WPC^! 2BJZ Courier3|j ix6X@`7X@HP LaserJet 4M (PCL) (Add) RM 7310HL4MPCAD.PRSx  @\E"Z~X@26QF Z 3|j CourierCourier BoldTimes New RomanTimes New Roman BoldTimes New Roman ItalicHP LaserJet 4M (PCL) (Add) RM 7310HL4MPCAD.PRSx  @\E"Z~X@2Y K-KxKK "i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNg\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\pBnnBsgg>\\7"yyyy\nlc\gnn\"i~'^09FSS999Sq+9+/SSSSSSSSSS99qqqSggnxggxx9In]nxgxgS]xgg]]?/?FS9SSISI/SS//I/xSSSS??/SInII?C/CZ9+ZF999+999999S9S/gSgSgSgSgSnnIgIgIgIgI9/9/9/9/nSxSxSxSxSxSxSxSxS]IgSxSxSxS]IxSgSgSgSgSnInInZnIxdgIgIgIgIxSxSxSxZxSxZxS9/9S999SSZZnI]/]<]9]5]/nSanSnSxSxSng?g?g?S?S?S?ZZ]<]/]FxSxSxSxSxSxSn]Z]?]?]?xS]9nSS?]9]Sd+SS8%8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuddddddddddddddddddddddddddddddddddddddddNI\\>>>\g0>03\\\\\\\\\\33gggQyyrg>Frgygrr>3>T\>Q\Q\Q>\\33\3\\\\>F3\\\\QX%Xc>0cT>>>0>>>>>>>>\3QQQQQwyQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\\c\c\>3>\>>>\gcc\r3rIr>r>r3\l\\\\y>y>y>gFgFgFgcrMr3rT\\\\\\crQrQrQ\r>\gFr>\t0\\=!=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBT\>Q\\\\\3;\7;\7>>QQ\??n\\pBnnBmgg>Q\7"yyyy\njc\gnn\"i~'^ %,77\V%%%7>%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%%%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lCTn(nBB(A\\>>n%07\n!"IIIITTenn7TnB@;7>lBBn7"i~'^5>M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\pBnnBb\\>g\7"yyyy\njc\}nn\<?xxx,ix6X@`7X@?xxx,x `7X7jC:,9Xj\  P6G;XP7nC:,%|Xn4  pG;Xy.X80,X\  P6G;P y.\80,%T\4  pG;<R&HHH,>K,H6X@`7h@\5hC:,:2Xh*f9 xr G;XXW!@(#,h@\  P6G;hP\{,W80,:0W*f9 xr G;X%2a=5,&a\  P6G;&P &2e=5,%&e4  pG;&'P:% ,J:\  P6G;JP\0_=5,:&_*f9 xr G;&Xix6X@`7X@HP LaserJe (PCL) (Add) RM 7310HL4MPCAD.PRSx  @\E"Z~X@2\! yO'  s]K X'` ` #Xj\  P6G;9XP#V Federal Communications Commission   *xxX FCC 97 237  Xt4  s #X\  P6G;P# ` `  hhCqBefore the FEDERAL COMMUNICATIONS COMMISSION  yO 'a7Washington, D.C. 20554#x6X@`7iX@#у  Xx4 #Xj\  P6G;9XP#In re Applications of hhCq)  Xa4 ` ` hhCq) File Nos.ppBR900601D3  XJ4Price Broadcasting CompanyhhCq)ppBRH900601F2  X34` ` hhCq)  X 4For Renewal of Licenses ofhhCq)  X 4Stations KUTR(AM)/KCPXFMj z O~ 4ԍ#X\  P6G;P# The call letters for KUTR(AM) were changed to KCNR(AM) on August 11, 1992. The call letters for  {OV 'KCPXFM were changed to KVRIFM on January 4, 1993, and to KBEEFM on May 26, 1995. In this Order,  yO 'we will refer to the stations by their former call letters.#Xj\  P6G;9XP#ѥhhCq)  X 4Salt Lake City, Utah hhCq)  X 4   X{4   MEMORANDUM OPINION AND ORDER  Xd4=AND FORFEITURE ORDER ă  X64 Adopted: ` ` July 2, 1997 ; hh] Released:& #z August 12, 1997 #z    S'#&a\  P6G; &P#By the Commission:  S'aI. INTRODUCTION ă " Sh' ( "1.` ` The Commission has under consideration its Memorandum Opinion and Order and Notice  S@' !of Apparent Liability in Price Broadcasting Company, 11 FCC Rcd 3620 (1996) ("MO&O") granting the  !"renewal applications of Stations KUTR(AM)/KCPXFM, 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  Sx' !@support of the licensee's request for recision of the sanctions levied in the MO&O to be unpersuasive.  SP'Therefore, we deny the licensee's request and impose a forfeiture in the amount of $16,500. Pʿ O"4ԍ #X\  P6G;P#The issue of whether reporting conditions should be imposed is moot because the licensee has already  yO#'complied with the reporting conditions imposed by the MO&O.   S'c II. BACKGROUND ă"b0*{&{&^"Ԍ S' ( 2.` ` In the MO&O, the Commission reviewed the Equal Employment Opportunity ("EEO")  S' !3program of the stations and found no substantial and material questions of fact sufficient to warrant a  !Dhearing. 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 selfassessment of its EEO  S' !Vprogram 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.  S'f III. DISCUSSION ă  SH ' (  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).  S ' ( 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 minorityspecific sources; 2) the licensee tries to keep the contact  !list current and replace unproductive sources; and, 3) the licensee "engages in a semiannual self !3assessment." According to Price, these documents create a "comprehensive additional record" which  S'compensates for the licensee's failure to maintain specific recruitment, applicant and interviewee records.  Sh' " S@' ( " 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  !D"...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  !Dfor 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  !Dare available for the 16 fulltime positions filled between June 16, 1988, and May 2, 1989, two Black men were hired for parttime positions.  "0*{&{&}"  S' ( W6.` ` Next, the licensee argues that a discrepancy between the number of overall and minority  S' !gemployees listed as hired for upperlevel category jobs in the renewal application and the number listed  !3for the same period in its inquiry response should not have been interpreted as an "aggravating factor"  S' !towards the Commission's finding of inadequate selfassessment by the licensee.0ʿ O4ԍ#X\  P6G;P# The licensee's renewal applications indicated that no minorities were hired from May 1, 1989, to April 30, 1990, for upperlevel jobs; however, the inquiry response listed the hire of an American Indian in an upperlevel position during that period. Also, the renewal applications list one upperlevel hire during the renewal year  yOX'whereas the inquiry response lists 14 upperlevel hires during the same period. MO&O at 3621. 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.  S' ( J7.` ` Finally, the licensee contends that the precedent used to determine the forfeiture amount  S' !in the MO&O was inappropriate. Price protests that, should the Commission still find its EEO program  Sp' !"to be inadequate, it should use as the precedent Applications of Price Broadcasting for Renewal of  !Licenses of Stations KOOK/KBEEFM, Modesto, California, KQMS/KSHAFM, Redding, California,  S ' !KROW/KNEVFM, Reno, Nevada, (Released May 18, 1992)("Modesto"), in which reporting conditions  S ' !Zalone 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 selfassessment efforts. Price states that the record of the licensee of  S ' ! WGRD(AM)/WGRDFM in Applications of Lanser Broadcasting Corporation et al., 7 FCC Rcd 4254  SX' !(1992)("Lanser") was wrongly used as precedent in the instant case. The licensee argues that  S0' !3WGRD(AM)/WGRDFM was used as precedent in the MO&O due largely to a finding of "similarities  S' !*of the MSAʿ Oh4ԍ #X\  P6G;P#KUTR(AM)/KCPXFM is located in the Salt Lake CityOgden Metropolitan Statistical Area ("MSA") which includes a minority labor force of 7.5%, (0.8% Blacks, 4.5% Hispanic, 1.7% Asian/Pacific Islander, 0.5% American Indian). WGRD(AM)/WGRDFM is located in the Grand Rapids, Michigan MSA which includes a minority labor force of 7.3%, (4.3% Black, 2.0% Hispanic, 0.6 Asian/Pacific Islander, and 0.4% American Indian). compositions" and lack of documentation of recruitment and selfassessment efforts. Price  !asserts that the Commission failed to see the superiority of Price's efforts to those of the licensee of  !WGRD(AM)/WGRDFM because it did not make comparisons of "actual" selfassessment 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  S@'in Salt Lake City, Utah.",  S' " 0*{&{&:"  S' ( O8.` ` Contrary to Price's argument, its inquiry responses and affidavits did not create a  !comprehensive record manifesting compliance with our recordkeeping and selfassessment requirements.  S' !QSee Section 73.2080(b) and (c) of the Commission's Rules, 47 C.F.R.  73.2080(b) and (c). Maintaining  S' !Vrecruitment, applicant and interviewee pool data for each position filled is critical. The information  S`' !contained therein provides the very basis for a licensee's selfassessment of its EEO program.`ʿ O4ԍ#X\  P6G;P# For example, in the NAB Report and Order, 4 FCC Rcd 1715 (1989), the Commission discussed the applicant flow information required when questions arise about a licensee's recruitment efforts and stated that "[w]hen applicant flow data were not kept by a licensee.... we held the program deficient." The Commission also cited cases in which Commission staff requested applicant flow data in an inquiry letter and as part of  yO'reporting conditions, respectively. See Richey Airwaves, Inc., 53 RR 2d 330 (1983) and Baltimore Metropolitan  yO 'Broadcast Stations, 89 FCC 2d 1183, 1196 (1982). The  S8' !Commission has held that adequate selfassessment is ordinarily not possible absent record retention. See,  S' !e.g., KSBW License, Inc., 9 FCC Rcd 6701, 6704 (1994); Lewis Broadcasting Corp., 7 FCC Rcd 1420,  !t1421 (1992). The assertion that a licensee has a "general" policy of recruitment and "semiannual self !assessment" does not satisfy these requirements, and here the licensee did not attempt to reconstruct its  S' !&efforts and results on a position by position basis. See In re Applications of KTEHTV, et al., 11 FCC  Sp' !Rcd 2994, 2997 (1996). We cannot fully determine whether the licensee engaged in a thorough and  !meaningful selfassessment 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  S ' !effectiveness of its recruitment efforts, critical information for renewal purposes." See NAB Report and  S 'Order, 4 FCC Rcd 1715, 1716 (1989)("NAB").  SX' ( 9.` ` The licensee notes that it uses a list of 57 sources, including minorityspecific sources.  S0' !Nevertheless, as indicated in the MO&O at 3622, Price did not recruit for 73% of its vacancies. Nor, a  S' !}fortiori, was there any indication that it consulted the 57 sources as vacancies occurred. It has not  !kadvanced 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 followup phone  !calls to unproductive sources and replace them with productive sources. In one instance cited as an  !example of a followup 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  S' !a minorityspecific recruitment source. Relying on recruitment sources that are admittedly unproductive  S'of qualified referrals does not signal compliance with our selfassessment requirements.  S'"P0*{&{&"  S' ( #10.` ` Regarding recordkeeping, in the instant case, the licensee could not provide recruitment  !7sources used for 30 of the 41 fulltime 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  S' ! positions filledʿ O4ԍ#X\  P6G;P# The licensee either did not indicate the number, gender and race of the applicants or provided only the  yO'number and gender of the applicants.#Xj\  P6G;9XP# during the three year period under review. In concluding that Price violated our EEO  !^Rule, we found that the licensee did not adequately selfassess as it "kept incomplete data on hiree referral  S8' !sources and applicant and interviewee data." MO&O at 3622. In reaching our determination, we  !kconsidered Price's inquiry responses and affidavits. However, a professed "general" policy of recruitment  !is no substitute for complete, positionspecific 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 SH ' !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  S 'their selfassessment obligations. See NAB at 1716.  S ' ( 11.` ` Furthermore, the licensee's misinterpretation of the definition of "upper four" category jobs  S ' !y 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  S0' !kspecifically requested on renewal applications and annual employment reports is the number of upper four  S' ! category positions held by minorities and females. See Doubleday Broadcasting Co., Inc., 88 FCC 2d  S' !1128, n.4 (1982). Upper four category employment data allows the Commission and the licensee to assess  !Dwhether minorities or females are being recruited and promoted only for positions traditionally considered  S' !of a lower level within a licensee's organization. See 47 C.F.R.  73.2080(c)(4)(dealing with promotion  Sh' !7and placement of minorities and females in positions of greater responsibility). If the licensee in this case  !gdoes not know what upper four category positions are, it cannot adequately selfassess its recruitment efforts for those positions.  S' "00*{&{&"  S' ( 12.` ` Finally, the Commission believes using Lanser as the precedent for determining sanctions  S' !against Price was appropriate. First, the licensee claims a more similar precedent can be found in  S' !ZModesto, in which the licensee received only reporting conditions based on its EEO record. While we  S' !acknowledge that Price is the licensee of the stations in Modesto as well as in the instant case, the cases  S`' !are distinct. We do not agree that the factors in Modesto are analogous to those in the instant case.  S8' !KUTR(AM)/KCPXFM had more hiring opportunities than stations KROW(AM)/KNEVFM in Modesto.  S' !Additionally, it appears from the record that KUTR(AM)/KCPXFM's recruitment efforts resulted in fewer  S' !qualified minority applicants than did the efforts of KROW(AM)/KNEVFM.ʿ OP4ԍ #X\  P6G;P#KUTR(AM)/KCPXFM attracted only two minorities out of 107 applicants. See MO&O at 3622. Moreover, the facts of  S' !QLanser are very similar to those in the instant case. WGRD(AM)/WGRDFM's ("WGRD") minority labor  S' !force size is similar to the licensee's, a fact which we acknowledged, contrary to Price's assertions. See  Sp' !xMO&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.  S 'g IV. CONCLUSION ă  SX' ( 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.  S'O V. ORDERING CLAUSES ă  S' ( 14.` ` Accordingly, IT IS ORDERED that the request for rescission of the forfeiture filed by  S'the licensee IS DENIED .  S@' ( 15.` ` IT IS FURTHER ORDERED , pursuant to Section 503(b) of the Communications Act  S' !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  !7in Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, and Section 504(a) of the Communications  Sx' !Act of 1934, as amended, 47 U.S.C.  504(a), as summarized in the attachment to this Memorandum  SP'Opinion and Order and Forfeiture Order. "h0*{&{&["  S' ( 16.` ` IT IS FURTHER ORDERED that one copy of this Memorandum Opinion and Order  S'and Forfeiture Order be sent by Certified Mail Return Receipt Requested to the licensee.  S'` `  ,hh] FEDERAL COMMUNICATIONS COMMISSION  S`' ` `  ,hh]William F. Caton  S'` `  ,hh]Acting Secretary # Xj\  P6G;9XP#