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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Federal Communications Commission FCC 96-273 Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) ) Valley Public Television, Inc. ) BRET-930729KL ) For Renewal of License of ) Station KVPT(TV) ) Fresno, California ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: June 20, 1996; Released: July 22, 1996 By the Commission: Commissioner Quello concurring in the result. 1. The Commission has before it for consideration: (i) a license renewal application for KVPT(TV), a noncommercial educational television station; (ii) a Petition to Deny the application timely filed by the California State Conference of Branches of the National Association for the Advancement of Colored People (NAACP) and the League of United Latin American Citizens, through its California State Board of Directors (LULAC); (iii) an opposition by the licensee; and (iv) the licensee's response to a staff inquiry. The NAACP and LULAC allege that the licensee violated the Commission's Equal Employment Opportunity (EEO) Rule and policies. They request that the Commission designate the licensee's 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, dismiss LULAC as a petitioner, and grant the application subject to appropriate remedies and sanctions due to deficiencies in the licensee's EEO program. Background/Pleadings 2. 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 application 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). 3. Standing. Timely filed with the petition to deny was a declaration under penalty of perjury from an NAACP member who is the membership chairperson of the Fresno, California Branch of the NAACP. She states that she is a resident of the service area of KVPT(TV) and a regular viewer of the station. Although the Fresno NAACP Branch was not listed among the parties to the petition to deny, the president of the Fresno Branch wrote the Commission on March 3, 1994, requesting that his branch be removed as a party to this proceeding and stating that his branch did not oppose the grant of KVPT(TV)'s renewal application. However, the California NAACP state organization has not asked to withdraw the petition, nor has the Fresno membership chairperson asked to withdraw her supporting declaration. Although the Fresno Branch president purports to act on behalf of his branch, the membership chairperson's declaration is still valid because it has not been withdrawn, the declarant filed it as an NAACP member and not merely as an official of the Fresno Branch, and she did not state that she was filing on behalf of the Branch alone. We therefore find that this declaration complies with the requirements for establishing standing for the NAACP and that its pleading constitutes a valid petition to deny KVPT(TV)'s renewal application. 4. Following the filing of its petition, LULAC filed a supporting declaration under penalty of perjury from the president of the Hanford, California Council of LULAC. She states that she is a regular viewer of the station. However, her declaration was untimely filed and we find LULAC's explanation that it had "telephonic transmission" problems to be an insufficient justification. As we stated in Florida Renewals, 3 FCC Rcd 1930 (1988), we will not acquiesce to the submission of late filings absent extraordinary circumstances. We therefore find that LULAC has failed to establish petitioner status. See NAB Petition for Rulemaking , 82 FCC 2d 89, 98-99 (1980). Accordingly, we will dismiss LULAC as a petitioner. See 47 U.S.C.  309(d)(1); 47 C.F.R.  73.3584(d). 5. Prima Facie Case. The NAACP derived its factual allegations from the licensee's EEO program and annual employment reports. The licensee argues that the NAACP failed to raise specific allegations of fact sufficient to establish a prima facie showing that grant of the renewal application would be inconsistent with the public interest. Section 309(d)(1) of the Communications Act, 47 U.S.C.  309(d)(1); Astroline. In this regard, the licensee contends that the NAACP's arguments that minority recruitment and employment were inadequate are erroneously based on 1990 Census data. The licensee submits that if the Commission evaluates KVPT(TV)'s EEO program using 1980 data, it should find that the NAACP has failed to make a prima facie case against renewal. However, we evaluate the licensee's EEO efforts by reference to 1980 data for the first four years of its license term and 1990 data for the 1993 Annual Employment Report. After considering the NAACP's allegations and evaluating the licensee's renewal application and annual employment reports, we find as a threshold matter that the NAACP has made a prima facie showing against grant of the renewal application. 6. Although we conclude that the NAACP has made a prima facie showing, we further conclude that, after review of the NAACP's EEO allegations, as well as the licensee's renewal application, opposition, and inquiry response, 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. However, for the reasons which follow, grant of renewal will be subject to appropriate remedies and sanctions. 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 inquiry response reveal that the licensee filled 11 full-time vacancies, including seven for upper-level positions, from December 23, 1990, to October 21, 1993. The licensee recruited for all of the vacancies, using six minority-oriented sources (four of which were Hispanic sources), one female source, and various general sources such as the Fresno Bee, which was the source of nine of its 11 hires and all of its minority hires. The licensee reports that it received 14 minority referrals as follows: Fresno Bee (6), Private Industry Council (3), California State University (1), Fresno City College (1), Fresno Women's Network (1), employee referrals (1), and an Hispanic organization (1). The licensee asserts that it received more than 14 minority referrals, but had no further records. Also, the licensee did not maintain records reflecting the race, ethnic origin, or gender of applicants and interviewees. The licensee reports that it hired five minorities overall (two Hispanics and three American Indians), three of whom (one Hispanic and two American Indians) were hired for upper-level positions. 9. The NAACP contends that the licensee's EEO program for 1993 was "adequate" only "on paper." As an example, the NAACP quotes Section VIII of the licensee's 1993 EEO Program Report wherein the licensee describes "any efforts the station has undertaken or will undertake to promote" EEO. The licensee stated in this section that it would "expand and increase mailings to minority groups for job openings and intern programs." Considering the context of the licensee's statement, the NAACP argues that the licensee is implying that minority recruitment sources did not receive routine notices of openings until the end of the license term. The NAACP then contends that the licensee should not have waited until time for renewal to correct minority recruitment inadequacies. It also criticizes the licensee for employing an allegedly inadequate number of minorities during the license term. 10. In response to the NAACP, the licensee maintains that the NAACP is mistaken in assuming that minority sources received notices of openings only at the end of the license term. It contends that it contacted its list of minority sources for all openings and that the statement in Section VIII of the EEO Program Report referred to expansion of ongoing contacts in response to self-assessment. The licensee states that it expanded its minority source list "over the past few years." Although the licensee did not maintain records on the race, ethnic origin, or gender of applicants, it claims to have self-assessed effectiveness of sources on an ongoing basis and argues that its large percentage of minority hires shows that it included minorities in a significant percentage of its applicant and interview pools. The licensee also argues that the NAACP's criticism of minority employment is based on the erroneous assumption that 1990 Census figures should be applied to the licensee's entire term. It maintains that if the proper Census figures from 1980 are used, its minority employment is adequate for most of the license term. 11. There are no substantial and material questions of fact warranting designation for hearing. Moreover, there is no evidence that the licensee engaged in employment discrimination. The licensee recruited for all openings using a variety of sources, including minority sources, and minorities were included in at least 45.5% of applicant and interview pools. We thus reject the NAACP's contention that the licensee sent no notices of openings to minority sources until the end of the license term. The licensee also hired minorities, and there is no evidence that the licensee discriminated against any minority applicant or that any minority employee was treated in a discriminatory manner. 12. We find without merit the NAACP's argument that the licensee employed too few minorities. We do not require licensees to employ a minimum percentage of minorities but instead focus primarily on the recruitment and self-assessment efforts of licensees in evaluating their EEO programs. 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). Furthermore, we compare a licensee's minority employment with the presence of minorities in the relevant labor force only as part of the preliminary analysis of a licensee's EEO performance, not as a numerical goal. 13. However, we find the licensee's overall EEO program to be deficient because KVPT(TV) failed to maintain applicant or interview pool information and failed to engage in adequate self-assessment. We believe that the record in this case is similar to, but less egregious than, that of the licensee of KKIQ-FM, Livermore, California, in Tri-Valley Broadcasters, Inc., FCC 96-144 (adopted April 1, 1996) (KKIQ). In KKIQ, the local labor force included 29.2% minorities (12.5% Black, 9.5% Hispanic, 6.6% Asian/Pacific Islander, and .6% American Indian). The licensee therein recruited for 11 of its 12 vacancies. It received minority referrals while using a variety of sources and attracted minorities to seven applicant pools. However, none of the minority applicants was Black, despite the significant presence of Blacks in the labor force. The licensee failed to keep any recruitment data on interviewees. The Commission found that the licensee's overall recruitment efforts were deficient because minorities were absent from five of 12 applicant pools and because Blacks were absent altogether from the applicant pools. The Commission also found that the licensee failed to maintain adequate records for meaningful self- assessment. Consequently, the Commission renewed the license subject to reporting conditions and a forfeiture of $10,000. 14. In the instant case, Station KVPT(TV) is located in an area whose labor force was 33.2% minority in the first years of the license term, from 1989 to 1992, climbing to 41.9% by 1993, with Hispanics constituting 25.4% at the beginning of the term and later comprising 32.7% of the labor force. The licensee of KVPT(TV) recruited for all of its 11 vacancies using a variety of sources. However, the licensee failed to keep records of the race, ethnic origin, or gender of applicants or interviewees. As far as the licensee of KVPT(TV) knew, the only applicant and interview pools containing minorities involved those vacancies which resulted in minority hires. Thus, although the licensee claims to have self-assessed, it had inadequate records for its review. For example, for almost 55% of its applicant and interview pools, it had no apparent way of knowing whether minorities were present. In addition, the licensee gave no indication that it ever recognized that it might have a problem recruiting and/or retaining minorities. Our EEO Rule requires that licensees assess their recruitment efforts and that they address any difficulties encountered in implementing their programs. See 47 C.F.R.  73.2080(c)(5). It appears that was not done here. 15. Although KKIQ-FM was located in a labor force with a smaller percentage of minorities than the licensee in the instant case and included minorities in a slightly higher percentage of applicant pools, KVPT(TV)'s recruitment was more effective. For example, Hispanics were included in at least two of KVPT(TV)'s 11 applicant/interview pools while Blacks, significantly represented in KKIQ-FM's labor force, were absent from all 12 of the station's applicant and interview pools. Both licensees had deficient self-assessment, although KVPT(TV) apparently added some minority sources. In contrast, KKIQ-FM failed to self-assess at all. For these reasons, we believe that KVPT(TV)'s record is less egregious than that of KKIQ-FM. Accordingly, we will grant renewal subject to a Notice of Apparent Liability for Forfeiture for $9,000. In addition, we will impose reporting conditions. 16. 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 application. However, because we also find that the licensee's record- keeping and self-assessment were inadequate, we will grant renewal subject to a Notice of Apparent Liability for Forfeiture for $9,000 and impose reporting conditions to monitor the licensee's EEO performance. Ordering Clauses 17. Accordingly, IT IS ORDERED, that the Petition to Deny filed by the League of United Latin American Citizens IS DISMISSED. 18. IT IS FURTHER ORDERED that the Petition to Deny filed by the NAACP IS DENIED. 19. IT IS FURTHER ORDERED that the license renewal application filed by Valley Public Television, Inc. for Station KVPT(TV) IS GRANTED subject to the reporting conditions described herein and, pursuant to Section 503, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $9,000. 20. IT IS FURTHER ORDERED, that the licensee of Station KVPT(TV) submit to the Commission an original and one copy of the following information on August 1, 1997, and August 1, 1998: (a) Two lists divided by full-time and part-time job vacancies during the twelve months preceding July 1, 1997, for the first report, and July 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. This list should also note which recruitment sources were contacted; (b) A list of employees as of the July 1, 1997, payroll period for the first report, and the July 1, 1998, payroll period for the second report, by job title, 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 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. 21. The reports are to be filed with the Acting Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 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 Notice of Apparent Liability to the licensee, the NAACP, and LULAC. 23. With respect to the forfeiture proceeding, the licensee of KVPT(TV) 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