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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Federal Communications Commission FCC 96-280 Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) WWOR-TV, Inc. ) File No. BRCT-940201KX ) ) For Renewal of License for ) Station WWOR-TV ) Secaucus, New Jersey ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: June 25, 1996; Released: July 16, 1996 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) a license renewal application for WWOR-TV, Secaucus, New Jersey; (ii) a Petition to Deny filed by the National Hispanic Media Coalition ("NHMC"); (iii) an opposition filed by the licensee; and (iv) the licensee's response to a Commission inquiry. 2. NHMC alleges that WWOR-TV violated our Equal Employment Opportunity (EEO) Rule and policies. Accordingly, NHMC requests that we conduct an investigation of the station's employment practices pursuant to Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC, 595 F.2d 621 (D.C. Cir. 1978) (Bilingual) and designate the renewal application for hearing. The licensee disputes the allegations in the petition, urging that NHMC has failed to establish any violations of our EEO requirements, and that unconditional renewal of the license should be granted. II. BACKGROUND 3. Standing. In challenging an application pursuant to Section 309(d)(1) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d)(1), a petitioner must demonstrate party in interest status. 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. The licensee of WWOR-TV contends that NHMC has no standing and requests that the petition be treated as an informal objection because it failed to state that the declarant had personal knowledge of the facts alleged. We disagree. NHMC's petition primarily relies on forms filed with the Commission by the licensee, specifically the station's Form 395-B's and Form 396, of which official notice may be taken. Therefore, allegations relating to the information contained in these documents need not be supported by an affidavit of a person with personal knowledge of the facts alleged. 47 U.S.C.  309(d)(1). In addition, the NHMC submitted a statement under penalty of perjury by Marta Garcia, President of its New York Chapter. The declarant states that she is a New York resident and a viewer of WWOR-TV. We find that these declarations meet our requirement for standing for an organization. See NAB Petition for Rulemaking, 82 FCC 2d 89 (1980). 5. Prima Facie Case. The allegations in the petition are premised on the licensee's EEO Program and annual employment reports. As a threshold matter, we found that NHMC made a prima facie case showing that grant of the renewal application would have been inconsistent with the public interest. See Section 309(d)(1) of the Communications Act of 1934, 47 U.S.C. 309(d)(1); Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (Astroline). 6. Review of NHMC's EEO allegations, as well as the licensee's renewal application, opposition and response to our inquiry leads us to conclude that there are no substantial and material questions of fact warranting designation for hearing. Further, we find no evidence of employment discrimination. Thus, grant of the application will serve the public interest. 47 U.S.C. 309(d)(2); Astroline. Accordingly, finding the licensee otherwise qualified, we will grant renewal, but with appropriate remedies and sanctions as discussed below. III. 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 that reflects 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 minorities and women and the licensee's ongoing assessment of its EEO efforts. 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. Review of the licensee's renewal application, opposition and inquiry response reveals that the licensee had 19 hires, including 10 upper-level hires, between its acquisition of WWOR-TV in August 1992 and December 1993. In its inquiry response, the licensee states that, "[t]o the best knowledge of station personnel," an employee who is no longer with the station regularly sent notices of vacancies to 14 minority sources, one female source and five general recruitment sources. We conclude from this statement that there is incomplete documentation regarding these recruitment contacts. From the information concerning specific hires provided by the licensee, it appears that it contacted at least one general and/or one minority source for eight vacancies. For the remaining 11 vacancies, the licensee either could not document, or failed to make, outside recruitment contacts. The licensee provided no applicant pool data for six vacancies and no interviewee data for four vacancies. For the 13 vacancies with applicant data, records reflect that the licensee attracted 67 applicants, including 17 minorities. For the 15 vacancies with complete interview data, records reflect that the licensee interviewed 47 candidates, including 18 minorities. Minorities were present in at least 13 overall applicant and 12 overall interviewee pools. The licensee reports hiring eight minorities overall, including three for upper-level positions. 9. In its petition, NHMC argues that WWOR-TV has not met the processing guidelines with respect to Hispanic employees because the station's 1993 Annual Employment Report (FCC Form 395-B) reveals that only 18 of the station's 324 full-time employees and ten of its 244 full-time upper level employees were Hispanics. It contends that these disproportionately low numbers are a direct result of the station's minimal Hispanic recruitment efforts. It concludes that WWOR, Inc. is not committed to increasing Hispanic employment levels at the station and argues that the licensee willfully ignored its "underemployment" of Hispanics until license renewal time. As evidence, NHMC maintains that WWOR-TV representatives failed to attend an October 1993 hearing on "New York/New Jersey Area TV Station Employment of Hispanic-Americans" sponsored by the Congressional Hispanic Caucus. 10. In response, the licensee states that 41% of its job hires from February 1993 until February 1994 were minorities and that minorities represent 28.5% of the WWOR-TV work force. It further states that 17.3% of its full-time positions were held by Blacks, the dominant minority in the relevant MSA. WWOR-TV, Inc. adds that its successful minority hiring record results from an extensive minority recruitment network that includes regularly contacting a list of 20 recruitment sources, including five Hispanic sources. It maintains that it attends job fairs, offers internships, monitors management's EEO performance and regularly evaluates its recruitment efforts. The licensee states that NHMC's petition demands denial because it fails to consider WWOR-TV's extensive recruitment efforts. 11. The licensee further argues that NHMC's allegations regarding Hispanic employment are unwarranted. It notes that Hispanic employment levels remained stable in the midst of numerous layoffs and a noticeable attrition rate at WWOR-TV from June 1, 1993 through June 1, 1994. It also maintains that a station representative did attend the October 1993 hearing but the station's General Manager was unable to attend due to previous commitments. 12. Finally, WWOR-TV argues that NHMC's allegations are inaccurate because they are based on labor force data from the New York, New York MSA. The licensee maintains that WWOR-TV's EEO efforts should be examined by three combined New Jersey MSAs: the Bergen/Passaic MSA, the Newark MSA and the Jersey City MSA. The licensee states that this area has a 32.2% minority labor force (14.6% Black, 13.5% Hispanic, 4%Asian/Pacific Islander and .1% American Indian). It argues that the combined MSA area is the relevant MSA because 54% of WWOR-TV's work force resides in the area. It adds that the station heavily recruits minorities and females from the area. WWOR-TV further adds that use of labor force data from the area is consistent with the station's special obligation to serve northern New Jersey. It notes that the frequency was reassigned to New Jersey from New York in 1986, pursuant to Section 331 of the Communications Act. 13. Our review raises no substantial and material questions of fact warranting designation for hearing. Astroline. In this regard, no specific evidence of actual discrimination has been alleged and we find no indication of employment discrimination. The licensee recruited, attracted and hired minority applicants during the review period. Therefore, renewal of the license is in the public interest. 14. With respect to WWOR-TV's statements regarding use of combined New Jersey labor force statistics, we find these arguments to be without merit. A station's EEO compliance is to be evaluated by reference to the MSA in which it is located. Michigan and Ohio, 3 FCC Rcd 6944 (1988). As indicated supra, the appropriate labor force data for WWOR-TV is that of the Jersey City, New Jersey, MSA. The Commission has held that the standard for use of an alternative labor force is a "three-part test: distance of the station from areas with significant minority population in the MSA, commuting difficulties; and the lack of success of previous recruitment efforts." Buckley Broadcasting Corp., 9 FCC Rcd 2099, 2101 (1994). The licensee has not substantiated each of the factors required to meet the test. Therefore, based on the information before us, we do not believe the licensee has demonstrated that it is appropriate to use an alternative labor force. 15. We further find that WWOR-TV's efforts to recruit minority applicants were deficient because it failed to consistently recruit, document and self-assess its EEO efforts. It could not demonstrate recruitment and/or minority presence in applicant pools for a significant number of its vacancies despite having 19 hiring opportunities in an area with a 50.9% minority labor force. It failed to keep complete records of its applicants, interviewees and recruitment contacts, information necessary for meaningful self-assessment. Its lack of records appears to have resulted from its failure to adopt and maintain procedures to ensure that staff members involved in recruitment and hiring complied with our EEO Rule. Its self-assessment was also impaired because it failed to evaluate its employment profile and job turnover against the relevant available labor force, pursuant to Section 73.2080(c)(3) of the Commission's Rules, and instead relied on an alternative labor force. 16. We believe that the record in this case is similar to but more egregious than that of the licensee of KTID(AM)/KTID-FM, San Rafael, California. See Marin Broadcasting Company, Inc., Debtor-in-Possession, FCC 96-190, (released: May 2, 1996) (KTID). In KTID, the station had 15 hiring opportunities and was located in an MSA with a 30.9% minority labor force. The station failed to recruit for a significant number of its vacancies and did not employ measures to ensure that staff members who were involved in hiring complied with our EEO Rule. Consequently, the Commission granted the renewal subject to reporting conditions and issued a Notice of Apparent Liability for $15,000. 17. WWOR-TV and KTID(AM)/KTID-FM failed to recruit minorities for a significant number of vacancies despite the substantial minority presence in the relevant labor force, 50.9% and 30.9%, respectively, and despite having a substantial number of hiring opportunities, 19 and 15, respectively. They failed to contact outside recruitment sources for a significant number of their vacancies. Additionally, the stations failed to ensure that staff members who were involved in recruitment and hiring complied with our EEO Rule. However, WWOR-TV's record is more egregious than that of KTID(AM)/KTID-FM because the former is located in an area with a higher minority labor force. In view of all of the foregoing factors and broadcasters' longstanding familiarity with our EEO Rule, we find that WWOR-TV's rule violations warrant a Notice of Apparent Liability in the amount of $16,500. Also, we will grant renewal subject to reporting conditions as set forth below. IV. CONCLUSION 18. After reviewing the record before us, we find that no hearing is warranted. Finding the licensee to be otherwise qualified, renewal of the license of WWOR-TV is appropriate. However, we will grant the renewal subject to reporting conditions, and issue a Notice of Apparent Liability for $16,500. V. ORDERING CLAUSES 19. Accordingly, IT IS ORDERED that the petition to deny filed by the National Hispanic Media Coalition against the renewal application of WWOR, Inc. for renewal of licensee of Station WWOR-TV IS DENIED. 20. IT IS FURTHER ORDERED that the license renewal application for Station WWOR-TV IS GRANTED, subject to the reporting conditions specified herein, and pursuant to Section 503, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $16,500. 21. IT IS FURTHER ORDERED that the licensee of Station WWOR-TV submit to the Commission an original and one copy of the following information on February 1, 1997, and February 1, 1998: (a) Two lists divided by full-time and part-time vacancies during the 12 months preceding January 1, 1997, for the first report, and January 1, 1998, for the second report, indicating the job title and FCC job category of the position, 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. The list should also note which recruitment sources were contacted; (b) A list of employees as of the January 1, 1997, payroll period for the first report, and a list of employees as of the January 1, 1998, payroll period for the second 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 licensee's efforts to recruit minorities and women for each position filled during the 12 months preceding January 1, 1997, for the first report, and January 1, 1998, for the second report, including identification of sources used and indicating whether any of the applicants declined actual offers of employment. In addition, the licensee may submit any relevant information with regard to the station's EEO performance and efforts thereunder. 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 National Hispanic Media Coalition and WWOR-TV, Inc. 23. The reports are to be filed with the Acting Secretary of the Commission to the attention of the Mass Media Bureau's EEO Branch. 24. With respect to the forfeiture proceedings, the licensee 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