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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Federal Communications Commission FCC 96-351 Before the Federal Communications Commission Washington, DC 20554 In re Applications of ) ) WCMS Radio Norfolk, Inc. ) File Nos. : BR-950601WG ) BRH-950601WH ) For Renewal of Licenses for ) Stations WCMS/WCMS-FM ) Norfolk, Virginia ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: August 14, 1996; Released: September 10, 1996 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) license renewal applications for the above-captioned stations; and (ii) the licensee's response to a staff letter of inquiry. The licensee maintains that it has followed the requirements of the Commission's Equal Employment Opportunity ("EEO") Rule and policies and that it deserves unconditional renewal. For the reasons that follow, we will grant the applications subject to appropriate remedies and sanctions due to deficiencies in the licensee's EEO program. II. BACKGROUND 2. Settlement Agreement. On August 15, 1995, the Southern Region of the National Rainbow Coalition ("Rainbow") filed a petition to deny WCMS/WCMS-FM's renewal applications. On March 11, 1996, Rainbow and the licensee filed a joint request for approval of settlement agreement, in which they requested that the Commission dismiss the petition as it pertains to WCMS/WCMS-FM. By letter dated May 22, 1996, Commission staff approved the agreement and dismissed the petition to deny. As is our practice in all such cases, we reviewed the stations' Equal Employment Opportunity (EEO) Program and performance pursuant to Section 309 of the Communications Act of 1934, as amended, 47 U.S.C.  309. Having reviewed all matters presented, including the licensee's response to a staff inquiry, 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, 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). However, we find that the licensee did not engage in recruitment for 70% of its vacancies and failed to conduct meaningful self-assessment. Thus, grant of the renewals will be subject to appropriate remedies and sanctions as discussed below. 3. Constitutionality of Commission's EEO Rule. The licensee contends that our EEO Rule is inconsistent with the holding in Adarand Constructors, Inc. v. Pe¤a, 515 U.S. , 115 S.Ct. 2097 (1995) ("Adarand"). We disagree. 4. Adarand addresses the constitutionality of a race-based preference program arising under federal law. The Supreme Court held that where questions arise as to a violation of the personal right to equal protection of the laws as a result of such programs, courts should evaluate such challenges by invoking the "strict scrutiny" standard of judicial review. Under strict scrutiny, racial classifications are constitutional only if they are narrowly tailored measures that further a compelling governmental interest. 5. The requirements imposed by our EEO Rule, 47 C.F.R.  73.2080, are fundamentally different from a race-based preference program such as that at issue in Adarand. The Rule does not require that any person be hired or accorded a hiring preference based on racial or ethnic status. Rather, it requires that licensees make efforts to recruit minority and women applicants so that they will be ensured access to the hiring process. The ultimate decision as to whether to hire a particular applicant may be premised upon any non-discriminatory considerations, without regard to the applicant's race, ethnicity or gender status. Further, our Rule does not require licensees to hire any prescribed "quota" of minorities or women. Thus, our EEO Rule imposes no requirement that would operate to deprive any person of a benefit he or she might receive but for his or her race, ethnicity or gender. 6. We employ a two-step process in evaluating licensees' EEO efforts. In the first step, we seek to identify those licensees whose EEO efforts may be unsatisfactory so as to warrant further inquiry. Whether a licensee's employment profile as reflected in its Annual Employment Reports filed during the license term meets the processing guidelines is one factor considered in making this preliminary assessment, along with information contained in the renewal application, allegations raised by any petitions to deny or informal objections, and any other information available concerning the licensee's EEO record. We emphasize that these guidelines are used as an initial screening tool for determining the stations whose EEO programs might require further investigation. If the first step of review indicates that the station's EEO efforts are satisfactory, the station is found to be in compliance with our EEO Rule. In no situation are a station's efforts found to be unsatisfactory or is it found to have violated the EEO Rule solely because it does not meet the processing guidelines. Where we find that a station's efforts may be unsatisfactory, we will generally request additional information which is analyzed along with relevant pleadings to determine if, among other things, the station notifies sources of minority referrals when vacancies occur and engages in continuous self-assessment of its EEO program; if, in light of the evidence, the station violated our EEO Rule; and, if it did, what sanctions or remedies may be appropriate. Compliance with the processing guidelines is not a factor in this second step analysis. Broadcast licensees whose employment profiles are below our processing guidelines have been renewed without sanction. 7. Accordingly, we find no basis for concluding that our process denies any person equal protection of the laws. Indeed, the licensee has not identified any person who arguably suffered such injury as a result of the provisions of our Rule. As the Court emphasized in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) ("Croson"), the right to equal protection is a personal right. In the absence of any provisions in our EEO Rule that abridge the personal rights of any person, we conclude that Adarand does not implicate our EEO program. 8. Our reading of the scope of the Adarand decision is consistent with the interpretation of the case by the Department of Justice (DOJ). An analysis of the Adarand decision by DOJ states: Mere outreach and recruitment efforts . . . typically would not be subject to Adarand standards. Indeed, post-Croson 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 race-conscious 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 selecting persons from the expanded pool, Adarand ordinarily would be inapplicable. III. DISCUSSION 9. 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 reflecting positive and continuing efforts to recruit and promote qualified women and minorities. When evaluating EEO performance, the Commission focuses on 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) of the Commission's Rules, 47 C.F.R.  73.2080(a), (b), and (c). 10. The stations' 1995 EEO Program Report and inquiry response reveal that the licensee filled ten full-time vacancies, including eight for upper-level jobs, from October 1, 1992, to October 1, 1995. The licensee recruited for three vacancies. The licensee used four general sources and four minority sources for two vacancies, and only four general sources for one vacancy. 11. The licensee indicates that it did not track the race, ethnic origin, and gender of the applicants for many of its openings. The licensee explains that for several years during the license term, hiring was conducted at the department level. Consequently, the stations' records were decentralized and incomplete. However, based upon records which are available, it appears that the licensee attracted at least two minority applicants (1.4%), and seven female applicants (5%) among 146 applicants overall, and interviewed four minorities (11%), and 18 females (47.3%) among 38 interviewees overall. The licensee's records also indicate that minorities were present in at least two applicant and interview pools (20%), and that females were present in at least three applicant pools (30%), and six interview pools (60%). The licensee reports that it made an offer to a Black male for a lower level job. On August 1, 1996, the licensee filed an amendment to its renewal applications. In its amendment, the licensee noted hiring opportunities and changes in its EEO program which occurred after the license term expired. Post-term EEO performance, however, is not considered in the Commission's evaluation of a licensee's EEO record during the license term if that record, standing alone, is so deficient that it would merit sanction. See Rust Communications, Inc., 73 FCC 2d 39, 53 (1979). Accordingly, we will not consider the licensees' post-term efforts because, as we state infra, we find that the licensees' EEO record during the license term warrants a sanction. 12. There are no substantial and material questions of fact warranting designation for hearing. See Astroline Com. Co. Ltd. Partnership v. FCC, 857 F.2d 1556 (D.C. Cir. 1988). Moreover, there is no evidence that the licensee engaged in employment discrimination. The licensee hired and employed females and minorities. In addition, the licensee contacted referral sources for some of its vacancies. Therefore, renewal of the license is in the public interest. 13. Nevertheless, we find the licensee's overall recruitment efforts to be deficient. Our review indicates that the stations failed to recruit for a majority of their ten vacancies (70%), in violation of Section 73.2080(c)(2) of the Commission's Rules. Moreover, minorities were absent from a significant number of applicant and interview pools. Despite its lack of success in recruiting minorities during the license term, there is no evidence that the licensee conducted adequate self-assessment of its EEO program as required by Section 73.2080 (c)(5) of the Commission's Rules. Moreover, the licensee failed to maintain applicant flow data to analyze the composition of its applicant pools and the usefulness of its recruitment sources. 14. We believe that the record in this case is similar to that of the licensee of WMMR(FM), Philadelphia, Pennsylvania. See Applications of Group W Radio, Inc., 11 FCC Rcd 8942 (1996). The licensee therein recruited for six (54.5%) of its 11 full-time vacancies. WMMR(FM) contacted minority sources for only two positions. The licensee did not keep complete minority referral information. During its review period, WMMR(FM) attracted minorities to five applicant pools, and interviewed one minority for one job. We renewed the license of WMMR(FM) subject to reporting conditions and issued a Notice of Apparent Liability for $14,000. 15. Both WCMS/WCMS-FM and WMMR(FM) are located in areas with significant minority labor forces. Each licensee failed to recruit for every vacancy. In both cases, the insufficient recruitment efforts were unsuccessful in attracting minority applicants. Nevertheless, the records do not show that either licensee adequately self-assessed during their respective license terms. Although WCMS/WCMS(FM) had slightly fewer hires than WMMR(FM), WMMR(FM) recruited for a higher percentage of its vacancies. Given the facts of this case and broadcasters' familiarity with our long-standing EEO Rule, a forfeiture of $14,000 is an appropriate sanction for WCMS/WCMS(FM)'s violations of the Commission's EEO rule. Accordingly, we will grant renewal subject to reporting conditions and issue a Notice of Apparent Liability for $14,000. IV. CONCLUSION 16. Upon review of the record and arguments submitted by the licensee, we find that no hearing is warranted. However, because we find that the licensee's recruitment and self- assessment were inadequate, we will grant its renewal applications subject to a Notice of Apparent Liability for $14,000 and impose reporting conditions to monitor the licensee's EEO performance. V. ORDERING CLAUSES 17. Accordingly, IT IS ORDERED that the license renewal applications filed by WCMS Radio Norfolk, Inc. for Stations WCMS/WCMS-FM ARE GRANTED subject to the reporting conditions described herein and, pursuant to Section 503 of the Communications Act of 1934, as amended, 47 U.S.C.  503, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $14,000. 18. IT IS FURTHER ORDERED, that the licensee of Stations WCMS/WCMS-FM submit to the Commission an original and one copy of the following information on June 1, 1997, June 1, 1998, and June 1, 1999: (a) For each report, two lists divided by full-time and part-time job vacancies during the 12 months preceding May 1, 1997 for the first report, May 1, 1998 for the second report, and May 1, 1999 for the third report, indicating the job title and FCC job category, 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 lists should also note which recruitment sources were contacted; (b) A list of employees as of the May 1, 1997, payroll period for the first report, a list of employees as of the May 1, 1998, payroll period for the second report, and a list of employees as of the May 1, 1999, payroll period for the third 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 station's efforts to recruit minorities for each position filled during the 12-month periods specified, 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. 19. The reports are to be filed with the Acting Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 20. 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 Notice of Apparent Liability to the licensee. 21. With respect to the forfeiture proceeding, the licensee of WCMS/WCMS-FM 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 its ability to pay should include those financial items set forth in the attachment. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary