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Rather, it requires that licensees make efforts to recruit minority and  X -  women applicants so that they will be ensured access to the hiring process.O0 h$ O<  Ѝ #C\  P6QɓP#Our EEO Rule imposes identical requirements with respect to women. Adarand concerned federal  yO-  programs based on minority status. Since Adarand, the Supreme Court has not ruled on the standard of review for  yO-  federal genderbased programs. Prior to Adarand, however, the Court applied intermediate scrutiny and that standard  yOV-currently applies. Craig v. Boren, 429 U.S. 190 (1976).O 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.  X4-  6. ` ` We employ a twostep 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   jRule 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   yminority referrals when vacancies occur and engages in continuous selfassessment of its EEO   program; if, in light of the evidence, the station violated our EEO Rule; and, if it did, what"`,u'u'33"   Lsanctions 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.  X-  P7. ` ` 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  Xv-  [suffered such injury as a result of the provisions of our Rule. As the Court emphasized in City  X_-  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  X1-personal rights of any person, we conclude that Adarand does not implicate our EEO program.  X -  S8. ` ` Our reading of the scope of the Adarand decision is consistent with the  X -  interpretation of the case by the Department of Justice (DOJ). An analysis of the Adarand decision by DOJ states:  RXMere outreach and recruitment efforts . . . typically would not be subject to  X- Adarand standards. Indeed, postCroson 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 raceconscious 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  X- Sselecting persons from the expanded pool, Adarand ordinarily would be  X-inapplicable.+$ Oh<  -Ѝ #C\  P6QɓP#Memorandum to All Agency General Counsels from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, United States Department of Justice, at 7 (June 28, 1995) (footnotes omitted).+   X-  29. ` ` Prima facie showing. As a threshold matter, staff review of the licensee's renewal  X-  iapplications 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  X|-  \Act of 1934, as amended, 47 U.S.C.  309(d)(1). Astroline Com. Co. Ltd. Partnership v. FCC,  Xe-  /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   isubstantial 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  X-of the applications will serve the public interest. 47 U.S.C.  309(d)(2); Astroline. However, "0,u'u'33"   =for the reasons which follow, grant of the renewals will be subject to appropriate remedies and sanctions.  X-]; III. Discussion  X-  X-   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  X -  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 -   11. ` ` The stations' 1995 EEO Program Report, inquiry responses, and other pleadings   yreveal that the licensee filled 56 fulltime vacancies, including 51 for upperlevel positions, from  Xy-  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  XK-  minority sources, and one female source for various openings. The licensee kept records on the source of 13 minority referrals.  X-   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   jfailed 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 threeyear 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  X!-Blacks and one Hispanic) were hired for upperlevel positions. =A!{ X&$-  #Xj\  P6G;yoXP#э#]\  PCɓP# The Norfolk/Virginia Beach/Newport News, Virginia Metropolitan Statistical Area ("MSA"), in which   hWNOR(AM)/WNORFM and WAFX(FM) are located, had a labor force that was 45.1% female and 28.6% minority   (26.1% Black, 1.2% Hispanic, 1.1% Asian/Pacific Islander, and 0.2% American Indian) according to the 1980   Census. The 1989 Annual Employment Report for WNOR(AM)/WNORFM lists 18 women (54.6%) and four"&,u'u'&"   minorities (12.1%) three Blacks (9.1%) and one Hispanic (3.0%) among 33 fulltime employees. Among 29   employees in upperlevel jobs, the stations had 14 women (48.3%) and three minorities (10.4%) two Blacks (6.9%)   hand one Hispanic (3.5%). In 1990, the stations had 33 employees, including 17 women (51.5%) and four minorities   (12.1%) three Blacks (9.1%) and one Hispanic (3.0%). They had 28 employees in upperlevel jobs, including 12   Ywomen (42.9%) and two minorities (7.1%) one Black (3.6%) and one Hispanic (3.6%). In 1991, the stations had   30 employees, including 16 women (53.3%) and four minorities (13.3%) three Blacks (10.0%) and one Hispanic   (3.3%). Among 26 employees in upperlevel jobs, there were 12 women (46.2%) and three minorities (11.5%)   ;two Blacks (7.7%) and one Hispanic (3.9%). In 1992, the stations had 29 employees, including 17 women (58.6%)   Yand four minorities (13.8%) three Blacks (10.4%) and one Hispanic (3.5%). Among 25 employees in upperlevel   hjobs, the stations employed 13 women (52.0%) and three minorities (12.0%) two Blacks (8.0%) and one Hispanic (4.0%).   The Commission uses 1990 Census data for all license renewal applications filed after May 31, 1993, and for 1993  yO -  ZAnnual Employment Reports and later reports. See EEO Branch of MMB to Use 1990 U.S. Census Data, Public  yO -  Notice # 32651 (April 12, 1993). According to the 1990 Census, the Norfolk/Virginia Beach/Newport News MSA   had a labor force that was 48.9% female and 30.4% minority (25.8% Black, 1.8% Hispanic, 2.4% Asian/Pacific   Islander, and 0.4% American Indian). In 1993, WNOR(AM)/WNORFM had 31 employees, including 16 women   (51.6%) and four minorities (12.9%) three Blacks (9.7%) and one Hispanic (3.2%). Among 27 upperlevel   employees, the stations employed 12 women (44.4%) and three minorities (11.1%) two Blacks (7.4%) and one Hispanic (3.7%).   The licensee acquired WAFX(FM) on April 29, 1994, and operates it together with WNOR(AM)/WNORFM.   Starting with the 1994 annual employment report, the licensee included WAFX(FM)'s workforce with that of the   ;other stations and filed a combined report. In 1994, WNOR(AM)/WNORFM and WAFX(FM) had 43 employees,   jincluding 19 women (44.2%) and seven minorities (16.3%) five Blacks (11.6%) and two Hispanics (4.7%).   Among 37 upperlevel employees, the stations employed 13 women (35.1%) and five minorities (13.5%) three   hBlacks (8.1%) and two Hispanics (5.4%). In 1995, the stations had 52 employees, including 23 women (44.2%) and   eight minorities (15.4%) six Blacks (11.5%) and two Hispanics (3.9%). Included among 46 upperlevel employees were 17 women (37.0%) and six minorities (13.0%) four Blacks (8.7%) and two Hispanics (4.4%).= "!8,u'u'33 "Ԍ X-  ԙ 13. ` ` The licensee maintains that it "actively implemented" an EEO program in "full   xcompliance" 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 abovementioned EEO form it sends to applicants, that it engaged   Lin selfassessment 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.  XH-  _ 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.   KThe 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.  X -  }15. ` ` However, we find the licensee's overall EEO program apparently deficient because" 8,u'u'33/ "   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 selfassessment. We   Lbelieve that the record in this case is similar to that of the licensee of WLAETV, New Orleans,  X-  Louisiana, in Educational Broadcasting Foundation, Inc., 10 FCC Rcd 3974 (1995) (WLAE). In  X-  zWLAE, 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   upperlevel). Its only selfassessment was to start tracking data on recruitment in the last two   \years of the license term and to institute biannual meetings to evaluate its compliance with   MCommission EEO requirements. The Commission renewed the licenses subject to reporting   Lconditions and a forfeiture of $15,000 due to inadequate recruitment and selfassessment. The   =Commission determined that the licensee's recruitment was inadequate because it recruited for   only 14 of 24 positions and its selfassessment 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.  XK-  16. ` ` In the instant case, Stations WNOR(AM)/WNORFM 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)/WNORFM 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 selfassessment effort was institution of its EEO data form in the last two years of the license term.  X|-  17. ` ` Although WLAETV 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   icase attracted minorities in a higher percentage of applicant pools than the licensee of WLAETV,   the radio stations kept no records on interviewees and failed almost totally to selfassess, while   WLAETV kept some records on interviewees and engaged in slightly more selfassessment,   Malbeit late in the license term. Our EEO Rule requires that licensees assess their recruitment  X!-  [efforts and that they address any difficulties encountered in implementing their programs. See 47 C.F.R.  73.2080(c)(5).  Xh$-  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   Zpercentage of minorities but instead focus primarily on licensees' recruitment and selfassessment":&,u'u'33$"  X-  efforts. See Channel 5 Public Broadcasting, Inc., 10 FCC Rcd 10388, 10389 (1995). See also  X-  Amendment of Part 73 EEO Rule, 4 FCC Rcd 1715 (1989). As described above, these efforts   jwere 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 selfassessment, we will impose reporting conditions.  Xv-  _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   jand selfassessment 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.  X - *%IV. Ordering Clauses ă  X -  R20. ` ` Accordingly, IT IS ORDERED that the license renewal applications filed by   Tidewater Communications, Inc. for Stations WNOR(AM)/WNORFM 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.  X4-  %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 fulltime and parttime 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  X -` ` recruitment sources were contacted; P { O <ԍ#]\  PCɓP# Such a list might start: (1) News Director; Officials and Managers; Fulltime  yO""-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 (06/19/96) (A.W.R.T.) " ,u'u'33"Ԍ` ` (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 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.  XK-  `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.  X-  23. ` ` IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail  X-  ԩ Return Receipt Requested a copy of this Memorandum Opinion and Order and Notice of  X-Apparent Liability to the licensee.  X-  24. ` ` With respect to the forfeiture proceeding, the licensee of WNOR(AM)/WNORFM   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. ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,William F. Caton ` `  hh,Acting Secretary