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DRAFT ONHeader A Text = DRAFT and Datel X =8` (#FDRAFTă r  ` (#=D3 1, 43 12pt (Z)(PC-8))T2Dă  ӟ2min1o12p1cDRAFT OFFTurn Draft Style offm@@    LETTER LANDLetter Landscape - 11 x 8.5n 3'3'Standard'3'3StandardLetter Portrait - 8.5 x 11 ;   LEGAL LANDLegal Landscape - 14 x 8.5of 3'3'Standard'A'AStandardZ K e6VE L"nu;   LETTER PORTLetter Portrait - 8.5 x 11pL 3'3'Standard3'3'StandardZ K e6VE L"nU9   2Jq1ƍrnsetdLEGAL PORTLegal Portrait - 8.5 x 14q 3'3'StandardA'A'StandardLetter Portrait - 8.5 x 119   TITLETitle of a DocumentrK\ * ăBLOCK QUOTESmall, single-spaced, indentedsN X HIGHLIGHT 2Large and Bold LargetB*d. 2wuj|vwEx-JHIGHLIGHT 3Large, Italicized and Underscoredu V -qLETTERHEADLetterhead - date/marginsvu H XX  3'3'LetterheadZ K e VE L"n3'3'LetterheadZ K e VE L"nE9    * 3'3'LetterheadZ K e VE L"n3' II"n"Tv3'StandarddZ K e VE L"nU9 Ѓ   INVOICE FEETFee Amount for Math Invoicew ,, $0$0  MEMORANDUMMemo Page FormatxD.   ! M E M O R A N D U M ă r  y<N dddy   2y8z8{|XINVOICE EXPSEExpense Subtotals for Math Invoicey:A ,p, $0$00INVOICE TOTTotals Invoice for Math Macrozz 4p, $0$00INVOICE HEADRHeading Portion of Math Invoice{+C`*   4X 99L$0 **(  ӧ XX NORMALReturn to Normal Typestyle|2}[D~[[[USMALLSmall Typestyle}FINEFine Typestyle~LARGELarge TypestyleEXTRA LARGEExtra Large Typestyle2[= ͞VERY LARGEVery Large TypestyleENVELOPEStandard Business Envelope with Header+w ,,EnvelopeZ K e VE L"n,,EnvelopeLarge, Italicized and Under;    ,, 88+  `   CitatorFormat Secretary's Citator Output FileW r5-#d6X@`7Ͽ@# XX  X B r5-S  BFormat DownloadFormat Downloaded Documentiޛ r5- XX    \ #d6X@`7Ͽ@#2r2rĠ6a2Agendaa1AgendaAgenda Items7D yP ) I. a3Agendapage numberpage number1#XP\  P6QXP#2KK<KKҨ"i~'^09]SS999S]+9+/SSSSSSSSSS99]]]Sxnxxng?Snxgx]nxxxxn9/9aS9S]I]I9S]/9]/]S]]I?9]SxSSIC%CW9+Wa999+999999S9]/xSxSxSxSxSxxInInInInI>/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""H5!,,5\  P6G;,P\{,W80,%?W*f9 xr G;X X- X M X-w  Federal Communications Commission  xxFCC 96298  T yxdddy  X-T M   O#XU4  pQX# Federal Communications Commission#o\  PC XP# FCC 96298 ă  T yxdddy T T  yO3v#X\  P6G;IP#Before the   Federal Communications Commission  yOiE Washington, D.C. 20554 T  X-TP#Xj\  P6G; XP#  X-In re Application of hh@) x` `  hh@)  X- Emmis FM Broadcasting hh@)  X -Corporation of Boston hh@) x` `  hh@)  Xo -For Renewal of License for hh@)  XX -Station WCDJ(FM) hh@) File No. BRH901203WH  XA -Boston, Massachusetts A " yO- x#X\  P6G;IP#э On March 31, 1993, Greater Media, Inc. acquired WCDJ(FM) (BTCH921204GR) and subsequently changed  xthe station's call sign to WBCS(FM). In addition, Emmis's name was changed to Greater Boston Radio II, Inc. For  xadministrative convenience, we will refer to the station by its former call sign and to the former licensee by its previous name.hh@)  X-  MEMORANDUM OPINION AND ORDER  X- AND FORFEITURE ORDER T  X-TP Adopted: July 2, 1996; Released: July 16, 1996  X-  X- By the Commission :  X[- MI. INTRODUCTION ă T  X--  O I. A. 1. a.(1)(a) i) a) I. 1. 1. a.(1)(a) i) a)x1. The Commission has before it for consideration: (i) its Memorandum Opinion and  X- xzOrder and Notice of Apparent Liability in Emmis FM Broadcasting Corporation of Boston, 8  X- x[FCC Rcd 2543 (1993) ("Emmis"), wherein we granted the license renewal application for Station  xzWCDJ(FM), Boston, Massachusetts; and (ii) a response to the Notice of Apparent Liability  X- xM("NAL") issued in Emmis for $18,750 (styled a "Petition for Reconsideration") filed May 17,  x1993, by Emmis FM Broadcasting Corporation of Boston ("Emmis"), the former licensee of  x>Station WCDJ(FM), Boston, Massachusetts. For the following reasons, we grant the relief  xyrequested 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. X^ ,**w3'# TX  X-x gII. BACKGROUND ă x  X-  nx2. In Emmis, we granted the licensee's renewal application for station WCDJ(FM).  xHowever, we imposed reporting conditions and issued an NAL in the amount of $18,750 because  xthe record indicated deficiencies in the licensee's EEO program. We found that the licensee's  xrecord did not substantiate a continuing program of EEO efforts because it did not retain records  xiof its recruitment efforts, or of the applicants and interviewees any such efforts produced, for part  xof the license term. As a result, although the licensee had 38 hiring opportunities during the  xreview period (September 1988 to December 1, 1990), it could demonstrate that it recruited for  x[only ten positions (contacting 12 general, female and minority sources), all of which were filled  xduring the renewal year, and had minorities in only eight of its applicant pools. Although we  xfound 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.   x3. Emmis's arguments for rescission or reduction of the NAL are twofold. First, Emmis  xargues that the NAL is barred by the statute of limitations pursuant to Section 503(b)(6)(A) of  xMthe Communications Act of 1934, as amended, 47 U.S.C.  503(b)(6)(A), which prohibits the  x\Commission from issuing NALs for violations of its rules that occurred "prior to the date of  xcommencement of the current term of such license" or, if a new term has commenced, "more than  x1 year prior to the date of issuance" of the NAL. According to Emmis, because the Commission  X4- xboth granted the station's renewal application and issued an NAL in Emmis, released March 31,  x1993, a new license term commenced on March 31, 1993. Thus, Emmis reasons, the  xCommission improperly issued an NAL for conduct that occurred more than one year prior to the beginning of its new license term.   x4. Second, Emmis contends that the Commission's EEO Rule, 47 C.F.R.  73.2080, does  xKnot provide broadcasters with requisite notice of specific conduct that the Commission considers  xjto be a violation warranting a sanction. Specifically, Emmis argues that Section 73.2080 neither  xK"require[s] that broadcast licensees recruit qualified minorities by contacting minority recruitment  xsources for each and every job opening" nor "expressly requires broadcast licensees to maintain  XN- xrecords of EEO performance." Citing United States v. Rust Communications Group, Inc., 425  xF.Supp. 1029 (E.D. Va. 1976), Emmis argues that the Commission is prohibited from issuing  X - xzpenal sanctions under Section 73.2080 because the regulation therein is not written with the  x-required specificity. Accordingly, Emmis concludes that the NAL issued concerning WCDJ(FM)  X-is unlawful and should be rescinded.I  yOk!- x,#X\  P6G;IP#э In addition, Emmis argues that various mitigating factors require the Commission to reduce or remit the NAL.  yO3"- xThese issues such as the station's selfassessment efforts were addressed in Emmis and will be taken into  xaccount in our recalculation of the forfeiture amount consistent with the relevant statutory factors in Section  yO#-503(b)(2) of the Communications Act. See  ten, infra.I",((hh"  X-x III. DISCUSSION ă   Ox5. We reject Emmis's interpretation of the statute of limitations provisions of Section  x503(b)(6)(A). The grant of the renewal application and the issuance of the NAL occurred  x concurrently. In the interest of administrative convenience, as well as our goal of granting  xrenewal applications expeditiously, the Commission issued the NAL and granted the renewal  xapplication in the same document. Because the Commission took these two actions  xsimultaneously, there was no intervening renewal which would have triggered the restricting  xprovisions of the statute of limitations and prevented us from considering the licensee's conduct during the license term under review. x6. Additionally, we find no merit in Emmis's argument that our EEO Rule, 47 C.F.R.  xL 73.2080, does not provide fair warning of conduct that constitutes a violation. Although the  x[licensee asserts that the Rule does not require broadcast licensees to recruit prior to hiring, we  xnote that Section 73.2080(b)(3) specifically requires licensees to "solicit ... recruitment assistance  xNon a continuing basis" from "sources of qualified applicants." 47 C.F.R.  73.2080(b)(3).  xMoreover, Section 73.2080(c)(2) sets forth the requirement that licensees "[u]se...potential sources  Xy- xjof minority and female applicants, to supply referrals whenever job vacancies are available...."Zy yO- x#X\  P6G;IP#э Section 73.2080(c)(2) reads: "Use minority organizations, organizations for women, media, educational  xinstitutions, and other potential sources of minority and female applicants, to supply referrals whenever job vacancies  {O-are available in its operation. For example, this requirement may be met by ..." [emphasis added]. Thus, our rules require actions which Emmis did not take.  X4-  ]x7. In addition to its misconception that recruitment efforts are not specifically mandated  xby Section 73.2080, Emmis incorrectly maintains that the NAL was premised on WCDJ(FM)'s  x[alleged failure to contact minorityspecific sources. The Commission has held that compliance  xkwith the recruitment requirement of Section 73.2080 may be met by relying solely on general  X- xsources if such sources refer female and minority candidates. See South Carolina Renewals 5  xFCC Rcd 1704, 1709 n.8 (1990). Here, however, the record reflects that for many of its fulltime  xvacancies, Emmis did not contact any recruitment sources. Thus, Emmis's arguments do not warrant further consideration.  Xe-  x8. In concluding that Emmis violated our EEO rule, we found that WCDJ(FM)'s "record  XN- x[did] not substantiate a continuing program of EEO efforts" for a 15month period. Emmis at  x2544. We made such a finding because, due to its failure to retain any records of its efforts or  xthe composition of its applicant or interview pools, Emmis was unable to demonstrate that it had  xestablished, maintained and carried out a "positive continuing program" as required by Section  xA73.2080(b) of the Commission Rules, 47 C.F.R.  73.2080(b). Additionally, Section  x-73.2080(c)(5) unambiguously requires a broadcast licensee to "[a]nalyze its efforts to recruit, hire,",((hh"  X- x<and promote minorities and women...."Z yOy- x<#X\  P6G;IP#э Section 73.2080(c)(5) reads: "Analyze its efforts to recruit, hire, and promote minorities and women and  xJaddress any difficulties encountered in implementing its equal employment opportunity program. For example, this  {O -requirement may be met by ..." [emphasis added]. The Commission has held that adequate selfassessment  X- xis ordinarily not possible absent record retention. See, e.g., KSBW License, Inc., 9 FCC Rcd  X- x6701, 6704 (1994); Lewis Broadcasting Corp., 7 FCC Rcd 1420, 1421 (1992). Thus, the NAL  X- xwas not based upon WCDJ(FM)'s recordkeeping deficiencies per se, but rather its failure to  x<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.  X_-  x9. Nevertheless, we believe that recalculation of the forfeiture amount is appropriate here.  XH- xKIn 1991, the Commission released its Policy Statement, Standards for Assessing Forfeitures.H yO -#X\  P6G;IP#э 6 FCC Rcd 4695 (1991), recon. denied, 7 FCC Rcd 5339 (1992). The  X1- xForfeiture Policy Statement provided general, nonbinding guidance regarding the assessment of  xforfeitures, and established base forfeiture amounts for a wide range of violations. The  xyCommission set a base amount of $12,500 for violation of broadcast EEO rules. In addition, the  X - xForfeiture Policy Statement provided that the base forfeiture amount could be increased or  xLdecreased through upward or downward adjustments, depending on the facts of the particular  X - xcase. Although the Emmis decision does not refer to the Forfeiture Policy Statement, the  X - xforfeiture amount was based on the forfeiture guidelines in effect at the time Emmis was decided.  x-In 1993, the Commission released forfeiture guidelines which deleted the broadcast EEO violation  xcategory and indicated that we would issue a further policy statement on broadcast EEO forfeiture  Xb- x0matters.gbz yO-#X\  P6G;IP#э 8 FCC Rcd 6215 (1993).g In our 1994 EEO Policy Statement,b  yO-#X\  P6G;IP#э Policy Statement, Standards for Assessing Forfeitures for Violations of the Broadcast EEO Rules, 9 FCC  yO-Rcd 929 (1994) (EEO Policy Statement). we established nonbinding guidelines for  xassessing forfeitures for violations of the Commission's broadcast EEO Rule. Subsequently, the  X4- xU.S. Court of Appeals for the District of Columbia Circuit vacated the Forfeiture Policy  X- xStatement, after which the EEO Policy Statement was patterned, because it was not put forth for  X- xnotice and comment.b  yO-#X\  P6G;IP#э United States Telephone Association v. FCC, 28 F.3d 1232 (D.C. Cir. 1994) (USTA). In Streamlining Broadcast EEO Rule and Policies,h   yO -#X\  P6G;IP#э 11 FCC Rcd 5154 (1996).h we vacated the EEO  X- x Policy Statement and advised licensees that we would follow our recent practice of making  X- xforfeiture decisions by relying on case precedent. Accordingly, we will recalculate the forfeiture  X-imposed on the licensee.  X-  x 10. In determining a forfeiture, we look to case precedent, taking into consideration the  xrelevant statutory factors in Section 503(b)(2) of the Communications Act, including the nature,  xcircumstances, extent and gravity of the violations, and a licensee's record of compliance with"e ,((hh"  xour rules. In our evaluation, we consider the station's size, number of hiring opportunities, MSA  X- xsize, recruitment patterns, applicant and interview pools, assessment and recordkeeping. E. g.,  X-Stauffer Communications, Inc., 10 FCC Rcd 5060, 5061 (1995).   ?x 11. After carefully reviewing the facts of this case, we find that the record in the instant  xcase is similar to but less egregious than that of KUTR/KCPXFM, Salt Lake City, Utah, in  Xv- x{Applications of Price Broadcasting Company, 11 FCC Rcd 3620 (1996).) v yO- x#X\  P6G;IP#э Stations KUTR/KCPXFM are located in the Salt Lake CityOgden, Utah MSA, which had a 7.5% minority labor force (.8% Black, 4.5% Hispanic, 1.7% Asian/Pacific Islander and .5% American Indian). ) As in this case,  x<KUTR/KCPXFM was unable to substantiate most of its EEO performance because of incomplete  xrecords. KUTR/KCPXFM failed to keep complete records of applicants and interviewees, as  xwell as referral sources of hirees. In addition, it actively recruited for only 11 of its 41 vacancies  xzand minorities were in only two of its applicant pools. Although the licensee therein used a  xconsiderable number of sources (57), they were only used sporadically and did not affect  x.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.   Ox 12. Both KUTR/KCPXFM and WCDJ(FM) failed to actively recruit for a substantial  xnumber of their vacancies, 30 of 41 (73%) and 28 of 38 (74%), respectively. Furthermore, both  xNlicensees failed to keep complete records of their applicants and interviewees, as well as  x|significant recruitment data, information that is crucial for licensees to selfassess the  x-effectiveness of their recruitment efforts. They are both located in areas with significant minority  x labor forces, [7.5% for KUTR/KCPXFM and 7.9% for WCDJ(FM)]. Regarding recruitment  x[outreach, WCDJ(FM) contacted far fewer sources than did KUTR/KCPXFM. Nonetheless, in  x.both cases, the sources contacted were largely unproductive. However, WCDJ(FM) did have  xminorities in a higher percentage of its applicant pools (21%) than did KUTR/KCPXFM (5%).  xGiven the facts of this case, broadcasters' familiarity with our EEO Rule, as well as our expanded  xauthority to assess forfeitures in this area, we conclude that the appropriate forfeiture amount is  X-$15,000. Moreover, the reporting conditions imposed in Emmis remain unaffected.  X|-  x 13. Accordingly, IT IS ORDERED that the relief requested in the response to the NAL  Xe- xfiled by Emmis FM Broadcasting Corporation of Boston IS GRANTED TO THE EXTENT  XN-INDICATED HEREIN AND IS OTHERWISE DENIED ."N  ,((hh|"  X-  ?x 14. IT IS FURTHER ORDERED , pursuant to Section 503(b) of the Communications  X- xkAct of 1934, as amended, 47 U.S.C.  503(b), that Emmis FORFEIT to the United States the  xsum of fifteen thousand dollars ($15,000) for failing to comply with the Commission's EEO  xprovisions, 47 C.F.R.  73.2080. Full payment of the forfeiture may be made by mailing to the  xLCommission a check or similar instrument payable to the Federal Communications Commission  X- xwithin 30 days of the release date of this Order. In regard to this forfeiture proceeding, Emmis  x may take any of the actions set forth in Section 1.80 of the Commission's Rules, 47 C.F.R.   x1.80, and Section 504(a) of the Communications Act, 47 U.S.C.  504(a), as summarized in the  XH-attachment to this Memorandum Opinion and Order and Notice of Forfeiture.  X -  x15. IT IS FURTHER ORDERED that the Mass Media Bureau send by Certified Mail  X - xԩ Return Receipt Requested a copy of this Memorandum Opinion and Order and Forfeiture  X -Order to Emmis. x  X -x` `  hh FEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam F. Caton x` `  hhActing Secretary