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X- o#XU4  pQHX# Federal Communications Commission#o\  PC5XP# #XP\  P6QO(XP#FCC 97165 ă  yxdddy  X   X` hp x (#%'0*,.8135@8:- x(KKIQFM), imposing a Forfeiture of $10,000 on TriValley.> yO-#X\  P6G;P##C\  P6QP#эx#C\  P6QP#11 FCC Rcd 19662. We hereby vacate the Notice of  X'- xLForfeiture in KKIQFM which was inadvertently imposed without consideration of TriValley's  x0Pleading. In its Pleading, TriValley requests that the Commission rescind the forfeiture  X- x<proposed in Livermore and grant KKIQFM's renewal unconditionally.'X yO$-  z#X\  P6G;P##C\  P6QP#эx#C\  P6QP#In the conclusion of its Pleading, the licensee states that, at the very most, reporting conditions might be imposed.' Alternatively, it requests  xremand of the decision to the Commission's Equal Employment Opportunity (EEO) Branch for  X!- xfurther consideration, including allowing the licensee to answer questions raised in Livermore  xconcerning the selfassessment of its EEO program. For the reasons that follow, we find the  xarguments in support of TriValley's Pleading to be without merit. Therefore, we deny the  xrequests made by TriValley in its Pleading and issue a Notice of Forfeiture in the amount of $10,000.Xo%, + +c$3'#ddPddXԌ X- ` 3ԙx2.` ` In Livermore, which was released April 24, 1996, the Commission reviewed the  xEEO program of the licensee of Station KKIQFM and concluded that no substantial and material  xquestion of fact existed and that grant of the renewal application would serve the public interest.  xWe found, however, that TriValley's EEO efforts during the license term were deficient because  x!minorities were absent from five of its 12 applicant pools; the licensee failed to maintain  xadequate EEO records, especially concerning interviewees, for meaningful selfassessment; and  xfailed to modify its recruitment efforts to attract qualified Black applicants, the dominant minority  xgroup in the station's Metropolitan Statistical Area (MSA) at 12.5 percent of the available labor  xjforce. 47 C.F.R.  73.2080. On that basis, the Commission granted the station's license renewal  xapplication subject to reporting conditions and a Notice of Apparent Liability for forfeiture in the  x=amount of $10,000. In addition, we reviewed and denied the licensee's request to have its EEO  x]records analyzed by reference to the available labor force of the cities of Pleasanton and Livermore, California, instead of the Oakland, California MSA.  X - ` x3.` ` Unaware that the licensee had filed a pleading entitled "Petition For Partial  X - xReconsideration" in response to the decision in Livermore, the Commission issued a decision on  xDecember 17, 1996, in which it stated that the Commission had received no response to the NAL  xand imposed a forfeiture of $10,000 on TriValley. Subsequent to issuance of this latter decision,  Xb- xthe staff discovered that TriValley had filed the abovedescribed Pleading. By this MO&O, we  xvacate 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.  X- II. DISCUSSION ă  X- ` x4.` ` In support of its request for rescission of the NAL proposed by the Commission  x/and unconditional grant of KKIQ's renewal application, or, in the alternative, remand of the  X- x.decision to the Commission, TriValley argues that, in Livermore, the Commission erroneously  xjconcluded that: (1) the licensee did not sufficiently demonstrate that the Oakland MSA was an  xinappropriate labor force for use in evaluating the station's EEO efforts; (2) the licensee's self xassessment was deficient because it failed to attract qualified Black applicants, the dominant  xminority group in the Oakland MSA; and (3) the licensee failed to maintain adequate records for  xmeaningful selfassessment. TriValley contends that it presented a reasoned and sufficient  xjustification for the use of alternative labor force data, and that it fully complied with the EEO  xRule, 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.  X - ` x5.` ` TriValley argues that the Commission essentially ignored the information that it  x>submitted in support of its alternative labor force request. It argues that its showing of the  xsignificant distance between the station and Oakland, and the difficulties involved in a commute  x^between those two locations, as well as its failure to receive any referrals, minority or  x=nonminority, as a result of its contacts for fulltime vacancies with minority sources in the Bay  x=area during the period under review, should have been sufficient for it to meet all three prongs  x0of the Commission's alternative labor force test. The licensee claims that, in denying its  xalternative labor force request, the Commission did not specify the additional information that"#',Q(Q(hh%"  x[the licensee needed to provide for the request to be granted and ignored the licensee's offer to  xsupply more information. TriValley also contends that there is no guidance from case law as  x=to what is a sufficient showing because it found no reported cases where the Commission had  x=granted an alternative labor force request. It maintains that the inability of anyone to meet the test suggests that it is arbitrary and capricious.  Xv- ` bx6.` ` Contrary to the licensee's arguments, the Commission considered all the  xinformation provided by the licensee in support of its alternative labor force request, clearly set  xforth the criteria that a licensee must meet for such a request to be granted, and stated the  X1- xLspecific reasons why it determined the licensee's submissions to be insufficient. In Livermore,  xwe summarized the licensee's basis for its request by stating that "[t]he licensee's argument is  xLbased upon the distance between Oakland and Livermore, the difficulty in commuting through  X - xthe mountainous terrain and the fact that KKIQFM's signal does not reach the Oakland area." ;Q yOe -#X\  P6G;P##C\  P6QP#эx#C\  P6QP#Livermore at 4720.  x>We stated that the following factors must be shown before grant of such a request: (1) the  xjdistance of the station from the areas of significant minority population is great: (2) commuting  xfrom these areas to the station is difficult (such difficulties may be based on distance but may  xalso be based on other factors such as lack of public transportation); and (3) recruitment efforts  Xy- xdirected at the MSA minority labor force have been fruitless.yX;Q yO-#X\  P6G;P##C\  P6QP#эx#C\  P6QP#See Buckley Broadcasting, Inc., 9 FCC Rcd 2099, 2101 (1994) (Buckley). Although earlier in Livermore we  xnoted the licensee's contacts with Bay area minority sourceswhich consisted of contacting one  xlminority recruitment source in the Bay area for 11 of its 12 vacancies and contacting two  X4- xNadditional Bay area sources for two of its vacanciesĩwe found that the licensee had not  xsufficiently shown that its ability to attract minorities from Oakland was hampered by the  xdistance and difficulty of traveling from Oakland to the station. Moreover, we specifically stated  xthat, because the licensee did not maintain information regarding interviewees, or referral  xinformation for all applicants or hirees, including minorities, the licensee could not demonstrate  xthat recruitment efforts that it directed towards the Oakland MSA proved fruitless as required by  x the third prong of the test. The Commission cited to cases in 1988 and 1993 in which other  X- xlicensees' alternative labor force requests had similar deficiencies.W;Q yO,-  [#X\  P6G;P##C\  P6QP#эxGulf Atlantic Media Corporation, 8 FCC Rcd 603 (1993) (Gulf Atlantic); and Capital Christian Broadcasting,  yO-Inc, 3 FCC Rcd 1919, 1920, 1922 n.9 (1988) (Capital).W A licensee cannot satisfy the  xxthird prong of the test unless it meets the standard clearly set forth in 1988 that "despite extensive  x<recruitment involving use of minority referral sources, it was unable to obtain qualified applicants  XN- x\from areas of minority concentration in the MSA."N@;Q yO?#-#C\  P6QP##X\  P6G;P##C\  P6QP#эx#C\  P6QP#Capital, 3 FCC Rcd at 1920. TriValley neither maintained sufficient  xrecords for this showing nor claims to have extensively recruited in Oakland. In fact, we note  x/that, according to information submitted in TriValley's Pleading, the one Bay area minority  xsource 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. ",Q(Q(hhZ"Ԍ X- ` ԙx7.` ` We recognize that the Pleading provides more detailed information regarding the  x!commuting difficulties between Oakland and the station, but, even considering the new  xinformation, the licensee still has not made the necessary showing for grant of an alternative  xKlabor force request. The licensee has not provided enough information to, for example, show that  xits efforts recruiting from the area in the MSA with a high concentration of minorities proved  x<fruitless. This clearly was TriValley's burden. As we stated in adopting the present criteria, "the  Xv- xburden will be on the licensee to justify the use of such alternative data." Amendment of Part  x-73 of the Commission's Rules Concerning Equal Employment Opportunity in the Broadcast Radio  XH- xand Television Services, 2 FCC Rcd 3967, 3973 (1987) (Broadcast EEO); 4 FCC Rcd 1715  X1- x(1989) (National Association of Broadcasters' [NAB] request for clarification) (NAB Report and  X -Order). x  X - ` x8.` ` Furthermore, the licensee's argument that the alternative labor force test is arbitrary  X - xand capricious because it cannot be met is without merit.  ;Q yON-  =#C\  P6QP##X\  P6G;P#Ѝx#C\  P6QP#While we cannot rely upon unpublished staff actions for their precedential value, we note that some stations  yO- xhave met the current test as reflected in delegated staff action. See e.g., Letter to Sheila Weiss, VicePresident,  xVinrah of New Jersey, Inc. (concerning Stations WCNC/WZXLFM, Wildwood, New Jersey) from Y. Paulette Laden, Chief, EEO Branch, Enforcement Division, Mass Media Bureau (March 7, 1995). A licensee can meet the test provided  xit satisfies the three requirements. Previous requests have been denied in most instances, either  xybecause the licensee failed to provide a factual basis to substantiate any of the elements of the  x>test or because the licensee failed to demonstrate that its recruitment efforts directed at the  Xy- xzapplicable MSA have been fruitless. See, e.g., Application of WWOR-TV, Inc., 11 FCC Rcd  Xb- x[8242 (1996); Application of Stephens County Broadcasting Company, 11 FCC Rcd 3628 (1996);  XK- xBuckley. Most licensees provide little or no information to show the fruitlessness of their  X4- xrecruitment efforts. See, e.g., Lanser Broadcasting Corporation, 7 FCC Rcd 4254, 4256 (1992).  xConsequently, those licensees failed to meet their burden. As explained above, Tri-Valley  xsimilarly did not make the requisite showing and, therefore, has not justified application of an alternative labor force in this case.  X- ` x9.` ` Next, TriValley argues that, contrary to the Commission's findings, it adequately  xselfassessed its EEO program. First, it argues that it had no reason to believe, until the release  X- x]of Livermore, that it was using inappropriate labor force statistics because Form 396, the  xBroadcast EEO Program Report, allows a licensee to use alternative statistics and that, as  xcompared to the alternative statistics, its EEO program appeared successful. It further contends  x>that its failure to maintain information as to its interviewees should not impede its ability to  xundertake meaningful selfassessment so as to ensure the absence of discrimination, given that  xLit maintained almost complete EEO information regarding applicants. The licensee asserts that  xit is illogical to assume that the licensee did not have an understanding of the referral sources of  xits interviewees at the time of the interviews, especially at a small station like KKIQFM. It  xclaims that the Commission did not explain why failing to keep interview data would, by itself,  xLbe critical to the licensee's evaluation of its EEO program. It maintains that its selfassessment  xjof its EEO program was evidenced in several ways, including: its statementin a pleading filed  X"- xprior to Livermoreĩthat it held staff meetings to discuss EEO progress and any necessary"",Q(Q(hh!"  xrevisions for improvement; its hiring record; and its revisions of its list of recruitment sources  x to improve productivity. TriValley further contends that the Commission never requested  xLinformation concerning the licensee's selfassessment of its EEO program. Finally, concerning  xthe Commission's conclusion that the licensee failed to recruit Black applicants, the licensee  xargues that Blacks represent only .08 percent of the population of the cities of Livermore and  xPleasanton and that, even in the Oakland MSA, Blacks are not the unequivocal dominant group  xbecause there is little difference between the percentage of Blacks and Hispanics in Oakland's  X_- x>labor force. It adds that, in light of Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.  xCt. 2097 (1995), "insistence on reaching particular numbers of a particular minority group is an impermissible racebased requirement."  X - ` x 10.` ` TriValley's statement that it had no way to know that the alternative statistics that  X - xit was using were inappropriate prior to the release of Livermore is without merit. In adopting  xjthe present criteria for meeting the alternative labor force test and present Form 396 in 1987, we  x.made clear that, in general, a station's labor market would be defined as the MSA in which it is  xlocated (or the county in the case of stations not located in an MSA). We further indicated that  X- xMthis definition would be used unless the licensee made an alternative showing and we were  Xy- xsatisfied that the proposed alternative data was justified. Broadcast EEO, 2 FCC Rcd at 3973.  xIn subsequent cases, we have made clear that a licensee cannot simply choose an alternative labor  x-force to compare its employment profile against and expect the Commission to use the alternative  X4- xstatistics when analyzing a station's EEO record.s4;Q yO-  /#X\  P6G;P##C\  P6QP#эx#C\  P6QP#See Buckley; Gulf Media; and Capital. The licensee itself made reference to one such precedent, Capital, in its December 3, 1990, Opposition to Petition to Deny.s A licensee must request approval from the  xCommission for the use of alternative statistics and the information that the licensee submits in  xsupport of its request must satisfy the three criteria previously referenced. Therefore, the licensee  xishould not have assumed that, because it considered labor force statistics other than those for its  xMSA to be a more appropriate basis for evaluating its EEO efforts, it could ignore its MSA's labor force statistics without Commission approval.  X- ` x 11.` ` We reject TriValley's contention that failure to maintain records concerning its  xinterviewees would not have impeded selfassessment of its EEO program. Without such records,  xthe licensee could not have fully evaluated the success of its outreach efforts, including the ability  x[of the recruitment sources that it contacted to refer female and minority applicants with the job  X7- xKqualifications necessary to reach the interviewee pool. As the Commission stated in NAB Report  X - x.and Order, "[i]f a licensee cannot determine the race and sex of the persons it has interviewed,  xa question may be raised whether the licensee had sufficient information to analyze the  X- xieffectiveness of its recruitment efforts, critical information for renewal purposes."  ;Q yO#-#C\  P6QP##X\  P6G;P##C\  P6QP#эx#C\  P6QP#NAB Report and Order, 4 FCC Rcd at 1716. Without these  xrecords, the Commission was unable to conclude that adequate selfassessment had occurred. It  xwas not the Commission's responsibility to request specific information from the licensee  xregarding selfassessment of its EEO program. Evidence of selfassessment should be reflected  xin the specific recruitment information requested in the standard inquiry letter sent in situations,"" ,Q(Q(hh!"  xlike the instant case, where our initial review of a licensee's EEO record raises questions as to  X- x0a licensee's EEO efforts. As stated in Livermore, such evidence was not reflected in the  xlicensee's submissions to the Commission. Finally, contrary to the licensee's statements, we do  xnot require that licensees reach "particular numbers of particular minority groups." Instead, we  xfocus primarily on the recruitment and selfassessment efforts of licensees in evaluating their  X- xEEO programs. See Channel 5 Public Broadcasting, Inc., 10 FCC Rcd 10388, 10389 (1995);  Xv- x\Broadcast EEO, 2 FCC Rcd at 3974. In this case, we found that the licensee failed to modify  xits outreach efforts despite recruiting no Black applicants when Blacks were a dominant and  xMsignificant minority group at 12.5 percent of the available labor force. Based on this failure,  x=among others, the Commission concluded that the licensee failed to meaningful selfassess its EEO program, as required by the EEO Rule.  X - ` x 12.` ` Based on the foregoing, we reject the licensee's request to rescind the forfeiture  X - xproposed in Livermore and to grant the renewal application of KKIQFM unconditionally. In  x-addition, we reject the licensee's request to remand the decision to the Commission's EEO Branch  X - x-for further consideration, including allowing the licensee to answer questions raised in Livermore  X- xOconcerning the selfassessment of its EEO program. As we stated supra, it is not the  xCommission's responsibility to request specific information from the licensee regarding self xassessment of its EEO program because evidence of selfassessment should have been reflected  xin the information provided by the licensee in response to the Commission's inquiry letter.  xKMoreover, the licensee has presented no evidence in its Pleading concerning the selfassessment  X-of its EEO program that it did not already provide in its response to the Commission inquiry.   X-w III. CONCLUSION ă  X- ` _x 13.` ` We hereby vacate the Notice of Forfeiture issued to TriValley Broadcasters, Inc.  x[on December 17, 1996. In addition, based on the foregoing, we deny the requests contained in  xthe licensee's Pleading and reissue the Notice of Forfeiture in the amount of $10,000 to TriValley Broadcasters, Inc.  XN- IV. ORDERING CLAUSES  X - ` x 14.` ` Accordingly, IT IS ORDERED that the Order issuing a Notice of Forfeiture to  X -TriValley Broadcasters, Inc., in 11 FCC Rcd 19662 (1996) IS VACATED .  X- ` x15.` ` IT IS FURTHER ORDERED that the requests contained in the "Petition For  X -Partial Reconsideration" filed by TriValley Broadcasters, Inc. ARE DENIED .  X"- ` x16.` ` IT IS FURTHER ORDERED , pursuant to Section 503(b) of the Communications  X#- xAct of 1934, as amended, 47 U.S.C.  503(b), that TriValley Broadcasters, Inc. FORFEIT to  xthe United States the sum of ten thousand dollars ($10,000) for violation of the Commission's  xzEEO Rule. 47 C.F.R.  73.2080. Full payment of the forfeiture may be made by mailing to the  xLCommission a check or similar instrument payable to the Federal Communications Commission  xwithin 30 days of the release date of this Order. In regard to this forfeiture proceeding, the"#' ,Q(Q(hh%"  xlicensee may take appropriate action as set forth in Section 1.80 of the Commission's Rules, 47  xMC.F.R.  1.80, and Section 504(a) of the Communications Act of 1934, as amended, 47 U.S.C.  X- x 504(a), as summarized in the attachment to this Memorandum Opinion and Order and Notice  X-of Forfeiture.  X- ` x17.` ` IT IS FURTHER ORDERED , that a copy of this Memorandum Opinion and  Xv- x>Order and Notice of Forfeiture be sent by Certified MailReturn Receipt Requestedto TriValley Broadcasters, Inc.  X - FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary