******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 ) ) Guaranty Broadcasting Corporation ) File Nos. BR-960126WJ ) BRH-960126WF For Renewal of Licenses for Stations ) KJIN(AM) and KCIL(FM) ) Houma, Louisiana ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: January 21, 1997 Released: January 27, 1997 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) the above-referenced applications of Guaranty Broadcasting Corporation ("Guaranty") for renewal of the licenses for Stations KJIN(AM) and KCIL(FM), Houma, Louisiana; (ii) a petition to deny timely filed by the Southern Region of the National Rainbow Coalition ("Rainbow"); (iii) Guaranty's opposition thereto; (iv) Rainbow's reply to the opposition; and (v) Guaranty's response to a staff letter of inquiry requesting additional information concerning the stations' Equal Employment Opportunity ("EEO") record. 2. Rainbow alleges that the stations violated our EEO Rule and policies. Section 73.2080 of the Commission's Rules, 47 C.F.R.  73.2080. Accordingly, it requests that we conduct an investigation of the stations' employment practices pursuant to Bilingual Bicultural Coalition on Mass Media v. FCC, 595 F.2d 621 (D.C. Cir. 1978) ("Bilingual"), and designate the applications for hearing with a view toward denying them. The licensee maintains that it has not engaged in discrimination, that its EEO program has been successful, and that unconditional renewal is warranted. 3. Rainbow derived its factual allegations from the licensee's EEO program and annual employment reports. As a threshold matter, we found that Rainbow made a prima faciecase demonstrating 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. After reviewing the licensee's renewal applications, annual employment reports, opposition, and its inquiry response, 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. Thus, because the licensee is otherwise qualified, grant of the applications will serve the public interest. 47 U.S.C.  309(d)(2). However, for the reasons discussed below, we will grant renewal subject to reporting conditions and issue a notice of apparent liability for a forfeiture in the amount of $10,000. II. DISCUSSION 5. Section 73.2080 of the Commission's Rules, 47 C.F.R.  73.2080, requires that a broadcast licensee refrain from employment discrimination 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 ongoing assessment of its EEO efforts. Such an assessment enables the licensee to take corrective action if qualified minorities and women are not represented in significant numbers in its applicant pools. The Commission also focuses on any evidence of discrimination by the licensee. See Sections 73.2080(a), (b), (c) of the Commission's Rules, 47 C.F.R.  73.2080(a), (b) and (c). 6. Review of Guaranty's renewal applications and inquiry response reveals that the stations had nine hiring opportunities for full-time positions, including eight for upper-level positions, from June 1, 1993, to June 1, 1996. The licensee recruited for all nine vacancies. For each vacancy, it employed general sources, one minority organization, three universities it identifies as likely sources of minority applicants, and three women's organizations. There is no indication that the stations' recruitment sources were modified in order to attract more minority applicants during the review period. In the licensee's inquiry response, it is conceded that the stations' recruitment sources had not been "as productive as Guaranty might have hoped." The licensee reports difficulty identifying useful recruitment sources in the Houma area and proposes to contact potential sources in other larger cities in Louisiana. 7. The stations had only seven applicant/interview pools (six upper-level) because multiple hires were made from one upper-level pool. The licensee maintained records concerning the composition of its applicant and interview pools. The licensee reports that it attracted 112 applicants (76 for upper-level positions), including two minorities (none for upper-level positions) and 71 females (36 for upper-level positions). The stations had 43 interviewees (31 for upper- level positions), including two minorities (none for upper-level positions) and 28 females (16 for upper-level positions). Guaranty reports that, during the review period, it hired one Black for a lower-level position; and six females, five for upper-level positions. It further notes that it promoted one Black female from the lower-level position of receptionist to the upper-level position of Program Director. The one lower-level minority hire reported by Guaranty was for the job vacated by the promoted employee. 8. In its petition to deny, Rainbow urges that the information reported in the 1996 EEO Program Report is not a good indication of the stations' performance throughout the license term. First, Rainbow questions the fact that the 1996 EEO Program Report reported no upper- level hires during the renewal year. Moreover, although the Report indicated that a minority was promoted during the renewal year, Rainbow faults the licensee for not specifying the date of the promotion and the position into which the person was promoted. Rainbow further faults Guaranty for not completing Section VIII of the Report, urging that, as a result, it cannot be determined whether the licensee's EEO efforts in the next license term will reflect an improvement upon its efforts during the license term under review. Rainbow finally contends that review of the licensee's record is necessary given the absence of upper-level minority employees at the stations prior to 1995. 9. In its opposition, the licensee concedes that it mistakenly reported no hires in the four upper-level job categories in its 1996 EEO Program Report. It explains that this error occurred because its general manager misunderstood the form as referring to the top four managerial jobs at the stations rather than the four upper job categories. The licensee also notes that the minority promoted during the renewal year was promoted from receptionist to Program Director and that her replacement in the receptionist position was a minority. The licensee does not address Rainbow's argument concerning the absence of a response to Section VIII of its 1996 EEO Program Report; however, it reports that it attended job fair programs at a university which has a substantial minority enrollment and helped organize and promote charity drives sponsored by minority organizations. The licensee finally urges that its minority employment profile is not dispositive as to its compliance with the EEO Rule and, in any event, contends that overall minority employment at the stations has generally improved. It asserts that it recruited for all job openings and did not discriminate. Rainbow, in its reply, contends that the licensee's response is ambiguous as to whether the stations in fact recruited for every vacancy filled during the license term. 10. There are no substantial and material questions of fact warranting designation for hearing. Astroline. Moreover, there is no evidence of employment discrimination. Guaranty recruited, hired, and promoted minorities during the license term. Accordingly, renewal of the stations' licenses is in the public interest. 11. With reference to the licensee's provision of incorrect information concerning the stations' renewal year upper-level hires in its 1996 EEO Program Report, we accept the licensee's explanation that the error arose from a misunderstanding of the form. There is no evidence that the licensee intended to misrepresent the actual number of renewal year upper-level hires. Although not required to do so, the licensee has provided information requested by Rainbow concerning the promotion of a minority during the renewal year. Next, we reject Rainbow's contention that an adverse conclusion should be drawn because the licensee did not respond to Section VIII of the EEO Program Report. Section VIII allows a licensee to provide any information, in addition to that otherwise required by the Report, concerning the licensee's EEO efforts. However, the form states that completion of Section VIII is optional. We therefore do not view a failure to respond to Section VIII as an indication of noncompliance with the Commission's EEO Rule and policies. Further, the stations' minority employment profile would not, standing alone, constitute grounds for sanction because our primary concern relates to a licensee's efforts to recruit minority applicants rather than the attainment of a particular statistical benchmark. Channel 5 Public Broadcasting Inc., 10 FCC Rcd 10388, 10389 (1995); Miami/Florida Renewals, 5 FCC Rcd 4893, 4894 (1990). Finally, Rainbow's contention that the licensee's opposition is ambiguous as to the extent of the stations' recruiting efforts is moot in view of information provided in response to the staff inquiry letter. 12. We find, however, that the licensee's overall EEO efforts with respect to minorities were deficient because, although the stations recruited for all vacancies during the review period, they failed to meaningfully self-assess the effectiveness of their recruitment efforts. In this regard, only two (1.9%) of the stations' 112 applicants were minorities. Moreover, the two minority applicants were both included in a single pool for a lower-level position. Although the local labor force includes 15.9% minorities, no minority applicants were considered for the stations' eight upper-level vacancies. There is no indication that the licensee engaged in any self- assessment during the license term. There were no modifications to the stations' recruitment sources, notwithstanding that those being employed were unproductive. Finally, the licensee failed to provide correct information concerning its renewal year upper-level hires in its 1996 EEO Program Report. While we accept the licensee's explanation that the submission of erroneous information resulted from a misunderstanding of the form, we find that the licensee's failure to review more carefully and comply with FCC instructions on all necessary filing forms further supports our conclusion about the inadequacy of its efforts to self-assess the effectiveness of its EEO program. Price Broadcasting Company, 11 FCC Rcd 3620, 3621 (1996). 13. After carefully reviewing the facts of this case, we find that the record in the instant case is similar to, but more egregious than, that of KDYL(AM)/KSFI-FM, Salt Lake City, Utah, in Holiday Broadcasting Company, 10 FCC Rcd 4500 (1995), recon. denied, 11 FCC Rcd 1125 (1996). KDYL(AM)/KSFI-FM recruited for 14 of 16 vacancies during the applicable review period. However, it attracted only one minority out of 91 applicant/interviewees. Moreover, the licensee reported that it had begun to track applicant and interviewee data and had revised its list of recruitment sources during the last year of the license term. Nonetheless, we found that the licensee had failed to engage in adequate self-assessment. We renewed the licenses of KDYL(AM)/KSFI-FM subject to reporting conditions and issued a Notice of Apparent Liability to the licensee for $8,000. 14. In the instant case, Guaranty recruited for all of its nine hires. However, it attracted only two minority applicants in a single lower-level applicant pool. Further, there is no evidence that, during the license term, the licensee made any efforts, even belatedly, to assess the adequacy of its recruitment sources. The stations here had fewer hiring opportunites than KDYL(AM)/KSFI-FM. However, they are in a market with a significantly higher percentage of minorities in the labor force (15.9% compared with 7.5%) and attracted a larger number of applicants. Our decision in this case is also guided by Midland Broadcasters, Inc., 11 FCC Rcd 4652 (1996). In that case, we found that the licensee of stations KMAJ(AM)/KMAJ-FM, Topeka, Kansas, had recruited for all of its 11 hires during the applicable review period in a market with a labor force including 11.2% minorities. Nonetheless, we issued a Notice of Forfeiture in the amount of $10,000 because, although the stations had received some minority referrals, no minorities had been interviewed for full-time positions at the stations and there was no evidence that the licensee reviewed or altered its recruitment procedures until the last few months of the license term. In light of all of the above, we conclude that the issuance of a Notice of Apparent Liability in the amount of $10,000 is appropriate in this case. III. CONCLUSION 15. Upon review of the record, we find that no hearing is warranted. Accordingly, finding the licensee to be otherwise qualified, we will grant Guaranty's renewal applications. However, because Guaranty failed to self-assess the effectiveness of its EEO efforts, we will issue a Notice of Apparent Liability for $10,000. Further, we will impose reporting conditions to monitor the stations' prospective EEO performance. IV. ORDERING CLAUSES 16. Accordingly, IT IS ORDERED that the Petition to Deny filed by the Southern Region of the National Rainbow Coalition with respect to the renewal applications for Stations KJIN(AM) and KCIL(FM) IS DENIED. 17. IT IS FURTHER ORDERED that the license renewal applications of Guaranty Broadcasting Corporation for Stations KJIN(AM) and KCIL(FM) ARE GRANTED subject to the reporting conditions specified herein, and pursuant to Section 503 of the Communications Act of 1934, as amended, 47 U.S.C.  503, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $10,000. 18. IT IS FURTHER ORDERED that the licensee of Stations KJIN(AM) and KCIL(FM) submit to the Commission an original and one copy of the following information on June 1, 1997, June 1, 1998, and June 1, 1999: (a) Two lists divided by full-time and part-time job vacancies during the twelve months preceding May 1, 1997, for the first report, May 1, 1998, for the second report, and May 1, 1999, for the third report, indicating the job title and FCC job category, date of hire, the race or national origin, sex and the referral source of each applicant for each job and the race or national origin and sex of the person hired. The list should also note what recruitment sources were contacted; (b) A list of employees as of the May 1, 1997, payroll period, for the first report, the May 1, 1998, payroll period, for the second report, and the May 1, 1999, payroll period, for the third report, by job title, indicating full-time or part-time status (ranked from highest paid classification), date of hire, sex, and race or national origin; and (c) Details concerning the station's efforts to recruit minorities for each position filled during each respective 12-month period specified, including identification of sources used and indicating whether any of the applicants declined actual offers of employment. In addition, the licensee may submit any information it believes relevant regarding the station's EEO performance and its efforts thereunder. 19. The reports are to be filed with the Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 20. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- copies of this Memorandum Opinion and Order and Notice of Apparent Liability to the Southern Region of the National Rainbow Coalition and Guaranty Broadcasting Corporation. 21. With respect to the forfeiture proceeding, the licensee may take any of the actions set forth in Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, as summarized in the attachment to this Order. Any comments concerning the ability to pay should include those financial items set forth in the attachment. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary