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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 Applications of ) ) File Nos.BR-900601D3 Price Broadcasting Company)BRH-900601F2 ) For Renewal of Licenses of) Stations KUTR(AM)/KCPX-FM ) Salt Lake City, Utah ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted:July 2, 1997; Released:August 12, 1997 By the Commission: I. INTRODUCTION 1.The Commission has under consideration its Memorandum Opinion and Order and Notice of Apparent Liability in Price Broadcasting Company, 11 FCC Rcd 3620 (1996) ("MO&O") granting the renewal applications of Stations KUTR(AM)/KCPX-FM, Salt Lake City, Utah, subject to reporting conditions and a Notice of Apparent Liability ("NAL") for forfeiture in the amount of $16,500, and a pleading styled Petition for Reconsideration ("petition") timely filed on April 29, 1996, by Price Broadcasting Company ("licensee" or "Price"). For the reasons that follow, we find the arguments in support of the licensee's request for recision of the sanctions levied in the MO&O to be unpersuasive. Therefore, we deny the licensee's request and impose a forfeiture in the amount of $16,500. II. BACKGROUND 2.In the MO&O, the Commission reviewed the Equal Employment Opportunity ("EEO") program of the stations and found no substantial and material questions of fact sufficient to warrant a hearing. In addition, we found no evidence that the licensee had engaged in discrimination. Accordingly, we granted renewal of the stations' licenses. However, we also concluded that the licensee's overall recruitment efforts were deficient because the licensee failed to recruit for a substantial number of its vacancies, and failed to maintain adequate records to conduct meaningful self-assessment of its EEO program as required by our EEO Rule. See 47 C.F.R.  73.2080. Therefore, although we granted renewal, we imposed reporting conditions and issued an NAL in the amount of $16,500. III. DISCUSSION 3.Once an NAL 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, 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). 4.Initially, Price asserts that its responses to Commission inquiries regarding its EEO efforts were not adequately and accurately considered by the Commission. Price states that its responses included affidavits from station employees attesting that: 1) the licensee regularly recruits minorities and women from a list of over 50 sources, including minority-specific sources; 2) the licensee tries to keep the contact list current and replace unproductive sources; and, 3) the licensee "engages in a semi-annual self-assessment." According to Price, these documents create a "comprehensive additional record" which compensates for the licensee's failure to maintain specific recruitment, applicant and interviewee records. 5.Second, the licensee contends that the only "material issue" below was whether the recruitment, applicant and interviewee records were properly maintained by the stations. Price argues that "...how long records must be maintained, and what records must be kept -- is a matter of implementation by the stations involved" and not for the Commission to dictate. The licensee further asserts that its minority and female hiring record shows that adequate recruitment must have taken place for the positions for which no recruitment or applicant data was provided. Specifically, Price points to its "general" policy of recruitment as substantive evidence since "[t]he persons that applied for, and filled, those ... positions did not materialize out of thin air." It cites, as an example, that while no recruitment or applicant data are available for the 16 full-time positions filled between June 16, 1988, and May 2, 1989, two Black men were hired for part-time positions. 6.Next, the licensee argues that a discrepancy between the number of overall and minority employees listed as hired for upper-level category jobs in the renewal application and the number listed for the same period in its inquiry response should not have been interpreted as an "aggravating factor" towards the Commission's finding of inadequate self-assessment by the licensee. Price argues that its interpretation of "upper four" job categories to mean, literally, the top four administrative positions at the stations was unintentional and therefore should not contribute to a finding that its EEO program is inadequate. 7.Finally, the licensee contends that the precedent used to determine the forfeiture amount in the MO&O was inappropriate. Price protests that, should the Commission still find its EEO program to be inadequate, it should use as the precedent Applications of Price Broadcasting for Renewal of Licenses of Stations KOOK/KBEE-FM, Modesto, California, KQMS/KSHA-FM, Redding, California, KROW/KNEV- FM, Reno, Nevada, (Released May 18, 1992)("Modesto"), in which reporting conditions alone were levied. The licensee argues that Modesto is more akin to the instant case due to the similar percentage of vacancies at each group of stations for which no recruitment was documented and similar lack of adequate self- assessment efforts. Price states that the record of the licensee of WGRD(AM)/WGRD-FM in Applications of Lanser Broadcasting Corporation et al., 7 FCC Rcd 4254 (1992)("Lanser") was wrongly used as precedent in the instant case. The licensee argues that WGRD(AM)/WGRD-FM was used as precedent in the MO&O due largely to a finding of "similarities of the MSA compositions" and lack of documentation of recruitment and self-assessment efforts. Price asserts that the Commission failed to see the superiority of Price's efforts to those of the licensee of WGRD(AM)/WGRD-FM because it did not make comparisons of "actual" self- assessment efforts or of "hurdles to the recruitment of minorities in Grand Rapids as there were in Salt Lake City," stressing that the Commission never adequately recognized or discussed the "difficulty of recruiting qualified minorities in Salt Lake City, Utah." 8.Contrary to Price's argument, its inquiry responses and affidavits did not create a comprehensive record manifesting compliance with our record-keeping and self-assessment requirements. See Section 73.2080(b) and (c) of the Commission's Rules, 47 C.F.R.  73.2080(b) and (c). Maintaining recruitment, applicant and interviewee pool data for each position filled is critical. The information contained therein provides the very basis for a licensee's self-assessment of its EEO program. The Commission has held that adequate self-assessment is ordinarily not possible absent record retention. See, e.g., KSBW License, Inc., 9 FCC Rcd 6701, 6704 (1994); Lewis Broadcasting Corp., 7 FCC Rcd 1420, 1421 (1992). The assertion that a licensee has a "general" policy of recruitment and "semi-annual self-assessment" does not satisfy these requirements, and here the licensee did not attempt to reconstruct its efforts and results on a position by position basis. See In re Applications of KTEH-TV, et al., 11 FCC Rcd 2994, 2997 (1996). We cannot fully determine whether the licensee engaged in a thorough and meaningful self-assessment of its recruitment efforts without data as to the results of those efforts. As the Commission has stated, "[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." See NAB Report and Order, 4 FCC Rcd 1715, 1716 (1989)("NAB"). 9.The licensee notes that it uses a list of 57 sources, including minority-specific sources. Nevertheless, as indicated in the MO&O at 3622, Price did not recruit for 73% of its vacancies. Nor, a fortiori, was there any indication that it consulted the 57 sources as vacancies occurred. It has not advanced any facts or otherwise shown where that finding was in error. In the petition, Price's employee in charge of EEO recruitment and compiling EEO records asserts that she tries to place follow-up phone calls to unproductive sources and replace them with productive sources. In one instance cited as an example of a follow-up call to an unproductive source, the source stated that it did not usually have members with experience in radio; however, the source was kept on the list and used as an example of a minority-specific recruitment source. Relying on recruitment sources that are admittedly unproductive of qualified referrals does not signal compliance with our self-assessment requirements. 10.Regarding recordkeeping, in the instant case, the licensee could not provide recruitment sources used for 30 of the 41 full-time positions filled, could not provide the referral source for 22 of the 41 successful candidates, and could not provide adequate overall applicant flow data for 33 of the 41 positions filled during the three year period under review. In concluding that Price violated our EEO Rule, we found that the licensee did not adequately self-assess as it "kept incomplete data on hiree referral sources and applicant and interviewee data." MO&O at 3622. In reaching our determination, we considered Price's inquiry responses and affidavits. However, a professed "general" policy of recruitment is no substitute for complete, position-specific recruitment or the records pertaining thereto. Despite the arguments of the licensee to the contrary, the fact that people were hired during the period under review does not indicate that outside recruitment for those positions took place. In addition, the Commission has specified the records which must be maintained throughout the license term to support adequate self-assessment. As noted in NAB Report and Order, since 1976 the Commission has required that licensees maintain indefinitely all data used to fulfill their EEO reporting obligations as to recruitment as well as their self-assessment obligations. See NAB at 1716. 11.Furthermore, the licensee's misinterpretation of the definition of "upper four" category jobs is appropriately considered as an "aggravating factor" because it evidences the inadequacy of its compliance with our EEO rule. One of the categories for which recruitment and applicant data is specifically requested on renewal applications and annual employment reports is the number of upper four category positions held by minorities and females. See Doubleday Broadcasting Co., Inc., 88 FCC 2d 1128, n.4 (1982). Upper four category employment data allows the Commission and the licensee to assess whether minorities or females are being recruited and promoted only for positions traditionally considered of a lower level within a licensee's organization. See 47 C.F.R.  73.2080(c)(4)(dealing with promotion and placement of minorities and females in positions of greater responsibility). If the licensee in this case does not know what upper four category positions are, it cannot adequately self-assess its recruitment efforts for those positions. 12.Finally, the Commission believes using Lanser as the precedent for determining sanctions against Price was appropriate. First, the licensee claims a more similar precedent can be found in Modesto, in which the licensee received only reporting conditions based on its EEO record. While we acknowledge that Price is the licensee of the stations in Modesto as well as in the instant case, the cases are distinct. We do not agree that the factors in Modesto are analogous to those in the instant case. KUTR(AM)/KCPX-FM had more hiring opportunities than stations KROW(AM)/KNEV-FM in Modesto. Additionally, it appears from the record that KUTR(AM)/KCPX-FM's recruitment efforts resulted in fewer qualified minority applicants than did the efforts of KROW(AM)/KNEV-FM. Moreover, the facts of Lanser are very similar to those in the instant case. WGRD(AM)/WGRD-FM's ("WGRD") minority labor force size is similar to the licensee's, a fact which we acknowledged, contrary to Price's assertions. See MO&O at 3622. In addition, WGRD kept incomplete recruitment, applicant and interviewee flow records and asserted that the size of the MSA in which it was located made it difficult to recruit minorities, just as the licensee does in the instant case. After considering the aforementioned factors, we conclude that a forfeiture of $16,500 is appropriate in the instant case. IV. CONCLUSION 13.For the foregoing reasons, we deny the licensee's request for rescission of the forfeiture. In addition, we hereby issue to the licensee a Forfeiture Order in the amount of $16,500. V. ORDERING CLAUSES 14.Accordingly, IT IS ORDERED that the request for rescission of the forfeiture filed by the licensee IS DENIED. 15.IT IS FURTHER ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), that the licensee FORFEIT to the United States the sum of sixteen thousand five hundred dollars ($16,500) for violation of the Commission's EEO Rule, 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 of 1934, as amended, 47 U.S.C.  504(a), as summarized in the attachment to this Memorandum Opinion and Order and Forfeiture Order. 16.IT IS FURTHER ORDERED that one copy of this Memorandum Opinion and Order and Forfeiture Order be sent by Certified Mail -- Return Receipt Requested -- to the licensee. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary