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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 Applications of ) ) ) Group W Radio, Inc. ) File No. BRH-910329ZY ) For Renewal of License of ) Station WMMR(FM) ) Philadelphia, Pennsylvania ) ) ) WXTU License Limited Partnership ) File No. BRH-910329YV ) For Renewal of License of ) Station WXTU(FM) ) Philadelphia, Pennsylvania) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: May 31, 1996; Released: July 29, 1996 By the Commission: Commissioner Quello concurring and issuing a statement. 1. The Commission has before it for consideration: (i) the license renewal applications for the captioned radio stations; (ii) petitions to deny the applications timely filed by the National Black Media Coalition (NBMC); and jointly by the Philadelphia Lesbian and Gay Task Force, the Pennsylvania and Philadelphia chapters of the National Organization for Women (NOW) (collectively PLGTF); (iii) a petition to deny the WMMR(FM) application filed by ASPIRA, Inc. of Pennsylvania jointly with PLGTF; (iv) oppositions from the licensees; (v) responses to the licensees' oppositions from NBMC, PLGTF, and ASPIRA; and (vi) the licensees' responses to staff letters of inquiry. Petitions filed by NBMC and PLGTF allege that the above stations violated the Commission's equal employment opportunity (EEO) Rule and policies toward minorities. Accordingly, NBMC and PLGTF request that the Commission conduct an investigation of the stations' employment practices pursuant to Bilingual Bicultural Coalition on Mass Media v. FCC, 595 F.2d 621 (D.C. Cir. 1978) (Bilingual), and designate the renewal applications for hearing with a view toward denying them. ASPIRA makes the same allegations and request against WMMR(FM) but not against WXTU(FM). The licensees contend that they have complied with the EEO Rule and deserve unconditional renewal. Background/Pleadings 2. Standing. In challenging an application pursuant to Section 309(d) of the Communications Act, a petitioner must demonstrate party in interest status. The allegations, except for those of which official notice may be taken, must be supported by the affidavit of a person with personal knowledge of the facts alleged. 47 U.S.C.  309(d)(1). 3. We find that the NBMC, the PLGTF, and ASPIRA have failed to demonstrate petitioner status. They have not filed affidavits from persons who are residents of the service area of WMMR(FM) and/or WXTU(FM) or listeners of the stations. See NAB Petition for Rulemaking, 82 FCC 2d 89, 98-99 (1980). Accordingly, we will treat the petitions as informal objections. 47 C.F.R.  73.3587; see also KDEN Broadcasting Co., 55 RR 2d 1311, 1311-1312 (1984). 4. Prima Facie Case. The NBMC, PLGTF, and ASPIRA derived their factual allegations from the licensees' EEO programs and annual employment reports. Review of the allegations against the above-captioned licensees led us to find as a threshold matter that the allegations presented a prima facie showing that grant of the renewal applications would not serve the public interest. 47 U.S.C.  309(d)(1). See Astroline Com. Co. Ltd. Partnership v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (Astroline). However, review of the entire record, including the licensees' responses to further inquiries, indicates 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, because the licensees' overall recruitment efforts were deficient, we will grant renewal with appropriate remedies and sanctions. Discussion 5. 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). 6. WMMR(FM). Review of the licensee's 1991 EEO Program Report (renewal application), opposition, and responses to our inquiries reveals that the licensee had 11 overall, including five upper-level, full-time hiring opportunities from January 22, 1990, through June 20, 1991. The licensee's records indicate that it recruited for six vacancies. Minority referral information was incomplete, but WMMR(FM) reported four minority referrals from the Philadelphia Inquirer, which it contacted for three openings. It used 43 other general recruitment sources for one opening including 18 schools and colleges, Radio & Records, Broadcasting Magazine, National Association of Broadcasters ("NAB"), a center for blind persons, Philadelphia Women's Network, a veterans' center, a temporary employment agency, the Mayor's Commission on Aging, Office of Employment Security, and others. The licensee reported one minority referral from the Minority Job Bank, which was contacted for one opening. This was the second- to-last opening filled in the review period and came approximately two months before the term expired. The licensee also used 20 other minority sources for one opening, including the Urban League, Mayor's Spanish Speaking Council, NBMC, ASPIRA, United American Indians of Delaware Valley, four minority colleges, Philadelphia Chinatown Development, four journalists' groups representing Blacks, Hispanics, American Indians, and Asians, and six other sources. 7. The licensee reported applicant and interviewee information for all 11 positions. This information revealed that it had 319 applicants for full-time jobs and interviewed 89. It received applications from seven minorities, but minorities were included in only five applicant pools (one upper-level). Only one minority was interviewed for a position (lower-level). WMMR(FM) reports that it hired no minorities for full-time jobs. 8. The PLGTF argues that the licensee's proposed EEO program is inadequate to improve its deficient EEO performance. It criticizes the licensee for relying mostly on national sources from its parent corporation instead of local sources. It argues that it is unclear whether any minority sources received notices of specific openings. The PLGTF also contends that no minority schools or newspapers were used as recruitment sources in the renewal reporting year (January 1, 1990, to December 31, 1990). Noting that no minorities were among the licensee's full-time hires or promotions and that it interviewed only one minority for a full-time job, the PLGTF adds that the licensee has admitted that it had an "inadequate pool" of minority job applicants. The PLGTF argues that minorities were not employed in significant positions at any time during the license term, and that there was a decline in minority employment from 1984 to 1991. 9. The NBMC argues that the licensee received "more than ample" minority applicants, but in 1990 it hired no minorities for upper-level positions. It also argues that the licensee has "underutilized" Blacks and other minorities. 10. The licensee acknowledges that its pool of minority applicants is "insufficient" and that its failure to obtain many minority applicants for full-time jobs seems to be caused by a failure to use "sufficient specific EEO recruitment techniques" in some instances. It also states that some WMMR(FM) personnel may have been confused about their functions and Group W's EEO policies. Its assessment efforts have included meetings in May, June, and December 1990 with Group W corporate staff to address recruitment. Also, the licensee states that, in February 1991, Group W made one of its managers, who is a minority woman employed at another Group W station, the "human resources manager" for WMMR(FM). In addition, the licensee implemented a policy in 1991 to send notices of openings to other Group W stations and other sources, and to place ads in the media. Regarding employment from 1984 to 1989, the licensee notes that it had no control over employment practices prior to December 7, 1989, when it acquired WMMR(FM). The licensee also indicates that the apparent increase in employees from 1990 to 1991 was due in large part to reclassifying four existing employees, who had been termed "casual," as full-time and did not reflect new positions. Our analysis of WMMR(FM)'s EEO record follows our discussion of WXTU(FM)'s record. 11. WXTU(FM). Review of the licensee's 1991 EEO Program Report (renewal application), opposition, and response to our inquiry reveals that the licensee had 20 overall, including 15 upper-level, full-time hiring opportunities from April 11, 1988, through March 4, 1991. The licensee's records are incomplete, and it can document that it affirmatively recruited for only seven (35%) of its 20 vacancies, of which three were for upper-level jobs. It used seven general recruitment sources for two to six openings, including three universities, State Unemployment, Radio & Records, and the Philadelphia Inquirer. It had no records on minority referrals but listed the referral sources of hires, indicating that the Philadelphia Inquirer referred four minority hires. Minority sources contacted for five to six openings were: the NAACP, the NBMC, Cheney University, and the Philadelphia Tribune. The licensee had no records of minority referrals from these sources. 12. The licensee reported applicant and interviewee information for only five (two upper-level) of its 20 positions. This information revealed that it interviewed all 62 of those who applied for those openings, 24 of whom were minorities. Of the minorities, two were interviewed for one upper-level position and three were interviewed for another. Minorities were in the pools for all five openings. In addition, minorities were hired for three other positions for which interview data were not reported. Thus, minorities were in at least eight interview pools (three upper-level). The licensee reports that, of the station's 20 overall hires, six were minorities -- four Blacks, one Asian/Pacific Islander, and one American Indian. Of the 15 upper-level hires, one was Black. 13. The PLGTF argues that the licensee had no recruitment records prior to 1988 and that it has failed to self-assess or give any indication that it intends to improve its EEO program. The PLGTF criticizes the licensee for using only one minority newspaper even though it did not obtain any minority referrals from it. The NBMC states that it is unclear when the licensee may have used minority sources. Both PLGTF and NBMC criticize the licensee for not hiring any minorities for upper-level positions in the renewal reporting year (April 1, 1990, to March 31, 1991) and for an alleged decline in minority employment in upper-level positions. The NBMC criticizes the licensee for a 50% decline in minority upper-level employment even though the total number of employees in upper-level positions was "almost constant." 14. The licensee states that its policy was to recruit for every opening but, because of incomplete records, it cannot be certain what recruitment took place for some openings. It denies that it failed to self-assess or improve, asserting that it has improved its record-keeping and recruitment efforts over the last few years. The licensee notes that it entered into an agreement with the National Hispanic Media Coalition on June 27, 1991, to enhance its recruitment of Hispanics. While acknowledging that its upper-level hires in the renewal reporting year were non-minorities, it argues that the Commission should look at its total record of minority hiring and promotions. 15. WXTU(FM) disputes the PLGTF and NBMC arguments that minority employment declined, arguing that although its minority upper-level employees dropped from four in 1986 to two in 1991, the two in 1991 comprise more than 50% of parity with the labor force for Blacks. The licensee also notes that it employed five minorities in 1986 and 1991. Finally, the licensee argues that its record is similar to those of three television stations whose licenses were renewed without sanction in 1988. See Catawba Valley Broadcasting Company, Inc., 3 FCC Rcd 1913, 1914-15 (1988) (concerning WHKY-TV and WHNS-TV) and Arkansas Educational Television Commission, 3 FCC Rcd 1923, 1924 (1988) (concerning KTBS-TV). 16. After reviewing the records of Stations WMMR(FM) and WXTU(FM), we find no substantial and material questions of fact sufficient to warrant a hearing. See Astroline. Also, there is no evidence of employment discrimination. The licensees engaged in minority recruitment, and interviewed and employed minorities. Therefore, renewal of the licenses is in the public interest. 17. However, we find the minority recruitment efforts of both licensees to be deficient. The licensee of WMMR(FM) failed to recruit for five (45%) of 11 vacancies, attracted only seven minorities out of 319 applicants, and included minorities in no upper-level interview pools and only one lower-level interview pool. Furthermore, despite its largely unsuccessful minority recruitment efforts, it tried using minority-specific sources for only one vacancy. 18. We find WXTU(FM)'s recruitment efforts to be deficient because it recruited for only seven of its 20 vacancies. Also, minorities were absent from 12 applicant and interview pools. Despite this, the licensee contacted minority recruitment sources for only six of 20 openings and maintained insufficient information to self-assess adequately. In this regard, we note that the licensee maintained applicant and interview pool information for only five of 20 openings. 19. Also, we find the cases cited by WXTU(FM) contain various factors which, taken together, make the cases distinguishable. WXTU(FM)'s dominant minority labor force is more than twice as large as WHKY-TV's and WHNS(TV)'s and WHKY-TV had a small staff (10), whereas WXTU(FM)'s staff averaged 26. WXTU(FM) also had poorer record-keeping than WHNS(TV). KTBS-TV used numerous recruitment sources and produced 25 referrals from nine sources. Also, minorities comprised 34.4% of KTBS-TV's applicants. Accordingly, we find the licensee's argument regarding the cited cases to be without merit. 20. We believe that the records of WMMR(FM) and WXTU(FM) are similar to, but less egregious than, that of the licensee of WNRW-TV, Winston-Salem, North Carolina, in Act III Broadcasting of Nashville, Inc., 11 FCC Rcd 1172 (1995) (WNRW). The licensee of WNRW-TV recruited with five minority and 19 general sources for 14 (48.3%) of its 29 openings (19 upper-level), but its recruitment records were incomplete. It was unable to report the referral source for any minority referrals and also could not report the source for 135 of its 216 applicants. It had no records of having received minority referrals from its minority sources. Also, WNRW-TV failed to maintain records of the race or national origin of any applicants. Of its 54 interviewees, eight (14.8%) were minorities. Minorities were included in four (13.8%) interview pools. During its five-year license term, WNRW-TV had an average of 35 employees on its staff. In WNRW, we concluded that the licensee failed to comply with our EEO Rule, specifically failing to show recruitment for 15 openings and maintaining insufficient data for meaningful self-assessment. Consequently, we renewed the license subject to reporting conditions and issued a $15,000 Notice of Apparent Liability for Forfeiture. 21. Stations WMMR(FM) and WXTU(FM) are located in areas with minority labor forces very similar in size to that of WNRW-TV -- 18.2% minority for the Philadelphia stations and 17.8% minority for WNRW-TV. The licensees of WMMR(FM) and WNRW-TV recruited for approximately half of their openings -- 6 of 11 (54.6%) for WMMR(FM) and 14 of 29 (48.3%) for WNRW-TV. Also, WMMR(FM) and WNRW-TV used a variety of recruitment sources but failed to maintain complete records on minority referrals. Despite WNRW-TV's lack of records on applicants, minorities were presumably present in at least four applicant pools because they were reported in four interview pools. Consequently, though WMMR(FM) included minorities in a higher percentage of applicant pools than did WNRW-TV, 5 (45.5%) versus four (13.8%), WMMR(FM) interviewed only one minority for one job (9.1%) while WNRW-TV interviewed eight minorities for four jobs (13.8%). In addition, though WNRW-TV failed to self- assess, WMMR(FM) attempted to engage in some self-assessment during meetings in 1990 and 1991 and by implementing revisions in its EEO program in 1991. Finally, we note that WMMR(FM) had only 11 hiring opportunities while WNRW-TV had 29. Given the facts of this case and broadcasters' familiarity with our long-standing EEO Rule, a forfeiture of $14,000 is an appropriate sanction for WMMR(FM)'s violations of the Commission's EEO Rule. Thus, we will grant the renewal application of WMMR(FM) subject to a Notice of Apparent Liability for $14,000 and impose reporting conditions to monitor the licensee's EEO efforts. 22. The licensee of WXTU(FM) documented recruitment for only seven of 20 openings (35%) while in WNRW the licensee recruited for 14 of 29 openings (48.3%). Neither licensee maintained any records of minority referrals. In addition, though both licensees used a number of general as well as minority sources, neither used minority sources that produced minority referrals. Also, although WNRW-TV maintained no race or national origin data on applicants, WXTU(FM) had such records for only five of its 20 openings. Both licensees had records of race and national origin of interviewees for some interview pools, but very few. Although WXTU(FM) recruited for a lower percentage of openings than WNRW-TV, WXTU(FM) included minorities in a higher percentage of its interview pools, 8 (40%), than did WNRW-TV, 4 (13.8%). Finally, WXTU(FM) improved its record-keeping and enlisted the National Hispanic Media Coalition to help with recruitment, while WNRW-TV engaged in no self-assessment. 23. Furthermore, we note that although WXTU(FM) is in the same labor force as the other station in the instant case, WMMR(FM), its record is less egregious than that of WMMR(FM) because its minority recruitment efforts were significantly more productive, as reflected in the composition of its applicant/interview pools. Also, though WXTU(FM) recruited for a lower percentage of openings than WMMR(FM), 7 of 20 (35%) for WXTU(FM) versus 6 of 11 (54.6%) for WMMR(FM), WXTU(FM) had a smaller staff than WMMR(FM), averaging 26 employees compared to 41 employees, respectively. Given the facts of this case and broadcasters' familiarity with our long-standing EEO Rule, a forfeiture of $12,000 is an appropriate sanction for WXTU(FM)'s violations of the Commission's EEO Rule. Thus, we will grant the renewal application of WXTU(FM) subject to a Notice of Apparent Liability for $12,000 and impose reporting conditions to monitor the licensee's EEO efforts. 24. After considering the information before us, we find that hearings are not warranted and the records of the licensees support grant of their renewal applications. The licenses of both stations will be renewed subject to reporting conditions. In addition, we will issue a Notice of Apparent Liability for $14,000 to WMMR(FM) and a Notice of Apparent Liability for $12,000 to WXTU(FM). Ordering Clauses 25. Accordingly, IT IS ORDERED that the Informal Objection filed by the Philadelphia Lesbian and Gay Task Force and NOW regarding the licensees of WMMR(FM) and WXTU(FM) and by ASPIRA, Inc. of Pennsylvania, regarding the licensee of WMMR(FM) IS DENIED. 26. IT IS FURTHER ORDERED that the Informal Objection filed by the National Black Media Coalition against the licensees of WMMR(FM) and WXTU(FM) IS DENIED. 27. IT IS FURTHER ORDERED that the license renewal applications filed by Group W Radio, Inc., for Station WMMR(FM), and by WXTU License Limited Partnership for Station WXTU(FM), ARE GRANTED subject to the EEO reporting conditions specified herein. 28. IT IS FURTHER ORDERED that, pursuant to Section 503 of the Communications Act of 1934, as amended, 47 U.S.C.  503, this document constitutes a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $14,000 for the licensee of WMMR(FM) and $12,000 for the licensee of WXTU(FM). 29. IT IS FURTHER ORDERED that the licensees of Stations WMMR(FM) and WXTU(FM) submit to the Commission an original and one copy of the following information on April 1, 1997, and April 1, 1998: (a) Two lists divided by full-time and part-time job vacancies during the twelve months preceding March 1, 1997, for the first report and March 1, 1998, for the second 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 list should also note which recruitment sources were contacted; (b) A list of all employees as of the March 1, 1997, payroll period for the first report and as of the March 1, 1998, payroll period 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 the station's efforts to recruit minorities and females 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. 30. 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 the Philadelphia Lesbian and Gay Task Force, NOW, ASPIRA, Inc. of Pennsylvania, the National Black Media Coalition, and the licensees of WMMR(FM) and WXTU(FM). 31. The reports are to be filed with the Acting Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 32. Regarding the forfeiture proceeding, the licensees of WMMR(FM) and WXTU(FM) 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 ability to pay should include those financial items set forth in the attachment. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary CONCURRING STATEMENT OF COMMISSIONER JAMES H. QUELLO In Re Applications of Group W Radio, Inc., et al. I concur in this decision because it represents a classic case of bureaucratic overkill; of the FCC's inability to see the forest for the trees in implementation of its EEO regulation. The Commission's EEO rules are efforts, rather than results, based; an approach that results from a judicial and political disregard for race-based quotas. However, the outcome in these two cases exemplifies the inherent absurdity of an efforts-based rule. With respect to WXTU(FM), as the item correctly recognizes, the licensee could not produce paperwork demonstrating that it actively recruited for 13 of the 20 vacancies during the three-year reporting period. Despite the lack of an adequate paper trail, however, the hiring record of WXTU(FM) was exemplary. The station employed minorities well above 50% of parity for minorities in the work force for every year of the license term, including for all of its upper-level jobs, and for four of the seven years were at or just below 100% of parity. Despite the fact that this record indicates that the licensee recruited actively for minorities, because of the absence of an adequate paper trail, the majority feels compelled to flex its bureaucratic muscle by imposing a forfeiture of $12,000. I cannot embrace this reasoning. With respect to WMMR(FM), the current owner of the station acquired it just two years before the end of the license term. It therefore had little opportunity to implement an EEO program that would produce positive results. Despite this fact, the majority imposes a forfeiture of $14,000. Until this Agency approaches EEO enforcement with its head as well as its heart, we will continue to be criticized, thereby placing in jeopardy our entire EEO scheme. I therefore must concur in this result.