******************************************************** 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. ***************************************************************** Federal Communications Commission FCC 97-161 Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) ) WDOD of Chattanooga, Inc. ) File Nos. BR-960401F4 ) BRH-960401U3 For Renewal of Licenses of ) Stations WDOD(AM)/WDOD-FM ) Chattanooga, Tennessee ) ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: May 7, 1997; Released: May 12, 1997 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 those applications timely and jointly filed by the National Rainbow Coalition ("Rainbow") and Operation PUSH ("PUSH"); (iii) an opposition filed by the licensee; (iv) a reply to the opposition filed by Rainbow and PUSH; (v) the licensee's responses to staff inquiries; and (vi) a response to the licensee's inquiry responses filed by Rainbow and PUSH. 2. Rainbow and PUSH allege that WDOD(AM)/WDOD-FM violated our Equal Employment Opportunity (EEO) Rule and policies. Accordingly, they request 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 renewal applications for hearing. The licensee states that the petitioners have presented no evidence of discrimination, that the record indicates compliance with the Commission's EEO Rule, and that unconditional renewals are warranted. II. BACKGROUND/PLEADINGS 3. In challenging an application pursuant to Section 309(d) of the Communications Act, a petitioner must demonstrate party in interest status. 47 U.S.C.  309(d)(1); Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (Astroline). The allegations, except for those of which official notice may be taken, must be supported by the affidavit of a person with knowledge of the facts alleged. 47 U.S.C.  309(d)(1). 4. Accompanying the petition was a declaration under penalty of perjury from the Acting Staff Director of Rainbow, who does not claim to be a resident of the stations' service area or a listener of either station. The licensee challenges the standing of Rainbow to petition the instant renewal applications because it failed to submit an affidavit from any member who listens to WDOD(AM) or WDOD-FM. We agree and find that Rainbow has failed to establish petitioner status. See Maumee Valley Broadcasting, Inc., FCC 97-96,  6 (Adopted March 14, 1997) ("Maumee Valley"); NAB Petition for Rulemaking, 82 FCC 2d 89, 98-99 (1980) ("NAB") (overruled on other grounds). Accordingly, we will dismiss Rainbow as a petitioner. See 47 U.S.C.  309(d)(1); 47 C.F.R.  73.3584(d). 5. Also submitted with the petition was a declaration under penalty of perjury from the executive director of Operation PUSH/Chattanooga who asserts that he is a resident of Chattanooga and a regular listener of both stations. He states that he would be seriously aggrieved if the petition to deny is not granted because PUSH members, including himself, would be deprived of job opportunities and program service in the public interest. The licensee contends that the declaration that PUSH submitted is inadequate to establish standing for PUSH. It argues that the declarant did not assert that he is interested in or has applied for employment at the stations. Also, it maintains that PUSH has failed to establish that its allegations of EEO deficiencies at the stations have any relationship to the interests of PUSH or its members and that there is no evidence that PUSH members have applied for employment or been discriminated against by the stations. Furthermore, the licensee charges that PUSH has failed to articulate the nature of its organization or how it is threatened by the stations' alleged EEO deficiencies. 6. The Commission has granted standing, notwithstanding a lack of information about petitioning groups, upon finding that one or more members of the petitioning group has standing. Here, the executive director of PUSH in Chattanooga has established that he resides in Chattanooga and regularly listens to the stations. Thus, we find PUSH has standing. See Maumee Valley, FCC 97-96 at  6; NAB, 82 FCC 2d at 100-101. Further, we reject the licensee's argument that PUSH is required to establish the nature of its organization in order to petition to deny renewal applications. Similarly, we reject the licensee's suggestion that the PUSH declarant's allegations are inadequate to establish a relationship to the interests of PUSH or its members. As we held previously, "[a] listener who charges a local station with EEO deficiencies satisfies the injury in fact requirement [for establishing standing] because the broadcaster's shortcomings are depriving him of the viewpoints of a significant segment of the community." Id. at 100. 7. PUSH derived its factual allegations from the licensee's EEO program and annual employment reports. As a threshold matter, we found that PUSH made a prima facie showing that grant of the renewal applications would have been inconsistent with the public interest. See Section 309(d)(1) of the Communications Act, 47 U.S.C.  309(d)(1); Astroline. Review of PUSH's allegations, as well as the licensee's renewal applications, opposition, and inquiry responses, leads us to conclude that there are no substantial and material questions of fact warranting designation for hearing. In addition, we find no evidence of employment discrimination. Thus, for the reasons discussed below, we will grant the renewals but subject to reporting conditions and a Notice of Apparent Liability for $11,000. 8. Constitutionality of Commission's Equal Employment Opportunity (EEO) Rule. The licensee contends that our EEO Rule is inconsistent with the holding in Adarand Constructors, Inc. v. Pe¤a, 515 U.S. 200, 115 S.Ct. 2097 (1995) ("Adarand"). We disagree. 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. 9. 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. 10. 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. 11. Accordingly, we find no basis for concluding that our process denies any person equal protection of the laws. Indeed, the licensee has 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. 12. 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 Adarandstandards. 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 13. Section 73.2080 of the Commission's Rules 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 women and minorities are not present in the applicant and interview pools. The Commission also focuses on any evidence of discrimination by the licensee. See Section 73.2080, subsections (a), (b), and (c) of the Commission's Rules, 47 C.F.R.  73.2080(a)-(c). 14. Review of the licensee's renewal applications, opposition, and inquiry responses reveals that the stations filled 21 full-time vacancies, including 20 upper-level positions, from August 1, 1993, to August 1, 1996. The licensee states that it "routinely" recruited for its openings but could document recruitment for only 14 (66.7%) of its 21 hiring opportunities. Where recruitment occurred, the station contacted from two to 10 general sources. The only minority- oriented sources contacted were the NAACP and the Urban League, which were contacted for nine (42.9%) openings. Regarding referrals, the licensee was able to report the sources for just 10 openings. Of these, there were 65 referrals for whom sources were known. The only minority referrals were two Black applicants referred by the stations' employees. In addition, the licensee had two Black hires but did not know the referral source for either of them. 15. The licensee maintained applicant and interview data for 10 (47.6%) positions. Counting the applicants and interviewees reported by the licensee for these 10 positions, and further including each of the remaining 11 hires as applicants/interviewees, the licensee attracted four (5.8%) minorities out of 69 applicants overall, including three (4.4%) minorities out of 68 applicants for upper-level positions. Minorities were included in four (19.1%) of the station's 21 applicant pools, including three (15.0%) of the pools for the 20 upper-level positions. Three minorities were interviewed, constituting 9.7% of 31 interviewees overall. Two (6.7%) minorities were among 30 candidates interviewed for upper-level positions. Minorities were included in three (14.3%) interview pools, including two (10.0%) for upper-level positions. During the review period, the stations report hiring two (9.5%) Blacks, one of whom (5.0%) was hired for an upper-level position. In addition, the licensee states that it offered an upper-level position (office manager) to a Black female in December 1995 but that she declined the offer. 16. PUSH contends that the licensee's EEO program is "virtually nonexistent." Referring to the licensee's renewal applications, PUSH argues that the stations used only two recruitment sources and received only two minority referrals. In addition, PUSH criticizes the licensee's record of minority employment as reflected on the stations' Annual Employment Reports from 1989 to 1995, although the 1989 report was filed prior to the start of the license term. However, for its analysis of the stations' minority workforce, PUSH mistakenly uses statistics from the Hamilton County, Tennessee, labor force instead of the correct Chattanooga, Tennessee, Metropolitan Statistical Area ("MSA") labor force, of which Hamilton County is a part. See n. 5, supra. 17. In response, the licensee contends that it has contacted more outside recruitment sources than the two indicated in its renewal application, as outlined above, including minority sources. In addition, it states that it expanded its list of sources starting on March 20, 1996, and that it also improved record-keeping in 1996. In contrast to PUSH's contention that its EEO program is almost nonexistent, the licensee argues that it has complied with the Commission's EEO Rule and policies and notes that the number of minorities on its staff has increased in the last three years. Furthermore, it argues that PUSH's criticism of the stations' record of minority employment is unjustified because it is based on inaccurate labor force statistics. 18. In its replies to the licensee's opposition and inquiry responses, PUSH argues that the licensee's lack of recruitment records should not immunize it from adverse inferences about the stations' EEO program. In addition, PUSH contends that the licensee proposed no remedial steps even though its EEO program was inadequate. PUSH further argues that, although minorities have increased on the stations' staffs, one of the minorities is a male American Indian and American Indians constitute less than one percent of the labor force. PUSH thus maintains that his employment does not mitigate the licensee's weak minority employment record. Furthermore, PUSH notes that, regardless of what labor force statistics are used, the stations reported no Black upper-level employees on annual employment reports during the license term. Also, PUSH contends that offering an upper-level position to a Black applicant is of no consequence because the offer was rejected and the licensee did not report how many offers were made to non-minority applicants who rejected them. Finally, PUSH argues that the Commission should base a forfeiture in this case on the licensee's violation of Commission rules through its entire license term, if the Commission chooses to issue a Notice of Apparent Liability. 19. Review of PUSH's allegations, as well as the licensee's renewal applications, opposition, and inquiry responses, leads us to conclude that there are no substantial and material questions of fact warranting designation for hearing. See Astroline. Moreover, there is no evidence that the licensee engaged in employment discrimination. The record indicates that the licensee attracted, interviewed, and hired minorities. 20. Nevertheless, we find the licensee's overall EEO efforts during the license term deficient. The stations could document recruitment for only 66.7% of their vacancies, could document applicant or interview records for only 47.6% of openings, and included minorities in only four (19.1%) of the stations' 21 applicant pools and three (14.3%) interview pools. Further, we find that the stations failed to maintain adequate records for meaningful self-assessment. 47 C.F.R.  73.2080. 21. We agree with PUSH that the licensee's lack of recruitment information does not immunize it. However, we disagree with PUSH that the licensee proposes no steps to improve its program because, as shown above, the licensee increased record-keeping and the number of recruitment sources contacted in 1996. Because these program enhancements were implemented some five months prior to the end of the license term, they are entitled to diminished weight. 22. Furthermore, PUSH and the licensee have offered arguments about minority hires and employment, including PUSH's argument minimizing the employment of an American Indian in a labor force where American Indians constitute 0.2%. Regarding these issues, we note that we have considered the licensee's minority hiring and employment record, including the rejected offer of employment made to a minority, in determining that there is no evidence of discrimination. However, our review of the licensee's recruitment program focuses primarily on efforts and we do not require licensees to employ a minimum percentage of minorities. See Channel 5 Public Broadcasting, Inc., 10 FCC Rcd 10388, 10389 (1995). See also, 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). Furthermore, as explained above, we compare a licensee's minority employment with the presence of minorities in the relevant labor force only as part of the preliminary analysis of a licensee's EEO performance, not as a numerical goal. Finally, regarding any forfeiture in this case, we will base that decision on Commission precedent, as shown below. 23. The record in the instant case is similar to, but less egregious than, that of the licensee of KGWN-TV, Cheyenne, Wyoming, in Stauffer Communications, Inc., 10 FCC Rcd 5060 (1995). The licensee therein was located in a labor force that was 13.0% minority. It recruited for 15 of its 26 hires (57.7%). The licensee maintained applicant or interview data for only 15 (57.7%) of its overall openings and 10 of its 20 upper-level openings (50.0%). The licensee included minorities in two applicant/interview pools (7.7%). The only record of self-assessment was the addition of minority sources after the license term expired. In that case, because the licensee failed to recruit for 11 of 26 openings, failed to include minorities in almost all of its applicant/interview pools, and failed to maintain records for meaningful self-assessment, we renewed the station's license subject to reporting conditions and issued a Notice of Apparent Liability for $12,000. 24. Stations KGWN-TV and WDOD(AM)/WDOD-FM are located in areas with similarly-sized minority labor forces (13.0% and 13.4%, respectively). Both licensees had similar numbers of hires (26 for KGWN-TV and 21 for the instant radio stations). Neither licensee contacted recruitment sources for every hiring opportunity. Both licensees failed to maintain complete applicant or interview data. Such documentation is necessary for the ascertainment of efforts as well as for adequate self-assessment of an EEO program. In addition, both licensees had similar numbers of applicant and interview pools including minorities (two applicant/interview pools for KGWN-TV compared to four applicant and three interview pools for the radio stations). However, because WDOD(AM)/WDOD-FM recruited for a higher percentage of openings (66.7% compared to KGWN-TV's 57.7%), we find that their record is less egregious than that of KGWN- TV. Accordingly, given the facts of this case and broadcasters' familiarity with our long-standing EEO Rule, we feel that the circumstances here justify issuance of a Notice of Apparent Liability for Forfeiture for $11,000. Also, to ensure that better efforts are taken with respect to their EEO program, we will impose reporting conditions on WDOD(AM)/WDOD-FM. IV. CONCLUSION 25. Upon review of the record, we find that no hearing is warranted. Grant of the application is consistent with Section 309(k) of the Communications Act of 1934, as amended, 47 U.S.C.  309(k). Thus, 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 failed to recruit for all openings and failed to maintain adequate records for meaningful self-assessment, we will issue a Notice of Apparent Liability for Forfeiture for $11,000. Further, we will impose reporting conditions to monitor the stations' prospective EEO performance. V. ORDERING CLAUSES 26. Accordingly, IT IS ORDERED that the Petition to Deny filed by the National Rainbow Coalition concerning the renewal applications of WDOD(AM)/WDOD-FM IS DISMISSED. 27. IT IS FURTHER ORDERED that the Petition to Deny filed by Operation PUSH concerning the renewal applications of WDOD(AM)/WDOD-FM IS DENIED. 28. IT IS FURTHER ORDERED that, the license renewal applications for Stations WDOD(AM)/WDOD-FM ARE GRANTED, subject to the reporting conditions specified herein, and, pursuant to Section 503 of the Communications Act of 1934, as amended, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $11,000. 29. IT IS FURTHER ORDERED that the licensee of Stations WDOD(AM)/WDOD- FM submit to the Commission an original and one copy of the following information on April 1, 1998; April 1, 1999; and April 1, 2000: (a) Two lists divided by full-time and part-time job vacancies during the twelve months preceding March 1, 1998, for the first report, March 1, 1999, for the second report, and March 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. The list should also note which recruitment sources were contacted; (b) A list of all employees as of the March 1, 1998, payroll period for the first report, the March 1, 1999, payroll period for the second report, and the March 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 for each position filled during the 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 stations' EEO performance and its efforts thereunder. 30. IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Order and Notice of Apparent Liability be sent by Certified Mail -- Return Receipt Requested -- to the National Rainbow Coalition, Operation PUSH, and the licensee. 31. The reports are to be filed with the Acting Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 32. 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