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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Federal Communications Commission FCC 96-298 Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) Emmis FM Broadcasting ) Corporation of Boston ) ) For Renewal of License for ) Station WCDJ(FM)) File No. BRH-901203WH Boston, Massachusetts ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: July 2, 1996; Released: July 16, 1996 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) its Memorandum Opinion and Order and Notice of Apparent Liability in Emmis FM Broadcasting Corporation of Boston, 8 FCC Rcd 2543 (1993) ("Emmis"), wherein we granted the license renewal application for Station WCDJ(FM), Boston, Massachusetts; and (ii) a response to the Notice of Apparent Liability ("NAL") issued in Emmis for $18,750 (styled a "Petition for Reconsideration") filed May 17, 1993, by Emmis FM Broadcasting Corporation of Boston ("Emmis"), the former licensee of Station WCDJ(FM), Boston, Massachusetts. For the following reasons, we grant the relief requested in the licensee's response to the NAL to the extent indicated herein and deny it in all other respects. In addition, we recalculate the forfeiture and reduce it to $15,000. II. BACKGROUND 2. In Emmis, we granted the licensee's renewal application for station WCDJ(FM). However, we imposed reporting conditions and issued an NAL in the amount of $18,750 because the record indicated deficiencies in the licensee's EEO program. We found that the licensee's record did not substantiate a continuing program of EEO efforts because it did not retain records of its recruitment efforts, or of the applicants and interviewees any such efforts produced, for part of the license term. As a result, although the licensee had 38 hiring opportunities during the review period (September 1988 to December 1, 1990), it could demonstrate that it recruited for only ten positions (contacting 12 general, female and minority sources), all of which were filled during the renewal year, and had minorities in only eight of its applicant pools. Although we found no evidence of employment discrimination, we concluded that an NAL for $18,750 was appropriate, based upon the noted deficiencies in the licensee's EEO program. 3. Emmis's arguments for rescission or reduction of the NAL are two-fold. First, Emmis argues that the NAL is barred by the statute of limitations pursuant to Section 503(b)(6)(A) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b)(6)(A), which prohibits the Commission from issuing NALs for violations of its rules that occurred "prior to the date of commencement of the current term of such license" or, if a new term has commenced, "more than 1 year prior to the date of issuance" of the NAL. According to Emmis, because the Commission both granted the station's renewal application and issued an NAL in Emmis, released March 31, 1993, a new license term commenced on March 31, 1993. Thus, Emmis reasons, the Commission improperly issued an NAL for conduct that occurred more than one year prior to the beginning of its new license term. 4. Second, Emmis contends that the Commission's EEO Rule, 47 C.F.R.  73.2080, does not provide broadcasters with requisite notice of specific conduct that the Commission considers to be a violation warranting a sanction. Specifically, Emmis argues that Section 73.2080 neither "require[s] that broadcast licensees recruit qualified minorities by contacting minority recruitment sources for each and every job opening" nor "expressly requires broadcast licensees to maintain records of EEO performance." Citing United States v. Rust Communications Group, Inc., 425 F.Supp. 1029 (E.D. Va. 1976), Emmis argues that the Commission is prohibited from issuing penal sanctions under Section 73.2080 because the regulation therein is not written with the required specificity. Accordingly, Emmis concludes that the NAL issued concerning WCDJ(FM) is unlawful and should be rescinded. III. DISCUSSION 5. We reject Emmis's interpretation of the statute of limitations provisions of Section 503(b)(6)(A). The grant of the renewal application and the issuance of the NAL occurred concurrently. In the interest of administrative convenience, as well as our goal of granting renewal applications expeditiously, the Commission issued the NAL and granted the renewal application in the same document. Because the Commission took these two actions simultaneously, there was no intervening renewal which would have triggered the restricting provisions of the statute of limitations and prevented us from considering the licensee's conduct during the license term under review. 6. Additionally, we find no merit in Emmis's argument that our EEO Rule, 47 C.F.R.  73.2080, does not provide fair warning of conduct that constitutes a violation. Although the licensee asserts that the Rule does not require broadcast licensees to recruit prior to hiring, we note that Section 73.2080(b)(3) specifically requires licensees to "solicit ... recruitment assistance on a continuing basis" from "sources of qualified applicants." 47 C.F.R.  73.2080(b)(3). Moreover, Section 73.2080(c)(2) sets forth the requirement that licensees "[u]se...potential sources of minority and female applicants, to supply referrals whenever job vacancies are available...." Thus, our rules require actions which Emmis did not take. 7. In addition to its misconception that recruitment efforts are not specifically mandated by Section 73.2080, Emmis incorrectly maintains that the NAL was premised on WCDJ(FM)'s alleged failure to contact minority-specific sources. The Commission has held that compliance with the recruitment requirement of Section 73.2080 may be met by relying solely on general sources if such sources refer female and minority candidates. See South Carolina Renewals 5 FCC Rcd 1704, 1709 n.8 (1990). Here, however, the record reflects that for many of its full- time vacancies, Emmis did not contact any recruitment sources. Thus, Emmis's arguments do not warrant further consideration. 8. In concluding that Emmis violated our EEO rule, we found that WCDJ(FM)'s "record [did] not substantiate a continuing program of EEO efforts" for a 15-month period. Emmis at 2544. We made such a finding because, due to its failure to retain any records of its efforts or the composition of its applicant or interview pools, Emmis was unable to demonstrate that it had established, maintained and carried out a "positive continuing program" as required by Section 73.2080(b) of the Commission Rules, 47 C.F.R.  73.2080(b). Additionally, Section 73.2080(c)(5) unambiguously requires a broadcast licensee to "[a]nalyze its efforts to recruit, hire, and promote minorities and women...." The Commission has held that adequate self- assessment is ordinarily not possible absent record retention. See, e.g., KSBW License, Inc., 9 FCC Rcd 6701, 6704 (1994); Lewis Broadcasting Corp., 7 FCC Rcd 1420, 1421 (1992). Thus, the NAL was not based upon WCDJ(FM)'s record-keeping deficiencies per se, but rather its failure to maintain a "positive continuing program" and to "analyze its efforts" pursuant to Section 73.2080 of the Commission's Rules, 47 C.F.R.  73.2080. 9. Nevertheless, we believe that recalculation of the forfeiture amount is appropriate here. In 1991, the Commission released its Policy Statement, Standards for Assessing Forfeitures. The Forfeiture Policy Statement provided general, non-binding guidance regarding the assessment of forfeitures, and established base forfeiture amounts for a wide range of violations. The Commission set a base amount of $12,500 for violation of broadcast EEO rules. In addition, the Forfeiture Policy Statement provided that the base forfeiture amount could be increased or decreased through upward or downward adjustments, depending on the facts of the particular case. Although the Emmis decision does not refer to the Forfeiture Policy Statement, the forfeiture amount was based on the forfeiture guidelines in effect at the time Emmis was decided. In 1993, the Commission released forfeiture guidelines which deleted the broadcast EEO violation category and indicated that we would issue a further policy statement on broadcast EEO forfeiture matters. In our 1994 EEO Policy Statement, we established non-binding guidelines for assessing forfeitures for violations of the Commission's broadcast EEO Rule. Subsequently, the U.S. Court of Appeals for the District of Columbia Circuit vacated the Forfeiture Policy Statement, after which the EEO Policy Statement was patterned, because it was not put forth for notice and comment. In Streamlining Broadcast EEO Rule and Policies, we vacated the EEO Policy Statement and advised licensees that we would follow our recent practice of making forfeiture decisions by relying on case precedent. Accordingly, we will recalculate the forfeiture imposed on the licensee. 10. In determining a forfeiture, we look to case precedent, taking into consideration the relevant statutory factors in Section 503(b)(2) of the Communications Act, including the nature, circumstances, extent and gravity of the violations, and a licensee's record of compliance with our rules. In our evaluation, we consider the station's size, number of hiring opportunities, MSA size, recruitment patterns, applicant and interview pools, assessment and record-keeping. E. g., Stauffer Communications, Inc., 10 FCC Rcd 5060, 5061 (1995). 11. After carefully reviewing the facts of this case, we find that the record in the instant case is similar to but less egregious than that of KUTR/KCPX-FM, Salt Lake City, Utah, in Applications of Price Broadcasting Company, 11 FCC Rcd 3620 (1996). As in this case, KUTR/KCPX-FM was unable to substantiate most of its EEO performance because of incomplete records. KUTR/KCPX-FM failed to keep complete records of applicants and interviewees, as well as referral sources of hirees. In addition, it actively recruited for only 11 of its 41 vacancies and minorities were in only two of its applicant pools. Although the licensee therein used a considerable number of sources (57), they were only used sporadically and did not affect substantially the licensee's recruitment results. We renewed the licenses of KUTR/KCPX-FM subject to reporting conditions and issued a Notice of Apparent Liability for $16,500. 12. Both KUTR/KCPX-FM and WCDJ(FM) failed to actively recruit for a substantial number of their vacancies, 30 of 41 (73%) and 28 of 38 (74%), respectively. Furthermore, both licensees failed to keep complete records of their applicants and interviewees, as well as significant recruitment data, information that is crucial for licensees to self-assess the effectiveness of their recruitment efforts. They are both located in areas with significant minority labor forces, [7.5% for KUTR/KCPX-FM and 7.9% for WCDJ(FM)]. Regarding recruitment outreach, WCDJ(FM) contacted far fewer sources than did KUTR/KCPX-FM. Nonetheless, in both cases, the sources contacted were largely unproductive. However, WCDJ(FM) did have minorities in a higher percentage of its applicant pools (21%) than did KUTR/KCPX-FM (5%). Given the facts of this case, broadcasters' familiarity with our EEO Rule, as well as our expanded authority to assess forfeitures in this area, we conclude that the appropriate forfeiture amount is $15,000. Moreover, the reporting conditions imposed in Emmis remain unaffected. 13. Accordingly, IT IS ORDERED that the relief requested in the response to the NAL filed by Emmis FM Broadcasting Corporation of Boston IS GRANTED TO THE EXTENT INDICATED HEREIN AND IS OTHERWISE DENIED. 14. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), that Emmis FORFEIT to the United States the sum of fifteen thousand dollars ($15,000) for failing to comply with the Commission's EEO provisions, 47 C.F.R.  73.2080. Full payment of the forfeiture may be made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission within 30 days of the release date of this Order. In regard to this forfeiture proceeding, Emmis may take any of the actions set forth in Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, and Section 504(a) of the Communications Act, 47 U.S.C.  504(a), as summarized in the attachment to this Memorandum Opinion and Order and Notice of Forfeiture. 15. 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 Forfeiture Order to Emmis. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary