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A. 1. a.(1)(a) i) a) 1. A. 1. a.(1)(a) i) a)C" X-w  Federal Communications Commission  xx FCC 96398   T yxdddy P Cw  Federal Communications Commission ă  xx FCC 96398   T yxdddy P  X-v3#X\  P6G;IP# Before the Federal Communications Commission  yO} Washington, D.C. 20554 ă  X-#Xj\  P6G; XP#In re Applications of hh@hpp) x` `  hh@hpp)  X-Downs Satellite Broadcasting of South Carolina, Inc.pp) x` `  hh@hpp)  X -For Renewal of License forhh@hpp)File Nos. BR950801YP  X -Stations WJXY/WJXYFM2 " yO - x#X\  P6G;IP#Ѝ Downs Satellite Broadcasting of South Carolina, Inc. assumed control of Stations WJXY/WJXYFM following Commission grant of the assignment applications on February 16, 1993 (BAL921231EA, BALH921231HK).2hh@hpp)   BRH950801VS  X -Conway, South Carolinahh@hpp)  Xb -  MEMORANDUM OPINION AND ORDER  X4- Adopted: October 1, 1996 Released: October 10, 1996 By the Commission:  X-M I. INTRODUCTION  X- x 1. The Commission has before it for consideration: (i) license renewal applications for the  xcaptioned radio stations; (ii) a Petition to Deny timely filed on October 31, 1995, by the Southern  xRegion of the National Rainbow Coalition ("Rainbow"); (iii) an opposition filed by the licensee;  xL(iv) the licensee's response to a staff letter of inquiry; and (v) Rainbow's reply to the licensee's inquiry response.  X -g II. BACKGROUND  X- x 2. Rainbow alleges that the licensee violated our Equal Employment Opportunity (EEO) rule  xand policies. Accordingly, it requests that we conduct an investigation of the stations'  X- xemployment practices pursuant to Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC, 595  X- xkF.2d 621 (D.C. Cir. 1978) (Bilingual) and designate the renewal applications for hearing. The licensee denies Rainbow's allegations and requests unconditional renewal.  Xh!- x 3. Standing. In challenging an application pursuant to Section 309(d) of the  xzCommunications Act of 1934, as amended, 47 U.S.C.  309(d), a petitioner must demonstrate  X:#- xparty in interest status. 47 U.S.C.  309(d)(1); Astroline Communications Co. v. FCC, 857 F.2d  X#$- x.1556 (D.C. Cir. 1988) (Astroline). The allegations, except for those of which official notice may  xbe taken, must be supported by the affidavit of a person with personal knowledge of the facts alleged. 47 U.S.C.  309(d)(1).X% ,**$3'# TXԌ X- xԙ 4. Rainbow filed a statement under penalty of perjury by a member who claims to be a  xjresident in the service area of WJXY/WJXYFM and a regular listener of the stations. We find  xthat this statement meets the requirements for standing and hold that Rainbow has petitioner status  X- xwith respect to WJXY/WJXYFM. See NAB Petition for Rulemaking, 82 FCC 2d 89 (1980)  X-[citing Warth v. Seldin, 422 U.S. 490, 511 (1975)].  Xv- xL 5. Prima Facie Case. Rainbow derived its factual allegations from WJXY/WJXYFM's EEO  xLprogram and annual employment reports. As a threshold matter, we found that Rainbow made  XH- xa prima facie showing that grant of the renewal applications would have been inconsistent with  xOthe public interest. Section 309(d)(1) of the Communications Act of 1934, 47 U.S.C.   X -309(d)(1); Astroline.  X -  III. DISCUSSION  X - x1 6. Section 73.2080 of the Commission's Rules, 47 C.F.R.  73.2080, requires that a  xbroadcast licensee refrain from employment discrimination and establish and maintain an EEO  x=program reflecting positive and continuing efforts to recruit and promote qualified women and  xminorities. When evaluating EEO performance, the Commission focuses on the licensee's efforts  xto recruit and promote qualified women and minorities and the licensee's ongoing assessment of  xits EEO efforts. Such an assessment enables the licensee to take corrective action if qualified  xwomen and minorities are not present in the applicant pool. The Commission also focuses on  X- xany evidence of discrimination by the licensee. See Sections 73.2080(a), (b), and (c) of the  X-Commission's Rules, 47 C.F.R.  73.2080(a), (b), and (c).sX yO- x#X\  P6G;IP#э The licensee is reminded that under our EEO Rule, 47 C.F.R.  73.2080, it has an obligation to recruit for  xfemales and minorities for each vacancy. To the extent that licensees fail to do so, female, as well as minority recruitment is affected.s  X- x. 7. Review of the licensee's renewal applications, opposition, and inquiry response reveals  x\that during the period March 1, 1993, to December 1, 1995, the licensee filled 30 fulltime job  X- xvacancies, including 25 upperlevel vacancies.&@ yOC- xw#X\  P6G;IP#Ѝ The current license term ended December 1, 1995. The Myrtle Beach, South Carolina Metropolitan Statistical  xArea (MSA) has an available labor force which is 48.3% female and 16.2% minority (14.6% Black, 0.7% Hispanic,  x-0.6% Asian/Pacific Islander, and 0.3% American Indian). In its 1993 Annual Employment Report, the licensee  xZindicated an overall staff of 16 employees (15 upperlevel), including four females (25%). Three females (20%)  xwere employed in upperlevel positions. In 1994, the station reported an overall staff of 18 (17 upperlevel),  xincluding seven females (39%) and one Black (6%). Six females (35.3%) were employed in upperlevel positions.  xYIn 1995, the station reported an overall staff of 12 employees (eleven upperlevel), including four females (33.3%). Three women (27.3%) were employed in upperlevel positions.& In its inquiry response, the licensee states that  xmost of the documentation with respect to its recruitment efforts for the 20 positions filled  xbetween March 1, 1993 and December 27, 1994, was destroyed by a flood on December 23,"| ,((hh"  X- x1994. yOy- x#X\  P6G;IP#Ѝ The licensee states that it did not keep records from December 23, 1994 through December 27, 1994 due to restoration efforts after the flood. However, the licensee provides job and recruitment information for one of these 20  xypositions, an upperlevel vacancy filled in June 1993. The licensee explains that the file for this  xivacancy was kept in an office unaffected by the flood because its VicePresident had "pulled" the  xfile to examine the stations' recruitment efforts. Also, the licensee indicates that the stations  xcontacted 16 sources for this vacancy. Specifically, WJXY/WJXYFM reports contact with nine  x[sources which it identifies as anticipated sources of both minority and female applicants, three  xysources which it identifies as anticipated sources of female applicants, one general source, and  x>two anticipated sources of minority applicants. Also, the licensee states that this outreach  xrepresents the sources which were contacted for the vacancies for which documentation no longer  xexists. Based on available records, WJXY/WJXYFM attracted and interviewed one minority among 12 applicants and five interviewees for this upperlevel position.  X - x 8. For the remaining ten overall (nine upperlevel) vacancies filled after the flood, the  xlicensee indicates that it recruited with between five and 12 general sources, seven and nine  xminority sources, and four to five female sources. Of 77 applicants overall, eight (10.4%) were  x>minorities. The stations also report eight minorities (22.2%) among 36 interviewees overall.  xMinorities were present in one overall applicant pool (10%). During the review period, the  xstations reported hiring 18 females. Of these, 13 females were hired for upperlevel vacancies.  x.The licensee also reports the hiring of a black female for an overall vacancy in December 1993.  xHowever, this employee was hired for a temporary position, and was subsequently promoted to  x[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.  X- x 9. Rainbow argues that despite the apparent large number of vacancies the licensee has filled  xsince its acquisition of WJXY/WJXYFM, none of the hires were minority. Moreover, Rainbow  xcontends that WJXY/WJXYFM's Annual Employment Reports have never reflected minorities  xin "high pay positions". Rainbow also notes that the stations' renewal applications reflect no  X- xminority referrals, no minority hires, and no minority promotions during the renewal year.  yOd-#X\  P6G;IP#Ѝ The licensee filed an amendment to its renewal applications on November 1, 1995. See paragraph 12, infra.  x>Finally, Rainbow argues that WJXY/WJXYFM have never reported any minority parttime employees.  X7- x  10. In response to Rainbow's allegations regarding the substantial turnover at the stations  xand absence of minority hires, the licensee asserts that a statistical disparity, standing alone, is  x\insufficient to support an allegation of discrimination. The licensee argues that it has made  x"diligent good faith efforts" to recruit minorities. In any event, argues WJXY/WJXYFM, the  xstatistical disparity between the Myrtle Beach MSA and the stations' workforce is insignificant  X - xunder Bilingual. Moreover, the licensee contends that it has consistently recruited with minority  xsources when filling vacancies, and that it has continually expanded its recruitment efforts since"!,((hh " acquiring the stations in 1993.  x  11. In reply, Rainbow asserts that the licensee apparently employed only two minorities since  xFebruary 1993. Rainbow also notes that no minorities were among the 26 upperlevel hires  X- x during the reporting period. yO-#X\  P6G;IP#Ѝ Our review reveals that the licensee had 25 upperlevel hires during its review period. Moreover, Rainbow states that for the ten jobs for which the  X- x>licensee has records, WJXY/WJXYFM attracted only one minority applicant.X yO-#X\  P6G;IP#Ѝ According to our review, the licensee attracted nine minority applicants during the review period. Finally, the  xpetitioner states that there are no indicia that the licensee selfassessed or took corrective steps to increase its flow of minority applicants.  X1- x=  12. With respect to Rainbow's contention concerning the number of minorities the licensee  xyhired and employed in "high pay positions", our primary focus is on the licensee's EEO efforts.  x?Our EEO Rule does not require licensees to hire or employ a specific number of minority  X - xjemployees. See Implementation of Commission's Equal Employment Opportunity Rules, 9 FCC  X - xRcd 6276, 6291 (1994); Amendment of Part 73 of the Commission's Rules Concerning Equal  X - xEmployment Opportunity in the Broadcast Radio and Television Services, 2 FCC Rcd 3967, 3974  X - x(1987). Likewise, Rainbow's argument regarding the number of minorities employed in parttime  xpositions requires no further consideration. Although our EEO Rule requires broadcasters to  xprovide equal employment opportunity with respect to all positions, our primary focus is on  Xb- xefforts for fulltime vacancies when analyzing EEO programs. See WFSQ(FM), 7 FCC Rcd  x6045, 6046 (1992). Although as Rainbow correctly states, the licensee's renewal applications  xreflect no minority referrals, no minority hires, and no minority promotions, its renewal  x.applications do show the use of minority and female sources. Moreover, its amended renewal applications reflect the addition of five recruitment sources.  X- x  13. Having reviewed all matters presented, we conclude that there are no substantial and  xmaterial questions of fact, and that a grant of the applications would be consistent with Section  xM309(k) of the Communications Act of 1934, as amended, 47 U.S.C.  309(k). Further, we find  X- x[no evidence of employment discrimination. See Astroline. The licensee contacted recruitment  xsources, including minority and female organizations, and hired minorities and females.  xKTherefore, because the licensee is otherwise qualified, grant of the renewal applications will serve the public interest. 47 U.S.C.  309(d)(2).  X - x  14. Nonetheless, we are concerned that recruitment records for 19 of WJXY/WJXYFM's  x30 hires are unavailable because of circumstances beyond the licensee's control. As a result, we  xNcannot fully determine whether the licensee engaged in a thorough and meaningful self x-assessment of its recruitment efforts without data as to the results of those efforts. Although we  xare assured by the licensee that it recruited for these hires, it has not otherwise attempted to  X!- xreconstruct the circumstances concerning those hires. Moreover , we are concerned that the  xlicensee did not adequately assess its efforts. Although the licensee contacted minority sources"",((hh!"  X- xduring the review period, its efforts resulted in only nine minority applicants in two applicant  X- xpools . Therefore, it appears that the licensee should engage in stronger efforts to conduct a  xcontinuing review of its EEO program or to alter its sources to attract a greater number of  xminority applicants, particularly for upperlevel positions. Therefore, we caution the licensee to assess its EEO program to address the absence of minorities in its applicant pools.  Xv-} IV. CONCLUSION  XH- x 15. After reviewing the record before us, we find that a hearing is not warranted and that  x.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.  X -6 V. ORDERING CLAUSES  X - x 16. Accordingly, IT IS ORDERED that the Petition to Deny filed by Rainbow concerning  X -the renewal applications for Stations WJXY/WJXYFM IS DENIED.  Xy- x 17. IT IS FURTHER ORDERED that the license renewal applications for Stations  Xb-WJXY/WJXYFM ARE GRANTED .  X4- x 18. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail  X- xReturn Receipt Requested copies of this Memorandum Opinion and Order to the licensee and to Rainbow.  X-x` `   FEDERAL COMMUNICATIONS COMMISSION x` `   X|-x` `   William F. Caton x` ` Acting Secretary