******************************************************** 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 ) ) WSJM, Inc. ) File Nos. BR-960603ZT ) BRH-960603ZS ) BR-960603ZU For Renewal of Licenses of ) BRH-960603ZG Stations WSJM(AM)/WIRX-FM ) BRH-960603ZF Saint Joseph, Michigan; ) WCSY(AM)/WCSY-FM) South Haven, Michigan;) WYTZ(FM) ) Bridgman, Michigan ) MEMORANDUM OPINION AND ORDER Adopted: May 20, 1997 Released: May 27, 1997 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) license renewal applications filed by WSJM, Inc. for Stations WSJM(AM)/WIRX-FM, Saint Joseph, Michigan; WCSY(AM)/WCSY-FM, South Haven, Michigan; and WYTZ(FM), Bridgman, Michigan (collectively referred to as "the stations"); (ii) a Petition to Deny filed by the National Rainbow Coalition ("Rainbow"); (iii) an opposition from the licensee; (iv) a reply to the licensee's opposition by Rainbow; and (iv) the licensee's response to a staff letter of inquiry. II. BACKGROUND 2. Rainbow alleges that the stations violated the Commission's Equal Employment Opportunity ("EEO") Rule and policies. It requests 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) to determine if we should designate the renewal applications for hearing. The licensee contends that Rainbow has presented no evidence of discrimination, that the record indicates compliance with the Commission's EEO Rule, and that unconditional renewal is warranted. 3. Rainbow derived its factual allegations from the licensee's EEO program and annual employment reports. Review of its allegations led us to conclude, as a threshold matter, that Rainbow presented a prima facie case demonstrating that unconditional grant of the renewal applications would have been inconsistent with the public interest. See Section 309(d)(1) of the Communications Act of 1934, 47 U.S.C.  309(d)(1); Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) ("Astroline"). III. DISCUSSION 4. Section 73.2080 of the Commission's Rules requires that a broadcast licensee refrain from employment discrimination and establish and maintain a program reflecting positive and continuing efforts to recruit and to promote qualified women and minorities. When evaluating EEO performance, the Commission focuses on the licensee's efforts to recruit and to 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(a)-(c) of the Commission's Rules, 47 C.F.R.  73.2080(a)-(c). 5. Review of the licensee's renewal applications, opposition, and inquiry response reveals that the stations had 30 full-time hiring opportunities, including 26 for upper-level positions, from October 1, 1993, through October 1, 1996. The licensee reports that it recruited for 29 of its 30 vacancies, and received 592 applications, including at least 66 from minority applicants. The licensee could not identify the race or ethnic origin of 193 (33%) of its applicants or the gender of six applicants. 6. The inquiry response shows that the licensee contacted the following recruitment sources for various vacancies and received the following minority applicants: 16 general newspapers (15), 13 trade publications (6), on-air advertising (10), employee referrals (3), client referrals (1), walk-in applicants (2), inter-station postings (1), 21 educational institutions (15), one minority organization (1), four broadcasting organizations (2), six employment agencies (2), the Internet (1), and two job fairs (2). The licensee also received seven additional minority applicants from sources it could not identify. The licensee reports that minorities were present in 18 (60%) of the 30 applicant pools, including 14 (54%) of the 26 upper-level pools. 7. The inquiry response also shows that the licensee interviewed 265 applicants, including 40 minorities, for the 30 vacancies. Although the licensee did not know the race of ten interviewees, the stations' records reflect that minorities were present in at least 18 (60%) of the 30 interview pools, including 14 (54%) of the 26 upper-level pools. The licensee reports that it hired five minorities (two Black females and three Black males), all in upper-level positions. 8. Rainbow argues that the licensee hired only one minority among 12 upper-level hires during the renewal year. In addition, Rainbow contends that the licensee did not contact any minority recruitment sources during the renewal year and that the stations' annual employment reports reflect little minority employment during most of the license term. Rainbow also characterizes the stations' practice of paying a $250 finder's fee to station employees or clients who refer successful applicants as mere "word of mouth" recruiting and "inherently discriminatory." 9. In response, the licensee states that it has made continuous efforts to recruit minorities and has attracted and hired minority and female applicants. It contends that it uses a wide variety of recruitment sources as reflected in its inquiry response. The licensee further states that it has participated in local school programs, career days and job fairs in an effort to attract minority applicants. The licensee also claims that its finder's fee program is open to the general public and has generated minority and female applicants and female hires. 10. With respect to Rainbow's allegations that the licensee improperly relied on "word of mouth" recruiting by utilizing a finder's fee program, we note that the Commission has previously found that licensees have failed to self-assess adequately the effectiveness of their recruitment sources in eliciting minority applicants where the station's hires for a majority of vacancies were referred by informal means such as "word of mouth." See Davidson County Broadcasting Company, Inc., 12 FCC Rcd 3375 (1997). Here, however, the licensee used its finder's fee as a recruitment device in conjunction with broader recruiting from a variety of general recruitment sources; these sources have been productive, as evidenced by the minorities counted among the licensee's referrals and applicant pools. Accordingly, under these circumstances, the petitioner's allegation concerning the licensee's use of a finder's fee does not raise a substantial and material question of fact. Furthermore, licensees are not required to use minority organizations or publications for recruitment where its general sources have been productive. See South Carolina Renewals, 5 FCC Rcd 1704, 1709 n. 8 (1990). Nevertheless, the inquiry response shows that one of the sources used by the licensee is a Black media organization. 11. With respect to Rainbow's contention concerning the number of minorities employed by the stations, 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. Compliance with our EEO Rule is not based on meeting or exceeding a numerical goal, but on the total efforts to recruit and employ minorities and females and the ongoing assessment of those efforts. 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). 12. Having reviewed all matters presented, we conclude that there are no substantial and material questions of fact warranting designation for hearing and that a grant of the applications would be consistent with Section 309(k) of the Communications Act of 1934, as amended, 47 U.S.C.  309(k). See Astroline. Further, we find no indication of employment discrimination. The licensee recruited, interviewed and hired minorities. The licensee also contacted recruitment sources for all but one of its vacancies. Therefore, because the licensee is otherwise qualified, grant of the applications will serve the public interest. 47 U.S.C.  309(d)(2). 13. However, we find that the licensee's record-keeping was deficient. The stations' records do not reveal the referral source of seven minority applicants or the gender of six applicants. Moreover, the licensee did not know the race or ethnic origin of 193 applicants and ten interviewees. Consequently, it appears that the licensee could not meaningfully self-assess its EEO program as required by our Rule. We note that several of the applicant and interviewee pools lacked minorities, thereby underscoring the licensee's lack of effective self-assessment. Accordingly, we will impose reporting conditions in order to encourage better record-keeping to support meaningful self-assessment. IV. ORDERING CLAUSES 14. Accordingly, IT IS ORDERED that the Petition to Deny filed by the National Rainbow Coalition against the renewal applications for the stations IS DENIED. 15. IT IS FURTHER ORDERED that the license renewal applications for the stations ARE GRANTED subject to the reporting conditions specified herein. 16. IT IS FURTHER ORDERED that the licensee 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 job 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. The 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, a list of employees as of the May 1, 1999 payroll period for the second report, and a list of employees as of the 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 the 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 periods 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. 17. IT IS FURTHER ORDERED that -- one copy of this Memorandum Opinion and Order be sent to the licensee and the National Rainbow Coalition by Certified Mail -- Return Receipt Requested. 18. The reports are to be filed with the Secretary of the Commission for the attention of the Mass Media Bureau's Enforcement Division, EEO Branch. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary