WPC0 2MBVRKZ3|x7jC:,%Xj\  P6G;XP"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP LaserJet 4SiHPLAS4SI.PRSXj\  P6G;\YnhXP2 K-3|x"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdCourierTimes New RomanTimes New Roman Bold2 ZC vpHP LaserJet 4SiHPLAS4SI.PRSx  @\YnhX@a8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . 2 kk*v: a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` 2: t V   BibliogrphyBibliography:X (# a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  2T l   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 a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# 2V//a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p Tech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala1DocumentgDocument Style Style\s0  zN8F I. ׃  21?a5TechnicalTechnical Document Style)WD (1) . a6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   2:l.a4TechnicalTechnical Document Style8bv{ 2  a.   a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . 23leDoc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN)>F)))))))))<)C"VV5VYO5O5O5O5^<^<^<^>^<^C^F.".C.).CaC>>^CO"O6O)O0O"VCVVCVC^<^O=O)OFVCVCVCVCVCVCxVV>O5O5O5VCO)VCC.O)V<X<<( (WTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN+HH+@<)<<<<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   yrequirements for establishing standing for the NAACP and that its pleading constitutes a valid petition to deny KVPT(TV)'s renewal application.  Xb-  o4. ` ` Following the filing of its petition, LULAC filed a supporting declaration under   jpenalty 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   Lfind LULAC's explanation that it had "telephonic transmission" problems to be an insufficient  X-  justification. As we stated in Florida Renewals, 3 FCC Rcd 1930 (1988), we will not acquiesce   kto the submission of late filings absent extraordinary circumstances. We therefore find that  X-  .LULAC has failed to establish petitioner status. See NAB Petition for Rulemaking , 82 FCC 2d  X-  89, 9899 (1980). Accordingly, we will dismiss LULAC as a petitioner. See 47 U.S.C.  309(d)(1); 47 C.F.R.  73.3584(d).  X|-  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  XN-  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  X -  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  X -  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  X"-  Annual Employment Report. "{ O%<  }Ѝ#]\  PCɓP#` ` The Commission uses 1990 Census data for all license renewal applications filed after May 31,  yO%-  ,1993, and for 1993 Annual Employment Reports. See EEO Branch of MMB to Use 1990 U.S. Census Data, Public"%,u'u'%"  yO-Notice # 32651 (April 12, 1993).  After considering the NAACP's allegations and evaluating the""X,u'u'33f!"   licensee's renewal application and annual employment reports, we find as a threshold matter that  X-the NAACP has made a prima facie showing against grant of the renewal application.  X-  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.  XH-  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.  X -D Discussion  X -  X -  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  X4-  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).  X-  8. ` ` The station's 1993 EEO Program Report, opposition, and inquiry response reveal   that the licensee filled 11 fulltime vacancies, including seven for upperlevel positions, from   December 23, 1990, to October 21, 1993. The licensee recruited for all of the vacancies, using  X-  six minorityoriented sources (four of which were Hispanic sources), one female source, and  X-  various general sources such as the Fresno Bee, which was the source of nine of its 11 hires and   kall of its minority hires. The licensee reports that it received 14 minority referrals as follows:  Xe-  Fresno Bee (6), Private Industry Council (3), California State University (1), Fresno City College  XN-  y(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,   Zthe 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  X-upperlevel positions.  AX{ X#- #Xj\  P6G;yoXP#э#]\  PCɓP#The Fresno, California Metropolitan Statistical Area ("MSA"), in which KVPT(TV) is located, had a labor   force that was 40.9% female and 33.2% minority (3.6% Black, 25.4% Hispanic, 3.4% Asian/Pacific Islander, and   0.8% American Indian) according to the 1980 Census. The station's 1989 Annual Employment Report lists 12   women (54.6%) and two minorities (9.1%) one Black (4.6%) and one Hispanic (4.6%) among 22 fulltime"]&,u'u'&"   hemployees. Among 16 employees in upperlevel jobs, the station had six women (37.5%) and one minority (6.3%),   an Hispanic. In 1990, the station had 23 employees, including 12 women (52.2%) and four minorities (17.4%)   wone Black (4.4%), two Hispanics (8.7%), and one American Indian (4.4%). It had 17 employees in upperlevel jobs,   including six women (35.3%) and two minorities (11.8%) one Hispanic (5.9%) and one American Indian (5.9%).   In 1991, the station had 22 employees, including 12 women (54.5%) and four minorities (18.2%) one Black   Z(4.6%), two Hispanics (9.1%), and one Asian/Pacific Islander (4.6%). Among 16 employees in upperlevel jobs,   there were six women (37.5%) and two minorities (12.5%) one Hispanic (6.3%) and one Asian/Pacific Islander   (6.3%). In 1992, the station had 26 employees, including 15 women (57.7%) and four minorities (15.4%) one   Black (3.9%), two Hispanics (7.7%), and one Asian/Pacific Islander (3.9%). Among 16 employees in upperlevel jobs, the station employed eight women (50.0%) and one minority (6.3%) an Asian/Pacific Islander.  yO( -  As explained in note 1, supra, the Commission uses 1990 Census data for all license renewal applications filed after  yO -  May 31, 1993, and for 1993 Annual Employment Reports. According to the 1990 Census, the Fresno MSA labor   Zforce is 43.2% female and 41.9% minority (3.7% Black, 32.7% Hispanic, 4.6% Asian/Pacific Islander, and 0.9%   wAmerican Indian). In 1993, KVPT(TV) had 26 employees, including 16 women (61.5%) and six minorities (23.1%)   ԩ one Black (3.8%), one Hispanic (3.8%), two Asian/Pacific Islanders (7.7%), and two American Indians (7.7%).   -Among 22 upperlevel employees, the station employed 13 women (59.1%) and four minorities (18.2%) two Asian/Pacific Islanders (9.1%) and two American Indians (9.1%).  ",u'u'33"Ԍ X-  ԙ9. ` ` 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  X-  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  X1-allegedly inadequate number of minorities during the license term.h1$ O<  OЍ` ` #]\  PCɓP#The NAACP used 1990 Census data in its evaluation of the licensee's employment for every year  yOZ-  of the 198993 license term. However, as indicated in note 1, supra, the Commission started using 1990 data with renewal applications filed after May 31, 1993, such as KVPT(TV)'s, and with 1993 Annual Employment Reports.   X -  _ 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   LSection VIII of the EEO Program Report referred to expansion of ongoing contacts in response   xto selfassessment. The licensee states that it expanded its minority source list "over the past few   Lyears." Although the licensee did not maintain records on the race, ethnic origin, or gender of   applicants, it claims to have selfassessed 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",u'u'33" from 1980 are used, its minority employment is adequate for most of the license term.  X-  _ 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.   ZThe 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   zend 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.  X -  P 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 selfassessment efforts of licensees in evaluating  X -  their EEO programs. See Channel 5 Public Broadcasting, Inc., 10 FCC Rcd 10388, 10389  X -  ^(1995). See also, Amendment of Part 73 of the Commission's Rules Concerning Equal  X-  Employment Opportunity in the Broadcast Radio and Television Services, 2 FCC Rcd 3967, 3974   0(1987). Furthermore, we compare a licensee's minority employment with the presence of   yminorities in the relevant labor force only as part of the preliminary analysis of a licensee's EEO performance, not as a numerical goal.  X-   13. ` ` However, we find the licensee's overall EEO program to be deficient because   MKVPT(TV) failed to maintain applicant or interview pool information and failed to engage in   Kadequate selfassessment. We believe that the record in this case is similar to, but less egregious  X-  than, that of the licensee of KKIQFM, Livermore, California, in TriValley Broadcasters, Inc.,  X-  FCC 96144 (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 $10,000.  X!-  A 14. ` ` In the instant case, Station KVPT(TV) is located in an area whose labor force was   M33.2% minority in the first years of the license term, from 1989 to 1992, climbing to 41.9% by   1993, with Hispanics constituting 25.4% at the beginning of the term and later comprising 32.7%   of the labor force. The licensee of KVPT(TV) recruited for all of its 11 vacancies using a variety   jof sources. However, the licensee failed to keep records of the race, ethnic origin, or gender of   applicants or interviewees. As far as the licensee of KVPT(TV) knew, the only applicant and":&,u'u'33$"   interview pools containing minorities involved those vacancies which resulted in minority hires.   ZThus, although the licensee claims to have selfassessed, 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  Xv-  jencountered in implementing their programs. See 47 C.F.R.  73.2080(c)(5). It appears that was not done here.   X1-  15. ` ` Although KKIQFM 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   lpercentage 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 KKIQFM's labor force, were absent from all 12 of the   station's applicant and interview pools. Both licensees had deficient selfassessment, although   KVPT(TV) apparently added some minority sources. In contrast, KKIQFM failed to selfassess   at all. For these reasons, we believe that KVPT(TV)'s record is less egregious than that of   KKIQFM. Accordingly, we will grant renewal subject to a Notice of Apparent Liability for Forfeiture for $9,000. In addition, we will impose reporting conditions.  X4-  Q16. ` ` 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 selfassessment 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.  X- . Ordering Clauses ă  Xe-  Q17. ` ` Accordingly, IT IS ORDERED, that the Petition to Deny filed by the League of United Latin American Citizens IS DISMISSED.  X -  18. ` ` IT IS FURTHER ORDERED that the Petition to Deny filed by the NAACP IS DENIED.  X-  B19. ` ` IT IS FURTHER ORDERED that the license renewal application filed by Valley   LPublic 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 $9,000.  Xh$-  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:":&,u'u'33$"Ԍ` ` (a) Two lists divided by fulltime and parttime 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  XH-` ` should also note which recruitment sources were  X1-` ` contacted; P1{ O <ԍ` ` #]\  PCɓP#Such a list might start: (1) News Director; Officials and Managers; Fulltime  yOJ -3 Applicants: 1 White female Women in Communications ` `  1 Black male Urban League ` `  1 Black female A.W.R.T. Sources contacted: Local Newspaper, A.W.R.T., Urban League, and Women in Communications Selected: Black female (08/19/96) (A.W.R.T.) ` ` (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 fulltime or parttime 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 12month 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.  X|-  `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.  X7-  22. ` ` IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail  X -  ԩ Return Receipt Requested copies of this Memorandum Opinion and Order and Notice of  X -Apparent Liability to the licensee, the NAACP, and LULAC." ,u'u'33."Ԍ X-  _ԙ23. ` ` 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. ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,William F. Caton ` `  hh,Acting Secretary