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. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) RADIO DINUBA COMPANY ) ) For Renewal of Licenses of ) BR-900731B8 Stations KRDU(AM)/KJOI-FM ) BRH-900731ZN Dinuba, California ) ) and ) ) RIDGE L. HARLAN ) ) For Renewal of License of ) BR-900801UM Station KUBA(AM) ) Yuba City, California ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: May 23, 1996; Released: July 25, 1996 By the Commission: Commissioner Quello concurring in the result. I. INTRODUCTION 1. The Commission has before it for consideration: (i) license renewal applications filed for the 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 National Association for the Advancement of Colored People ("NAACP") against the above-captioned renewal applications; (iii) the licensees' oppositions to the petition; and (iv) the licensees' responses to Commission inquiries. 2. The NAACP alleges that the above-captioned stations violated our Equal Employment Opportunity (EEO) Rule and policies. Accordingly, the NAACP requests 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) and designate the renewal applications for hearing with a view toward denying them. The licensees maintain that the NAACP has not presented evidence of discrimination, that their EEO programs have been successful, and that unconditional renewal is warranted. II. BACKGROUND 3. Standing. The licensee of KRDU(AM)/KJOI-FM disputes the NAACP's standing to challenge the instant renewal applications. Citing two Commission orders, the licensee argues that the declaration submitted with the NAACP's pleading from the president of the California State Conference of the NAACP fails to assert listenership and, thus, should be treated as an informal objection. The licensee of KUBA(AM) does not challenge the NAACP's standing. 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. The declaration from the president of the California State Conference of the NAACP does not state that he either listens to any of the stations or resides in the service area. The Commission has held that without such assertions, the declaration does not satisfy the standing requirements of the Act. See Eagle Radio, Inc., 9 FCC Rcd 836, 839 (1994); see also Michigan/Ohio. Accordingly, we hold that the NAACP lacks standing to petition to deny any of the three above-captioned applications. We will treat its pleading as an informal objection pursuant to 47 C.F.R.  73.3587. 6. Prima Facie Case. The NAACP derived its factual allegations from the licensees' EEO program and annual employment reports. As a threshold matter, we found that the NAACP made a prima facie case 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. 7. Review of the NAACP's allegations, as well as the licensees' 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 each application will serve the public interest. 47 U.S.C.  309(d)(2); Astroline. However, we will grant renewal with appropriate remedies and sanctions for deficiencies in EEO performance. III. DISCUSSION 8. 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 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 (a), (b) and (c). KRDU(AM)/KJOI-FM, Dinuba, California 9. Review of the licensee's renewal applications, opposition and inquiry responses reveal that the licensee hired three full-time, upper-level employees from July 1, 1987, to June 30, 1990. The first position filled during the review period was a sales position for which a white male was hired in July 1987. The licensee reportedly contacted Los Nuevos Horizontes, the Cutler Latin American Club, Dinuba Junior Women's Club, the California Employment Development Department in Fresno and Visalia, Kings River Community College, California State University-Fresno and the Fresno Bee. The licensee reported receiving "several unqualified applicants" and no minority applicants. The licensee did not provide the number, gender, race or national origin of the unsuccessful applicants or the interviewees. The successful candidate was referred by a station employee. 10. KRDU(AM)/KJOI-FM's second hire during this period was an Hispanic woman hired to fill an announcer/producer position in August 1988. The licensee provided copies of advertisements it placed in the Fresno Bee, and the Visalia Times-Delta, and invoices for ads placed in the Modesto Bee, and Bakersfield Californian. The licensee did not provide applicant or interview data for this position. Similar to the sales vacancy, this vacancy's successful candidate was referred by a station employee. 11. For its final hire, the licensee employed a White male as an announcer/operator/producer/newsperson in April 1989. The licensee submitted a copy of an ad placed in the Hanford Sentinel, and also claims to have advertised in two other newspapers as well as over the air on its stations. The stations report attracting 15 applicants and interviewees, one of whom was a minority (Hispanic). The successful candidate was referred via a friend who heard a job announcement on the radio. In sum, the licensee recruited using general sources for all three (100%) vacancies, and contacted minority sources for one (33.3%) position. In addition, the licensee provided applicant and interview data for one (33.3%) of its three hires. The licensee offered positions to two minorities (Hispanics) during this period. The Hispanic individual who was hired is also the only female hired during the review period. 12. The NAACP questions the licensee's claim that it had no hires during the last 12 months of its license term, noting that KRDU(AM)/KJOI-FM's 1990 and 1989 Annual Employment Reports are not identical. Further, the NAACP claims that in its 1983 EEO Program, the licensee "promised" to recruit using two Hispanic organizations, but that no Hispanic sources were listed on the stations' 1990 renewal application. Finally, the NAACP takes issue with the licensee's claim that many of the minorities in the Dinuba area are agricultural workers who lack the English language skills needed for employment in the broadcast industry. The NAACP notes that many nonminorities are also employed in agriculture, and that the licensee has not provided evidence of a lack of qualified minorities. According to the NAACP, the licensee's characterization of the minority community may be "a pretext for discrimination." 13. In response, KRDU(AM)/KJOI-FM confirms that it did not have any hires during the one-year period (July 1, 1989, through June 30, 1990) covered in its 1990 Annual Employment Report. The licensee explains that the discrepancy between its 1990 and 1989 Reports results from the reclassification of an employee who was hired in 1984 and was mistakenly categorized as White on its Annual Employment Reports until he was correctly reported as Hispanic in 1990. In its opposition, the licensee reports contacting Los Nuevos Horizontes and the Cutler Latin American Club during its license term, but states it did not report this contact on its renewal applications because it had no hires, and thus no reason to contact these sources, during the twelve months prior to filing the applications. According to the licensee, an unusually high rate of stability among its staff has resulted in few hiring opportunities, preventing it from significantly altering its employment profile. 14. Further, the licensee maintains that, according to U.S. Census statistics, "many persons in the area do not speak English and many do not have even a high school education." According to the licensee, an undereducated labor force has hampered the stations' affirmative action efforts. We find the licensee's arguments regarding the limiting factors of education and language, as impediments to its recruitment efforts, to be unpersuasive. Indeed, we have considered similar arguments in the past and consistently found them to be without merit. See In re Applications of Golden West Broadcasters, 10 FCC Rcd 1602, 1604 n. 11 (1995); KTMS/KHTY-FM, 9 FCC Rcd 894, 904 n. 23 (1994). 15. The licensee also argues that despite the common ownership of KRDU(AM) and KJOI-FM, the two stations operate as separate entities with different general managers and formats. We note, however, that the licensee filed one Annual Employment Report, combining hiring information for both stations, for every year of the license term. Because the licensee chose to file one report for an AM/FM combination each year, we believe it appropriate to consider KRDU(AM)/KJOI-FM as one employment unit, and analyze its EEO efforts accordingly. 16. Our review raises no substantial and material questions of fact warranting designation for hearing. Astroline. The licensee recruited using minority-oriented, including Hispanic, sources, and hired and employed minorities and women during the license term. Thus, we find no evidence of discrimination. In addition, the licensee contacted general recruitment sources for each of its vacancies during the review period. Therefore, renewal of the licenses is in the public interest. 47 U.S.C  309(d)(2). However, we will grant renewal with appropriate remedies. 17. While the licensee recruited for the three vacancies that occurred during the inquiry period, it was unable to document that the sources employed were productive in eliciting minority and female applicants, especially in view of the significant minority presence in the labor force. The licensee documented the use of only a small number of general sources in connection with two of its hires. It also failed to consistently maintain applicant and interviewee flow data that are necessary for the meaningful self-assessment of the results of the stations' EEO efforts. Accordingly, we admonish the licensee for these record-keeping deficiencies. The small number of hiring opportunities afforded the stations mitigates somewhat the licensee's lack of success at minority and female recruitment. See Radio Ohio, Inc., 7 FCC Rcd 6355,6359 (1992), recon. dismissed 10 FCC Rcd 7757 (1995). Accordingly, we will grant renewal subject to reporting conditions in order to more closely monitor the licensee's recruitment and self- assessment efforts. KUBA(AM), Yuba City, California 18. We have reviewed the licensee's opposition and inquiry responses, as well as its renewal application and annual employment reports. Initially, we note that all of these documents have supplied combined information for both KUBA(AM) and KXCL(FM), which is also licensed to Yuba City, without any attempt to distinguish between information applicable to the AM and the FM. As noted in footnote 1, supra, the renewal application for KXCL(FM), although subject to the same NAACP informal objection, was inadvertently granted. Nonetheless, we will consider all of the information supplied by the licensee as relevant to the issue of its compliance with our EEO Rule regarding the renewal of license for KUBA(AM). Information concerning the two stations has been provided on a combined basis and the record does not otherwise identify any distinction between the licensee's EEO efforts at the two stations. Further, our analysis and ruling relate to the adequacy of the licensee's EEO program and not the number of stations subject to that program. The information supplied by the licensee reflects that it filled 32 full-time positions, including 30 upper-level job vacancies from August 1, 1986, to July 30, 1990. In response to a staff letter of inquiry requesting recruitment efforts data, the licensee stated that it had not kept complete records concerning referral sources of candidates. The licensee did not provide applicant data for positions filled prior to August 1989, and provided no interview data whatsoever. Nor could the licensee identify which sources were contacted for each vacancy throughout the license term. The licensee stated that it "generally" contacts the National School of Broadcasting in Sacramento for on-air positions. In addition, "from time to time" the licensee contacts the California Broadcaster's Employment Newsletter, the California Job Journal, Broadcasting Magazine, the National Association of Broadcaster's Employment Newsletter, and Chico State University. 19. Because the licensee indicated that it had begun to retain records concerning recruitment sources and referrals, we sent a second inquiry letter requesting any information the licensee had preserved which would demonstrate its efforts during the last year of the license term. In its response, the licensee indicated that it had retained information regarding nine of its 32 hires. The licensee revealed that from August 1, 1989, through July 30, 1990 -- during which time the licensee filled nine full-time, upper-level positions -- the stations used the following sources for the cited number of vacancies: the Yuba-Sutter Appeal Democrat (7); the Sacramento Bee (6); radio ads on KUBA(AM) and KXCL(FM) (5); the Gavin Report (2); Radio and Records (2); and Heritage Professional Research (1). The station's renewal application, which reflects hiring activity during the last year of the license term, indicates minority referrals from its contacts with the Yuba-Sutter Appeal Democrat (5) and the Sacramento Bee (3). For the nine positions filled between August 1, 1989, and July 30, 1990, the licensee reported 75 applicants including six minorities (two Asian/Pacific Islanders, two Hispanics, one Black and one American Indian). Minority applicants were present in three (33.3%) of nine applicant pools. The licensee hired one minority (Asian/Pacific Islander) during this period. 20. In its informal objection, the NAACP notes that the licensee did not contact any minority-oriented sources. The NAACP states further that the licensee can document receipt of only eight minority applicants, all referred from daily newspapers. In addition, the NAACP points out that the licensee reported two minority hires during the last twelve months of the license term, but no full-time minority employees in its 1990 Annual Employment Report. Thus, the NAACP concludes, the two minorities must not have been employed for long. 21. In response, the licensee states that 12.5% of its employees are minority group members. With respect to the period August 1, 1989, through July 30, 1990, the licensee reports hiring two minorities, one for a part-time position (Black) and one for a full-time position (Asian/Pacific Islander). The licensee admits that its stations "have not, in the past, kept records adequate to permit a full response to the Commission inquiry concerning sources of referral and numbers of female and minority candidates obtained from each," but claims to have implemented new record-keeping procedures as of January 1991 to ensure "that such information will be readily available in the future." 22. There are no substantial and material questions of fact warranting designation for hearing. See Astroline. In addition, we find no evidence of employment discrimination because the licensee attracted and hired minorities during its tenure. Therefore, grant of renewal is appropriate. 23. However, we find KUBA(AM)'s overall recruitment efforts deficient because, insofar as can be determined from the record, the licensee relied only on general recruitment sources that were not productive in eliciting applications from minorities. Thus, minorities were absent from six of the nine applicant pools for which the licensee retained data. The licensee did not maintain referral, applicant and interview information for the remaining 23 hires. Record retention is necessary for meaningful self-assessment. 47 C.F.R.  73.2080. 24. In 1994, we adopted a Policy Statement regarding forfeitures to be assessed for violations of our EEO rules. Standards for Assessing Forfeitures for Violations of the Broadcast EEO Rules, 9 FCC Rcd 929 (1994) ("EEO Policy Statement"). 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 and that 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 EEO Policy Statement was issued because, in 1993, we had deleted the broadcast EEO violation category from our general forfeiture guidelines and announced that we would issue a further policy statement on broadcast EEO matters in the future. See Policy Statement, 8 FCC Rcd at 6215 n. 1. The EEO Policy Statement did not modify any part of the EEO rule. See Streamlining Broadcast EEO Rule and Policies, 11 FCC Rcd 5154 (1996). 25. 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. (filed 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 forefeiture decisions by relying on case precedent. 26. 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 violations, 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., Stauffer Communications, Inc., 10 FCC Rcd 5060, 5061 (1995). 27. We believe that the record in the instant case is similar to that of the licensee of WGGT-TV, Greensboro, North Carolina, in In re Application of Guilford Telecasters, Inc., 11 FCC Rcd 2929 (1996). The licensee therein could not document recruitment for any of its 34 full-time positions. WGGT-TV failed to keep any applicant or interview records during the entire license term. The licensee nonetheless claimed that it used two minority-specific recruitment sources, although it was able to substantiate use of only one. The license for WGGT-TV was renewed subject to a $17,500 Notice of Apparent Liability and reporting conditions. 28. The record in the instant case indicates that the licensee failed to recruit for 23 (72%) of its 32 vacancies. The licensee's EEO program is further marred by the failure to maintain adequate records until the last year of the license term. The licensee provided applicant pool information for only nine (28.1%) of its 32 hires, and did not provide any interview data. However, the applicant pool information was forthcoming only after a second inquiry by our staff. Further, the licensee was unsuccessful in attracting Hispanics and other minorities to apply for jobs with the stations. Only three (9.4%) of its 32 applicant pools included minority candidates. Only six (8%) of the 75 applicants for which the licensee had records were minorities. Although its sources were not productive in eliciting minority applicants, it did not contact any minority-oriented sources, notwithstanding the significant presence of two minority groups, Hispanics (9.8%) and Asian/Pacific Islanders (5.4%), in the Yuba City MSA. 29. We believe that the deficiencies in the instant case are comparable to those of WGGT-TV. The significant minority presence in the Yuba City MSA should have prompted the licensee to increase outreach efforts whenever vacancies occurred. As was the case with WGGT- TV, the licensee failed to establish that it made such efforts. The licensee in this case was able to provide some information concerning hires during the last year of the license term, whereas WGGT-TV could not provide information concerning any of its hires. However, the information from the licensee here was forthcoming only after a second inquiry by our staff, suggesting that the licensee had not previously used the data as part of ongoing self-assessment of the effectiveness of its recruitment efforts. Accordingly, this factor is of only slight mitigating significance. Conversely, WGGT-TV appears to have made slightly better efforts to recruit minorities through the use of at least one minority-specific source. Accordingly, we will grant renewal subject to reporting conditions as set forth below and issue a Notice of Apparent Liability for Forfeiture for $17,500. IV. CONCLUSION 30. Upon review of the record and the arguments submitted by all parties, we find no hearings are warranted and that renewal of the applicants' licenses is appropriate. Therefore, we will grant renewal of the licenses of KRDU(AM)/KJOI-FM, with an admonishment, subject to reporting conditions. In addition, we will grant renewal of the license of KUBA(AM) subject to reporting conditions and issuance of a Notice of Apparent Liability for $17,500. V. ORDERING CLAUSES 31. Accordingly, IT IS ORDERED that the Informal Objections filed by the California State Conference of Branches of the NAACP with respect to the applications of Radio Dinuba Company for renewal of licenses of Stations KRDU(AM)/KJOI-FM, and the applications of Ridge L. Harlan for renewal of licenses of Stations KUBA(AM)/KXCL(FM) ARE DENIED. 32. IT IS FURTHER ORDERED that the licensee of Stations KRDU(AM)/KJOI-FM is hereby ADMONISHED for its failure to maintain consistent applicant and interviewee flow data as required by the Commission's EEO Rule, 47 C.F.R.  73.2080. 33. IT IS FURTHER ORDERED that the license renewal applications for Stations KRDU(AM)/KJOI-FM ARE GRANTED, subject to the reporting conditions specified herein. 34. IT IS FURTHER ORDERED that the license renewal application for Station KUBA(AM) 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. 35. IT IS FURTHER ORDERED that the licensees of Stations KRDU(AM)/KJOI- FM and KUBA(AM) submit to the Commission an original and one copy of the following information on August 1, 1996, and August 1, 1997: (a) For each report, two lists divided by full-time and part-time vacancies during the 12 months preceding July 1, 1996, for the first report, and July 1, 1997, for the second report, indicating the job title and FCC job category of the position, the race or national origin, sex and the referral source of each applicant for each and the race or national origin and sex of the person hired. These lists should also note which recruitment sources were contacted; (b) A list of employees as of the July 1, 1996, payroll period for the first report, and a list of employees as of the July 1, 1997, for the second report, 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 efforts to recruit minorities and women for each position filled during the 12-month period specified, including identification of sources used and indicating whether any of the applicants declined actual offers of employment. In addition, both licensees may submit any relevant information with regard to the stations' EEO performance and efforts thereunder. 36. IT IS FURTHER ORDERED that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- copies of this Memorandum Opinion and Order and Notice of Apparent Liability to Radio Dinuba Company, Ridge L. Harlan and the California State Conference of Branches of the NAACP. 37. The reports are to be filed with the Acting Secretary of the Commission to the attention of the Mass Media Bureau's EEO Branch. 38. 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