WPC3. 2BVTZ 3|P )?xxxX/Xx6X@DQX@HP LaserJet 4/4MtScriptitional)HPLAS4.WRSSx  @,,n!SX@20@AQ Z3|P 06-06-96 09:35a  #HP LaserJet 4/4MtScriptitional)HPLAS4.WRSSXP\  P6Q,,n!SXP2 bvdpkJa8DocumentgDocument Style StyleXX` `  ` a4DocumentgDocument Style Style . a6DocumentgDocument Style Style GX  2kRvtma5DocumentgDocument Style Style }X(# a2DocumentgDocument Style Style<o   ?  A.  a7DocumentgDocument Style StyleyXX` ` (#` BibliogrphyBibliography:X (# 2  P a1Right ParRight-Aligned Paragraph Numbers:`S@ I.  X(# a2Right ParRight-Aligned Paragraph Numbers C @` A. ` ` (#` a3DocumentgDocument Style Style B b  ?  1.  a3Right ParRight-Aligned Paragraph Numbers L! ` ` @P 1. ` `  (# 2   I  a4Right ParRight-Aligned Paragraph Numbers Uj` `  @ a. ` (# a5Right ParRight-Aligned Paragraph Numbers _o` `  @h(1)  hh#(#h a6Right ParRight-Aligned Paragraph Numbersh` `  hh#@$(a) hh#((# a7Right ParRight-Aligned Paragraph NumberspfJ` `  hh#(@*i) (h-(# 2C   a8Right ParRight-Aligned Paragraph NumbersyW"3!` `  hh#(-@p/a) -pp2(#p Tech InitInitialize Technical Style. k I. A. 1. a.(1)(a) i) a) 1 .1 .1 .1 .1 .1 .1 .1 Technicala1DocumentgDocument Style Style\s0  zN8F I. ׃  a5TechnicalTechnical Document Style)WD (1) . 2uQa6TechnicalTechnical Document Style)D (a) . a2TechnicalTechnical Document Style<6  ?  A.   a3TechnicalTechnical Document Style9Wg  2  1.   a4TechnicalTechnical Document Style8bv{ 2  a.   2*)q3a1TechnicalTechnical Document StyleF!<  ?  I.   a7TechnicalTechnical Document Style(@D i) . a8TechnicalTechnical Document Style(D a) . Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)Documentg2\e`EPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCddddddBroadcast Group, 8 FCC Rcd 24 (Rev. Bd. 1992), citing WWIZ. This is particularly so since the NAACP's concerns are speculative and unsupported by any evidence.  X-BAI's Petition For Reconsideration and Response to Notice of Apparent Liability  X|-  27.` ` With respect to BAI's arguments concerning the applicable statute of limitations,   we reject its contention that this case is entirely governed by the pre1992 statute of limitations.   The effect of the amendment was merely to extend the time for the issuance of a notice of   yapparent liability with respect to conduct that remained subject to our forfeiture authority as of   jthe date on which the amendment was enacted. In that circumstance, there is no impermissible  X -  retroactivity arising from application of the 1992 amendment. Landgraf v. USI Film Products,   114 S. Ct. 1483, 150105 (1994). With respect to BAI's alternate theory, we initially reject BAI's   Lcontention that the effective date of the amendment to Section 503(b)(6) should be determined   -by the effective date of the amendment to Section 1.80 of the Commission's Rules that conformed   the language of that provision with the amended statutory language. The amendment to Section   \503(b)(6) of the Act was adopted by Public Law 102538, which was enacted on October 27,   1992. Nothing therein deferred the effectiveness of the amendment to Section 503(b)(6) pending   further action by the Commission. A law takes effect on the date of its enactment, absent a clear  XQ%-  direction by Congress to the contrary. GozlonPeretz v. United States, 498 US 395, 404 (1991).   Further, we have reviewed BAI's conduct that occurred during the three year period prior to the   Lenactment of the 1992 amendment and find, for the reasons discussed below, that it warrants a  X (-  forfeiture, as was found in Commonwealth. It is accordingly unnecessary to further address the" (,))qq&"   merits of BAI's alternate theory because it would not in any event support BAI's contention that   the notice of apparent liability was impermissible. Recalculation of the amount of the forfeiture  X-  !imposed by Commonwealth is separately warranted based on the use of the EEO Policy  X-  Statement. In making this recalculation, we will focus only upon that portion of the period we  X-  considered in Commonwealth that occurred after October 27, 1989, three years prior to the effective date of the 1992 amendment.  X_-  p8.` ` In adopting the EEO Policy Statement, we proposed the use of nonbinding  XH-  guidelines for assessing forfeitures for violations of our broadcast EEO rule.  We had issued  X1-  general forfeiture guidelines to identify those situations that could lead to a forfeiture and to   identify criteria that might be used to increase or decrease the base amount of the forfeiture and  X -  that might result in grant of renewal for less than a full term. Policy Statement, Standards for  X -  Assessing Forfeitures, 6 FCC Rcd 4695 (1991), recon. denied, 7 FCC Rcd 5339, revised, 8 FCC  X -  .Rcd 6215 (1993) ("Policy Statement"). The EEO Policy Statement was issued because, in 1993,   we had deleted the broadcast EEO violation category from our general forfeiture guidelines and   xannounced that we would issue a further policy statement on broadcast EEO matters in the future.  X-  See Policy Statement, 8 FCC Rcd at 6215 n. 1.  The EEO Policy Statement did not modify any  Xy-  part of the EEO rule. See Streamlining Broadcast EEO Rule and Policies, 11 FCC Rcd 5154 (1996).  X4-  9.` ` In United States Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. 1994)  X-  ("USTA"), the court set aside our general forfeiture guidelines. The USTA decision concluded   that the forfeiture schedule should have been put out for comment under the Administrative  X-  yProcedure Act. Following the USTA decision, we have received requests to withdraw the EEO  X-  yPolicy Statement until it is likewise made available to the public for comment. See, e.g., Petition  X-  0for Declaratory Ruling by Eagle Radio, Inc. (filed August 11, 1994); Letter from Henry L.  X-  0Baumann to William E. Kennard, July 13, 1994. In Streamlining Broadcast EEO Rule and  X-  LPolicies, we vacated the EEO Policy Statement and advised licensees that we would follow our  X|-  recent practice of making forfeiture decisions by relying on case precedent. Accordingly, we will  Xe-recalculate the forfeiture imposed on the licensee.   X7-  10.` ` In determining a forfeiture, we look to case precedent, taking into consideration   zthe relevant statutory factors in Section 503(b)(2) of the Communications Act, including the   nature, circumstances, extent and gravity of the violations, and BAI's record of compliance with   our rules. In our evaluation, we consider the station's size, number of hiring opportunities, MSA  X-  size, recruitment patterns, applicant and interview pools, assessment and recordkeeping. E. g.,  X -  MStauffer Communications, Inc., 10 FCC Rcd 5060, 5061 (1995). After such consideration, we conclude that a forfeiture of $15,000 is appropriate in the instant case.  X#-  '11.` ` The record in this case reflects that, of the 28 hires we considered in  Xh$-  [Commonwealth, 12 (10 for upperlevel positions) occurred after October 27, 1989. The licensee   could demonstrate no recruitment efforts for five (42%) of those positions (all upperlevel). It  X:&-  .reported only a single recruiting source for six of its hires, including either Radio & Records, a   national trade journal (three upperlevel hires), a nationwide computer billboard service (one   upperlevel hire), a local newspaper (one lowerlevel hire) and a temporary agency (one lower" (,))qq&"ԫ  level hire). Two recruiting sources were used for one upperlevel hire, a local newspaper and a women's organization.  X-  Q12.` ` BAI provided records of its applicants for only two of the 12 hires. It reported   .only one minority out of 45 applicants for these two positions. BAI also provided a list of 178   expressions of interest in announcer positions in 1990. It included only four minorities.   jHowever, it cannot be determined that any of the four minorities was considered in connection   with any of the 12 hires. Three of the minority applicants had submitted unsolicited applications   at times when no jobs were in fact available. The fourth applicant responded to a solicitation   for a future position, but it is not indicated whether he was in fact considered in connection with   any of the 12 hires. Accordingly, the presence of minority applicants can be confirmed for only   three (25%) of the 12 hires, based on the fact that BAI reported that minorities were hired for   two positions (one upperlevel) and were present in one additional applicant pool. BAI provided   no records concerning its interview pools for the 12 hires. Thus, we can conclude that minorities   were present in only two (17%) interview pools (one upperlevel), based on the two minority   hires reported. There is no evidence of any efforts by BAI to identify or use recruiting sources   that would be more productive in eliciting minority applicants during the period after October 27, 1989.  XK-  13.` ` We found in Commonwealth that BAI had failed to demonstrate adequate   [recruitment efforts because minorities were present in only 25% of its applicant pools and 11%   of its interview pools. After October 27, 1989, minorities were present in only three (25%) of   y12 applicant pools and 2 (17%) of 12 interview pools. We also found that, notwithstanding the   absence of minorities from its applicant and interview pools, BAI failed to make consistent   efforts to attract minority applicants, including failing to recruit for a significant number of   ]vacancies and failing to seek more productive sources likely to refer qualified minorities.   9FCCRcd at 2111. BAI failed to conduct any recruitment for five of the 12 hires under   consideration here and used only a single general source for six of its hires. Despite the dearth   Mof minority applicants, it did not employ any minorityspecific sources. It made no effort to identify other sources that might be more productive in eliciting minority applicants.  X7-  n14.` ` We find BAI's record comparable to, but more egregious than, that of the licensee  X -  \of WMMR(FM), Philadelphia, Pennsylvania,A $ X-  .Ѝ #C\  P6QP#WMMR(FM) is located in the Philadelphia, Pennsylvania, MSA, which has a labor force that is 18.2%   mminority (15.4% Black and 2.8% others). The labor force of the Las Vegas, Nevada, MSA, where   KFMS(AM)/KFMSFM are located, is 18.3% minority (8.4% Black, 7.1% Hispanic and 2.8% others). 9 FCC Rcd at 211011, n. 7 and 12.  in In re Applications of Group W Radio, Inc.,   M11FCC Rcd 8942 (1996). The licensee of WMMR(FM) filled 11 vacancies (five upperlevel)   from January 22, 1990 through June 20, 1991. It recruited for six vacancies. It employed 43   general recruiting sources for one vacancy and 20 minority sources for one vacancy. Minorities   were included in five (45.5%) applicant pools and one (9.1%) interview pool. The licensee of   WMMR(FM) reported applicant and interviewee information for all 11 positions, although its   minority referral information was incomplete. There was evidence that the licensee had engaged"",))qq!"   in some selfassessment effort during the review period. We issued a notice of apparent liability   jfor forfeiture in the amount of $14,000, based on WMMR(FM)'s failure to adequately recruit so as to attract minority applicants.  X-  $15.` ` Here, BAI, like WMMR(FM), failed to recruit for a significant number of its 12   vacancies. Minorities were present in only 25% of BAI's applicant pools, compared to 45.5%   of WMMR(FM)'s applicant pools. Unlike WMMR(FM), BAI did not demonstrate extensive   yrecruitment efforts for any of its vacancies and evidenced no effort to identify more productive   recruiting sources. WMMR(FM) also maintained more complete records concerning its EEO   -efforts, which we consider essential for meaningful selfassessment, than did BAI. Accordingly,   we find BAI's record to be more egregious than that of WMMR(FM). We therefore conclude   that a forfeiture of $15,000 is an appropriate sanction for BAI's violation of the Commission's EEO Rule.  X -  X -IV. ORDERING CLAUSES  Xy-  16.` ` Accordingly, IT IS ORDERED , that the Petition for Reconsideration filed by the  Xb-Idaho/Nevada/Utah and Arizona State Conferences of Branches of the NAACP IS DENIED .  X4-  |17.` ` IT IS FURTHER ORDERED , that the Petition For Reconsideration and Response  X-  to Notice of Apparent Liability filed by Broadcast Associates, Inc. ARE GRANTED to the  X-extent indicated, and ARE OTHERWISE DENIED .  X-  18.` ` IT IS FURTHER ORDERED , pursuant to Section 503(b) of the Communications  X-  =Act of 1934, as amended, 47 U.S.C.  503(b), that Broadcast Associates, Inc. FORFEIT to the   United States the sum of fifteen thousand dollars ($15,000) for violation of the Commission's   zEEO Rule. 47 C.F.R.  73.2080. In regard to this forfeiture proceeding, the licensee may take   appropriate action as set forth in Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, and   mSection 504(a) of the Communications Act of 1934, as amended, 47 U.S.C.  504(a), as  XN-summarized in the attachment to this Memorandum Opinion and Order and Notice of Forfeiture.  X -  19.` ` IT IS FURTHER ORDERED , that the Mass Media Bureau send by Certified  X -  yMail Return Receipt Requested copies of this Memorandum Opinion and Order and Notice  X-  of Forfeiture to the Idaho/Nevada/Utah and Arizona State Conferences of Branches of the NAACP, and Broadcast Associates, Inc.  X"-X` hp x (#%'0*,.8135@8: