WPC6 2BH ZRoman3|ZXZ\  P@QXP"5^L/Lc_rw/BBL{/{/h__________//r{rU_hchc_mr4GhUwmhhhh_Zr_r_c_BBBh_/_cZcZ=Zh44c4h_c_QQGhUr_ZUB&Br////h4/_h___________cZcZcZcZcZ44444444mhh_h_h_h_rhrhrhrh/Z__hch_h_cZh_cc__hh__cZcZcZhhcZm_mZmZrhrh4hhh444hGhh////N//Gc/U___c/____Z______///////////////__N_{U_4Z___Z////////////////////////////////L/Lc_rw/BBL{/{/h__________//r{rU_hchc_mr4GhUwmhhhh_Zr_r_c_BBBh_/_cZcZ=Zh44c4h_c_QQGhUr_ZUB&Br///////////////////////////////////Z__c4ch_______4{__/ZG//______U_______ccccc4444hmhhhhh_hrrrrcch______ZZZZZ4444_h_____U_hhhhZcXPPS - PCL44M ROOM 228 LPT1XPPSPCL4.WRSXj\  P6G;lx{ xXP2 $X4Z3|j7ZCL,XZ\  P@QXPy.K8?,xK\  P@QPW!6(.,pch6\  P@QhPI-!&,~,-\  P@Q,Pd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP LaserJet 4M LPT2:(Add) RM 7310HL4MPCA0.PRSXj\  P6G;\8!}XP2 %K:v Times New RomanTimes New Roman Bold"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd/>/>/>/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+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""9999999999DJD3M9><><9AD+>3GA>>>>96D9D9<9(((>99<6<6%6><^>9<900+>3D963((D>9>99999999999U<6<6<6<6<6A>>9>9>9>9D>D>D>D>699><>9>9<6>9<<99>>99<6<6<6>><6A9A6A6D>D>>>>>+>>N+<3999<9999699999999N9J3969996..<9DG((.JJ>9999999999DJD3M9><><9AD+>3GA>>>>96D9D9<9(((>99<6<6%6><^>9<900+>3D963((D699<<>9999999J996+99999939999999<<<<<>A>>>>>9>DDDD<<>999999U666669>9999939>>>>6<"5^&&2/9;!!&>>4//////////9>9+@/4242/69$4+;64444/-9/9/2/!!!4//2-2--42N4/2/(($4+9/-+!!94/4///////////G2-2-2-2-2-644/4/4/4/94949494-//424/4/2-4/22//44//2-2-2-442-6/6-6-94944444$44N$2+///2////-////////N/>+/-///-&&2/9;!!&>>4//////////9>9+@/4242/69$4+;64444/-9/9/2/!!!4//2-2--42N4/2/(($4+9/-+!!9-//224///////>//-$//////+///////222224644444/49999224//////G-----/4/////+/4444-2 yO- X F; X- X` hp x (#%'0*,.8135@8: II. BACKGROUND ă  Xa -  r2.` ` Rainbow alleges that the licensees violated our Equal Employment Opportunity   ("EEO") rule and policies. Accordingly, it requests that we conduct an investigation of the  X3"-  stations' employment practices pursuant to Bilingual Bicultural Coalition on Mass Media, Inc. v.  X#-  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. "$,))hh#"Ԍ X-  3.` ` Rainbow derived its factual allegations from KNOE/KNOEFM's EEO program and  X-  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.   X-309(d)(1); Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) ("Astroline").  Xv-  r4.` ` 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/KNOEFM with a caution.  X -  ~5.` ` Constitutionality of Commission's EEO Rule. The licensees contend that our EEO  X -  ARule is inconsistent with the holding in Adarand Constructors, Inc. v. Pe9a, 515 U.S. ___, 115  X-S.Ct. 2097 (1995) ("Adarand"). We disagree.  Xb-  6.` ` Adarand addresses the constitutionality of a racebased 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   Pevaluate 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.  X-  7.` ` The requirements imposed by our EEO Rule, 47 C.F.R.  73.2080, are fundamentally  X-  Adifferent from a racebased preference program such as that at issue in Adarand.u yO#-#X\  P6G;xP#Ѝ#C\  P6QxP#Adarand involved a federal procurement set aside program. The Rule   Pdoes not require that any person be hired or accorded a hiring preference based on racial or   2ethnic status. Rather, it requires that licensees make efforts to recruit minority and women  Xe-  applicants so that they will be ensured access to the hiring process.eXu yOn- >#X\  P6G;xP#ЍThe standard of review for gender based programs is intermediate scrutiny. Under that standard, there   must be an "exceedingly persuasive justification" for genderbased government action and that action is   constitutional if it serves an important governmental objective and is substantially related to achievement of that  yO -  objective. United States v. Virginia, 116 S. Ct. 2264 (1996); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994);  yO!-Mississippi University of Women v. Hogan, 458 U.S. 718 (1982).  The ultimate decision as   Bto whether to hire a particular applicant may be premised upon any nondiscriminatory   considerations, without regard to the applicant's race, ethnicity or gender status. Further, our   PRule 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. ",((hh"Ԍ X-  c8.` ` We employ a twostep process in evaluating licensees' EEO efforts. In the first   3step, 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   1of minority referrals when vacancies occur and engages in continuous selfassessment 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   Afactor in this second step analysis. Broadcast licensees whose employment profiles are below our processing guidelines have been renewed without sanction.   X4-  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  X-  suffered such injury as a result of the provisions of our Rule. As the Court emphasized in City  X-  1of 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  X-rights of any person, we conclude that Adarand does not implicate our EEO program.  X-  V10.` ` Our reading of the scope of the Adarand decision is consistent with the  X|-  interpretation of the case by the Department of Justice ("DOJ"). An analysis of the Adarand decision by DOJ states:  XMere outreach and recruitment efforts . . . typically would not be subject to  X - Adarand standards. Indeed, postCroson cases indicate that such efforts are  considered race neutral means of increasing minority opportunity. In some  csense, of course, the targeting of minorities through outreach and recruitment  campaigns involves raceconscious 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  X"- Tclassifications in selecting persons from the expanded pool, Adarand ordinarily  X#-would be inapplicable.2#u yO%- #X\  P6G;xP#ЍMemorandum to All Agency General Counsels from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, United States Department of Justice, at 7 (June 28, 1995) (footnotes omitted).2 "# ,((hhG""Ԍ X-ԙx@ III. DISCUSSION ă  X-  E11.` ` 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   1of 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  X1-  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).  X -  b12.` ` 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  X -  eleven fulltime hiring opportunities, all for upperlevel positions. u yO7- #X\  P6G;xP#ЍIn their opposition, the licensees submitted job and recruitment data for a threeyear period, in anticipation of a Commission inquiry concerning such information. Stations KNOE/KNOEFM   recruited for ten (91%) of eleven vacancies. The licensees report contact with five minority   nsources 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   2vacancies, 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/KNOEFM 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.  X-  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  X -he was scheduled to report to the stations, he called and said that he had changed his mind.g x  u yO!- {#X\  P6G;xP#эAccording to the 1980 Census, the Monroe, Louisiana Metropolitan Statistical Area (MSA), in which the   stations are located, had an available labor force that was 42.8% female and 23.1% minority (21.9% Black, 0.8%   Hispanic, 0.2% Asian/Pacific Islander, and 0.2% American Indian). The 1990 Annual Employment Report lists nine   women (41%), one Black (4.5%), and one Hispanic (4.5%) among an overall staff of 22 employees, including seven   Jwomen (35%), one Black (5%), and one Hispanic (5%) among an upperlevel staff of 20 employees. The 1991 report   hlists ten women (43.5%), one Black (4.3%), one Hispanic (4.3%), and one American Indian (4.3%) among 23 fulltime   Jemployees, including eight women (38.1%), one Black (5%), one Hispanic (5%), and one American Indian (5%) on an"&,((&"   upperlevel staff of 21 employees. In the 1992 report, nine women (43%), one Black (5%), one Hispanic (5%), and   one American Indian (5%) are listed among an overall staff of 21 employees, including seven women (37%), one Black (5.3%), one Hispanic (5.3%), and one American Indian (5.3%) on an upperlevel staff of 19 employees.  The Commission has begun using 1990 labor force statistics for license renewal applications filed after May  yOx-  h31, 1993 and for 1993 and subsequent Annual Employment Reports. See Public Notice #32651 (April 12, 1993). The   ,available labor force is 47.4% female and 25% minority (23.4% Black, 0.8% Hispanic, 0.6% Asian/Pacific Islander, and   0.2% American Indian). The 1993 report lists six women (38%) and one Black (6.3%) among 16 overall employees,   including four women (28.6%) and one Black (7.1%) among 14 upperlevel employees. In the 1994 report, six women   (35.3%) are reflected on the overall staff of 17 employees, including five women (31.3%) among 16 upperlevel   employees. The 1995 report lists six women (38%) and one Hispanic (6.3%) among 16 overall employees, including   five women (33.3%) and one Hispanic (7%) among 15 upperlevel employees. In 1996, the licensees reported eight   Zwomen (47.1%) and one Black (6%) among 17 fulltime employees, including seven women (44%) and one Black (6.3%) among 16 upperlevel employees. g "  ,((hh/"Ԍ X-  ԙ14.` ` Rainbow argues that, although the stations reported between two and five part  time employees since 1988, only one minority was reflected on the stations' parttime staff in   m1995. 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   1recruitment 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 coowned television station.  XH-  s15.` ` Responding to Rainbow's argument concerning the stations' employment of   @minority parttime employees, the licensees state that subsequent to filing Annual Employment   Reports in 1994 and 1995, KNOE/KNOEFM hired three minorities to parttime positions. The   1licensees add that, in September 1995, the stations promoted a Black employee from parttime   to fulltime. 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/KNOEFM 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."  XK-  16.` ` In reply, Rainbow urges the Commission to send a followup inquiry letter to the   licensees and ascertain how many other parttime 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 onair, management,   and engineering vacancies. According to Rainbow, this practice indicates "stereotyping at best  X-  and outright discrimination at worst." Rainbow cites, in support of its argument, Rust  X-  _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 parttime minority employees to fulltime onair positions. "e ,((hh}"Ԍ X-  T17.` ` We reject Rainbow's assertion that we should consider the licensees' parttime   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 fulltime vacancies  X-  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  X_-  efforts. See Implementation of Commission's Equal Employment Opportunity Rule, 9 FCC Rcd  XH-  R6276, 6291 (1994); Amendment of Part 73 of the Commission's Rules Concerning Equal  X1-  Employment Opportunity in the Broadcast Radio and Television Services, 2 FCC Rcd 3967, 3974 (1987).  X -  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  X -  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  Xb-  minority applicant. In Rust, the Commission found that a prima facie case of employment   Odiscrimination had been established, and designated the renewal applications for hearing. Here,   nthe licensees' recruitment efforts, while not completely successful, led to an application from one minority for an onair position.  X-  619.` ` There are no substantial and material questions of fact warranting designation  X-  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.  Xe-  F20.` ` 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   1interviewees. In light of the large minority labor force in the Monroe MSA (25%), we believe that   a continuing review by KNOE/KNOEFM of its EEO program, will enable the stations to increase   the number of qualified minority applicants. Therefore, we caution KNOE/KNOEFM to analyze its EEO efforts more thoroughly, and to increase its use of minority sources.   X!-c? IV. CONCLUSION ă  X#-  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. ":&,((hh$"  X-c. V. ORDERING CLAUSES ă  X-  22.` ` Accordingly, IT IS ORDERED that the Petition to Deny filed by Rainbow concerning  X-the renewal applications for Stations KNOE/KNOEFM IS DENIED.  X-  ' 23.` ` IT IS FURTHER ORDERED that the license renewal applications for Stations  Xv-KNOE/KNOEFM ARE GRANTED .  XH-   24. ` ` IT IS FURTHER ORDERED that the Mass Media Bureau send by Certified Mail  X1-  Return Receipt Requested copies of this Memorandum Opinion and Order to the licensees and to Rainbow.  X -` `  hh, FEDERAL COMMUNICATIONS COMMISSION  ` `  XK- 4 ` `  hh, William F. Caton  4 J` `  hh,Acting Secretary