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. ************************************************************************* 1. Federal Communications Commission FCC 96-398 Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) Downs Satellite Broadcasting of South Carolina, Inc. ) ) For Renewal of License for ) File Nos. BR-950801YP Stations WJXY/WJXY-FM ) BRH-950801VS Conway, South Carolina ) MEMORANDUM OPINION AND ORDER Adopted: October 1, 1996 Released: October 10, 1996 By the Commission: I. INTRODUCTION 2. The Commission has before it for consideration: (i) license renewal applications for the captioned radio stations; (ii) a Petition to Deny timely filed on October 31, 1995, by the Southern Region of the National Rainbow Coalition ("Rainbow"); (iii) an opposition filed by the licensee; (iv) the licensee's response to a staff letter of inquiry; and (v) Rainbow's reply to the licensee's inquiry response. II. BACKGROUND 3. Rainbow alleges that the licensee 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, Inc. v. FCC, 595 F.2d 621 (D.C. Cir. 1978) (Bilingual) and designate the renewal applications for hearing. The licensee denies Rainbow's allegations and requests unconditional renewal. 4. Standing. In challenging an application pursuant to Section 309(d) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d), a petitioner must demonstrate party in interest status. 47 U.S.C.  309(d)(1); Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (Astroline). The allegations, except for those of which official notice may be taken, must be supported by the affidavit of a person with personal knowledge of the facts alleged. 47 U.S.C.  309(d)(1). 5. Rainbow filed a statement under penalty of perjury by a member who claims to be a resident in the service area of WJXY/WJXY-FM and a regular listener of the stations. We find that this statement meets the requirements for standing and hold that Rainbow has petitioner status with respect to WJXY/WJXY-FM. See NAB Petition for Rulemaking, 82 FCC 2d 89 (1980) [citing Warth v. Seldin, 422 U.S. 490, 511 (1975)]. 6. Prima Facie Case. Rainbow derived its factual allegations from WJXY/WJXY-FM's EEO program and annual employment reports. As a threshold matter, we found that Rainbow made a prima facie showing that grant of the renewal applications would have been inconsistent with the public interest. Section 309(d)(1) of the Communications Act of 1934, 47 U.S.C.  309(d)(1); Astroline. III. DISCUSSION 7. 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 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) of the Commission's Rules, 47 C.F.R.  73.2080(a), (b), and (c). 8. Review of the licensee's renewal applications, opposition, and inquiry response reveals that during the period March 1, 1993, to December 1, 1995, the licensee filled 30 full-time job vacancies, including 25 upper-level vacancies. In its inquiry response, the licensee states that most of the documentation with respect to its recruitment efforts for the 20 positions filled between March 1, 1993 and December 27, 1994, was destroyed by a flood on December 23, 1994. However, the licensee provides job and recruitment information for one of these 20 positions, an upper-level vacancy filled in June 1993. The licensee explains that the file for this vacancy was kept in an office unaffected by the flood because its Vice-President had "pulled" the file to examine the stations' recruitment efforts. Also, the licensee indicates that the stations contacted 16 sources for this vacancy. Specifically, WJXY/WJXY-FM reports contact with nine sources which it identifies as anticipated sources of both minority and female applicants, three sources which it identifies as anticipated sources of female applicants, one general source, and two anticipated sources of minority applicants. Also, the licensee states that this outreach represents the sources which were contacted for the vacancies for which documentation no longer exists. Based on available records, WJXY/WJXY-FM attracted and interviewed one minority among 12 applicants and five interviewees for this upper-level position. 9. For the remaining ten overall (nine upper-level) vacancies filled after the flood, the licensee indicates that it recruited with between five and 12 general sources, seven and nine minority sources, and four to five female sources. Of 77 applicants overall, eight (10.4%) were minorities. The stations also report eight minorities (22.2%) among 36 interviewees overall. Minorities were present in one overall applicant pool (10%). During the review period, the stations reported hiring 18 females. Of these, 13 females were hired for upper-level vacancies. The licensee also reports the hiring of a black female for an overall vacancy in December 1993. However, this employee was hired for a temporary position, and was subsequently promoted to permanent status. Therefore, this hire is not included in the total number of hires. Finally, the licensee notes that one minority was offered and rejected a job in the overall category. 10. Rainbow argues that despite the apparent large number of vacancies the licensee has filled since its acquisition of WJXY/WJXY-FM, none of the hires were minority. Moreover, Rainbow contends that WJXY/WJXY-FM's Annual Employment Reports have never reflected minorities in "high pay positions". Rainbow also notes that the stations' renewal applications reflect no minority referrals, no minority hires, and no minority promotions during the renewal year. Finally, Rainbow argues that WJXY/WJXY-FM have never reported any minority part- time employees. 11. In response to Rainbow's allegations regarding the substantial turnover at the stations and absence of minority hires, the licensee asserts that a statistical disparity, standing alone, is insufficient to support an allegation of discrimination. The licensee argues that it has made "diligent good faith efforts" to recruit minorities. In any event, argues WJXY/WJXY-FM, the statistical disparity between the Myrtle Beach MSA and the stations' workforce is insignificant under Bilingual. Moreover, the licensee contends that it has consistently recruited with minority sources when filling vacancies, and that it has continually expanded its recruitment efforts since acquiring the stations in 1993. 12. In reply, Rainbow asserts that the licensee apparently employed only two minorities since February 1993. Rainbow also notes that no minorities were among the 26 upper-level hires during the reporting period. Moreover, Rainbow states that for the ten jobs for which the licensee has records, WJXY/WJXY-FM attracted only one minority applicant. Finally, the petitioner states that there are no indicia that the licensee self-assessed or took corrective steps to increase its flow of minority applicants. 13. With respect to Rainbow's contention concerning the number of minorities the licensee hired and employed in "high pay positions", our primary focus is on the licensee's EEO efforts. Our EEO Rule does not require licensees to hire or employ a specific number of minority employees. See Implementation of Commission's Equal Employment Opportunity Rules, 9 FCC Rcd 6276, 6291 (1994); Amendment of Part 73 of the Commission's Rules Concerning Equal Employment Opportunity in the Broadcast Radio and Television Services, 2 FCC Rcd 3967, 3974 (1987). Likewise, Rainbow's argument regarding the number of minorities employed in part-time positions requires no further consideration. Although our EEO Rule requires broadcasters to provide equal employment opportunity with respect to all positions, our primary focus is on efforts for full-time vacancies when analyzing EEO programs. See WFSQ(FM), 7 FCC Rcd 6045, 6046 (1992). Although as Rainbow correctly states, the licensee's renewal applications reflect no minority referrals, no minority hires, and no minority promotions, its renewal applications do show the use of minority and female sources. Moreover, its amended renewal applications reflect the addition of five recruitment sources. 14. 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. See Astroline. The licensee contacted recruitment sources, including minority and female organizations, and hired minorities and females. Therefore, because the licensee is otherwise qualified, grant of the renewal applications will serve the public interest. 47 U.S.C.  309(d)(2). 15. Nonetheless, we are concerned that recruitment records for 19 of WJXY/WJXY-FM's 30 hires are unavailable because of circumstances beyond the licensee's control. As a result, we cannot fully determine whether the licensee engaged in a thorough and meaningful self- assessment of its recruitment efforts without data as to the results of those efforts. Although we are assured by the licensee that it recruited for these hires, it has not otherwise attempted to reconstruct the circumstances concerning those hires. Moreover, we are concerned that the licensee did not adequately assess its efforts. Although the licensee contacted minority sources during the review period, its efforts resulted in only nine minority applicants in two applicant pools. Therefore, it appears that the licensee should engage in stronger efforts to conduct a continuing review of its EEO program or to alter its sources to attract a greater number of minority applicants, particularly for upper-level positions. Therefore, we caution the licensee to assess its EEO program to address the absence of minorities in its applicant pools. IV. CONCLUSION 16. After reviewing the record before us, we find that a hearing is not warranted and that grant of the renewal applications is in the public interest. Accordingly, finding the licensee to be otherwise qualified, we will grant the renewal applications unconditionally. V. ORDERING CLAUSES 17. Accordingly, IT IS ORDERED that the Petition to Deny filed by Rainbow concerning the renewal applications for Stations WJXY/WJXY-FM IS DENIED. 18. IT IS FURTHER ORDERED that the license renewal applications for Stations WJXY/WJXY-FM ARE GRANTED. 19. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- copies of this Memorandum Opinion and Order to the licensee and to Rainbow. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary