NOTICE ************************************************************************* NOTICE ************************************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) Sandab Communications Limited ) File Nos. BR-950912UB Partnership II ) BRH-950912UA ) For Renewal of Licenses for ) Stations WTTB(AM)/WGYL(FM) ) Vero Beach, Florida ) MEMORANDUM OPINION AND ORDER Adopted: July 12, 1996 Released: July 22, 1996 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) the above-captioned license renewal applications for stations WTTB(AM)/WGYL(FM), Vero Beach, Florida, filed by Sandab Communications Limited Partnership II ("Sandab"); (ii) a Petition to Deny timely filed by the Southern Region of the National Rainbow Coalition ("Rainbow"); (iii) a letter in response to the petition filed by the licensee; and (iv) Rainbow's Reply thereto. II. BACKGROUND 2. Rainbow alleges that the stations violated our Equal Employment Opportunity (EEO) Rule and policies. Accordingly, it requests that we conduct an investigation of the stations' employment practices pursuant to Bilingual Bicultural Coalition on Mass Media v. FCC, 595 F.2d 621 (D.C. Cir. 1978) and designate the renewal applications for hearing. The licensee opposes Rainbow's allegations urging that the petitioner has failed to establish any violations of our EEO requirements and that unconditional renewal of the licenses should be granted. 3. In challenging an application pursuant to Section 309(d) of the Communications Act of 1934, as amended, a petitioner must, as a threshold matter, submit "specific allegations of fact sufficient to show that the petitioner is a party in interest and that a grant of the application would be prima facie inconsistent with [the public interest, convenience, and necessity]." 47 U.S.C.  309(d)(1); Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (Astroline); Dubuque T.V. Limited Partnership, 4 FCC Rcd 1999 (1989). The allegations, except for those of which official notice may be taken, must be supported by an affidavit of a person or persons with personal knowledge of the facts. 47 U.S.C.  309(d)(1). 4. Standing. Submitted with the petition is a declaration under penalty of perjury supplied by a Rainbow member who affirms that he is a regular listener of WTTB(AM)/WGYL(FM) and would be aggrieved if the petition is not granted. We find that this declaration meets our requirements for standing. See NAB Petition for Rulemaking, 82 FCC 2d 89 (1980). Accordingly, we hold that Rainbow has petitioner status with respect to the stations. 5. Prima Facie Case. The allegations in the petition are premised on the licensee's EEO program and annual employment reports. We do not find that Rainbow has established a prima facie case under Section 309(d)(1) of the Communications Act. For reasons that will be discussed below, the petition fails to make specific allegations of fact that would, if true, demonstrate that grant of the applications would be inconsistent with the public interest. 6. 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). III. DISCUSSION 7. Section 73.2080 of the Commission's Rules requires that a broadcast licensee refrain from employment discrimination and establish and maintain an equal employment opportunity 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 any evidence of discrimination by the licensee. See Sections 73.2080(a), (b) and (c). 8. A review of the licensee's 1995 EEO Program Report reveals that, for the renewal year period of September 1, 1994 to September 1, 1995, Sandab listed as recruitment sources 11 publications (at least one of which was minority-oriented), 16 educational institutions, 13 minority or women's organizations and several personnel agencies and miscellaneous sources. Sandab reported that it received seven minority referrals from these sources. During the renewal year, the stations reported hiring 13 full-time employees, including two minorities who were hired for upper-level positions. The licensee also indicated that, in order to improve minority referrals, the stations' General Manager met, during the renewal year, with the directors of NAACP Chapters in Indian River, South Brevard and St. Lucie Counties and with the director of the Hispanic Council. He also spoke at continuing education classes at Indiana River College and Brevard College and visited local high schools to urge minority and female students to develop the skills needed to seek broadcast jobs. 9. In its petition, Rainbow alleges that the stations sought to excuse their "extremely low minority employment" by reference in the 1995 EEO Program Report to ". . . the difficulty in attracting qualified minority candidates where a substantial portion of the minority labor force are recent immigrants from Haiti and elsewhere, with little education and who primarily work in agriculture." Rainbow asserts that in fact the "vast majority" of minorities in Indian River County (where Vero Beach is located) have lived in the area for decades and that only 6.3% of the Indian River County labor force were engaged in agriculture according to the 1990 Census. In its response, the licensee reiterates its commitment to its EEO program, relying upon the record already before the Commission. In reply, Rainbow asserts that the licensee failed to respond to the substance of its allegations, and therefore further inquiry is justified. 10. We find that Rainbow has failed to make a prima facie case that the grant of the renewal applications would be inconsistent with the public interest as required by Section 309(d)(1) of the Act, 47 U.S.C.  309(d)(1). In its petition to deny, Rainbow does not make specific allegations that would require further consideration nor does it allege facts that would establish a violation of the Commission's EEO Rule. See Astroline. Moreover, we conclude that there is no evidence of discrimination. The licensee has recruited and hired minorities. In addition, we have found no deficiencies in the stations' EEO program which would warrant a sanction or remedy. 11. Initially, with respect to the allegedly incorrect demographic statement in Sandab's 1995 EEO Program Report, Rainbow has not demonstrated that there is an inconsistency between the licensee's statement and Rainbow's assertions concerning the demographics of Indian River County. Indian River County constitutes the stations' labor force for statistical purposes. However, according to its 1995 EEO Program Report, Sandab does not limit its minority recruitment efforts to Indian River County. Nor does its statement concerning the demographics of its labor force purport to be limited to the labor force within Indian River County. Second, the licensee's statement is not offered for the purpose of excusing a deficient past record. Rather, it is offered for the purpose of explaining why the licensee believes that "creative efforts" at minority recruitment may be warranted. In addition, Rainbow's characterization that the "vast majority" of minorities have resided in the County for decades would not necessarily be inconsistent with a characterization that a "substantial portion" are recent immigrants because neither characterization is directly supported by reference to an official record. Hence, we find both statements imprecise and subjective. In any event, Rainbow's allegation does not, without more, constitute a specific allegation of fact sufficient to support a prima facie determination that the licensee failed to recruit minority applicants for vacancies at the stations as required by our EEO Rule. 12. Regarding the licensee's decision not to file an opposition, no adverse inference is warranted based on Sandab's letter response, which elects to rely on evidence already on file concerning its EEO record. We will not draw an adverse inference where a licensee chooses not to file an opposition. Section 73.3584(b) of the Rules, 47 C.F.R.  73.3584(b). Absent Commission inquiry, there is no basis for an adverse inference because a licensee chooses to rely on information already supplied. Accordingly, Rainbow's allegations do not raise a question as to the adequacy of the licensee's efforts to recruit minority applicants. The station's minority employment profile would not, standing alone, constitute grounds for sanction because our primary concern relates to a licensee's efforts to recruit minority applicants rather than the attainment of a particular statistical benchmark. Channel 5 Public Broadcasting Inc., 10 FCC Rcd 10388, 10389 (1995); Miami/Florida Renewals, 5 FCC Rcd 4893, 4894 (1990). We have reviewed all of the evidence before us and do not find a prima facie case that the licensee has violated our EEO Rule. IV. CONCLUSION 13. Based upon the record, we find that a hearing is not warranted. Therefore, we will deny the petition filed by Rainbow and, finding the licensee to be otherwise qualified, we will grant unconditional renewal of the licenses for WTTB(AM) and WGYL(FM). V. ORDERING CLAUSES 14. Accordingly, IT IS ORDERED that the Petition to Deny filed by the Southern Region of the National Rainbow Coalition regarding WTTB(AM) and WGYL(FM) IS DENIED. 15. IT IS FURTHER ORDERED that the renewal applications filed by Sandab Communications Limited Partnership II for Stations WTTB(AM) and WGYL(FM) ARE GRANTED. 16. IT IS FURTHER ORDERED that the Mass Media Bureau send copies of this Memorandum Opinion and Order by Certified Mail -- Return Receipt Requested -- to the Southern Region of the National Rainbow Coalition and Sandab Communications Limited Partnership II. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary