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BR960603ZT  X-x` `  hh@) BRH960603ZS  X-x` `  hh@)hpp BR960603ZU  X-For Renewal of Licenses of hh@)hpp BRH960603ZG  X -Stations WSJM(AM)/WIRXFM @)hpp BRH960603ZF  X -Saint Joseph, Michigan; hh@)  X -WCSY(AM)/WCSYFMhh@)  X| -South Haven, Michigan;hh@)  Xe -WYTZ(FM) ` `  hh@)  XN-Bridgman, Michigan hh@)  I. A. 1. a.(1)(a) i) a) 1..1..1..1..1..1..1.~  X - MEMORANDUM OPINION AND ORDER ă  X- Adopted: May 20, 1997hh@h Released: May 27, 1997 By the Commission:  X-  X- MI. INTRODUCTION à " XQ- ` 2"  1..1..1..1..1..1..1. 1. a. i.(1)(a)(i) 1) a)~x1.` ` The Commission has before it for consideration: (i) license renewal applicationsQ5 yO-#X\  P6G;IP##X\  P6G;IP#эxThe license terms under review ended on October 1, 1996.  xfiled by WSJM, Inc. for Stations WSJM(AM)/WIRXFM, Saint Joseph, Michigan;  xWCSY(AM)/WCSYFM, South Haven, Michigan; and WYTZ(FM), Bridgman, Michigan  x[(collectively referred to as "the stations"); (ii) a Petition to Deny filed by the National Rainbow  x0Coalition ("Rainbow"); (iii) an opposition from the licensee; (iv) a reply to the licensee's  X-opposition by Rainbow; and (iv) the licensee's response to a staff letter of inquiry.X5 yO -  >#X\  P6G;IP#эxAlthough we granted Rainbow's request for an extension of time to file a reply to the licensee's response, no reply was ever filed.  X-g II. BACKGROUND  X-  X - ` x2.` ` Rainbow alleges that the stations violated the Commission's Equal Employment  x\Opportunity ("EEO") Rule and policies. It requests that we conduct an investigation of the"k!0*Z'Z' "  X- xstations' employment practices pursuant to Bilingual Bicultural Coalition on Mass Media v. FCC,  x595 F.2d 621 (D.C. Cir. 1978) to determine if we should designate the renewal applications for  xhearing. The licensee contends that Rainbow has presented no evidence of discrimination, that  xthe record indicates compliance with the Commission's EEO Rule, and that unconditional renewal is warranted.  Xv- `  x3.` ` Rainbow derived its factual allegations from the licensee's EEO program and  xannual employment reports. Review of its allegations led us to conclude, as a threshold matter,  XH- xthat Rainbow presented a prima facie case demonstrating that unconditional grant of the renewal  X1- xapplications would have been inconsistent with the public interest. See Section 309(d)(1) of the  X - xLCommunications Act of 1934, 47 U.S.C.  309(d)(1); Astroline Communications Co. v. FCC, 857  X -F.2d 1556 (D.C. Cir. 1988) ("Astroline").    X - III. DISCUSSION  X -  X - ` x4.` ` Section 73.2080 of the Commission's Rules requires that a broadcast licensee  xrefrain from employment discrimination and establish and maintain a program reflecting positive  x0and continuing efforts to recruit and to promote qualified women and minorities. When  xevaluating EEO performance, the Commission focuses on the licensee's efforts to recruit and to  xpromote qualified women and minorities and the licensee's ongoing assessment of its EEO  x<efforts. Such an assessment enables the licensee to take corrective action if qualified women and  xminorities are not present in the applicant and interview pools. The Commission also focuses on  X- x[any evidence of discrimination by the licensee. See Section 73.2080(a)(c) of the Commission's  X-Rules, 47 C.F.R.  73.2080(a)(c).  X- ` x5.` ` Review of the licensee's renewal applications, opposition, and inquiry response  xreveals that the stations had 30 fulltime hiring opportunities, including 26 for upperlevel  X- xpositions, from October 1, 1993, through October 1, 1996. (  yO -  #X\  P6G;IP#ЍxAccording to the 1980 Census, the Benton Harbor, Michigan Metropolitan Statistical Area ("MSA"), in  xwhich Stations WSJM(AM)/WIRXFM are located, had an available labor force that was 42.1% female and 12.0%  xwminority (10.0% Black, 1.0% Hispanic, 0.7% Asian/Pacific Islander, and 0.3% American Indian). The 1990 Annual  xEmployment Report lists ten women (34.5%) and three Blacks (10.3%) among 29 fulltime employees, including  xJseven women (28.0%) and one Black (4.0%) among 25 upperlevel job employees. The 1991 Annual Employment  xJReport lists nine women (29.0%) and no minorities among 31 fulltime employees, including seven women (24.1%)  yO- xamong 29 upperlevel job employees . The 1992 Annual Employment Report lists seven women (25.0%) and no minorities among 28 fulltime employees, including five women (19.2%) among 26 upperlevel job employees.  xZThe Commission has begun using 1990 labor force statistics for licensee renewal applications filed after May 31,  yO"- x1993 and for 1993 and subsequent Annual Employment Reports. See Public Notice #32651 (April 12, 1993).  xJAccording to the 1990 Census, the Benton Harbor, Michigan MSA has an available labor force that is 46.1% female  xand 13.4% minority (10.9% Black, 1.2% Hispanic, 0.8% Asian/Pacific Islander, and 0.5% American Indian). The"l$0*%%$"  x1993 Annual Employment Report lists ten women (34.5%) and one Black (3.4%) among 29 fulltime employees,  xincluding eight women (30.8%) and one Black (3.8%) among 26 upperlevel job employees. The 1994 Annual  x<Employment Report lists eight women (27.6%) and no minorities among 29 fulltime employees, including five  xKwomen (20.0%) among 25 upperlevel job employees. The 1995 Annual Employment Report lists eight women  xw(29.6%) and no minorities among 27 fulltime employees, including eight women (30.8%) among 26 upperlevel job  xemployees. The 1996 Annual Employment Report lists 11 women (37.9%) and two Blacks (6.9%) among 29 full xtime employees, including seven women (28.0%) and one Black (4.0%) among 25 upperlevel job employees. The  xlicensee acquired Stations WCSY(AM)/WCSYFM, South Haven, Michigan and WYTZ(FM), Bridgman, Michigan in April 1996. The licensee reports that it recruited"0*%%"  x for 29 of its 30 vacancies, and received 592 applications, including at least 66 from minority  X- xapplicants. yO2 -  #X\  P6G;IP#эxThe licensee rehired a former employee for the one vacancy for which it did not recruit. However, we remind the licensee that we require broadcasters to recruit actively for vacancies.  The licensee could not identify the race or ethnic origin of 193 (33%) of its  X-applicants or the gender of six applicants.X  yOs-  \#X\  P6G;IP#эxThe licensee states that where it is unable to provide information regarding an applicant's referral source,  xrace or gender, it is likely because the applicant did not complete the stations' application or appear for the interview and thus was not considered any further.  X- ` nx6.` ` The inquiry response shows that the licensee contacted the following recruitment  xsources for various vacancies and received the following minority applicants: 16 general  x=newspapers (15), 13 trade publications (6), onair advertising (10), employee referrals (3), client  xreferrals (1), walkin applicants (2), interstation postings (1), 21 educational institutions (15), one  x[minority organization (1), four broadcasting organizations (2), six employment agencies (2), the  xInternet (1), and two job fairs (2). The licensee also received seven additional minority  xjapplicants 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 upperlevel pools.  X - ` Bx 7.` ` The inquiry response also shows that the licensee interviewed 265 applicants,  xincluding 40 minorities, for the 30 vacancies. Although the licensee did not know the race of  xten interviewees, the stations' records reflect that minorities were present in at least 18 (60%) of  xthe 30 interview pools, including 14 (54%) of the 26 upperlevel pools. The licensee reports that  xit hired five minorities (two Black females and three Black males), all in upperlevel positions. x  X4- ` x8.` ` Rainbow argues that the licensee hired only one minority among 12 upperlevel  x[hires during the renewal year. In addition, Rainbow contends that the licensee did not contact  xany minority recruitment sources during the renewal year and that the stations' annual  xemployment reports reflect little minority employment during most of the license term. Rainbow  xzalso characterizes the stations' practice of paying a $250 finder's fee to station employees or  x>clients who refer successful applicants as mere "word of mouth" recruiting and "inherently"0*%%5" discriminatory." x  X- ` x9.` ` In response, the licensee states that it has made continuous efforts to recruit  xminorities and has attracted and hired minority and female applicants. It contends that it uses a  xwide variety of recruitment sources as reflected in its inquiry response. The licensee further  x.states that it has participated in local school programs, career days and job fairs in an effort to  xLattract 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.  X1- ` x10.` ` With respect to Rainbow's allegations that the licensee improperly relied on "word  x{of mouth" recruiting by utilizing a finder's fee program, we note that the Commission has  xjpreviously found that licensees have failed to selfassess adequately the effectiveness of their  xrecruitment sources in eliciting minority applicants where the station's hires for a majority of  X - xvacancies were referred by informal means such as "word of mouth." See Davidson County  X - x/Broadcasting Company, Inc., 12 FCC Rcd 3375 (1997). Here, however, the licensee used its  xfinder's fee as a recruitment device in conjunction with broader recruiting from a variety of  x-general recruitment sources; these sources have been productive, as evidenced by the minorities  xcounted among the licensee's referrals and applicant pools. Accordingly, under these  xcircumstances, the petitioner's allegation concerning the licensee's use of a finder's fee does not  xjraise a substantial and material question of fact. Furthermore, licensees are not required to use  xminority organizations or publications for recruitment where its general sources have been  X- x productive. See South Carolina Renewals, 5 FCC Rcd 1704, 1709 n. 8 (1990). Nevertheless,  xthe inquiry response shows that one of the sources used by the licensee is a Black media organization.  X- ` Cx 11.` ` With respect to Rainbow's contention concerning the number of minorities  xemployed by the stations, we note that our primary focus is on a licensee's EEO efforts and not  X- xLon its employment of a specific number of minority employees. Compliance with our EEO Rule  xzis not based on meeting or exceeding a numerical goal, but on the total efforts to recruit and  Xe- xemploy minorities and females and the ongoing assessment of those efforts. See Amendment of  xPart 73 of the Commission's Rules Concerning Equal Employment Opportunity in the Broadcast  X7- xRadio and Television Services, 2 FCC Rcd 3967 (1987). See also Implementation of  X -Commission's Equal Employment Opportunity Rules, 9 FCC Rcd 2047 (1994).  X- ` x12.` ` Having reviewed all matters presented, we conclude that there are no substantial  x?and material questions of fact warranting designation for hearing and that a grant of the  xapplications would be consistent with Section 309(k) of the Communications Act of 1934, as  X!- xamended, 47 U.S.C.  309(k). See Astroline. Further, we find no indication of employment  xdiscrimination. The licensee recruited, interviewed and hired minorities. The licensee also  x[contacted recruitment sources for all but one of its vacancies. Therefore, because the licensee  xlis otherwise qualified, grant of the applications will serve the public interest. 47 U.S.C. "h$0*%%(#" 309(d)(2).  X- ` x13.` ` However, we find that the licensee's recordkeeping was deficient. The stations'  xrecords do not reveal the referral source of seven minority applicants or the gender of six  xapplicants. Moreover, the licensee did not know the race or ethnic origin of 193 applicants and  X- xten interviewees. Consequently, it appears that the licensee could not meaningfully selfassess  xits EEO program as required by our Rule. We note that several of the applicant and interviewee  xpools lacked minorities, thereby underscoring the licensee's lack of effective selfassessment.  XH- xAccordingly, we will impose reporting conditions in order to encourage better recordkeeping to support meaningful selfassessment.  X - IV. ORDERING CLAUSES ă  X - ` x14.` ` Accordingly, IT IS ORDERED that the Petition to Deny filed by the National  X -Rainbow Coalition against the renewal applications for the stations IS DENIED . 0  Xy- ` mx15.` ` IT IS FURTHER ORDERED that the license renewal applications for the stations  Xb- ARE GRANTED subject to the reporting conditions specified herein.  X4- ` ~x16. ` ` IT IS FURTHER ORDERED that the licensee submit to the Commission an  xoriginal and one copy of the following information on June 1, 1998, June 1, 1999, and June 1, 2000:   X- ` x (a) ` ` Two lists divided by fulltime and parttime 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.  Xe-The lists should also note which recruitment sources were contacted; e yO-#X\  P6G;IP#эxSuch a list might start: 1) News Director: Officials and Managers; Fulltime.  yO6-3 Applicants:` `  1 White femalehhA.W.R.T  yO- x` `  1 Hispanic malehhNational Hispanic Media x` `  hh@Coalition  yO!-x` `  1 Black femalehhUrban League  yO#-2 Interviewees:` `  1 White femalehhA.W.R.T  yO#- x` `  1 Hispanic malehhNational Hispanic Media x` `  hh@Coalition"$0*%%!%"Ԍx` `  Sources contacted Local newspaper, A.W.R.T., National Hispanic Media Coalition and Urban League Selected Hispanic male, National Hispanic Media Coalition, (10/12/97)  (#` "e0*%%}"Ԍ X- ` ԙx(b) ` ` A list of employees as of the May 1, 1998 payroll period for the first report, a list  ` BXxX` ` of employees as of the May 1, 1999 payroll period for the second report, and a  X- ` list of employees as of the May 1, 2000 payroll period for the third report, by job  ` Atitle and FCC job category indicating fulltime or parttime status (ranked from the highest paid classification), date of hire, sex and race or national origin; and(#`   Xv- x(c)` ` Details concerning the stations' efforts to recruit minorities for each position  ` x` ` filled during the 12month periods specified, including identification of sources x` ` used and indicating whether any of the applicants declined actual offers of x` ` employment. In addition, the licensee may submit any information it believes x` ` relevant regarding the stations' EEO performance and its efforts thereunder.   X - ` x17.` ` IT IS FURTHER ORDERED that one copy of this Memorandum Opinion and  X - xzOrder be sent to the licensee and the National Rainbow Coalition by Certified Mail Return Receipt Requested.  X- ` x18. ` ` 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.  Xb- x  X4-x` `   FEDERAL COMMUNICATIONS COMMISSION x x` `  William F. Caton  X-x` `  Acting Secretary