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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:8HH"&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""/>/>/>/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+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNFx6X@`7X@ 7jC:,+Xj\  P6G;XP7nC:,Xn4  pG;XW!@(#,9h@\  P6G;hP<R&HHH,d,H6X@`7h@y.X80,IX\  P6G;PH5!,,5\  P6G;,P.y.\80, {\4  pG;<r5ddd,Sd6X@`7@?xxx,-x `7X X-  uc X<4  #Xj\  P6G;+XP# Federal Communications Commission Ã`(# FCC 96300 ă T yxdddy P u#Xj\  P6G;+XP#  w  Federal Communications Commission ă  `(#  FCC 96300 ă T yxdddy P  X-v3#X\  P6G;IP# Before the Federal Communications Commission  yO} Washington, D.C. 20554 ă  XR-#Xj\  P6G;+XP#  X$-In re Applications of hh@h) x` `  hh@h)  X-Benchmark Radio Acquisition Fund IV@h)  X -Limited Partnership hh@h) x` `  hh@h)  X -For Renewal of Licenses forhh@h)ppFile Nos. BR950601XT  X -Stations WTAR(AM)/WLTYFMhh@h)pp BRH950601ZL  X -Norfolk, Virginia hh@h)pp  xx 0(#(#Xx` `  hh@h)  XU-and x` `  hh@h) x` `  hh@h)  X'-WKOC License Limited Partnership @h)pp   xx 0(#(#Xx` `  hh@h)  X-For Renewal of License ofhh@h)ppFile No. BRH950601YZ  X-Station WKOC(FM) hh@h)  X-Chesapeake, Virginiahh@h) x` `  hh@h  X- ^ MEMORANDUM OPINION AND ORDER P AND NOTICE OF APPARENT LIABILITY  XX-  XA- Adopted: July 2, 1996 @hpp Released: July 17, 1996  X- By the Commission: Commissioner Quello concurring in the result.  X- MI. INTRODUCTION Ã  X-  I. A. 1. a.(1)(a) i) a) 1. a. i.(1)(a)(i) 1) a)  x! 1. The Commission has before it for consideration: (i) license renewal applications for  X - xjWTAR(AM)/WLTYFM and WKOC(FM) (collectively referred to as "WTAR" or "licensee");x 1R yO#- #X\  P6G;IP#эBenchmark Radio Acquisition Fund IV Limited Partnership assumed control of Stations   JWTAR(AM)/WLTYFM and WKOC(FM) following Commission grant of the assignment applications on April 29,   ;1993 and March 5, 1993, respectively (BAL930114HX, BALH930114HY, BALH921223HM). WKOC License   ,Limited Partnership assumed control of WKOC(FM) following Commission grant of the assignment application on   October 12, 1993 (BAPLH930924GG). The stations' renewal applications indicate that WKOC License Limited   Partnership is affiliated with Benchmark Radio Acquisition Fund IV Limited Partnership and all three stations are controlled by the same general partner and run by the same general manager. X 0*((3'# TX  x(ii) a Petition to Deny timely filed on August 15, 1995, by the Southern Region of the National  xRainbow Coalition ("Rainbow"); (iii) the licensee's response to a staff letter of inquiry; and (iv)  xa Joint Request for Approval of Settlement Agreement filed by the licensees and Rainbow on  X-December 1, 1995.  X-gII. BACKGROUND ă  X_- xk 2.    Settlement Agreement. The Joint Request for Approval of Settlement Agreement seeks  xapproval of the agreement, dismissal of the petition to deny, and grant of the stations' license  X1- xMrenewal applications.1 yO -#X\  P6G;IP#эxThe license terms under review ended on October 1, 1995. We have reviewed the settlement agreement pursuant to 47 C.F.R.   X - xk73.3588 and Prevention of Abuses of the Renewal Process, 4 FCC Rcd 4780 (1989). We find  xthat the settlement agreement complies with the Commission's rules and policies. Therefore, we  X - xgrant the joint request and dismiss the petition to deny. As is our practice in all such cases,  xhowever, we reviewed the station's Equal Employment Opportunity (EEO) program and  X - x/performance. See Section 309 of the Communications Act of 1934, as amended, 47 U.S.C.   X - xN309; see also Hilton Head Television, Inc., 10 FCC Rcd 1679 (1995). For the reasons that  xfollow, we grant the applications subject to appropriate remedies and sanctions due to deficiencies in the licensee's EEO program.  XK- x 3.  Constitutionality of Commission's EEO Rule. The licensee contends that our EEO Rule is  X4- xMinconsistent with the holding in Adarand Constructors, Inc. v. Pena, 515 U.S. " , 115 S. Ct.  X- x2097 (1995) ("Adarand"). We disagree. Adarand addresses the constitutionality of a racebased  xKpreference program arising under federal law. The Supreme Court held that where questions arise  xKas to a violation of the personal right to equal protection of the laws as a result of such programs,  xcourts should evaluate such challenges by invoking the "strict scrutiny" standard of judicial  xreview. Under strict scrutiny, racial classifications are constitutional only if they are narrowly  xtailored measures that further a compelling governmental interest. The requirements imposed by  x/our EEO Rule, 47 C.F.R.  73.2080, are fundamentally different from a racebased preference  X|- xprogram such as that at issue in Adarand.|X X-#X\  P6G;IP##Xj\  P6G;+XP#эx#C\  P6QIP#Adarand involved a federal procurement set aside program. The Rule does not require that any person be hired  xor accorded a hiring preference based on racial or ethnic status. Rather, it requires that licensees  xmake efforts to recruit minority and women applicants so that they will be ensured access to the  X7- xhiring process.X7  yO!-  #X\  P6G;IP##X\  P6G;IP#Ѝx#C\  P6QIP#Our EEO Rule imposes identical requirements with respect to women. Adarand concerned federal programs  yO"- xbased on minority status. The standard of review for gender based programs is intermediate scrutiny. United States  yO#-v. Virginia, Nos. 941941, 942107, 1996 WL 345786 (U.S. June 26, 1996). The ultimate decision as to whether to hire a particular applicant may be  xpremised upon any nondiscriminatory considerations, without regard to the applicant's race," )0*%%hhz"  xethnicity or gender status. Further, our Rule does not require licensees to hire any prescribed  x"quota" of minorities or women. Thus, our EEO Rule imposes no requirement that would operate  xto deprive any person of a benefit he or she might receive but for his or her race, ethnicity or gender.  x 4. We employ a twostep process in evaluating licensees' EEO efforts. In the first step, we  xKseek to identify those licensees whose EEO efforts may be unsatisfactory so as to warrant further  xinquiry. Whether a licensee's employment profile as reflected in its Annual Employment Reports  xfiled during the license term meets the processing guidelines is one factor considered in making  xthis preliminary assessment, along with information contained in the renewal application,  xallegations raised by any petitions to deny or informal objections, and any other information  xavailable concerning the licensee's EEO record. We emphasize that these guidelines are used as  xyan initial screening tool for determining the stations whose EEO programs might require further  xinvestigation. If the first step of review indicates that the station's EEO efforts are satisfactory,  xthe station is found to be in compliance with our EEO Rule. In no situation are a station's efforts  xKfound to be unsatisfactory or is it found to have violated the EEO Rule solely because it does not  xmeet the processing guidelines. Where we find that a station's efforts may be unsatisfactory, we  xwill generally request additional information which is analyzed along with relevant pleadings to  xZdetermine if, among other things, the station notifies sources of minority referrals when vacancies  xoccur and engages in continous selfassessment of its EEO program; if, in light of the evidence,  xthe station violated our EEO Rule; and, if it did, what sanctions or remedies may be appropriate.  xZCompliance with the processing guidelines is not a factor in this second step analysis. Broadcast  x=licensees whose employment profiles are below our processing guidelines have been renewed without sanction.  xk 5. Accordingly, we find no basis for concluding that our process denies any person equal  xprotection of the laws. Indeed, the licensee has not identified any person who arguably suffered  X- xlsuch injury as a result of the provisions of our Rule. As the Court emphasized in City of  X|- xLRichmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) ("Croson"), the right to equal protection  xjis a personal right. In the absence of any provisions in our EEO Rule that abridge the personal  XN- xrights of any person, we conclude that Adarand does not implicate our EEO program. Our  X7- xreading of the scope of the Adarand decision is consistent with the interpretation of the case by  X -the Department of Justice (DOJ). An analysis of the Adarand decision by DOJ states:  RXxMere 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"h$0*%%hh(#"  X- Sselecting persons from the expanded pool, Adarand ordinarily would be  X-inapplicable.2 Ob< ` Ѝ` ` #C\  P6QIP#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).2   X-    X- III. DISCUSSION  X- x 6. Section 73.2080 of the Commission's Rules, 47 C.F.R.  73.2080, requires that a broadcast  xlicensee refrain from employment discrimination and establish and maintain an EEO program  xreflecting positive and continuing efforts to recruit and promote qualified women and minorities.  xyWhen evaluating EEO performance, the Commission focuses on the licensee's efforts to recruit  x[and promote qualified women and minorities and the licensee's ongoing assessment of its EEO  x<efforts. Such an assessment enables the licensee to take corrective action if qualified women and  xminorities are not present in the applicant pool. The Commission also focuses on any evidence  X - xof 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 7. The stations' license renewal applications and inquiry response reveal that the licensee filled  x45 fulltime vacancies, including 38 for upperlevel positions, from June 1, 1993, to October 1,  Xy- xL1995. The licensee's records indicate that it recruited for 25 of its 45 fulltime positions. When  xrecruitment occurred, it appears that WTAR used 11 minority specific recruitment sources, 10  xgeneral recruitment sources and 15 educational institutions as recruitment sources during the  xinquiry period. It received applications from 384 persons for its 45 overall fulltime positions; 316 of these applicants were for 38 upperlevel positions.  x/ 8. WTAR reported that 54 (14%) of the 384 applicants for its 45 overall fulltime positions  xywere minorities. Thirtyeight of the minority applicants listed four general recruitment sources;  xeight minority applicants cited three educational institutions; one minority applicant was a walk xNin; four minority applicants came from unknown/unsolicited sources; and three minority  xlapplicants resulted from employee referrals. Minorities were present in 22 (48.9%) of the  xlicensee's 45 overall applicant pools and 16 (42.1%) of the licensee's 38 upperlevel applicant pools.  x 9. WTAR reported that it did not retain complete interviewee data. However, WTAR's inquiry  xresponse indicates that it interviewed 112 applicants for 45 fulltime positions. In addition, 94  xzof these interviewees were for 38 upperlevel positions. The stations' records reflect that 26  x(23.2%) of their 112 interviewees were minorities. Minorities were present in 14 (31.1%) of the licensee's 45 interview pools. Additionally, minorities were present in 10 (26.3%) of the  x?licensee's 38 upperlevel interview pools. Finally, the licensee reported that it hired four" 00*%%hh"  X-minorities overall and that two of these hires were for upperlevel positions., 0 yOy-  \#X\  P6G;IP#эxThe Commission uses 1990 Census data for all license renewal applications filed after May 31, 1993, and  yOA- xfor 1993 Annual Employment Reports and later reports. See EEO Branch of Mass Media Bureau to Use 1990 U.S.  yO - xCensus Data, Public Notice # 32651 (April 12, 1993). According to the 1990 Census, the Norfolk/Virginia  x.Beach/Newport News MSA, in which Stations WTAR(AM)/WLTYFM and WKOC(FM) are located, had an  xavailable labor force that was 48.9% female and 30.4% minority (25.8% Black, 1.8% Hispanic, 2.4% Asian/Pacific  xiIslander, and 0.4% American Indian). For the 1995 Annual Employment Report, pursuant to the Commission's  yO)- xInterpretive Ruling, 9 FCC Rcd 2535 (1994), the licensee included WKOC(FM)'s workforce with that of the other  xZstations and filed a combined report. The stations' 1995 Annual Employment Report lists an overall staff of 46  xemployees, including 17 women (37%) and six minorities (13.1%) five Blacks (10.9%) and one Hispanic (2.2%).  x-Included among 39 upperlevel employees were 11 women (28.2%) and three Blacks (7.7%). The 1994 Annual  xEmployment Report for WTAR(AM)/WLTYFM lists 14 women (37.8%) and four Blacks (10.8%) on an overall  xstaff of 37 employees, including 10 women (30.3%) and three Blacks (9.1%) among 33 upperlevel employees.  xWKOC(FM) filed a separate Annual Employment Report for 1994 since the station was located in Elizabeth City,  xNorth Carolina at that time. The Commission did not approve WKOC(FM)'s application for modification of license  xwto change its community from Elizabeth City, North Carolina to Chesapeake, Virginia until March 6, 1995 (BMLH x941005KB). According to the 1990 census, the Pasquotank County MSA, in which WKOC(FM) was then located,  xkhad an available labor force that was 46.4% female and 34.5% minority (33.2% black, .5% Hispanic, .3%  xAsian/Pacific Islander, and 0.5% American Indian. The 1994 Annual Employment Report for WKOC(FM) lists 6  xKwomen (42.9%) and one Black (7.1%) on an overall staff of 14 employees, including 5 women (38.4%) and one Black (7.7%) among 13 upperlevel employees. ,  xL 10. Given the foregoing record, we conclude that no substantial question of discrimination is  X- x<raised. yO,-  N#X\  P6G;IP#эxIn its renewal application for WKOC(FM), the licensee indicated that, on February 2, 1994, a female  xwemployee filed a discrimination case against the station with the Equal Employment Opportunity Commission. The  x-licensee explained that it has denied the claim and the case is still pending. Consistent with our practice, we will  yO- xdefer action until after a final decision has been reached on the complaint. See Price Broadcasting Company, FCC 9695, n. 7, released March 29, 1996.  However, we find WTAR's overall recruitment efforts deficient because the station failed  xto recruit for 20 (44%) of its 45 vacancies contrary to the requirements of Section 73.2080(c)(2)  X- xof our rules.Xp yO-  M#Xj\  P6G;+XP##X\  P6G;IP##X\  P6G;IP#эxThe licensee is reminded that under our EEO rule, 47 C.F.R.  73.2080, it has an obligation to recruit for  x-females and minorities for each vacancy. To the extent that licensees fail to do so, female, as well as minority, recruitment may be affected.  Minorities were absent from a significant number of the licensee's applicant pools.  xMoreover, it appears that the licensee did not adequately selfassess as required by Section 73.2080(c)(5) of our rules. Hence, a forfeiture is warranted.  X1- x 11. We believe that the record in the instant case is similar to, but more egregious than, that  X - xof the licensee of WPMI(TV), Mobile, Alabama. See Clear Channel Television, Inc., FCC 96 x128, released April 4, 1996. The licensee therein recruited for 25 (68%) of its 37 fulltime" 0*%%hh "  x vacancies. Although minorities comprised 25.5% of the Mobile, Alabama labor force, they  xappeared in only 32% of the licensee's applicant pools and 30% of its interview pools.  xAdditionally, the station did not maintain records to identify the composition of its applicant and  x[interview pools for 12 jobs. We found no discrimination but concluded that the licensee failed  xto recruit and selfassess in accordance with our EEO Rule. We renewed the license of  xWPMI(TV) subject to reporting conditions and issued a Notice of Apparent Liability for $10,000.  xj 12. Both WTAR and WPMI(TV) failed to recruit for a significant percentage of job openings.  xLSpecifically, WTAR did not recruit for 20 (44%) of its fulltime job vacancies, while WPMI(TV)  xLdid not do so for 12 (32%) of its vacancies. The stations' records reflect that when recruitment  xdid not occur, minorities were usually not considered. Moreover, despite being located in areas  x[where minorities constituted at least 25% of the labor force, WTAR failed to have a minority in  x/51% of its applicant pools while WPMI(TV) failed to have a minority in 68% of such pools.  xGiven the dearth of minority applicants and the apparent lack of licensee response, it thus appears  xxthat neither licensee's selfassessment was adequate. Ultimately, because WTAR had more hiring  xopportunities and failed to recruit for a greater percentage of job openings than did WPMI(TV),  xwe conclude that the forfeiture for WTAR should be higher than that imposed on the licensee of WPMI(TV). We will issue a Notice of Apparent Liability for $12,000.  Xb-  XK- IV. CONCLUSION T  X-TP 13. Having reviewed all matters presented, 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 of 1934, as amended, 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).  X-However, we will grant the renewal subject to reporting conditions and issue a Notice of  X-Apparent Liability for $12,000 .  Xe-W V. ORDERING CLAUSES ă  X7- 14. ACCORDINGLY, IT IS ORDERED that the Joint Request for Approval of Settlement Agreement filed by the licensee of WTAR(AM)/WLTYFM and WKOC(FM) and  X -the Southern Region of the National Rainbow Coalition IS GRANTED and the settlement  X-agreement IS APPROVED .  X - 15. IT IS FURTHER ORDERED that the petition to deny filed by the Southern Region of the National Rainbow Coalition concerning the renewal applications of Stations  X"-WTAR(AM)/WLTYFM and WKOC(FM) IS D ISMISSED .  Xh$- 16. IT IS FURTHER ORDERED that the license renewal applications for Stations"h$0*%%hh(#"  X-WTAR(AM)/WLTYFM and WKOC(FM) ARE GRANTED subject to reporting conditions as described herein and, pursuant to Section 503 of the Communications Act of 1934, as  X-amended, 47 U.S.C.  503, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE  X- in the amount of $12,000.s  yO4-   #X\  P6G;IP#э x In this regard, we are mindful of pending applications for the assignment of license for WTAR(AM) and  xWLTYFM from Benchmark Radio Acquisition Fund IV Limited Partnership to Sinclair Telecable, Inc. and WGH  xLicense Investment Co., respectively (BAL960529EE, BALH960529HJ) and for WKOC(FM) from WKOC License  x,Limited Partnership to Sinclair Telecable, Inc. (BALH960529HE). In the event that the licenses are assigned, the  yOT- xJreporting conditions will apply to the assignee upon consummation of the assignment. See San Luis Obispo Limited  yO -Partnership, 9 FCC Rcd 894 (1994); Woolfson Broadcasting Corporation, 4 FCC Rcd 6160 (1989).s  X-   17. 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:  XH-x (a) ` ` For each report, two lists divided by fulltime and parttime job vacancies x` ` during the 12 months preceding May 1, 1997 for the first report, May 1, 1998 x` ` for the second report, and May 1, 1999 for the third report, indicating the job x` ` title and FCC job category, date of hire, the race or national origin, sex and the x` ` referral source of each applicant for each job and the race or national origin x` ` and sex of the person hired. The lists should also note which recruitment  X -x` ` sources were contacted;  @ yO-#X\  P6G;IP#эxSuch a list might start: 1) News Director: Officials and Managers; Fulltime.  yO-3 Applicants:` `  1 White femalehhA.W.R.T  yO- x` `  1 Hispanic malehhNational Hispanic Media x` `  hh@Coalition  yO_-x` `  1 Black femalehhUrban League Sources contacted Local newspaper, A.W.R.T., National Hispanic Media Coalition and Urban League Selected Hispanic male, National Hispanic Media Coalition, (10/12/96)   X-x(b) ` ` A list of employees as of the May 1, 1997, payroll period for the first x` ` report, a list of employees as of the May 1, 1998, payroll period for the second x` ` report, and a list of employees as of the May 1, 1999, payroll period for the  XK-x` ` third report, by job title and FCC job category indicating fulltime or parttime x` ` status (ranked from the highest paid classification), date of hire, sex and race or x` ` national origin; and  X- x(c)` ` Details concerning the stations' efforts to recruit minorities for each position" 0*%%hhs"  X-x` ` filled during the 12month periods specified, including identification of (#(#Xx` ` sources used and indicating whether any of the applicants declined actual offers  X-x` ` of employment. In addition, the licensee may submit any information it (#(#Xx` ` believes relevant regarding the stations' EEO performance and their efforts x` ` thereunder.  Xv- 18. IT IS FURTHER ORDERED , that the Mass Media Bureau send by Certified Mail  X_-Return Receipt Requested copies of this Memorandum Opinion and Order to all parties.  X1- 19. The reports are to be filed with the Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 20. With respect to the forfeiture proceeding, 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.  Xy-x` `   FEDERAL COMMUNICATIONS COMMISSION x x` `  William F. Caton  X-x` `  Acting Secretary