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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 Application of ) ) RESORT BROADCASTING ) File No. BRH-910401A8 COMPANY ) ) For Renewal of License of ) Station WGMD-FM, ) Rehoboth Beach, Delaware ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: May 28, 1997; Released: June 10, 1997 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) its decision in In re Applica-tion of Resort Broadcasting Company for Renewal of License for Station WGMD-FM, Rehoboth Beach, Delaware, 11 FCC Rcd 18214 (1996) ("Rehoboth Beach"), granting the renewal application of Station WGMD-FM, subject to reporting conditions and a Notice of Apparent Liability for Forfeiture ("NAL") in the amount of $15,000; and (ii) a "Statement of Facts and Reasons" filed on July 1, 1996, by Resort Broadcasting Company ("RBC"), licensee of Station WGMD-FM, as to why the Commission should rescind or reduce the forfeiture proposed in the NAL. For the reasons that follow, we find the licensee's arguments in support of its request for rescission or reduction of the forfeiture amount to be unpersuasive. Therefore, we deny RBC's request and impose a forfeiture in the amount of $15,000. II. BACKGROUND/PLEADING 2. In Rehoboth Beach, the Commission reviewed the equal employment opportunity ("EEO") program of the licensee of Station WGMD-FM and found no substantial and material question of fact existed to warrant a hearing. In addition, we found no evidence that the licensee had engaged in employment discrimination. Accordingly, we granted the station's renewal application. However, we also found that the licensee's EEO efforts were in violation of the Commission's EEO Rule and policies, 47 C.F.R.  73.2080, because the licensee failed to recruit for 28 (53.8%) of 52 vacancies and to engage in meaningful recruitment efforts, as evidenced, in part, by the absence of minorities in a significant number of applicant and interview pools. Further, the record revealed that the licensee did not contact minority-specific sources for its vacancies and maintain adequate records for meaningful self-assessment of its recruitment efforts. Although we granted renewal, in light of the EEO deficiencies, we imposed reporting conditions and a Notice of Apparent Liability for $15,000. 3. In the instant proceeding, RBC neither disputes that it violated our EEO Rule, nor contests the propriety of our decision to impose reporting conditions. Rather, it requests that the Commission rescind or reduce the forfeiture amount specified in the NAL. In support of its request for rescission or reduction of the forfeiture amount, RBC urges the Commission to consider the following arguments. First, RBC points out that Rehoboth Beach incorrectly states that Station WGMD-FM is part of a metropolitan statistical area ("MSA") when, in fact, it is not. It explains that WGMD-FM is located in Rehoboth Beach, Delaware, a resort community located in Sussex County, Delaware. Second, it contends that the station is located in a resort area with a seasonal economy and population, which affect minority recruitment efforts and lead to "abnormally large turnovers." Third, it asserts that its recruitment efforts are frustrated by its inability as a "small town FM station" to offer the salaries and benefits that a station in a large market, like WNRW-TV, can offer. Fourth, it points out that WGMD-FM had fewer full-time employees than WNRW-TV during their respective review periods and that this difference should serve as a mitigating factor in favor of reducing the forfeiture amount. Fifth, RBC asks the Commission to consider as mitigating factors some of the "extraordinary steps which WGMD took in its efforts to recruit minority employees." III. DISCUSSION 4. Once a Notice of Apparent Liability for Forfeiture has been issued, the respondent must show in writing why a forfeiture penalty should not be imposed, why it should be reduced or, in the alternative, must pay the forfeiture. Any showing by the respondent must include a detailed factual statement and such documentation and affidavits as may be pertinent. 47 C.F.R.  1.80(f)(3). 5. RBC argues that we were incorrect in stating that "[b]oth WGMD-FM and WNRW- TV are located in Metropolitan Statistical Areas with significant minority labor forces (18.2% and 17.8%, respectively)." See Rehoboth Beach, at  18. RBC asserts that WGMD-FM is located in Rehoboth Beach, Delaware, a resort community located in Sussex County, and is not part of an MSA. Although the Commission's NAL incorrectly implied that WGMD-FM was within an MSA, the error in terminology was harmless because the NAL correctly used the labor force data of Sussex County. See Rehoboth Beach, at  11 n.5. The point of the challenged statement is to show that both stations are located in areas with comparable minority labor forces and was included as support for the result reached. It is clear from the order that the licensee's EEO efforts were reviewed using the 1980 labor force data for Sussex County, not any MSA figures. 6. RBC also argues that the Commission improperly "faulted" RBC for not contacting any minority-oriented recruitment sources, when there were none in the area. It asserts that a station in a large metropolitan area is likely to have more minority referral sources than a station located in a predominantly rural area. It also points out that Rehoboth Beach is a resort community whose economy and community life is, to a large extent, seasonal. It states that a resort community does not have the stable population that a large MSA such as Winston Salem has, and that this has a negative impact on a licensee's recruitment efforts. We find these arguments to be without merit. We note that similar arguments were raised by the licensee in the license renewal proceeding and, thus, were already considered in reaching our decision. See Rehoboth Beach, at  13. 7. We recognize that a licensee is under no obligation to use minority-specific recruitment sources as long as general recruitment sources are productive. See Enterprise Media of Toledo, 12 FCC Rcd 3920, 3924 (1997); see also Pappas Telecasting Inc., 11 FCC Rcd 2945 (1996). In this case, however, the licensee did not use any minority-oriented sources and its use of general sources was largely unproductive in yielding minority applicants. The record revealed that the licensee used general sources and attracted only 12 minorities out of a total of 520 applicants (2.3%), for the 19 jobs for which it provided data. See Rehoboth Beach, at  10. Had WGMD-FM self- assessed and used minority-oriented sources, it might have attracted a greater number of minority applicants. Given the significant minority population in Sussex County (18.2%), we are not persuaded by RBC's assertion that minority-oriented recruitment sources (e.g., organizations, churches, publications, etc.) were nonexistent. 8. As to the argument that comparison of WGMD-FM's record to WNRW-TV's is inappropriate because WNRW-TV is in a larger and more "stable" market, in comparing stations we look primarily to the composition of the area labor forces of the stations at issue, not market strength. See Walker County Communications, Inc., 11 FCC Rcd 17506, 17509 (1996) ("Walker County)." As we noted in our decision in Rehoboth Beach (at  17-18), both WGMD-FM and WNRW-TV have comparable percentages of minorities in their respective labor forces (18.2% and 17.8%, respectively). Station WGMD-FM had more hiring opportunities than Station WNRW-TV and both stations recruited for a similar percentage of vacancies. In addition, both stations failed to maintain complete recruitment records and to self-assess adequately the productivity of their recruitment efforts. These were the primary factors that determined the appropriate sanctions. Moreover, we have assessed the same forfeiture amount on other radio stations with similar EEO deficiencies as here and used WNRW-TV as a comparison case. See Walker County, 11 FCC Rcd at 17507, 17509- 17510 (Commission found that imposing a $15,000 forfeiture on Stations KSAM(AM)/KSAM-FM, Huntsville, Texas, was appropriate because the EEO record of these stations were comparable to that of Station WNRW-TV, Winston-Salem, North Carolina). 9. RBC further argues that the Commission should take into account that a small town FM station cannot offer the salaries and benefits that a large market television station can offer. This factor affects minorities and non-minorities alike, independent of the location of a station, and is not a mitigating factor in determining the forfeiture amount. See Davidson County Broadcasting Company, Inc., 12 FCC Rcd 3375, 3381 (1997), petition for recon. pending; Lotus Communications, Inc., 9 FCC Rcd 2117, 2120 & n.13 (1994). RBC also states that the Commission should take into account the size of the respective stations in comparing their EEO efforts. It points out that WNRW- TV had between 30 and 36 full-time employees during the period in question, and that, in contrast, WGMD-FM only had between 16 and 21 full-time employees during the review period. In determining the forfeiture amount, we took into consideration the difference in the size of the staff of these two stations and concluded that the difference in staff size did not, by itself, serve as a mitigating factor in favor of a reduction in forfeiture when, as here, there are other, more significant factors to offset the difference in staff size. For example, WGMD-FM had more hiring opportunities than did WNRW-TV (52 and 29, respectively). 10. Finally, RBC states that the Commission should consider some of the "extraordinary steps which WGMD took in its efforts to recruit minority employees." As examples, it points out that one of the partners of the licensee, an experienced newsperson, personally recruited minority employees from outside the area and personally trained one such minority. RBC also points out that it advertised outside the local area to attract minority applicants, while such outside recruitment would not be necessary in a large MSA such as Winston Salem. These examples of "extraordinary steps" that RBC states it took to recruit minority applicants were raised by RBC in the license renewal proceeding and have already been considered. See Rehoboth Beach, at  19. In any event, the licensee's efforts were not consistent in this regard and thus did not attract more minority candidates. Consequently, they were not sufficient. 11. Based on the foregoing, we deny RBC's request for rescission or reduction of the forfeiture amount specified in the NAL in Rehoboth Beach. Therefore, we issue a Forfeiture Order in the amount of $15,000 against RBC. IV. ORDERING CLAUSES 12. ACCORDINGLY, IT IS ORDERED that Resort Broadcasting Company's request for rescission or reduction of the forfeiture amount specified in the Notice of Apparent Liability in Rehoboth Beach, 11 FCC Rcd 18214 (1996), is DENIED. 13. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), that Resort Broadcasting Company, licensee of Station WGMD-FM, FORFEIT to the United States the sum of fifteen thousand dollars ($15,000) for violations of Section 73.2080 of the Commissions Rules, 47 C.F.R.  73.2080. 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, as amended, 47 U.S.C.  504(a), as summarized in the attachment to this Memorandum Opinion and Order and Forfeiture Order. 14. IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Order and Forfeiture Order be sent to Resort Broadcasting Company by Certified Mail -- Return Receipt Requested. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary