WPC0 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$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP LaserJet 4SiHPLAS4SI.PRSXj\  P6G;\YnhXP2 :K3|jCourierTimes New RomanTimes New Roman BoldCourier Bold"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd2 ZP vp*HP LaserJet 4SiHPLAS4SI.PRSx  @\YnhX@a8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . 2 kk7vG a6DocumentgDocument Style Style GX  a5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:/>/>/>/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+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN)>F)))))))))<)C"VV5VYO5O5O5O5^<^<^<^>^<^C^F.".C.).CaC>>^CO"O6O)O0O"VCVVCVC^<^O=O)OFVCVCVCVCVCVCxVV>O5O5O5VCO)VCC.O)V<X<<( (WTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN+HH+@<)<<<<minority referrals as follows: private employment agencies (5), Arkansas state employment   agency (4), walkins (4), Human Resources Agency (3), inhouse 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 Blackowned 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.  X -  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 upperlevel positions (61.1%). They maintain that they interviewed 34 minorities   overall (26 for upperlevel jobs), who were included in 27 interview pools (64.3%), of which 25   were for upperlevel 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 upperlevel positions. They also report that they offered a clerical position to a Black female applicant who declined the offer.  X-   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   kCommission's EEO Rule because they aimed their EEO program only at certain departments.   xMoreover, 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,   ialleges 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   LWhite male received. The third affiant, a former announcer, alleges that the licensees treated a nonminority employee better than her and that she was demoted without justification.   X#-  # 11. ` ` Rainbow also contends that the licensees' EEO program exists only on paper and   Lis actually a "sham." In support of this contention, Rainbow notes that the first affiant alleges   lthat 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. ":&,u'u'33$"   zFirst, Rainbow submits that the licensees lied when they claimed that they internally posted   notices of all job openings. According to Rainbow, the first affiant alleges that the licensees did   not post some jobs and that two White individuals were hired before their job openings were  X-  Lposted.$ O4<  AЍ#X\  P6G;ɓP# ` ` Rainbow contends that paragraphs 6a, b, and e from the first affiant's declaration support this   ;argument. In those paragraphs, the affiant states that, in October 1994, she was asked to refer a friend or colleague   for a business manager position and the person she referred was not contacted by the stations. She also claims that   there were occasions when positions were filled before being posted. She contends that a White male was hired as   a producer before the job was posted. In addition, she states that the general manager told her she could not apply   -for two account executive positions, one of which was filled by a White male who was allegedly hired before the job was 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  X-  sources were not contacted for some openings.$ OV <  #Ѝ#X\  P6G;ɓP# ` ` The first affiant's statement in support of this argument is as follows: "As the receptionist, I   occasionally was asked to mail announcements of job opportunities to persons or agencies on the Employment   KResource List. There were occasions when minority referral sources were removed from the list when some jobs   =were announced. Specifically, The Roby Employment Agency, a minority referral source, was taken off the Employment Resource List prior to the posting of an Account Executive position." Finally, Rainbow submits that the licensees   lacked candor in several instances. As to the alleged lack of candor, Rainbow argues that, in the   idescription 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   jpositions. 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.  X -  A 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 KSSNFM has improved its EEO   program as promised. Specifically, it appears that the licensee of KSSNFM has engaged in self  assessment efforts and expanded its recruitment source list on 10 occasions, presently using 53   ]general and minorityoriented 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 parttime and upperlevel employment is without  X-  ymerit. As noted by the licensees, the Commission focuses primarily on fulltime positions. See  X-  yWFSQ(FM). Moreover, our evaluation of licensees' EEO programs focuses on recruitment and  X-  selfassessment efforts. See Channel 5. Here, the licensees recruited for all upperlevel jobs and, contrary to Rainbow's assessment, hired minorities for upperlevel positions.   X|-   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"e ,u'u'33"   executive, the Commission focuses on efforts concerning overall positions as well as upperlevel  X-  .positions, taken as a group, and not on individual job categories. See Fox Television Stations  X-  Inc., 8 FCC Rcd 5341, 5357 n.73 (1993); WWORTV, Inc., 6 FCC Rcd 6569, 6574 (1991);  X-  zCarolina Christian Broadcasting, Inc., 3 FCC Rcd 1907, 1909 (1988). In any event, Rainbow's   xarguments that the licensees discriminated against Blacks in their sales hires and violated the EEO   LRule by restricting their EEO recruitment to only certain (presumably nonsales) 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.  X - ` `  X -   14. ` ` Regarding Rainbow's allegations of discrimination, because the first affiant has a   ydiscrimination charge pending with the EEOC against the licensees, we will defer consideration   yof her charge. This is consistent with longstanding Commission policy that individual charges   Mof employment discrimination should be resolved in the first instance by the EEOC or other   government agency and/or court established to enforce nondiscrimination laws. Under this   ]policy, the Commission will take cognizance of only a final determination of employment  Xb-  discrimination. See Memorandum of Understanding Between the Federal Communications  XK-  =Commission and the Equal Employment Opportunity Commission, 70 FCC 2d 2320, 2330 (1978)  X4-  ("MOU"). See also, BBC License Subsidiary L.P., 10 FCC Rcd 10968, 10975 (1995); KSDK,  X-  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  X-  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.   X7-  15. ` ` We further find that Rainbow's arguments alleging that the licensees' EEO   jprogram 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 selfassessed and modified their program on 10   [occasions. The licensees recruited, interviewed, and hired minorities, and employed minorities   kin 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  XQ%-  jposted, only that they be disseminated, a requirement that may be met in various ways. See 47  X:&-C.F.R.  73.2080(c)(1). ":&,u'u'33$"Ԍ  X-  B16. ` ` 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.   zMisrepresentation involves false statements of fact made with an intent to deceive. Lack of  X-  candor involves concealment, evasion, and other failures to be fully forthcoming. See Fox River  X-  Broadcasting, Inc., 93 FCC 2d 127, 129 (1983), recon. dismissed, FCC 83I43 (released Apr. 20,   1983). Intent to deceive is a factual question that can be greatly informed by a motive or logical  X_-  jdesire to deceive. Black Television Workshop of Los Angeles, Inc., 8 FCC Rcd 4192, 4198 n.41  XH-  (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.  X -  17. ` ` Rainbow first alleges that the licensees lied by claiming that they internally posted   >notices of all fulltime 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   iabout the licensees' candor because the affiant provides no information as to how she knows that   preselection occurred. Thus, the evidence is inadequate to demonstate that the licensees misstated or omitted information about recruitment efforts.  X-  ~18. ` ` Second, Rainbow alleges that the licensees lied when they said they contacted   Zminority sources for all jobs because they supposedly failed to contact minority sources for some   Kopenings. However, the affiant's statement allegedly supporting this argument merely claims that   zone 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   Lsources 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 onehalf 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.  X!-  #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 fulltime   Ljobs filled during the threeyear 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":&,u'u'33$"   ysworn 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   Zlicensees' 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.  X -  ~20. ` ` After carefully considering all of the above, we find that Rainbow has failed to   Zdemonstrate 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.  Xy-  IV. ORDERING CLAUSES ă  XK-  21. ` ` Accordingly, IT IS ORDERED, that the Petition to Deny filed by the National Rainbow Coalition IS DENIED.  X-  22. ` ` IT IS FURTHER ORDERED that the license renewal applications filed by   .Southern Skies Corporation for Station KSSNFM and Arkansas Skies Corporation for Station KMVKFM ARE GRANTED.   X-  23. ` ` IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail  X-  [ԩ Return Receipt Requested copies of this Memorandum Opinion and Order to the licensees and Rainbow. ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,William F. Caton  X-` `  hh,Acting Secretary