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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission FCC 97-165 Before the Federal Communications Commission Washington, D.C. 20554 In re Application of) ) Tri-Valley Broadcasters, Inc.)BRH-900801UN ) For Renewal of License of) Station KKIQ-FM ) Livermore, California ) MEMORANDUM OPINION AND ORDER AND NOTICE OF FORFEITURE Adopted: May 8, 1997; Released: July 2, 1997 By the Commission: I. INTRODUCTION 1.The Commission has under consideration its decision in Application of Tri-Valley Broadcasters, Inc. For Renewal of License of Station KKIQ-FM, Livermore, California, 11 FCC Rcd 4719 (1996) (Livermore) granting the renewal application of Station KKIQ-FM, Livermore, California, subject to reporting conditions and a Notice of Apparent Liability for forfeiture in the amount of $10,000; a pleading entitled "Petition For Partial Reconsideration" ("Pleading") filed by Tri-Valley Broadcasters, Inc. (Tri-Valley), the licensee of Station KKIQ-FM; and the Commission's Notice of Forfeiture issued to Station KKIQ-FM, and released December 17, 1996, (KKIQ-FM), imposing a Forfeiture of $10,000 on Tri-Valley. We hereby vacate the Notice of Forfeiture in KKIQ-FM which was inadvertently imposed without consideration of Tri-Valley's Pleading. In its Pleading, Tri-Valley requests that the Commission rescind the forfeiture proposed in Livermore and grant KKIQ-FM's renewal unconditionally. Alternatively, it requests remand of the decision to the Commission's Equal Employment Opportunity (EEO) Branch for further consideration, including allowing the licensee to answer questions raised in Livermore concerning the self-assessment of its EEO program. For the reasons that follow, we find the arguments in support of Tri-Valley's Pleading to be without merit. Therefore, we deny the requests made by Tri-Valley in its Pleading and issue a Notice of Forfeiture in the amount of $10,000. 2.In Livermore, which was released April 24, 1996, the Commission reviewed the EEO program of the licensee of Station KKIQ-FM and concluded that no substantial and material question of fact existed and that grant of the renewal application would serve the public interest. We found, however, that Tri-Valley's EEO efforts during the license term were deficient because minorities were absent from five of its 12 applicant pools; the licensee failed to maintain adequate EEO records, especially concerning interviewees, for meaningful self-assessment; and failed to modify its recruitment efforts to attract qualified Black applicants, the dominant minority group in the station's Metropolitan Statistical Area (MSA) at 12.5 percent of the available labor force. 47 C.F.R.  73.2080. On that basis, the Commission granted the station's license renewal application subject to reporting conditions and a Notice of Apparent Liability for forfeiture in the amount of $10,000. In addition, we reviewed and denied the licensee's request to have its EEO records analyzed by reference to the available labor force of the cities of Pleasanton and Livermore, California, instead of the Oakland, California MSA. 3.Unaware that the licensee had filed a pleading entitled "Petition For Partial Reconsideration" in response to the decision in Livermore, the Commission issued a decision on December 17, 1996, in which it stated that the Commission had received no response to the NAL and imposed a forfeiture of $10,000 on Tri-Valley. Subsequent to issuance of this latter decision, the staff discovered that Tri-Valley had filed the above-described Pleading. By this MO&O, we vacate the Notice of Forfeiture issued in the December 17, 1996, decision and consider the arguments set forth by the licensee in its Pleading, as described below. II. DISCUSSION 4.In support of its request for rescission of the NAL proposed by the Commission and unconditional grant of KKIQ's renewal application, or, in the alternative, remand of the decision to the Commission, Tri-Valley argues that, in Livermore, the Commission erroneously concluded that: (1) the licensee did not sufficiently demonstrate that the Oakland MSA was an inappropriate labor force for use in evaluating the station's EEO efforts; (2) the licensee's self-assessment was deficient because it failed to attract qualified Black applicants, the dominant minority group in the Oakland MSA; and (3) the licensee failed to maintain adequate records for meaningful self-assessment. Tri- Valley contends that it presented a reasoned and sufficient justification for the use of alternative labor force data, and that it fully complied with the EEO Rule, as evidenced by its analyzing the success of its efforts in light of the labor force available in its area, and its actively recruiting and hiring minority and female applicants. 5.Tri-Valley argues that the Commission essentially ignored the information that it submitted in support of its alternative labor force request. It argues that its showing of the significant distance between the station and Oakland, and the difficulties involved in a commute between those two locations, as well as its failure to receive any referrals, minority or nonminority, as a result of its contacts for full-time vacancies with minority sources in the Bay area during the period under review, should have been sufficient for it to meet all three prongs of the Commission's alternative labor force test. The licensee claims that, in denying its alternative labor force request, the Commission did not specify the additional information that the licensee needed to provide for the request to be granted and ignored the licensee's offer to supply more information. Tri-Valley also contends that there is no guidance from case law as to what is a sufficient showing because it found no reported cases where the Commission had granted an alternative labor force request. It maintains that the inability of anyone to meet the test suggests that it is arbitrary and capricious. 6.Contrary to the licensee's arguments, the Commission considered all the information provided by the licensee in support of its alternative labor force request, clearly set forth the criteria that a licensee must meet for such a request to be granted, and stated the specific reasons why it determined the licensee's submissions to be insufficient. In Livermore, we summarized the licensee's basis for its request by stating that "[t]he licensee's argument is based upon the distance between Oakland and Livermore, the difficulty in commuting through the mountainous terrain and the fact that KKIQ-FM's signal does not reach the Oakland area." We stated that the following factors must be shown before grant of such a request: (1) the distance of the station from the areas of significant minority population is great: (2) commuting from these areas to the station is difficult (such difficulties may be based on distance but may also be based on other factors such as lack of public transportation); and (3) recruitment efforts directed at the MSA minority labor force have been fruitless. Although earlier in Livermore we noted the licensee's contacts with Bay area minority sources--which consisted of contacting one minority recruitment source in the Bay area for 11 of its 12 vacancies and contacting two additional Bay area sources for two of its vacancies--we found that the licensee had not sufficiently shown that its ability to attract minorities from Oakland was hampered by the distance and difficulty of traveling from Oakland to the station. Moreover, we specifically stated that, because the licensee did not maintain information regarding interviewees, or referral information for all applicants or hirees, including minorities, the licensee could not demonstrate that recruitment efforts that it directed towards the Oakland MSA proved fruitless as required by the third prong of the test. The Commission cited to cases in 1988 and 1993 in which other licensees' alternative labor force requests had similar deficiencies. A licensee cannot satisfy the third prong of the test unless it meets the standard clearly set forth in 1988 that "despite extensive recruitment involving use of minority referral sources, it was unable to obtain qualified applicants from areas of minority concentration in the MSA." Tri-Valley neither maintained sufficient records for this showing nor claims to have extensively recruited in Oakland. In fact, we note that, according to information submitted in Tri-Valley's Pleading, the one Bay area minority source contacted for 11 of its 12 vacancies, the Bay Area Broadcast Skills Bank, is located in San Francisco, California, which is located in a different MSA from Oakland, California. 7.We recognize that the Pleading provides more detailed information regarding the commuting difficulties between Oakland and the station, but, even considering the new information, the licensee still has not made the necessary showing for grant of an alternative labor force request. The licensee has not provided enough information to, for example, show that its efforts recruiting from the area in the MSA with a high concentration of minorities proved fruitless. This clearly was Tri-Valley's burden. As we stated in adopting the present criteria, "the burden will be on the licensee to justify the use of such alternative data." Amendment of Part 73 of the Commission's Rules Concerning Equal Employment Opportunity in the Broadcast Radio and Television Services, 2 FCC Rcd 3967, 3973 (1987) (Broadcast EEO); 4 FCC Rcd 1715 (1989) (National Association of Broadcasters' [NAB] request for clarification) (NAB Report and Order). 8.Furthermore, the licensee's argument that the alternative labor force test is arbitrary and capricious because it cannot be met is without merit. A licensee can meet the test provided it satisfies the three requirements. Previous requests have been denied in most instances, either because the licensee failed to provide a factual basis to substantiate any of the elements of the test or because the licensee failed to demonstrate that its recruitment efforts directed at the applicable MSA have been fruitless. See, e.g., Application of WWOR-TV, Inc., 11 FCC Rcd 8242 (1996); Application of Stephens County Broadcasting Company, 11 FCC Rcd 3628 (1996); Buckley. Most licensees provide little or no information to show the fruitlessness of their recruitment efforts. See, e.g., Lanser Broadcasting Corporation, 7 FCC Rcd 4254, 4256 (1992). Consequently, those licensees failed to meet their burden. As explained above, Tri-Valley similarly did not make the requisite showing and, therefore, has not justified application of an alternative labor force in this case. 9.Next, Tri-Valley argues that, contrary to the Commission's findings, it adequately self-assessed its EEO program. First, it argues that it had no reason to believe, until the release of Livermore, that it was using inappropriate labor force statistics because Form 396, the Broadcast EEO Program Report, allows a licensee to use alternative statistics and that, as compared to the alternative statistics, its EEO program appeared successful. It further contends that its failure to maintain information as to its interviewees should not impede its ability to undertake meaningful self-assessment so as to ensure the absence of discrimination, given that it maintained almost complete EEO information regarding applicants. The licensee asserts that it is illogical to assume that the licensee did not have an understanding of the referral sources of its interviewees at the time of the interviews, especially at a small station like KKIQ-FM. It claims that the Commission did not explain why failing to keep interview data would, by itself, be critical to the licensee's evaluation of its EEO program. It maintains that its self-assessment of its EEO program was evidenced in several ways, including: its statement--in a pleading filed prior to Livermore--that it held staff meetings to discuss EEO progress and any necessary revisions for improvement; its hiring record; and its revisions of its list of recruitment sources to improve productivity. Tri-Valley further contends that the Commission never requested information concerning the licensee's self-assessment of its EEO program. Finally, concerning the Commission's conclusion that the licensee failed to recruit Black applicants, the licensee argues that Blacks represent only .08 percent of the population of the cities of Livermore and Pleasanton and that, even in the Oakland MSA, Blacks are not the unequivocal dominant group because there is little difference between the percentage of Blacks and Hispanics in Oakland's labor force. It adds that, in light of Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097 (1995), "insistence on reaching particular numbers of a particular minority group is an impermissible race-based requirement." 10.Tri-Valley's statement that it had no way to know that the alternative statistics that it was using were inappropriate prior to the release of Livermore is without merit. In adopting the present criteria for meeting the alternative labor force test and present Form 396 in 1987, we made clear that, in general, a station's labor market would be defined as the MSA in which it is located (or the county in the case of stations not located in an MSA). We further indicated that this definition would be used unless the licensee made an alternative showing and we were satisfied that the proposed alternative data was justified. Broadcast EEO, 2 FCC Rcd at 3973. In subsequent cases, we have made clear that a licensee cannot simply choose an alternative labor force to compare its employment profile against and expect the Commission to use the alternative statistics when analyzing a station's EEO record. A licensee must request approval from the Commission for the use of alternative statistics and the information that the licensee submits in support of its request must satisfy the three criteria previously referenced. Therefore, the licensee should not have assumed that, because it considered labor force statistics other than those for its MSA to be a more appropriate basis for evaluating its EEO efforts, it could ignore its MSA's labor force statistics without Commission approval. 11.We reject Tri-Valley's contention that failure to maintain records concerning its interviewees would not have impeded self-assessment of its EEO program. Without such records, the licensee could not have fully evaluated the success of its outreach efforts, including the ability of the recruitment sources that it contacted to refer female and minority applicants with the job qualifications necessary to reach the interviewee pool. As the Commission stated in NAB Report and Order, "[i]f a licensee cannot determine the race and sex of the persons it has interviewed, a question may be raised whether the licensee had sufficient information to analyze the effectiveness of its recruitment efforts, critical information for renewal purposes." Without these records, the Commission was unable to conclude that adequate self-assessment had occurred. It was not the Commission's responsibility to request specific information from the licensee regarding self- assessment of its EEO program. Evidence of self-assessment should be reflected in the specific recruitment information requested in the standard inquiry letter sent in situations, like the instant case, where our initial review of a licensee's EEO record raises questions as to a licensee's EEO efforts. As stated in Livermore, such evidence was not reflected in the licensee's submissions to the Commission. Finally, contrary to the licensee's statements, we do not require that licensees reach "particular numbers of particular minority groups." Instead, we focus primarily on the recruitment and self-assessment efforts of licensees in evaluating their EEO programs. See Channel 5 Public Broadcasting, Inc., 10 FCC Rcd 10388, 10389 (1995); Broadcast EEO, 2 FCC Rcd at 3974. In this case, we found that the licensee failed to modify its outreach efforts despite recruiting no Black applicants when Blacks were a dominant and significant minority group at 12.5 percent of the available labor force. Based on this failure, among others, the Commission concluded that the licensee failed to meaningful self-assess its EEO program, as required by the EEO Rule. 12.Based on the foregoing, we reject the licensee's request to rescind the forfeiture proposed in Livermore and to grant the renewal application of KKIQ-FM unconditionally. In addition, we reject the licensee's request to remand the decision to the Commission's EEO Branch for further consideration, including allowing the licensee to answer questions raised in Livermore concerning the self-assessment of its EEO program. As we stated supra, it is not the Commission's responsibility to request specific information from the licensee regarding self-assessment of its EEO program because evidence of self-assessment should have been reflected in the information provided by the licensee in response to the Commission's inquiry letter. Moreover, the licensee has presented no evidence in its Pleading concerning the self-assessment of its EEO program that it did not already provide in its response to the Commission inquiry. III. CONCLUSION 13. We hereby vacate the Notice of Forfeiture issued to Tri-Valley Broadcasters, Inc. on December 17, 1996. In addition, based on the foregoing, we deny the requests contained in the licensee's Pleading and reissue the Notice of Forfeiture in the amount of $10,000 to Tri-Valley Broadcasters, Inc. IV. ORDERING CLAUSES 14.Accordingly, IT IS ORDERED that the Order issuing a Notice of Forfeiture to Tri- Valley Broadcasters, Inc., in 11 FCC Rcd 19662 (1996) IS VACATED. 15.IT IS FURTHER ORDERED that the requests contained in the "Petition For Partial Reconsideration" filed by Tri-Valley Broadcasters, Inc. ARE DENIED. 16.IT IS FURTHER ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), that Tri-Valley Broadcasters, Inc. FORFEIT to the United States the sum of ten thousand dollars ($10,000) for violation of the Commission's EEO Rule. 47 C.F.R.  73.2080. Full payment of the forfeiture may be made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission within 30 days of the release date of this Order. 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 Notice of Forfeiture. 17.IT IS FURTHER ORDERED, that a copy of this Memorandum Opinion and Order and Notice of Forfeiture be sent by Certified Mail--Return Receipt Requested--to Tri-Valley Broadcasters, Inc. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary