WPC@- 2MBVRKZ3|j7jC:, Xj\  P6G;XP"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP LaserJet 4M (PCL) RM 7310 LPT2HPLA4MPC.PRSXj\  P6G;\sXP2/ KK3|j"i~'^"(22TN"""28"2222222222888,\HBBH>8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""-"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+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNOpportunity ("EEO") Rule and policies and that it deserves unconditional renewal. For the  xreasons that follow, we will grant the applications subject to appropriate remedies and sanctions due to deficiencies in the licensee's EEO program.  X-g II. BACKGROUND ă  X-  x2. Settlement Agreement . On August 15, 1995, the Southern Region of the National  xRainbow Coalition ("Rainbow") filed a petition to deny WCMS/WCMSFM's renewal  xjapplications. On March 11, 1996, Rainbow and the licensee filed a joint request for approval of  xsettlement agreement, in which they requested that the Commission dismiss the petition as it  x=pertains to WCMS/WCMSFM. By letter dated May 22, 1996, Commission staff approved the  xagreement and dismissed the petition to deny. As is our practice in all such cases, we reviewed  xthe stations' Equal Employment Opportunity (EEO) Program and performance pursuant to  xSection 309 of the Communications Act of 1934, as amended, 47 U.S.C.  309. Having  xreviewed all matters presented, including the licensee's response to a staff inquiry, we conclude  x.that there are no substantial and material questions of fact and that a grant of the applications  x!would be consistent with Section 309(k) of the Communications Act, 47 U.S.C.  309(k).  xFurther, we find no evidence of employment discrimination. Thus, because the licensee is  xotherwise qualified, grant of the applications will serve the public interest. 47 U.S.C.   x309(d)(2). However, we find that the licensee did not engage in recruitment for 70% of its  xvacancies and failed to conduct meaningful selfassessment. Thus, grant of the renewals will be subject to appropriate remedies and sanctions as discussed below. X+,,,*3'#  XԌ X- Lԙ3. Constitutionality of Commission's EEO Rule. The licensee contends that our EEO  X-  Rule is inconsistent with the holding in Adarand Constructors, Inc. v. Pe9a, 515 U.S. " , 115  X-S.Ct. 2097 (1995) ("Adarand"). We disagree.  X- 4. Adarand addresses the constitutionality of a racebased preference program arising   under federal law. The Supreme Court held that where questions arise as to a violation of the   xpersonal 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.  X - 5. The requirements imposed by our EEO Rule, 47 C.F.R.  73.2080, are fundamentally  X -  different from a racebased preference program such as that at issue in Adarand.  Xe -Ѝ#C\  P6QIP#Adarand involved a federal procurement set aside program. The Rule does   not require that any person be hired or accorded a hiring preference based on racial or ethnic   Lstatus. Rather, it requires that licensees make efforts to recruit minority and women applicants  X -  jso that they will be ensured access to the hiring process.x y yO- #X\  P6G;IP#ЍOur EEO Rule imposes identical requirements with respect to women. Adarand concerned federal programs   xbased on minority status. The standard of review for gender based programs is intermediate scrutiny. Under that   wstandard, there must be an "exceedingly persuasive justification" for gender-based government action and that action   Jis constitutional if it serves an important governmental objective and is substantially related to achievement of that  yO-  objective. United States v. Virginia, 116 S.Ct. 2264 (1996); J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994);  yO-Mississippi University for Women v. Hogan, 458 U.S. 718 (1982).  The ultimate decision as to whether   Mto hire a particular applicant may be premised upon any nondiscriminatory 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.  X- !6. We employ a twostep 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   yan 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   Kfound 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" ,((hh="   will generally request additional information which is analyzed along with relevant pleadings to   Zdetermine if, among other things, the station notifies sources of minority referrals when vacancies   occur and engages in continuous selfassessment 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.   ZCompliance 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  X -  lsuch injury as a result of the provisions of our Rule. As the Court emphasized in City of  X -  LRichmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) ("Croson"), the right to equal protection   jis a personal right. In the absence of any provisions in our EEO Rule that abridge the personal  X -rights of any person, we conclude that Adarand does not implicate our EEO program.  X - 8. Our reading of the scope of the Adarand decision is consistent with the interpretation  X-  of the case by the Department of Justice (DOJ). An analysis of the Adarand decision by DOJ states:  RXMere outreach and recruitment efforts . . . typically would not be subject to  X4- 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  X- Sselecting persons from the expanded pool, Adarand ordinarily would be  X-inapplicable.2 yO - z#X\  P6G;IP#ЍMemorandum 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   Xe-3 III. DISCUSSION ă  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  X!-  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). "# ,((hhe""Ԍ  10. The stations' 1995 EEO Program Report and inquiry response reveal that the licensee   filled ten fulltime vacancies, including eight for upperlevel jobs, from October 1, 1992, to   \October 1, 1995. The licensee recruited for three vacancies. The licensee used four general   ksources 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   Mapplicants 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  X1-  Zwere decentralized and incomplete.1 yO - j#X\  P6G;IP#ЍThe licensee states that it has implemented a "centralized personnel program" to improve its recordkeeping efforts. 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  X -  \made an offer to a Black male for a lower level job. h  yOx- #X\  P6G;IP#эAccording to the 1980 Census, the NorfolkVirginia BeachNewport News, Virginia Metropolitan Statistical   yArea (MSA), in which the stations are located, had an available labor force that was 45.1% female and 28.6%   wminority (26.1% Black, 1.2% Hispanic, 1.1% Asian/Pacific Islander, and 0.2% American Indian). The 1989 Annual   Employment Report lists 17 women (50%) and eight Blacks (24%) among an overall staff of 34 employees, including   <12 women (44.4%) and four Blacks (15%) among an upperlevel staff of 27 employees. In the 1990 report, 17   hwomen (52%), and seven Blacks (21.2%) are reflected among 33 fulltime employees, including 13 women (48.1%),   Jand three Blacks (11.1%) on an upperlevel staff of 27 employees. The 1991 report lists 16 women (50%), and six   Blacks (19%) among 32 fulltime employees, including 13 women (48.1%), and three Blacks (11.1%) on an upper  level staff of 27 employees. In the 1992 report, 15 women (48.4%), and six Blacks (19.4%) are listed among an   overall staff of 31 employees, including 12 women (46.2%), and three Blacks (12%) on an upperlevel staff of 26 employees.   The Commission has begun using 1990 labor force statistics for license renewal applications filed after May 31, 1993  yO-  and for 1993 and subsequent Annual Employment Reports. See Public Notice #32651 (April 12, 1993). The   relevant available labor force is 48.9% female and 30.4% minority (25.8% Black, 1.8% Hispanic, 2.4% Asian/Pacific   Islander, and 0.4% American Indian). The 1993 report lists 14 women (48.3%), and seven Blacks (24.1%) among   29 overall employees, including 11 women (46%), and three Blacks (12.5%) among 24 upperlevel employees. In   the 1994 report, 14 women (48.3%), and five Blacks (17.2%) are reflected on the overall staff of 29 employees,   including 11 women (46%), and two Blacks (8.3%) among 24 upperlevel employees. The 1995 report lists 16   women (53.3%), and three Blacks (10%) among 30 overall employees, including 12 women (46.2%), and two Blacks (7.7%) among 26 upperlevel employees. 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. Postterm 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  X4-  sanction. See Rust Communications, Inc., 73 FCC 2d 39, 53 (1979). Accordingly, we will not"4P,((hh"  X-  consider the licensees' postterm efforts because, as we state infra, we find that the licensees' EEO record during the license term warrants a sanction.  X-  12. There are no substantial and material questions of fact warranting designation for  X-  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 selfassessment 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  XK-  WMMR(FM), Philadelphia, Pennsylvania. See Applications of Group W Radio, Inc., 11 FCC  X4-  Rcd 8942 (1996). The licensee therein recruited for six (54.5%) of its 11 fulltime vacancies.   zWMMR(FM) contacted minority sources for only two positions. The licensee did not keep   0complete 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/WCMSFM and WMMR(FM) are located in areas with significant   minority labor forces. Each licensee failed to recruit for every vacancy. In both cases, the   Kinsufficient recruitment efforts were unsuccessful in attracting minority applicants. Nevertheless,   the records do not show that either licensee adequately selfassessed 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 longstanding EEO Rule, a forfeiture of $14,000 is an   lappropriate 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.  X"-}/ IV. CONCLUSION ă  ]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"#',((hh%" performance.  X-` ` 6 V. ORDERING CLAUSES ă  X- 17. Accordingly, IT IS ORDERED that the license renewal applications filed by WCMS  X-  Radio Norfolk, Inc. for Stations WCMS/WCMSFM ARE GRANTED subject to the reporting   conditions described herein and, pursuant to Section 503 of the Communications Act of 1934,  X_-  <as amended, 47 U.S.C.  503, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $14,000.  X - 18. IT IS FURTHER ORDERED , that the licensee of Stations WCMS/WCMSFM   /submit to the Commission an original and one copy of the following information on June 1, 1997, June 1, 1998, and June 1, 1999:  X -  (a)` ` For each report, two lists divided by fulltime and parttime job vacancies during   the 12 months preceding May 1, 1997 for the first report, May 1, 1998 for the   3second 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  X4-contacted;"4 yO-#X\  P6G;IP#эSuch a list might start: 1) News Director: Officials and Managers; Fulltime. 3 Applicants: 1 White female A.W.R.T. ` `  1 Hispanic male National Hispanic Media Coalition ` `  1 Black male Urban League Sources contacted Local newspaper, A.W.R.T., National Hispanic Media Coalition and Urban League  Selected Hispanic male (12/15/96) "(#`  X-  (b)` ` A list of employees as of the May 1, 1997, payroll period for the first report, a list   oof 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 fulltime or parttime status (ranked from highest paid classification), date of hire, sex and race or national origin; and(#`  X|-  n(c)` ` Details concerning the station's efforts to recruit minorities for each position filled   during the 12month 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"7( ,((hh]"  X-station's EEO performance and efforts thereunder. (#`  X- 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.  X- 20. IT IS FURTHER ORDERED , that the Mass Media Bureau send by Certified Mail  Xv-  M Return Receipt Requested a copy of this Memorandum Opinion and Order and Notice of  X_-Apparent Liability to the licensee.  X1- 21. With respect to the forfeiture proceeding, the licensee of WCMS/WCMSFM 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. ` `  hh,VFEDERAL COMMUNICATIONS COMMISSION x` ` x` ` hh@William F. Caton x` ` hh@Acting Secretary