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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of) ) ) Southern Skies Corporation ) BRH-960201C7 ) For Renewal of License of ) Station KSSN-FM ) Little Rock, Arkansas ) ) and ) ) Arkansas Skies Corporation ) BRH-960201XN ) For Renewal of License of ) Station KMVK-FM ) Benton, Arkansas ) MEMORANDUM OPINION AND ORDER Adopted: October 1, 1996; Released: October 10, 1996 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) license renewal applications for Stations KSSN-FM and KMVK-FM; (ii) a Petition to Deny the applications timely filed on May 1, 1996, by the Southern Region of the National Rainbow Coalition ("Rainbow"); (iii) a joint opposition by the licensees; and (iv) Rainbow's reply to the opposition. Rainbow alleges that the licensees violated the Commission's Equal Employment Opportunity (EEO) Rule and policies. It requests that the Commission designate the licensees' renewal applications for hearing with a view toward denying them. The licensees maintain that they have followed the requirements of the Commission's EEO Rule and policies and that they deserve unconditional renewal. For the reasons that follow, we deny Rainbow's petition and grant the applications unconditionally. II. BACKGROUND 2. Rainbow derived the factual allegations in its petition to deny from the licensees' 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 be inconsistent with the public interest. Section 309(d)(1) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d)(1); Astroline Com. Co. Ltd. Partnership v. FCC, 857 F.2d 1556 (D.C. Cir. 1988). 3. 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 licensees are otherwise qualified, grant of the applications will serve the public interest. 47 U.S.C.  309(d)(2). III. DISCUSSION 4. 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). 5. The stations' 1996 EEO Program Reports reveal that the licensees filled 17 vacancies, including 13 for upper-level positions, from February 1, 1995, to January 15, 1996. The licensees' program indicates that they recruited from approximately 13 sources, including the NAACP, and an unspecified number of employment agencies that purportedly target minorities and women. They report that they received 14 minority referrals from eight sources and that they hired one minority for a lower-level position. 6. Rainbow argues in its petition to deny that the licensee of KSSN-FM has failed to implement improvements in its EEO program that it promised in its response to a May 1989 Commission staff inquiry. Rainbow also criticizes KSSN-FM for listing fewer recruitment sources in its EEO program for 1996 than it had listed in its 1989 renewal program. In addition, Rainbow asserts that the licensees employ no minorities in part-time positions and few minorities in upper-level positions. 7. The licensees' opposition to Rainbow's petition to deny is supported by a statement under penalty of perjury by the individual who is the president of both licensees. In the opposition, the licensees maintain that KSSN-FM has improved its EEO program since 1989, and they point to the self-assessment efforts that have been implemented over the last three years. In this regard, the licensees maintain that they regularly monitor the effectiveness of sources and delete or add sources, as appropriate. They outline self-assessment efforts that included source evaluations and additions or deletions of sources that took place on 10 specific occasions from November 4, 1993, to April 9, 1996. During this period, a typical source list included schools, employment agencies (including one that is minority-owned), organizations (including minority organizations), one general newspaper, and one minority newspaper. The licensees also contend that Rainbow is mistaken about the stations' recruitment sources because the listings in the renewal applications were not meant to be complete. They state that they were actually using 53 sources as of April 1996. Regarding part-time positions, the licensees maintain that, while the Commission requires stations to include full- and part-time recruiting in their EEO efforts, the Commission focuses primarily on full-time positions when analyzing stations' EEO performance. See License Renewal Applications, 7 FCC Rcd 6045, 6046 (1992) [concerning Station WFSQ(FM), Tallahassee, Florida] [WFSQ(FM)]. The licensees also note that the Commission focuses on recruitment and self-assessment efforts of licensees and does not require minimum percentages of minority hires in evaluating licensees' EEO programs. See Channel 5 Public Broadcasting, Inc., 10 FCC Rcd 10388, 10389 (1995) [Channel 5]. See also, 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). 8. The opposition expands on the stations' hiring activity reported in the EEO Program Reports. First, the opposition states that "the stations ensure that their EEO policies are known by all employees." Also, the opposition indicates that the licensees filled 42 full-time vacancies, including 38 for upper-level positions, from June 1, 1993, to May 3, 1996. The licensees state that they recruited for all of the vacancies, using a variety of sources, including minority-oriented sources. Furthermore, the licensees report that they identified sources of 32 minority referrals as follows: private employment agencies (5), Arkansas state employment agency (4), walk-ins (4), Human Resources Agency (3), in-house postings (3), employee referrals (3), and the remainder from other sources, including newspapers, minority organizations, the Chamber of Commerce, a Black cable channel, and a Black-owned employment agency. As part of their procedure for all hires, the licensees contend that they post job notices internally, send a notice to each source on their source list, and follow up with telephone calls to each source. 9. The licensees assert that they received 43 minority applicants overall (30 for upper-level openings), who were included in 30 of the 42 applicant pools (71.4%), 26 of which were for the 38 upper-level positions (61.1%). They maintain that they interviewed 34 minorities overall (26 for upper-level jobs), who were included in 27 interview pools (64.3%), of which 25 were for upper-level jobs (65.8%). The licensees report information on the race, ethnic origin, and gender of applicants and interviewees for all but four positions. They state that the records for the four positions, all of which were sales jobs, would normally have been kept but were lost. The licensees report that they hired seven minorities overall, all Blacks, five of whom were hired for upper-level positions. They also report that they offered a clerical position to a Black female applicant who declined the offer. 10. Rainbow argues in its reply to the licensees' opposition that the licensees discriminated because they never employed a Black account executive and that they violated the Commission's EEO Rule because they aimed their EEO program only at certain departments. Moreover, Rainbow argues that the licensees have discriminated against several specific persons, three Black female former employees of the licensees. All three submit sworn statements alleging that they were discriminated against at the stations because of their race. One also alleges that she was discriminated against because of her gender. The first affiant, a former receptionist, alleges several incidents which she believes occurred because of discrimination, and she has filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The second affiant, also a former receptionist, states that she was harassed while she was pregnant and alleges that the general manager of the stations told her that he wished he could create a rule stating that no female employees were allowed to get pregnant. Finally, she alleges that she was terminated without being given a reason and that she did not receive the severance pay that a White male received. The third affiant, a former announcer, alleges that the licensees treated a non-minority employee better than her and that she was demoted without justification. 11. Rainbow also contends that the licensees' EEO program exists only on paper and is actually a "sham." In support of this contention, Rainbow notes that the first affiant alleges that EEO policies were not posted at the stations. Also, Rainbow maintains that, in their opposition, the licensees misrepresented facts in their depiction of the stations' EEO efforts. First, Rainbow submits that the licensees lied when they claimed that they internally posted notices of all job openings. According to Rainbow, the first affiant alleges that the licensees did not post some jobs and that two White individuals were hired before their job openings were posted. Second, Rainbow claims that the licensees lied when they stated that they contacted minority sources for all openings. Rainbow notes that the first affiant claims that minority sources were not contacted for some openings. Finally, Rainbow submits that the licensees lacked candor in several instances. As to the alleged lack of candor, Rainbow argues that, in the description of the recruitment and hiring for various positions, the licensees omitted material facts by failing to state that two of the affiants were denied the "opportunity even to apply" for those positions. Rainbow also argues that the licensees omitted material facts by failing to state that the first affiant and another Black female were offered salaries lower than that offered to a White female for a traffic director position, even though the licensees asked the first affiant to train the White female hired, and by failing to state that they rejected the first affiant for an account executive position and hired a less qualified White female applicant. 12. Regarding Rainbow's arguments in its petition to deny, we find that none warrant further inquiry. Contrary to Rainbow's claim, we conclude that KSSN-FM has improved its EEO program as promised. Specifically, it appears that the licensee of KSSN-FM has engaged in self- assessment efforts and expanded its recruitment source list on 10 occasions, presently using 53 general and minority-oriented sources. Also, Rainbow's criticism of both licensees' EEO recruiting program for using fewer sources in 1996 than they had in 1989 appears unwarranted. On the contrary, the licensees used more sources in 1996. Finally, Rainbow's suggestion that the licensees discriminated against minorities in part-time and upper-level employment is without merit. As noted by the licensees, the Commission focuses primarily on full-time positions. See WFSQ(FM). Moreover, our evaluation of licensees' EEO programs focuses on recruitment and self-assessment efforts. See Channel 5. Here, the licensees recruited for all upper-level jobs and, contrary to Rainbow's assessment, hired minorities for upper-level positions. 13. We also conclude that none of the arguments in Rainbow's reply warrant further inquiry. Regarding Rainbow's argument that the stations have never employed a Black account executive, the Commission focuses on efforts concerning overall positions as well as upper-level positions, taken as a group, and not on individual job categories. See Fox Television Stations Inc., 8 FCC Rcd 5341, 5357 n.73 (1993); WWOR-TV, Inc., 6 FCC Rcd 6569, 6574 (1991); Carolina Christian Broadcasting, Inc., 3 FCC Rcd 1907, 1909 (1988). In any event, Rainbow's arguments that the licensees discriminated against Blacks in their sales hires and violated the EEO Rule by restricting their EEO recruitment to only certain (presumably non-sales) job categories are without merit. The licensees filled 23 sales positions and kept records on the race, gender, and ethnic origin of applicants and interviewees for 19 of the positions. Those records indicate that Blacks were included in 13 of the 19 known sales applicant pools and 11 of the reported sales interview pools. Finally, the licensees hired a Black female applicant on March 11, 1996, for an account executive position. 14. Regarding Rainbow's allegations of discrimination, because the first affiant has a discrimination charge pending with the EEOC against the licensees, we will defer consideration of her charge. This is consistent with longstanding Commission policy that individual charges of employment discrimination should be resolved in the first instance by the EEOC or other government agency and/or court established to enforce non-discrimination laws. Under this policy, the Commission will take cognizance of only a final determination of employment discrimination. See Memorandum of Understanding Between the Federal Communications Commission and the Equal Employment Opportunity Commission, 70 FCC 2d 2320, 2330 (1978) ("MOU"). See also, BBC License Subsidiary L.P., 10 FCC Rcd 10968, 10975 (1995); KSDK, Inc., 85 FCC 2d 797 (1981), recon. den., 88 FCC 2d 1443 (1982). We will also defer action on the discrimination allegations of the second and third affiants, neither of whom filed discrimination charges. As part of the policy set forth in the MOU, the Commission acts as a receiving agency for the EEOC regarding charges of discrimination against broadcasters. Thus, we are referring the claims of the second and third affiants, along with Rainbow's arguments concerning them, to the EEOC. Furthermore, by copy of this Order, we are notifying the licensee of this action. It is for the EEOC, not this agency, to determine whether the second and third affiants' claims are actionable. As already explained, however, we will take cognizance of a final determination regarding employment discrimination. 15. We further find that Rainbow's arguments alleging that the licensees' EEO program is a "sham" are unpersuasive. The licensees recruited for all openings using a variety of sources, including minority sources, and minorities were included in at least 64% of applicant and interview pools. The licensees also self-assessed and modified their program on 10 occasions. The licensees recruited, interviewed, and hired minorities, and employed minorities in every year of the license term. There have been no findings of discrimination against the licensees and the evidence is inadequate for us to conclude that the licensee discriminated against minority applicants or that minority employees were treated in a discriminatory manner. Thus, even if as claimed by Rainbow, EEO policies were not posted at the stations, we find that no violation of the EEO Rule occurred. The EEO Rule does not require that EEO policies be posted, only that they be disseminated, a requirement that may be met in various ways. See 47 C.F.R.  73.2080(c)(1). 16. Furthermore, regarding Rainbow's allegations of misrepresentation and lack of candor, we find that there is no substantial and material question of fact warranting a hearing. Misrepresentation involves false statements of fact made with an intent to deceive. Lack of candor involves concealment, evasion, and other failures to be fully forthcoming. See Fox River Broadcasting, Inc., 93 FCC 2d 127, 129 (1983), recon. dismissed, FCC 83I-43 (released Apr. 20, 1983). Intent to deceive is a factual question that can be greatly informed by a motive or logical desire to deceive. Black Television Workshop of Los Angeles, Inc., 8 FCC Rcd 4192, 4198 n.41 (1993) [citing California Public Broadcasting Forum v. FCC, 752 F.2d 670, 679 (D.C. Cir. 1985)]. The evidence establishes that the licensees made no false statements or material omissions from their presentations to the Commission, and, thus, did not engage in misrepresentations or lack of candor, as shown below. 17. Rainbow first alleges that the licensees lied by claiming that they internally posted notices of all full-time jobs when, in fact, they failed to post some openings. Rainbow cites specific paragraphs from the first affiant's statement in support of this argument. However, those portions of the declaration contain no allegations that the licensees failed to post openings. Rather, she claimed that the licensees failed to interview someone she referred for a job, that the licensees filled jobs before posting them, and that the general manager did not allow her to apply for two positions. Consequently, we conclude that Rainbow failed to show that the licensees made a false statement about postings. Moreover, we conclude that Rainbow's assertions that the two referenced jobs were filled prior to their posting lack sufficient support to raise a question about the licensees' candor because the affiant provides no information as to how she knows that pre-selection occurred. Thus, the evidence is inadequate to demonstate that the licensees misstated or omitted information about recruitment efforts. 18. Second, Rainbow alleges that the licensees lied when they said they contacted minority sources for all jobs because they supposedly failed to contact minority sources for some openings. However, the affiant's statement allegedly supporting this argument merely claims that one minority source was removed for one sales hire and that "minority referral sources were removed from the [source] list when some jobs were announced." Her statement does not claim that all other minority sources were omitted for the sales hire, nor does she claim that all minority sources were omitted for any hire. The licensees' opposition relates that they had an evolving list of sources that was changed 10 times in two and one-half years. Each list included minority sources. Rainbow does not show otherwise. Consequently, Rainbow has failed to show that the licensees misstated or omitted facts about their minority sources. 19. We also conclude that Rainbow's arguments that the licensees lacked candor are without merit. In this regard, even if, as claimed by Rainbow, the licensees did not allow two of the affiants to apply for various positions -- some of which were not listed among the full-time jobs filled during the three-year period described by the licensees -- we are not persuaded that Rainbow has raised substantial questions about the licensees' candor. Likewise, we are unable to conclude that Rainbow's allegations that two Black females (only one of whom provided a sworn statement) received job offers with lower salaries than that accorded a White female and that one of the Black females was asked to train the White female raise any questions about the licensees' candor. In this regard, Rainbow does not allege specific facts, much less establish, that the licensees' president, the only person who supplied an affidavit in support of the licensees' opposition, knew or had reason to know about any of the events described in the declarations of the three former employees. Absent such knowledge, there is absolutely no basis for believing that the licensees intended to deceive the Commission by withholding material information. Thus, while the affiants' allegations may be relevant to their discrimination claims which are now before the EEOC or which we are referring to the EEOC, they raise no substantial question about the licensees' candor. 20. After carefully considering all of the above, we find that Rainbow has failed to demonstrate the existence of substantial and material questions of fact warranting designation for hearing. Moreover, we find that the record supports unconditional grant of the applications. Accordingly, finding the licensees to be otherwise qualified, we will grant the licensees' renewal applications unconditionally. IV. ORDERING CLAUSES 21. Accordingly, IT IS ORDERED, that the Petition to Deny filed by the National Rainbow Coalition IS DENIED. 22. IT IS FURTHER ORDERED that the license renewal applications filed by Southern Skies Corporation for Station KSSN-FM and Arkansas Skies Corporation for Station KMVK-FM ARE GRANTED. 23. 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 licensees and Rainbow. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary