******************************************************** 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, D.C. 20554 In re Applications of ) ) ENTERPRISE MEDIA ) File Nos. BR-960530T9 and OF TOLEDO, L.P. ) BRH-960530T8 ) For Renewal of Licenses for ) Stations WCWA(AM)/WIOT-FM, ) Toledo, Ohio ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: March 24, 1997; Released: March 28, 1997 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) the above-captioned license renewal applications for Stations WCWA(AM)/WIOT-FM, Toledo, Ohio, filed by Enterprise Media of Toledo, L.P. ("licensee"); (ii) a Petition to Deny filed by the National Rainbow Coalition ("Rainbow"); (iii) the licensee's opposition to the petition; (iv) Rainbow's reply to the licensee's opposition; (v) the licensee's response to a staff letter of inquiry; and (vi) Rainbow's comments on the licensee's response to a staff letter of inquiry. 2. Rainbow alleges that the licensee violated the Commission's Equal Employment Opportunity ("EEO") Rule and policies, 47 C.F.R.  73.2080. Accordingly, Rainbow 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 licensee denies Rainbow's allegations and requests unconditional renewal. II. BACKGROUND 3. Rainbow derived its factual allegations from WCWA(AM)/WIOT-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. Communications Act of 1934, as amended,  309(d)(1), 47 U.S.C.  309(d)(1); Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) ("Astroline"). 4. Having reviewed the entire record in this case, we conclude that there are no substantial and material questions of fact warranting designation for hearing and that grant of the licensee's renewal 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 licensee is otherwise qualified, grant of the applications will serve the public interest. 47 U.S.C.  309(d)(2). However, because the licensee's overall EEO efforts were deficient, we will grant the licensee's renewal applications with appropriate remedies and sanctions. III. 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 establish and maintain an equal employment opportunity 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 minorities and women are not present in the applicant pool. The Commission also focuses on any evidence of discrimination by the licensee. See 47 C.F.R.  73.2080(a), (b), and (c). 6. Review of the licensee's 1996 EEO Program Report, opposition, and inquiry response reveals that during the period from April 27, 1994, to October 1, 1996, the stations had 18 full-time hiring opportunities, all of which were for upper-level positions. The licensee recruited for 16 positions. The licensee asserts that it did not recruit for two "on-air personality" positions because they were rehires. For 15 of the 16 positions for which recruitment efforts were made, the licensee used general and minority-specific sources and informal means of recruitment (i.e., "General Manager contacts," "telephone contacts," and "walk-ins"). For six vacancies in 1994, the licensee received 56 applicants total, including four minorities. Of that total, 15 were referred through informal means and 41 were recruited from general sources, such as newspapers. Further, for these vacancies in 1994, the licensee used from one to two minority-specific sources (i.e., the Toledo Journal and NAACP), but none of these sources yielded any applicants. For nine vacancies in 1995, the licensee received 82 applicants total, including two minorities. Of that total, 18 were referred through informal means and 64 were recruited from general sources. Further, for these vacancies in 1995, the licensee used the same two minority sources that it used in 1994 and added La Prensa, a Hispanic newspaper; these sources did not yield any applicants. The licensee used only a single general source for one position in 1996 which produced four applicants, none of whom was a minority. Based on this record, it does not appear that the station adequately self-assessed the productivity of its recruitment sources in 1994 or 1995. The record reveals that the stations received only a small number of minority applicants (4) in 1994, all of whom were in the same applicant pool, and none of whom were interviewed. In 1995, the station's recruitment efforts appear to worsen, given that only 2 of 82 applicants were minorities, and minorities were present in only two of four applicant pools and one of four interview pools. The station, however, did show adequate self- assessment of its recruitment sources in mid-1996, when it used 40 sources, including 12 minority- specific sources. That effort yielded 86 applicants, including five minorities. 7. The stations had only nine applicant and interview pools; multiple hires were made from five of these pools. The licensee's inquiry response reveals that, with respect to the 16 upper- level positions, for which recruitment efforts were made, the stations had a total of 233 applicants and 60 interviewees. Of these, 11 applicants (4.7%) and one interviewee (1.7%) were minorities. Minorities were present in four of nine (44.4%) applicant pools and in one interview pool (11.1%). The licensee reports that it hired no minorities. The record further reveals that the hirees for 12 of 16 positions were referred by informal means such as "telephone contact" (1), "General Manager contact" (7), "previous WCWA employee" (1), and "walk-in" (3). 8. In its petition, Rainbow contends that the stations' EEO program is deficient. Rainbow first alleges that none of the stations' 11 part-time employees in 1995 was a minority. Second, Rainbow claims that the stations did not recruit for two on-air positions, the morning show producer position, four board operator positions, and the assistant promotions director position. Rainbow states that the stations' EEO program explains that "experienced" people were desired for some of these vacancies, but that it "fails to explain why the stations did not contact minority sources and simply ask them to refer experienced applicants." Third, Rainbow asserts that there were 11 job openings (five full-time and six part-time) during the reporting year and that minority sources were not contacted for all the available positions. 9. In response, the licensee generally denies Rainbow's allegations and contends that there are no substantial and material questions of fact as to whether the stations discriminated against minorities. While the licensee does not deny Rainbow's allegation that none of the part-time employees at the station in 1995 was a minority, the licensee states that it recruited for the part-time positions that were available during the reporting period and received minority applicants. With respect to Rainbow's allegation that the stations made no recruitment efforts for several positions, the licensee indicates that it recruited for all the available positions except for the two on-air positions. The licensee argues that it was not required to recruit for the two on-air positions because the two men who were hired had previously done the morning show at the FM station, and thus were rehires. Further, the licensee states that if the two men had not been available, it would not have hired anyone for the on-air positions. Finally, the licensee asserts that it used minority sources for several positions and relied exclusively on general sources for others. It states that the general sources it relied on, such as the University of Toledo, were reliable in referring applicants with the technical experience that some of the available positions required. The licensee further points out that the University of Toledo was productive in referring minority applicants. However, the licensee acknowledges that it has not attracted minorities to all applicant pools. Thus, the licensee states, in an effort to increase the number of minority applicants, it has added new recruitment sources, including 13 predominantly minority colleges. Furthermore, the licensee states that it will continue to monitor its EEO program and try to improve its recruitment efforts to attract minority applicants. 10. We find inconsequential Rainbow's allegation that none of the stations' eleven part- time employees in 1995 was a minority. We note that our EEO Rule does not require licensees to hire or employ a specific number of minority employees. See Implementation of Commission's Equal Employment Opportunity Rules, 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). Moreover, 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). Accordingly, Rainbow's argument regarding part-time positions requires no further consideration. 11. Rainbow's contention that the stations did not recruit for two on-air positions, the morning show producer position, four board operator positions, and the assistant promotions director position does not raise a material or substantial question regarding the licensee's efforts. The record reveals that the four board operator positions and the assistant promotions director position were part-time positions. Although we expect licensees to recruit for full-time and permanent part-time positions, as stated above, our primary focus is on recruitment efforts for full-time vacancies when analyzing EEO programs. The record also reveals that the stations did recruit for the morning show producer position. See  6, supra. The record further reveals, however, that the licensee did not recruit for the two on-air positions. The licensee argues, without authority, that it was not required to recruit for the two on-air positions because the individuals hired "were well known local air personalities" who had previously done the morning show at the FM station and it would not have hired anyone for the on-air positions if the two individuals hired were unavailable. While we anticipate that licensees will report occasional, unexpected vacancies for which no recruitment occurred, we expect broadcasters to engage in consistent recruitment efforts. The fact that the employees rehired were former employees does not exempt the licensee from its obligation to recruit for females and minorities, under our EEO Rule, for these positions. 12. The licensee is under no obligation to use minority-specific recruitment sources as long as general recruitment sources are productive. See Pappas Telecasting Inc., 11 FCC Rcd 2945 (1996) ("Pappas Telecasting"); Fayetteville-Cumberland Telecasters, Inc., 11 FCC Rcd 4632, 4633 (1996); Double L Broadcasting of Lansing Limited Partnership, et al., 7 FCC Rcd 6435, 6442 n.7 (1992). Nevertheless, we are troubled by the licensee's reliance on a single general recruitment source for one of its full-time vacancies, the morning show producer position, an upper-level position. The licensee explains that it specifically contacted the University of Toledo's Department of Communications for the morning show producer position because it afforded students the opportunity to gain the technical training and experience that the position requires, and because the University had previously referred two minority applicants for a lower-level part-time vacancy. 13. As the Commission held in Pappas Telecasting, a licensee may rely exclusively on general sources if such sources are adequately productive. 11 FCC Rcd at 2946. However, the Commission has also held that if a licensee's exclusive reliance on general sources failed to produce meaningful results, we would question whether minority recruitment was adequate. Id. Here, we find the licensee's recruitment effort, with respect to the morning show producer position, inadequate. In Pappas Telecasting, we found that the licensee was not obligated to use minority- specific recruitment sources because "its general sources provided a substantial number of minority applicants." Id. In that case, a single source, the Fresno Bee, supplied the station with 508 of the 669 minority referrals it received during the license term. Id. In sharp contrast, the licensee's exclusive use of the University of Toledo as a recruitment source did not produce any minority or female applicants for the morning show producer position. The fact that the University of Toledo had previously referred two minority applicants for a lower-level part-time vacancy in the past should not have reasonably led the licensee to predict that using this source alone for upper-level recruitment would produce a substantial number of qualified minority applicants. 14. Rainbow further contends, in its comments concerning the licensee's response to a staff letter of inquiry, that although "the licensee maintained good records," the stations' "record shows that [the licensee] utterly disregarded its EEO responsibilities during the Bilingual period, and practiced intentional discrimination in the recruitment and applicant screening processes." Rainbow states that the licensee's "heavy reliance on word-of-mouth contacts from a virtually all-White staff was inherently discriminatory." Rainbow cites cases, such as Walton Broadcasting, Inc., 78 FCC 2d 857, 865, recon. denied, 83 FCC 2d 440 (1980), in support of its argument, but we find that the cases relied upon by Rainbow operated under a different set of facts and contexts and, therefore, do not persuade us to make a finding of intentional discrimination in this case. Furthermore, Rainbow has advanced no direct evidence of discrimination. 15. We find that the licensee's failure to comply with our EEO requirements does not raise a substantial and material question of intentional discrimination warranting a hearing. SeeAstroline. The licensee recruited, interviewed, and employed minorities. Therefore, finding the licensee to be otherwise qualified, renewal of the licenses is in the public interest. See 47 U.S.C.  309(d)(2). 16. Nevertheless, we find WCWA(AM)/WIOT-FM's overall recruitment efforts to be deficient because the licensee failed to recruit actively for two vacancies during the review period, and, despite the presence of minorities in only four of nine applicant pools (44.4%) and one interview pool (11.1%), the licensee failed to engage in meaningful self-assessment of its EEO program in that it did not make significant changes in its recruitment efforts despite its failure to attract qualified minorities. 47 C.F.R.  73.2080. Furthermore, the record reflects that the licensee's recruitment efforts were inconsistent. The licensee's recruitment sources were largely unproductive in producing minority applicants. In fact, one source, the Toledo Blade, produced most of the stations' minority applicants (10 of 11). The licensee used anywhere from one to 40 recruitment sources, resulting in only 11 minority applicants (4.7%) out of 233 total applicants, despite the stations' location in an area with a 12.2% minority labor force. Further, the licensee did not use any minority-specific recruitment sources for one position. The licensee's use of minority-specific recruitment sources for other positions was, for the most part, scant. None of the minority-specific recruitment sources used by the licensee produced a minority applicant. The stations' record further reveals that hirees for 12 of 16 vacancies at the stations were referred by informal means such as "telephone contact," "General Manager contact," "previous WCWA employee," and "walk-in." We believe that the record in this case is evidence that the licensee engaged in inadequate recruitment efforts and poor self-assessment of its EEO program, in violation of our EEO Rule, 47 C.F.R.  73.2080. 17. After carefully reviewing the facts, we find that the record in the instant case is similar to that of KDYL(AM)/KSFI-FM, Salt Lake City, Utah, in Holiday Broadcasting Co., 10 FCC Rcd 4500 (1995), aff'd, 11 FCC Rcd 1125 (1996). In that case, the licensee failed to recruit actively for two of its 16 vacancies and it received only three minority referrals (from a newspaper, a college, and a staff referral). Only one minority was present in its applicant and interview pools. We concluded that although the licensee had engaged in some efforts to recruit minorities during the license term, it had not engaged in consistent recruitment efforts and failed to self-assess adequately. We renewed the licenses of KDYL(AM)/KSFI-FM subject to reporting conditions and a Notice of Apparent Liability for $8,000. 18. WCWA(AM)/WIOT-FM and KDYL(AM)/KSFI-FM have comparable staff sizes. WCWA(AM)/WIOT-FM had from 27 to 32 full-time employees on its staff and KDYL(AM)/ KSFI-FM had from 24 to 35 full-time employees on its staff during their respective review periods. A comparison of the record of WCWA(AM)/WIOT-FM and the record of KDYL(AM)/ KSFI-FM reveals that both licensees failed to recruit actively for all of their vacancies [2 of 18 and 2 of 16, respectively]. As in the precedent case, we have determined that the licensee here engaged in inconsistent recruitment efforts and failed to self-assess adequately. The recruitment sources used by both WCWA(AM)/WIOT-FM and KDYL(AM)/KSFI-FM were largely unproductive in producing minority applicants [only 11 (4.7%) out of 233 total applicants and one (1.1%) out of 91 total applicants, respectively]. Furthermore, the minority-specific recruitment sources used by both WCWA(AM)/WIOT-FM and KDYL(AM)/ KSFI-FM produced no minority referrals. As a result of the poor minority recruitment efforts conducted by both licensees, minorities were absent from a significant number of their applicant and interview pools. 19. In view of all the foregoing factors and broadcasters' familiarity with our long- standing EEO Rule, we find that WCWA(AM)/WIOT-FM's rule violations warrant a Notice of Apparent Liability in the amount of $8,000 and the imposition of reporting conditions. Furthermore, we admonish the licensee for incorrectly including two individuals who had been terminated but were receiving severance pay in its total number of full-time employees on its 1995 Annual Employment Report. See note 2, supra. We expect licensees to exercise greater care in their submissions to the Commission. IV. CONCLUSION 20. After reviewing the record before us, we find that a hearing is not warranted and that grant of the renewal applications for Stations WCWA(AM)/WIOT-FM is in the public interest. However, because the licensee's overall EEO efforts were deficient, we will grant the renewal applications subject to reporting conditions and a Notice of Apparent Liability for $8,000. V. ORDERING CLAUSES 21. Accordingly, IT IS ORDERED that the petition to deny filed by the National Rainbow Coalition concerning the renewal applications for Stations WCWA(AM)/WIOT-FM IS DENIED. 22. IT IS FURTHER ORDERED that the renewal applications filed by Enterprise Media of Toledo, L.P., for Stations WCWA(AM)/WIOT-FM ARE GRANTED subject to the EEO 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 $8,000. 23. IT IS FURTHER ORDERED that the licensee of Stations WCWA(AM)/WIOT-FM submit to the Commission an original and one copy of the following information on June 1, 1998, June 1, 1999, and June 1, 2000: (a) Two lists divided by full-time and part-time vacancies during the 12 months preceding May 1, 1998, for the first report, May 1, 1999, for the second report, and May 1, 2000, 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. These lists should also note which recruitment sources were contacted; (b) A list of employees as of the May 1, 1998, payroll period for the first report, May 1, 1999, payroll period for the second report, and May 1, 2000, payroll period for the third report, by job title and FCC job category 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 stations' efforts to recruit minorities and women for each position filled during the 12 months preceding May 1, 1998, for the first report, May 1, 1999, for the second report, and May 1, 2000, for the third report, including identification of sources used and indicating whether any of the applicants declined actual offers of employment. In addition, the licensee may submit any relevant information with regard to the stations' EEO performance and efforts thereunder. 24. 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 ("MO&O") to the licensee of Stations WCWA(AM)/WIOT-FM and to the National Rainbow Coalition. 25. The reports are to be filed with the Acting Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 26. Regarding the forfeiture proceeding, the licensee of Stations WCWA(AM)/WIOT-FM 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 MO&O. Any comments concerning ability to pay should include those financial items set forth in the attachment. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary