******************************************************** 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 Application of ) ) Guilford Telecasters, Inc. ) File No. BRCT-910731KF ) ) For Renewal of License of ) Station WGGT-TV ) Greensboro, North Carolina ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: April 21, 1997 Released: April 25, 1997 By the Commission: Commissioner Quello concurring in the result. I. INTRODUCTION 1. The Commission has under consideration its Memorandum Opinion and Order and Notice of Apparent Liability in Guilford Telecasters, Inc., 11 FCC Rcd 2929 (1996) ("MO&O") granting the renewal application of Station WGGT-TV, Greensboro, North Carolina, subject to reporting conditions and a Notice of Apparent Liability ("NAL") for forfeiture in the amount of $17,500; and a Response Requesting Remission or Mitigation of Forfeiture ("Response") filed by Guilford Telecasters, Inc. ("Guilford"), the former licensee of Station WGGT-TV. For the reasons that follow, we find the arguments in support of Guilford's request to be without merit. Therefore, we deny Guilford's request and impose a forfeiture in the amount of $17,500. II. BACKGROUND 2. In the MO&O, the Commission reviewed the equal employment opportunity ("EEO") program of WGGT-TV and found no substantial and material questions of fact sufficient to warrant a hearing. In addition, we found no evidence that Guilford had engaged in discrimination. Accordingly, we granted renewal of the station's license. However, we also concluded that Guilford's EEO efforts were inadequate because Guilford failed to document recruitment activity, to maintain applicant or interviewee records, and, consequently, to conduct meaningful self- assessment of its EEO program as required by our EEO Rule. See 47 C.F.R.  73.2080. Therefore, although we granted renewal, we imposed EEO reporting conditions and an NAL in the amount of $17,500. III. DISCUSSION 3. Once an NAL for forfeiture has been issued, the respondent must show in writing why a forfeiture penalty should not be imposed, why it should be reduced or, in the alternative, pay the forfeiture. Any showing by the respondent must include a detailed factual statement and such documentation and affidavits as may be pertinent. 47 C.F.R.  1.80(f)(3). 4. In seeking a remission or mitigation of the forfeiture amount in the NAL, Guilford claims that its EEO violations are predominantly of a record-keeping nature. Guilford argues that we should reduce or rescind the forfeiture because the station was in bankruptcy during much of the license period, and as a result, recruiting files were destroyed or not maintained by the station's employees. Although acknowledging its failure to document its recruiting practices, Guilford disputes our characterization of its EEO program as deficient in view of its actual minority hirings during the license period. Guilford contends that its minority hirings demonstrate that its EEO program was successful and undeserving of sanctions. 5. Guilford also requests that the Commission "clarify the licensee to which the NAL is directed." Guilford acknowledges that the NAL is directed to Guilford Telecasters, Inc., but claims that it should have been directed to Guilford Telecasters, Inc., Debtor in Possession, since this entity was the actual licensee at the time of the NAL's release and the station's EEO violations. 6. Station WGGT-TV had 34 full-time vacancies during its 1987-1991 license term. The station's labor force included 17.8% minorities. Guilford could not verify its specific recruitment efforts or the composition of its applicant and interview pools for any vacancy. Guilford was able to show that minorities were present in three of the 34 applicant and interview pools. However, this information was derived from the station's hiring of three minorities and not as a result of the maintenance of adequate employment and recruitment records as contemplated by the EEO Rule's self-assessment requirement. See Section 73.2080(c)(5) of the Commission's Rules; 47 C.F.R.  73.2080(c)(5). Few records were available for meaningful self-assessment, and the evidence does not show that any self-assessment actually occurred. These essential facts are undisputed in Guilford's Response. Hence, we correctly concluded in the MO&O that Guilford's recruitment and self-assessment were not in accordance with our EEO Rule, which requires recruitment as vacancies occur, as well as continuing review of recruitment and hiring procedures to ensure equal opportunity in employment. We therefore reject Guilford's contention that it is being penalized for mere record-keeping violations. 7. We also reject Guilford's argument that its record is mitigated by the mismanagement of former employees. As we explained in the MO&O, a broadcast licensee is responsible for the conduct of its employees, including compliance with the requirements of our EEO Rule. SeeMO&O at 2930. In its Response, Guilford proffers no persuasive evidence that would cause us to depart from this policy. 8. With respect to Guilford's contention concerning the number of minorities hired by the station during the license period, we note that our primary focus is on a licensee's EEO efforts and not on its employment of a specific number of minority employees. See Amendment of Part 73 of the Commission's Rules Concerning Equal Employment Opportunity in the Broadcast Radio and Television Services, 2 FCC Rcd 3967 (1987). See also Implementation of Commission's Equal Employment Opportunity Rules, 9 FCC Rcd 2047 (1994). 9. Finally, we disagree with Guilford's contention that the NAL should have been directed to Guilford Telecasters, Inc., Debtor in Possession. The assignment of license application for the station from Guilford Telecasters, Inc., Debtor in Possession to Guilford Telecasters, Inc. (File No. BALCT-910802KF) was granted by the Commission on June 8, 1995, before the NAL's release date of March 5, 1996. Further, Guilford reports that the bankruptcy court in charge of its assets terminated the bankruptcy on July 31, 1991. Hence, Guilford's debtor in possession status would have ended at that time, long before the NAL was released. Moreover, we note that the bankruptcy court appointed Guilford itself to act as debtor in possession rather than appointing a trustee or receiver not associated with Guilford. Indeed, Guilford admits that "there is a great deal of common ownership" between it and Guilford Telecasters, Inc., Debtor in Possession. As debtor in possession, Guilford continued to assume responsibility for the station's operations. Thus, any claim that Guilford should not answer for its misdeeds as debtor in possession is not justified here. Accordingly, we affirm that the NAL was properly directed to Guilford Telecasters, Inc. 10. Based on the foregoing, we deny Guilford's request for remission or mitigation of forfeiture. In addition, we hereby issue a forfeiture in the amount of $17,500 to Guilford Telecasters, Inc. IV. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED that the request for remission or mitigation of forfeiture filed by Guilford Telecasters, Inc. IS DENIED. 12. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), that Guilford Telecasters, Inc. FORFEIT to the United States the sum of seventeen thousand five hundred dollars ($17,500) for violation of the Commission's EEO 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 Section 504(a) of the Communications Act of 1934, as amended, 47 U.S.C.  504(a), as summarized in the attachment to this Memorandum Opinion and Order and Forfeiture Order. 13. IT IS FURTHER ORDERED that one copy of this Memorandum Opinion and Order and Forfeiture Order be sent by Certified Mail -- Return Receipt Requested -- to Guilford Telecasters, Inc. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary