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) ) Tidewater Communications, Inc. ) ) For Renewal of License of ) File Nos. BR-950530UZ Stations WNOR(AM)/WNOR-FM ) BRH-950530UT Norfolk, Virginia ) and Station WAFX(FM) ) BRH-950530US Suffolk, Virginia ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: June 20, 1996; Released: June 28, 1996 By the Commission: I. Introduction 1. The Commission has before it for consideration: (i) license renewal applications for WNOR(AM)/WNOR-FM and WAFX(FM); (ii) the licensee's responses to staff inquiries; and (iii) other pleadings. The licensee maintains that it has followed the requirements of the Commission's Equal Employment Opportunity ("EEO") Rule and policies and that it deserves unconditional renewal. For the reasons that follow, we grant the applications subject to appropriate remedies and sanctions due to deficiencies in the licensee's EEO program. II. Background/Pleadings 2. Settlement Agreement. On August 15, 1995, the National Rainbow Coalition, including its Norfolk, Virginia chapter ("Rainbow"), filed a petition to deny WNOR(AM)/WNOR-FM's and WAFX(FM)'s renewal applications. On November 21, 1995, Rainbow and the licensee filed a joint request for approval of settlement agreement, in which they requested that the Commission dismiss the petition to deny as it pertains to WNOR(AM)/WNOR-FM and WAFX(FM). By letter dated February 5, 1996, Commission staff approved the agreement and dismissed the petition to deny. 3. Constitutionality of Commission's EEO Rule. The licensee contends that our EEO Rule is inconsistent with the holding in Adarand Constructors, Inc. v. Pe¤a, 515 U.S. , 115 S.Ct. 2097 (1995) ("Adarand"). We disagree. 4. Adarand addresses the constitutionality of a race-based preference program arising under federal law. The Supreme Court held that where questions arise as to a violation of the personal right to equal protection of the laws as a result of such programs, courts should evaluate such challenges by invoking the "strict scrutiny" standard of judicial review. Under strict scrutiny, racial classifications are constitutional only if they are narrowly tailored measures that further a compelling governmental interest. 5. The requirements imposed by our EEO Rule, 47 C.F.R.  73.2080, are fundamentally different from a race-based preference program such as that at issue in Adarand. The Rule does not require that any person be hired or accorded a hiring preference based on racial or ethnic status. Rather, it requires that licensees make efforts to recruit minority and women applicants so that they will be ensured access to the hiring process. The ultimate decision as to whether to hire a particular applicant may be premised upon any non- discriminatory considerations, without regard to the applicant's race, ethnicity, or gender status. Further, our Rule does not require licensees to hire any prescribed "quota" of minorities or women. Thus, our EEO Rule imposes no requirement that would operate to deprive any person of a benefit he or she might receive but for his or her race, ethnicity, or gender. 6. We employ a two-step process in evaluating licensees' EEO efforts. In the first step, we seek to identify those licensees whose EEO efforts may be unsatisfactory so as to warrant further inquiry. Whether a licensee's employment profile as reflected in its Annual Employment Reports filed during the license term meets the processing guidelines is one factor considered in making this preliminary assessment, along with information contained in the renewal application, allegations raised by any petitions to deny or informal objections, and any other information available concerning the licensee's EEO record. We emphasize that these guidelines are used as an initial screening tool for determining the stations whose EEO programs might require further investigation. If the first step of review indicates that the station's EEO efforts are satisfactory, the station is found to be in compliance with our EEO Rule. In no situation are a station's efforts found to be unsatisfactory or is it found to have violated the EEO Rule solely because it does not meet the processing guidelines. Where we find that a station's efforts may be unsatisfactory, we will generally request additional information which is analyzed along with relevant pleadings to determine if, among other things, the station notifies sources of minority referrals when vacancies occur and engages in continuous self-assessment of its EEO program; if, in light of the evidence, the station violated our EEO Rule; and, if it did, what sanctions or remedies may be appropriate. Compliance with the processing guidelines is not a factor in this second step analysis. Broadcast licensees whose employment profiles are below our processing guidelines have been renewed without sanction. 7. Accordingly, we find no basis for concluding that our process denies any person equal protection of the laws. Indeed, the licensee has not identified any person who arguably suffered such injury as a result of the provisions of our Rule. As the Court emphasized in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) ("Croson"), the right to equal protection is a personal right. In the absence of any provisions in our EEO Rule that abridge the personal rights of any person, we conclude that Adarand does not implicate our EEO program. 8. Our reading of the scope of the Adarand decision is consistent with the interpretation of the case by the Department of Justice (DOJ). An analysis of the Adarand decision by DOJ states: Mere outreach and recruitment efforts . . . typically would not be subject to Adarand standards. Indeed, post-Croson cases indicate that such efforts are considered race neutral means of increasing minority opportunity. In some sense, of course, the targeting of minorities through outreach and recruitment campaigns involves race-conscious action. But the objective there is to expand the pool of applicants or bidders to include minorities, not to use race or ethnicity in the actual decision. If the government does not use racial or ethnic classifications in selecting persons from the expanded pool, Adarand ordinarily would be inapplicable. 9. Prima facie showing. As a threshold matter, staff review of the licensee's renewal applications led us to conclude that there was a prima facie showing that grant of the applications would have been inconsistent with the public interest. Section 309(d)(1) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d)(1). Astroline Com. Co. Ltd. Partnership v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (Astroline). However, having reviewed all matters presented, including the licensee's pleadings and responses to staff inquiries, we conclude that there are no substantial and material questions of fact and that a grant of the applications would be consistent with Section 309(k) of the Communications Act, 47 U.S.C.  309(k). Further, we find no evidence of employment discrimination. Thus, because the licensee is otherwise qualified, grant of the applications will serve the public interest. 47 U.S.C.  309(d)(2); Astroline. However, for the reasons which follow, grant of the renewals will be subject to appropriate remedies and sanctions. III. Discussion 10. 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). 11. The stations' 1995 EEO Program Report, inquiry responses, and other pleadings reveal that the licensee filled 56 full-time vacancies, including 51 for upper-level positions, from October 1, 1992, to October 1, 1995. The licensee recruited for 32 vacancies, using minority- oriented recruitment sources for 26 positions. In total, the licensee used 27 general sources, seven minority sources, and one female source for various openings. The licensee kept records on the source of 13 minority referrals. 12. The licensee reports that it did not begin tracking the race, ethnic origin, and gender of applicants until July 1, 1993. At that time, it began to request that its applicants voluntarily complete an EEO data form which supplied that information. The licensee filled 52 of its 56 vacancies during the review period after July 1, 1993. The licensee explains, however, that the EEO form did not ask for which job the applicant was applying, and many applicants failed to return their EEO form. Thus, the licensee's records on race, ethnic origin, number, and gender of applicants are incomplete. During the period from June 1, 1994, to May 31, 1995, the licensee states that, of its 350 applicants, 121 identified themselves as minorities on the stations' EEO form. The licensee did not start asking for referral sources on the EEO form until the license term ended, and it explains that this is why it is able to identify referral sources for only 13 minority applicants. For the entire three-year review period, the licensee reports that minorities were in at least 21 out of 56 applicant pools overall (37.5%) and 18 out of 51 upper- level applicant pools (35.3%). Also, the licensee did not keep records on the race, ethnic origin or gender of interviewees during the license term, although it claims it does so now. The licensee reports that it hired five minorities overall (four Blacks and one Hispanic), three of whom (two Blacks and one Hispanic) were hired for upper-level positions. 13. The licensee maintains that it "actively implemented" an EEO program in "full compliance" with Commission requirements. The licensee argues that it has increased the number of minorities employed on its staff and that this indicates, along with the recruitment information outlined above, that its EEO program has been successful. The licensee presented no evidence, other than institution of the above-mentioned EEO form it sends to applicants, that it engaged in self-assessment of its program during the license term, as required by 47 C.F.R.  73.2080(c). Revisions to the EEO form were apparently made after the end of the term. 14. 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 a majority of its openings using a variety of sources, including minority sources, and minorities were included in at least 37.5% of applicant pools. There is no evidence that the licensee discriminated against any minority applicant or that any minority employee was treated in a discriminatory manner. 15. However, we find the licensee's overall EEO program apparently deficient because the licensee failed to recruit for 42.9% of openings, failed to maintain interview pool information or complete referral and applicant information, and failed to engage in self-assessment. We believe that the record in this case is similar to that of the licensee of WLAE-TV, New Orleans, Louisiana, in Educational Broadcasting Foundation, Inc., 10 FCC Rcd 3974 (1995) (WLAE). In WLAE, the local labor force included 32.5% minorities. The licensee therein recruited for 14 of its 24 vacancies (58.3%) and used a variety of sources, including two minority sources, although it did not keep records of which sources were used for most openings. It received seven minority referrals but did not know how many sources referred minorities. Its records on the race, ethnic origin, and gender of applicants and interviewees were incomplete. The licensee's records indicated that minorities were included in five applicant/interview pools (20.8%) (two upper-level). Its only self-assessment was to start tracking data on recruitment in the last two years of the license term and to institute bi-annual meetings to evaluate its compliance with Commission EEO requirements. The Commission renewed the licenses subject to reporting conditions and a forfeiture of $15,000 due to inadequate recruitment and self-assessment. The Commission determined that the licensee's recruitment was inadequate because it recruited for only 14 of 24 positions and its self-assessment was insufficient because it kept few records of referrals, use of sources, applicant pools, and interview pools and because it engaged in few efforts to evaluate its program. 16. In the instant case, Stations WNOR(AM)/WNOR-FM and WAFX(FM) are located in an area that included 28.6% minorities in the first years of the license term, from 1989 to 1992, climbing to 30.4% by 1993. The licensee of WNOR(AM)/WNOR-FM and WAFX(FM) recruited for only 32 of 56 vacancies (57.1%), using a variety of sources, including minority sources. Because of incomplete records, it could identify referral sources for only 13 minority referrals. In addition, the licensee failed to keep records of the race, ethnic origin, or gender of interviewees. It attracted minorities in 21 applicant pools (37.5%). Its only self-assessment effort was institution of its EEO data form in the last two years of the license term. 17. Although WLAE-TV had fewer hiring opportunities than the licensee in the instant case, it had a larger minority labor force available to it. The deficiencies are comparable because both licensees recruited for virtually the same percentage of openings. In addition, both failed to keep complete referral information. Furthermore, both licensees failed to engage in any self- assessment until the last two years of their license terms. Although the licensee in the instant case attracted minorities in a higher percentage of applicant pools than the licensee of WLAE- TV, the radio stations kept no records on interviewees and failed almost totally to self-assess, while WLAE-TV kept some records on interviewees and engaged in slightly more self- assessment, albeit late in the license term. 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). 18. Finally, we disagree with the licensee that its program has been successful because of a slight increase in minority employment. 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 -- EEO Rule, 4 FCC Rcd 1715 (1989). As described above, these efforts were deficient. Accordingly, we will grant renewal subject to a Notice of Apparent Liability for Forfeiture for $15,000. In addition, to monitor the licensee's recruitment and self-assessment, we will impose reporting conditions. 19. Conclusion. Upon review of the record and arguments submitted by the licensee, we find that no hearing is warranted. However, because we find that the licensee's recruitment and self-assessment were inadequate, we will grant its renewal applications subject to a Notice of Apparent Liability for Forfeiture for $15,000 and impose reporting conditions to monitor the licensee's EEO performance. IV. Ordering Clauses 20. Accordingly, IT IS ORDERED that the license renewal applications filed by Tidewater Communications, Inc. for Stations WNOR(AM)/WNOR-FM and WAFX(FM) ARE GRANTED subject to the reporting conditions described herein and, pursuant to Section 503 of the Communications Act, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $15,000. 21. IT IS FURTHER ORDERED, that the licensee submit to the Commission an original and one copy of the following information on June 1, 1997, June 1, 1998, and June 1, 1999: (a) Two lists divided by full-time and part-time job vacancies during the twelve months preceding May 1, 1997, for the first report, May 1, 1998, for the second report, and May 1, 1999, for the third 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 all employees as of the May 1, 1997, payroll period for the first report, the May 1, 1998, payroll period for the second report, and the May 1, 1999, payroll period for the third 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 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. 22. The reports are to be filed with the Acting Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 23. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- a copy of this Memorandum Opinion and Order and Notice of Apparent Liability to the licensee. 24. With respect to the forfeiture proceeding, the licensee of WNOR(AM)/WNOR-FM and WAFX(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 its ability to pay should include those financial items set forth in the attachment. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary