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                          Before the 
                FEDERAL COMMUNICATIONS COMMISSION 
                     Washington, D.C.  20554

  In re Applications of                )
                                       )
   Tidewater Communications, Inc.)    
                     )                 
    For Renewal of Licenses of         )   File Nos. BR-950530UZ
   Stations WNOR(AM)/WNOR-FM       )   BRH-950530UT
    Norfolk, Virginia       )
     and Station WAFX(FM))  BRH-950530US
    Suffolk, Virginia)


                   MEMORANDUM OPINION AND ORDER
                       AND FORFEITURE ORDER

         Adopted:  July 30, 1997;Released:  August 5, 1997  


By the Commission:

                         I.  INTRODUCTION

      1.The Commission has under consideration its Memorandum Opinion and Order and
Notice of Apparent Liability in Tidewater Communications, Inc., 11 FCC Rcd 7814 (1996)
("MO&O"), released June 28, 1996, granting the renewal applications of the above-referenced
stations subject to reporting conditions and a Notice of Apparent Liability ("NAL") for forfeiture in
the amount of $15,000; and a request for reconsideration of the MO&O and stay of the reporting
conditions entitled "Consolidated Petition for Reconsideration, Motion for Stay, and Response to
Notice of Apparent Liability" ("Petition") timely filed on July 29, 1996, by Tidewater
Communications, Inc. ("the licensee").  For the reasons that follow, we find the arguments in support
of the licensee's Petition to be without merit.  Therefore, we deny the licensee's Petition and impose
reporting conditions and a forfeiture in the amount of $15,000.

                         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 EEO efforts were inadequate because the licensee failed to recruit for a substantial number
of vacancies, to maintain complete referral, applicant and interviewee records, and, consequently,
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 EEO reporting conditions
and issued an NAL in the amount of $15,000.  

                        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.The licensee contends that our EEO Rule is unconstitutional and inconsistent with
the Supreme Court's holding in Adarand Constructors, Inc. v. Pe¤a, 515 U.S. 200 (1997)
("Adarand").  Among other things, the licensee disagrees with our reading of the scope of the
Adarand decision.  See MO&O at  3-8.  However, we have reviewed the licensee's arguments and
find that they do not raise any novel arguments which would require the Commission to revisit this
issue.  

      5.Although acknowledging that it did not document all of its recruiting practices, the
licensee disputes our characterization of its EEO program as deficient in view of its minority hires
during the license period.  It claims that its employment profile is more significant than the number
of referral sources which it can document.  Specifically, the licensee argues that it satisfied its EEO
obligations because it increased its employment of minorities during the license term to achieve
almost 50% of parity and thereby meet the Commission's processing guidelines.  The licensee
explains that it acquired WAFX(FM) late in the license term and therefore did not have enough time
to hire minorities for that station.  Further, the licensee contends that the Commission's EEO policy
forces licensees to hire minorities over non-minorities for fear of monetary penalties.  

      6.The licensee places undue emphasis on meeting our processing guidelines without
consideration of its failure to engage consistently in efforts to attract qualified minorities whenever
vacancies occur.  Moreover, the licensee incorrectly asserts that minority employment above a
certain number is evidence of an adequate EEO program.  As stated in  18 of the MO&O, our
primary focus is on a licensee's EEO efforts and not on its employment of a specific number of
minority employees.  We do not require stations to hire or employ a specific number of minority
employees.  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). 
We enforce our EEO Rule by examining a licensee's EEO recruitment, documentation and self-
assessment efforts.  We expect licensees to hire the most qualified individual, irrespective of gender,
ethnic origin or race.  See University of Southern California, 11 FCC Rcd 7239 (1996).  

      7.The licensee also contends that the EEO Rule does not provide broadcasters with
requisite notice of specific conduct that the Commission considers to be a violation warranting a
sanction.  Specifically, the licensee argues that Section 73.2080 of the Commission's Rules did not
give notice to the licensee that it could be subject to a forfeiture if it "failed to recruit for 42.9% of
openings, failed to maintain interview pool information or complete referral and applicant
information, and failed to engage in self-assessment" (quoting MO&O at  15).  Citing United States
v. Rust Communications Group, Inc., 425 F.Supp. 1029 (E.D. Va. 1976) and other cases, the
licensee argues that the Commission is prohibited from issuing penal sanctions under Section
73.2080 because the regulation therein is not written with the required specificity.  Accordingly, the
licensee concludes that the NAL is unlawful and should be rescinded.  In the alternative, the licensee
argues that there is no evidence that it violated Section 73.2080 because the MO&O did not find that
it had failed to comply with Section 73.2080(b) and compliance with Section 73.2080(c) is not
mandatory.

      8.We find no merit in the licensee's arguments that our EEO Rule does not provide
notice or fair warning of licensee conduct that constitutes a violation and that compliance with
Section 73.2080(c) is not mandatory.  Section 73.2080(b)(3) specifically requires licensees to
communicate their "employment needs to sources of qualified applicants" and "solicit their
recruitment assistance on a continuing basis."  47 C.F.R.  73.2080(b)(3).  In addition, Section
73.2080(c) sets forth specific EEO program requirements, including the requirement that licensees
use "potential sources of minority and female applicants, to supply referrals whenever job vacancies
are available...."  47 C.F.R.  73.2080(c)(2).  Moreover, Section 73.2080(c)(5) unambiguously
requires a licensee to self-assess its EEO program by "analyz[ing] its efforts to recruit, hire and
promote minorities and women...."  47 C.F.R.  73.2080(c)(5).  The Commission has held that
adequate self-assessment is ordinarily not possible absent record retention.  See Lewis Broadcasting
Corp., 7 FCC Rcd 1420, 1421 (1992).  Thus, our rules require specific actions which the licensee
did not take.  See MO&O at   13, 15-17.  Accordingly, we correctly concluded that the licensee
had violated the mandatory provisions of our EEO Rule.  

      9.In seeking a rescission of the forfeiture amount in the NAL, the licensee claims that
its EEO program was successful since it "received numerous minority referrals during the last full
year before the Stations' license renewal" and that this was more important than "the fact that [it] was
unable to identify the referral source or race of each and every job applicant."  The licensee asserts
that the Commission should not have sanctioned it for "what can only be interpreted as poor record-
keeping" and should have recognized that the licensee "took steps to overcome" its "inability to
record exhaustive EEO data."    

      10.The record shows that the licensee failed to recruit for 42.9% of its 56 full-time
vacancies during the inquiry period.  The licensee did not begin tracking the race, ethnic origin, and
gender of applicants until approximately two years before the end of the license term.  Even then,
the licensee's applicant records were incomplete.  Nor could the licensee verify the composition of
its interview pools for any vacancy.  The licensee did not ask applicants for their referral sources
until after the license term had ended.  Altogether, few records were available for meaningful self-
assessment.  Although the licensee did take steps to overcome its "inability" to record EEO data,
these steps did not come until late in the license term or after the license term had already ended. 
These essential facts are undisputed in the licensee's Petition.  In view of these facts, we determined
that the licensee could not have kept adequate records for meaningful self-assessment as required
by Section 73.2080(c)(5) of the Commission's Rules, and that no self-assessment had actually
occurred, with the exception of the implementation of an applicant EEO form late in the term.  See
MO&O at   13, 15-17.  Maintaining recruitment, applicant and interviewee data for each position
filled is critical because this information provides the very basis for a licensee's self-assessment of
its EEO program.  Id. at  8.  Indeed, we cannot, and the licensee 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 as to analyze the effectiveness of its recruitment efforts, critical
information for renewal purposes."  NAB Report and Order, 4 FCC Rcd 1715, 1716 (1989).  Thus,
the NAL was not based upon the licensee's record-keeping deficiencies per se, but rather on its
failure to maintain a continuing review of recruitment and hiring procedures to ensure equal
opportunity in employment and recruitment as vacancies occur, as required by our EEO Rule.  We
therefore reject the licensee's contention that it is being penalized for mere record-keeping violations. 


      11.Citing various Commission cases, the licensee asserts that similar record-keeping
deficiencies by other licensees have resulted in smaller forfeitures or none at all and that it should
receive the same treatment.  However, our evaluation of case precedent is not based on record-
keeping alone.  To determine the applicable forfeiture for the stations, we relied on case precedent
which takes into consideration the relevant statutory factors in Section 503(b)(2) of the
Communications Act, including the nature, circumstances, extent and gravity of the violations, and
the licensee's record of compliance with our rules.  As is our practice, we also considered the
stations' size, local labor force, number of hiring opportunities, recruitment patterns, applicant and
interview pools, and self-assessment.  E.g., Stauffer Communications, Inc.  10 FCC Rcd 5060, 5061
(1995).  Accordingly, the licensee's reliance on record-keeping deficiencies as the sole basis for
evaluating case precedent is faulty.  

      12.With respect to the licensee's Motion for Stay of the reporting conditions, we note that
the licensee failed to file its stay request as a separate pleading, as required under Section 1.44(e) of
the Commission's Rules, 47 C.F.R.  1.44(e).  In addition to this significant procedural flaw, the
licensee's Motion for Stay provides no specific reasons justifying grant of a stay, and therefore fails
to meet the four-factor test required by Wisconsin Gas Co. V. FERC, 758 F.2d 669, 673-74 (D.C.
Cir. 1985).  Under this test, parties requesting a stay must demonstrate:  (1) that they are likely to
prevail on the merits; (2) that they will suffer irreparable harm if their stay request is not granted;
(3) that other interested parties will not be harmed if the stay is granted; and (4) that the public
interest favors grant of the stay.  The licensee does not even discuss any of the four required
elements of the test in its Petition.  Rather, it simply makes an unsupported request for a stay. 
Accordingly, we deny its request for a stay of the MO&O's reporting conditions.

      13.Based on the foregoing, we deny the licensee's request for unconditional renewal of
the stations' licenses and stay of the reporting conditions.  In addition, we hereby issue to the licensee
a Forfeiture Order in the amount of $15,000.  



                      IV.  ORDERING CLAUSES

      14.Accordingly, IT IS ORDERED that the Petition filed by the licensee IS DENIED.
     

      15.IT IS FURTHER ORDERED that the Motion for Stay IS DENIED.

      16.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 fifteen thousand dollars ($15,000) 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.

      17.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