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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, DC 20554 In re Applications of ) ) KNOE, Inc. ) ) For Renewal of License for) Station KNOE(AM)) File No. BR-960124WM Monroe, Louisiana) ) and ) ) Noe Enterprises, Inc.) ) For Renewal of License for) Station KNOE-FM)File No. BRH-960124WP Monroe, Louisiana) MEMORANDUM OPINION AND ORDER Adopted: November 21, 1996; Released: December 12, 1996 By the Commission: I. INTRODUCTION 1.The Commission has before it for consideration: (i) license renewal applications for the above-captioned stations; (ii) a Petition to Deny timely filed on May 1, 1996, by the Southern Region of the National Rainbow Coalition ("Rainbow"); (iii) an opposition filed by the licensees; (iv) a Reply to the Opposition to Petition to Deny; and (v) various other pleadings. II. BACKGROUND 2.Rainbow alleges that the licensees 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), and designate the renewal applications for hearing. The licensees deny Rainbow's allegations and request unconditional renewal. 3.Rainbow derived its factual allegations from KNOE/KNOE-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, as amended, 47 U.S.C.  309(d)(1); Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) ("Astroline"). 4.Having reviewed all matters presented, however, we conclude that there are no substantial and material questions of fact, and that 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. Therefore, because the licensees are otherwise qualified, grant of the applications will serve the public interest. 47 U.S.C.  309(d)(2). However, for the reasons that follow, we will renew the licenses of Stations KNOE/KNOE-FM with a caution. 5.Constitutionality of Commission's EEO Rule. The licensees contend that our EEO Rule is inconsistent with the holding in Adarand Constructors, Inc. v. Pe¤a, 515 U.S. ___, 115 S.Ct. 2097 (1995) ("Adarand"). We disagree. 6.Adarand addresses the constitutionality of a race-based preference program arising under federal law. The Supreme Court held that where questions arise as to a violation of the personal right to equal protection of the laws as a result of such programs, courts should evaluate such challenges by invoking the "strict scrutiny" standard of judicial review. Under strict scrutiny, racial classifications are constitutional only if they are narrowly tailored measures that further a compelling governmental interest. 7.The requirements imposed by our EEO Rule, 47 C.F.R.  73.2080, are fundamentally different from a race-based preference program such as that at issue in Adarand. The Rule does not require that any person be hired or accorded a hiring preference based on racial or ethnic status. Rather, it requires that licensees make efforts to recruit minority and women applicants so that they will be ensured access to the hiring process. The ultimate decision as to whether to hire a particular applicant may be premised upon any non- discriminatory considerations, without regard to the applicant's race, ethnicity or gender status. Further, our Rule does not require licensees to hire any prescribed "quota" of minorities or women. Thus, our EEO Rule imposes no requirement that would operate to deprive any person of a benefit he or she might receive but for his or her race, ethnicity or gender. 8.We employ a two-step process in evaluating licensees' EEO efforts. In the first step, we seek to identify those licensees whose EEO efforts may be unsatisfactory so as to warrant further inquiry. Whether a licensee's employment profile as reflected in its Annual Employment Reports filed during the license term meets the processing guidelines is one factor considered in making this preliminary assessment, along with information contained in the renewal application, allegations raised by any petitions to deny or informal objections, and any other information available concerning the licensee's EEO record. We emphasize that these guidelines are used as an initial screening tool for determining the stations whose EEO programs might require further investigation. If the first step of review indicates that the station's EEO efforts are satisfactory, the station is found to be in compliance with our EEO Rule. In no situation are a station's efforts found to be unsatisfactory or is it found to have violated the EEO Rule solely because it does not meet the processing guidelines. Where we find that a station's efforts may be unsatisfactory, we will generally request additional information which is analyzed along with relevant pleadings to determine if, among other things, the station notifies sources of minority referrals when vacancies occur and engages in continuous self- assessment of its EEO program; if, in light of the evidence, the station violated our EEO Rule; and, if it did, what sanctions or remedies may be appropriate. Compliance with the processing guidelines is not a factor in this second step analysis. Broadcast licensees whose employment profiles are below our processing guidelines have been renewed without sanction. 9.Accordingly, we find no basis for concluding that our process denies any person equal protection of the laws. Indeed, the licensees have not identified any person who arguably suffered such injury as a result of the provisions of our Rule. As the Court emphasized in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) ("Croson"), the right to equal protection is a personal right. In the absence of any provisions in our EEO Rule that abridge the personal rights of any person, we conclude that Adarand does not implicate our EEO program. 10.Our reading of the scope of the Adarand decision is consistent with the interpretation of the case by the Department of Justice ("DOJ"). An analysis of the Adarand decision by DOJ states: Mere outreach and recruitment efforts . . . typically would not be subject to Adarand standards. Indeed, post-Croson cases indicate that such efforts are considered race neutral means of increasing minority opportunity. In some sense, of course, the targeting of minorities through outreach and recruitment campaigns involves race-conscious action. But the objective there is to expand the pool of applicants or bidders to include minorities, not to use race or ethnicity in the actual decision. If the government does not use racial or ethnic classifications in selecting persons from the expanded pool, Adarand ordinarily would be inapplicable. III. DISCUSSION 11.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). 12.The licensees' 1996 EEO Program Report, opposition, and supplementary pleadings reveal that during the period of January 1, 1993, through January 1, 1996, the licensees had eleven full-time hiring opportunities, all for upper-level positions. Stations KNOE/KNOE-FM recruited for ten (91%) of eleven vacancies. The licensees report contact with five minority sources for four vacancies. For three additional vacancies, the licensees indicate recruitment with nine minority sources, and contact with three minority sources for one position. For two vacancies, the licensees report recruitment with three general sources. The licensees do not indicate recruitment for the one remaining hiring opportunity. In addition, the licensees state that, in December 1993, KNOE/KNOE-FM contacted its list of recruitment sources and various Black community leaders to solicit their assistance in attracting more minority applicants. Pursuant to this review, the licensees state that the stations subsequently expanded its list of recruitment sources in 1994. 13.The licensees provided applicant and interview data for each hiring opportunity, but reported that some applicants had not revealed their race or national origin during the application process. Of those among the 115 applicants who made known their race or national origin, eleven (9%) were minorities. Further, the licensees reported five minorities (8%) among 59 interviewees. In addition, the licensees offered to interview two minority applicants but both declined the interviews. Minorities were present in seven applicant pools (64%), and four interview pools (36%). Also, the licensees state that they hired a Black male, but on the morning he was scheduled to report to the stations, he called and said that he had changed his mind. 14. Rainbow argues that, although the stations reported between two and five part- time employees since 1988, only one minority was reflected on the stations' part-time staff in 1995. Further, Rainbow contends that the licensees' employment profile during the license term reflects its poor EEO program. In addition, Rainbow points out that despite the numerous recruitment sources listed in the licensees' renewal applications, the stations attracted only one minority applicant during the renewal year. Rainbow also states that most of the recruitment efforts outlined in the licensees' renewal applications relate to their co-owned television station. 15.Responding to Rainbow's argument concerning the stations' employment of minority part-time employees, the licensees state that subsequent to filing Annual Employment Reports in 1994 and 1995, KNOE/KNOE-FM hired three minorities to part-time positions. The licensees add that, in September 1995, the stations promoted a Black employee from part-time to full-time. Regarding Rainbow's contention that only one minority applicant is reflected on the licensees' renewal applications, the licensees state that upon further review of their documentation, KNOE/KNOE-FM actually attracted four minority applicants during the renewal year. The licensees assert that their ongoing efforts, including the expansion of recruitment sources, reflect the stations' commitment to minority recruitment. Finally, the licensees state that the failure to attract a greater number of minority applicants is not "readily explainable." 16.In reply, Rainbow urges the Commission to send a follow-up inquiry letter to the licensees and ascertain how many other part-time employees were hired besides the three minorities the licensees reported. In response to the licensees' claim concerning the number of minority applicants they attracted, Rainbow argues that the licensees failed to explain why they contacted minority sources only for sales vacancies, and not for all on-air, management, and engineering vacancies. According to Rainbow, this practice indicates "stereotyping at best and outright discrimination at worst." Rainbow cites, in support of its argument, Rust Communications Group, Inc., 53 FCC 2d 355 (1975) ("Rust"). The licensees respond that they used minority sources for a marketing manager position in January 1994, and that they promoted three part-time minority employees to full-time on-air positions. 17.We reject Rainbow's assertion that we should consider the licensees' part-time employment record. 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). Moreover, we find Rainbow's contention concerning the licensees' employment profile to be without merit. Compliance with our rules is not based on meeting or exceeding a numerical goal, but on the total efforts to recruit and employ minorities and females and the ongoing assessment of those efforts. See Implementation of Commission's Equal Employment Opportunity Rule, 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). 18.Next, we disagree that the licensees' failure to use minority sources for each on- air, management, and engineering vacancy suggests stereotyping or discrimination. Rainbow's reliance on Rust in this case is inappropriate. In Rust, the licensee of two Rochester, New York stations told the Commission that it would contact minority organizations "when suitable openings exist" and "where feasible." Moreover, the licensee allegedly made discriminatory remarks to one minority applicant and allegedly failed to act on the application of another minority applicant. In Rust, the Commission found that a prima facie case of employment discrimination had been established, and designated the renewal applications for hearing. Here, the licensees' recruitment efforts, while not completely successful, led to an application from one minority for an on-air position. 19.There are no substantial and material questions of fact warranting designation for hearing. See Astroline. Moreover, there is no evidence that the licensees engaged in employment discrimination. The licensees recruited, hired, and employed females and minorities. In addition, the licensees contacted referral sources for most of their vacancies. Therefore, renewal of the licenses is in the public interest. 20.We note that the licensees recruited for ten (91%) of eleven vacancies, and assessed their EEO program in December 1993. However, we are concerned that during the review period, the licensees received only eleven (9%) minority applicants, and five (8%) minority interviewees. In light of the large minority labor force in the Monroe MSA (25%), we believe that a continuing review by KNOE/KNOE-FM of its EEO program, will enable the stations to increase the number of qualified minority applicants. Therefore, we caution KNOE/KNOE-FM to analyze its EEO efforts more thoroughly, and to increase its use of minority sources. IV. CONCLUSION 21.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 licensees to be otherwise qualified, we will grant the renewal applications with a caution. V. ORDERING CLAUSES 22.Accordingly, IT IS ORDERED that the Petition to Deny filed by Rainbow concerning the renewal applications for Stations KNOE/KNOE-FM IS DENIED. 23.IT IS FURTHER ORDERED that the license renewal applications for Stations KNOE/KNOE-FM ARE GRANTED. 24.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 to Rainbow. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary