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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) ) ) Apple Valley Broadcasting, Inc. ) ) For Renewal of License for ) Stations KAPP-TV ) File No. BRCT-931001KR Yakima, Washington ) and KVEW-TV ) File No. BRCT-931001LD Kennewick, Washington) MEMORANDUM OPINION AND ORDER Adopted: June 18, 1996; Released: June 25, 1996 By the Commission: 1. The Commission has before it for consideration: (i) the license renewal application for KAPP-TV, Yakima, Washington; (ii) a Petition to Deny that application timely filed by the Washington/Oregon State Conference of Branches of the National Association for the Advancement of Colored People, through its Yakima, Washington Branch ("NAACP"); (iii) an opposition filed by the licensee; (iv) two supplements to the opposition filed by the licensee; and (v) various other pleadings. Also before the Commission in this Order is the renewal application of KAPP-TV's satellite station, KVEW-TV, Kennewick, Washington. The licensee filed joint annual employment reports for KAPP-TV and KVEW-TV for every year of their license term and filed a joint EEO Program Report as part of their renewal applications. Although no petition was filed against KVEW-TV's renewal, it is included in this Order because its EEO program and employment data were included with KAPP-TV's during the license term. 2. The NAACP alleges that the licensee violated the Commission's Equal Employment Opportunity (EEO) Rule and policies. It requests that the Commission designate the KAPP-TV renewal application for hearing with a view toward denying it. The licensee maintains that it has followed the requirements of the Commission's EEO Rule and policies and that it deserves unconditional renewal. For the reasons that follow, we deny the NAACP's petition and grant the applications unconditionally. Background/Pleadings 3. In challenging an application pursuant to Section 309(d) of the Communications Act of 1934, as amended, 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 applications would be prima facie inconsistent with [the public interest, convenience, and necessity]." 47 U.S.C.  309(d)(1). Astroline Com. Co. Ltd. Partnership 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 personal knowledge of the facts alleged. 47 U.S.C.  309(d)(1). 4. Standing. Timely filed with the petition to deny was a declaration under penalty of perjury by an NAACP member who is the president of the Yakima, Washington NAACP Branch. He states that he is a resident of Yakima and a regular viewer of KAPP-TV. We find that this declaration complies with the requirements for establishing standing for the NAACP and that its pleading constitutes a valid petition to deny KAPP-TV's renewal application. See NAB Petition for Rulemaking, 82 FCC 2d 89 (1980). 5. Prima Facie Case. The NAACP derived its factual allegations from the licensee's EEO program and annual employment reports. As a threshold matter, we found that the NAACP made a prima facie showing that grant of the renewal application would have been inconsistent with the public interest. Section 309(d)(1) of the Communications Act, 47 U.S.C.  309(d)(1); Astroline. 6. Review of the NAACP's allegations, as well as the licensee's pleadings, leads us to conclude that there are no substantial and material questions of fact warranting designation for a hearing. In addition, we find no evidence that the licensee engaged in discrimination. Thus, grant of the application will serve the public interest. 47 U.S.C.  309(d)(2); Astroline. Moreover, because we find the licensee to be in compliance with our EEO Rule, we will grant renewal unconditionally. Discussion 7. 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). 8. The station's 1993 EEO Program Report, opposition, and supplementary pleadings reveal that the licensee filled 16 vacancies in 1993. The licensee reports that it received 14 minority referrals from the Yakima Herald Republic, 12 in response to ads broadcast on the station, and 25 other referrals from unidentified sources. In addition to the two listed sources, the licensee reports that it contacted approximately 45 other sources, including general and women's sources, the NAACP's Seattle, Washington office, and other minority sources. During 1993, the licensee states that 51 minority applicants were among 383 total applicants. In addition, the licensee submits that more applicants may have been minorities because 72 of the 383 applicants refused to give the licensee the "EEO disclosure and referral source forms" that the licensee provides to all applicants in order to track race and gender statistics. The licensee did not mention if the form also asks for applicants' ethnic origin. For full-time positions, the licensee reports that it hired six minorities, two of whom were hired for upper-level jobs. It also reports that it offered one upper-level job to three other minorities who each rejected the offers. 9. The NAACP argues that, because the licensee's 1988 renewal application reported only six minority applicants and one minority hire out of 26 hires, the licensee should have known that it needed to improve its EEO program. The NAACP maintains, however, that the licensee's EEO performance worsened in the license term now under review because the licensee lost five minorities out of nine between 1992 and 1993. Because of the apparent departure of minority employees, the NAACP questions whether the licensee's 1993 renewal application accurately reports the number of minority applicants and hires. In addition, the NAACP contends that the licensee had no meaningful EEO program and failed to propose an adequate program for the new license term. Finally, the NAACP accuses the licensee of reporting few minorities during the license term when compared with minority representation in the applicable labor force according to 1990 Census data. 10. In response to the NAACP's arguments, the licensee argues that it is hypocritical for the NAACP to complain about the licensee's EEO program because the licensee contacted the NAACP branch in Seattle, Washington for every opening during the license term but never got a referral from the branch. The licensee also maintains that it "overhauled its entire EEO program" during the license term and established a viable program that includes continuous self- assessment. It states that the station's general manager and EEO officer review all requests from supervisors or department heads to fill a position, and then review all ads and job notices. The licensee contends that it posts all openings at the station and sends job notices to all of its recruitment sources for each opening. As mentioned above, the licensee uses 47 sources, although the list has varied over time in response to evaluations of the effectiveness of sources. The licensee submits that when applications come in, it provides all applicants with a disclosure form asking for race and referral source, although it did not report whether the form asks for ethnic origin, as noted above. See para. 8, supra. After a selection is made, the station's "administrative assistant" completes a form which reviews the numbers of applicants, race of applicants and interviewees, and other information on the person hired. The licensee states that it "continuously" assesses its program, including reviews of job descriptions. In addition, the licensee has its attorneys review all annual employment reports, statistical analyses, and self appraisals, and then send in suggestions for EEO program modifications to the licensee. 11. The licensee acknowledges that five minorities in full-time jobs departed the station from July 1992 to February 1993. In a declaration made under penalty of perjury, KAPP- TV's general manager, who is also the licensee's vice president, maintains that all left voluntarily -- three leaving to get jobs with different companies, one leaving because her husband was transferred to another city, and one leaving KAPP-TV because the licensee promoted him to a job at another of the licensee's stations. The general manager also notes that the licensee assisted the employee whose husband was transferred to get a job equivalent to her KAPP-TV position at a broadcast station in her new location. Furthermore, the licensee argues that the NAACP's insinuations of misrepresentation on the EEO Program Report are unjustified. The licensee contends that its 1993 EEO Program Report reflects significant numbers of minority referrals and hires because of its special efforts at minority recruitment in 1993 which it states was a direct response to its loss of minority employees. Due to its fairly rapid loss of five minorities, the licensee submits that, in 1993, it intensified its recruitment efforts to try to restore its record of increasing minority employment, overall and upper-level, in each year of the license term prior to 1993. It argues that these efforts resulted in success because it hired six minorities out of 16 hires in 1993 and also notes that it implemented the intensified recruitment prior to filing for renewal and prior to the filing of the NAACP's petition to deny. In addition, the licensee argues that its minority employment throughout the license term has been adequate and that the NAACP incorrectly evaluated its employment reports based on 1990 Census figures when it should have used 1980 figures for each year of the license term. Moreover, the licensee maintains that it is unfair for the Commission to evaluate any of the licensee's 1989-1993 employment reports according to 1990 Census figures. The licensee argues that it was able to self-assess its efforts using only 1980 labor force data because the 1990 figures were not released to the public until after the pay period used for KAPP-TV's 1993 report. 12. After reviewing all evidence before us, we find that there are no substantial and material questions of fact warranting designation for hearing. We find without merit the NAACP's arguments concerning the departure of minorities from KAPP-TV during the 1992 to 1993 period. The licensee has adequately explained that all of the departures of minority employees were voluntary, that one was a promotion to another one of the licensee's stations and that it helped one former employee obtain similar broadcast employment in her new location. The licensee also detailed intensified minority recruitment efforts that kept the station's EEO program on track following those departures. 13. We also find that there is no evidence to cast doubt on the accuracy of the minority recruitment statistics reported in the licensee's renewal application. The mere fact that five minorities voluntarily left the station does not create a reason to question the licensee's credibility, as the NAACP seems to argue. Moreover, the licensee has explained that its hiring and recruitment statistics reflect an intensified minority recruitment program which there is no evidence to contradict. In addition, we reject the NAACP's assertion that we should evaluate the licensee's entire program based on 1990 Census figures and reject the licensee's argument that we should use 1980 figures for the 1993 annual employment report. As described in note 1, supra, the Commission began using 1990 Census figures starting with 1993 annual employment reports and renewals filed after May 31, 1993. Although labor force figures were not available in a computer-compatible format for use by the Commission until mid-1993, results of the 1990 Census were widely reported in the media in 1991. Consequently, we find our policy regarding the use of 1990 figures to be reasonable and not an undue burden on licensees. 14. We further find that the licensee has complied with our EEO Rule and policies. There is no evidence that the licensee engaged in employment discrimination. Further, the record demonstrates that the licensee recruited for all of its openings, received minority applicants, and self-assessed its EEO efforts on a continuing basis. Finally, regarding the NAACP's argument that the licensee employed few minorities, we do not require licensees to employ a minimum percentage of minorities but instead focus primarily on licensees' recruitment and self-assessment efforts. See Channel 5 Public Broadcasting, Inc., 10 FCC Rcd 10388, 10389 (1995). See also Amendment of Part 73 of the Commission's Rules Concerning Equal Employment Opportunity in the Broadcast Radio and Television Services, 2 FCC Rcd 3967, 3974 (1987), petition for reconsideration pending. See also Amendment of Part 73 -- EEO Rule, 4 FCC Rcd 1715 (1989) (request for clarification by the National Association of Broadcasters). Accordingly, an unconditional grant of the station's renewal application is warranted. 15. Upon review of the record and arguments submitted by the parties, we find no hearing is warranted. Accordingly, finding the licensee to be otherwise qualified, we will grant the licensee's renewal applications unconditionally. Ordering Clauses 16. Accordingly, IT IS ORDERED, that the Petition to Deny filed by the NAACP IS DENIED. 17. IT IS FURTHER ORDERED that the license renewal applications filed by Apple Valley Broadcasting, Inc. for Stations KAPP-TV and KVEW-TV ARE GRANTED. 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 the licensee and the NAACP. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary