xjE.g., KSBW License, Inc., 9 FCC Rcd 6701, 6703 (1994). After such consideration, we conclude  Xv-that a forfeiture of $17,500 is appropriate.Wvc X- xЍ #C\  P6QP#We are cognizant of the fact that the amount of the forfeiture as recalculated on the basis of case precedent  yO-is coincidentally the same as the amount previously calculated on the basis of the EEO Policy Statement.W  XH- ` x16.` ` In reaching the specified amount, we have determined that the licensee's record  x[is similar to, although less egregious than, that of the licensee of KNUZ/KQUE(FM), Houston,  X - x@Texas. See Texas Coast Broadcasters, Inc., FCC No. 9623, released February 6, 1996  X - x("KNUZ/KQUE(FM)"). In KNUZ/KQUE(TV), the minority labor force was 31.7%. The record  x.indicates that the stations contacted some recruitment sources for 43 of 46 job openings. The  x=licensee provided no applicant or interviewee data. The licensee identified referral sources for  xonly six of its 46 hires. Additionally, its recruitment efforts resulted in few minority referrals.  xThe Commission renewed the license subject to reporting conditions and issued an NAL for  x?$18,500 because the station failed to selfassess its EEO efforts, neglected to submit full information regarding its referral sources and made minimal efforts to attract minorities.  XK- ` 2x17.` ` In the instant case, Station KUSC(FM) is located in an area with a 41.9% minority  x=labor force. It maintained minimal recruitment data and provided no data regarding productive  xreferral sources. The original record indicates that minorities were in 11 of 19 interview pools.  xAlthough the licensee used some minority sources, it failed to selfassess and modify its use of  X- x|these sources based on their ability to attract qualified Hispanic applicants.Ac X- xjЍ #C\  P6QP#Hispanics comprised 24.4% of the labor force in the Los AngelesLong Beach, California Metropolitan Statistical Area where KUSC(FM) is located. Dolcom  X-Broadcasting, Inc., 7 FCC Rcd 5978 (1992).  X- ` #x18.` ` Although both stations failed to retain complete applicant data and failed to self xassess their EEO efforts, we feel that KUSC(FM)'s EEO record is less egregious than that of the  X|- x.licensee in KNUZ/KQUE(FM). KNUZ/KQUE(FM) had more than twice the number of hires of  xKUSC(FM). Moreover, KUSC(FM) did retain some interviewee data while KNUZ/KQUE(FM)  XN- xzneglected to collect any applicant or interviewee data. Nevertheless, KUSC(FM)'s failure to  xretain applicant data manifests its failure to keep the kind of documentation needed for effective  xselfassessment. In view of all of the foregoing factors, we find that KUSC(FM)'s rule violations  xwarrant a Notice of Apparent Liability in the amount of $17,500. The reporting conditions  X-imposed in Lotus will remain unaffected.  X- ",))qq"Ԍ X- III. ORDERING CLAUSES ă  X- ` x19.` ` Accordingly, IT IS ORDERED , that the Petition for Reconsideration filed by the  X-NAACP IS DISMISSED .   X- ` @ x20.` ` IT IS FURTHER ORDERED that the relief requested in the response to the NAL  Xv- xfiled by the University of Southern California IS GRANTED TO THE EXTENT INDICATED  X_-HEREIN AND IS OTHERWISE DENIED .  X1- ` x21.` ` IT IS FURTHER ORDERED , pursuant to Section 503(b) of the Communications  xAct of 1934, as amended, 47 U.S.C.  503(b), that the University of Southern California  X - x FORFEIT to the United States the sum of seventeen thousand and five hundred dollars ($17,500)  xfor failing to comply with the Commission's EEO provisions, 47 C.F.R.  73.2080. Payment of  xLthe forfeiture may be made by mailing to the Commission a check or similar instrument payable  X -to the Federal Communications Commission within 30 days from the release date of this Order.  X- ` 1x22.` ` IT IS FURTHER ORDERED that the Mass Media Bureau send by Certified Mail  Xy- xԩ Return Receipt Requested copies of this Memorandum Opinion and Order and forfeiture order to the NAACP and to University of Southern California.  X-x` `  hh FEDERAL COMMUNICATIONS COMMISSION (#(#X  X- x  X-x` `  hh William F. Caton x` `  hhActing Secretary