******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission FCC 97-337 Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) Faircom Flint, Inc. ) File Nos. BR-960502YA ) BRH-960502YB ) For Renewal of License for ) Stations WFNT(AM)/WCRZ(FM) ) Flint, Michigan ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: September 23, 1997; Released: September 30, 1997 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) license renewal applications for WFNT(AM)/WCRZ(FM), Flint, Michigan; (ii) the licensee's responses to staff inquiries; and (iii) various other pleadings. II. BACKGROUND 2. We have reviewed the licensee's renewal applications, annual employment reportsand inquiry responses. Initially, we note that the information that we reviewed included data for WFNT(AM)/WCRZ(FM) and WWBN(FM), Tuscola, Michigan. The licensee took control of WWBN(FM) on August 31, 1994. WWBN(FM)'s renewal application (BRH-960502YC) was inadvertently granted on September 27, 1996. Nonetheless, we will consider all information supplied by the licensee for all three stations as relevant to the issue of compliance with our Equal Employment Opportunity (EEO) Rule regarding the renewal of licenses for WFNT(AM)/WCRZ(FM). We believe that this course is appropriate because, according to the licensee, the stations are commonly owned and operated, and WFNT(AM)/WCRZ(FM)'s Forms 395-B (Broadcast Annual Employment Reports) and 396 (Broadcast EEO Program Report) contain information concerning all three stations. Consequently, we conclude that the three stations share the same EEO program. "[O]ur analysis and ruling relate to the adequacy of a licensee's EEO program and not the number of stations subject to that program." III. DISCUSSION 3. Section 73.2080 of the Commission's Rules requires that a broadcast licensee refrain from employment discrimination and establish and maintain an EEO program that reflects positive and continuing efforts to recruit and promote qualified women and minorities. When evaluating EEO performance, the Commission focuses on the licensee's efforts to recruit and promote qualified minorities and women and the licensee's ongoing assessment of its EEO efforts. Such an assessment enables the licensee to take corrective action if qualified women and minorities are not present in the applicant and interview pools. The Commission also focuses on any evidence of discrimination by the licensee. See Sections 73.2080 (a), (b), and (c) of the Commission's Rules, 47 C.F.R.  73.2080 (a), (b), and (c). 4. Review of the licensee's renewal applications and inquiry responses reveals that the licensee had 25 full-time hires, 21 for upper-level positions, from October 1, 1993, to October 1, 1996. In its inquiry response, the licensee indicates that it did not actively recruit for ten vacancies. There were no minority applicants for those ten vacancies and nine of the ten vacancies had only one applicant. For four additional vacancies, the licensee states that it could not contact outside recruitment sources for various reasons, including preventing its competition from knowing about an upcoming change in a station's format and preventing an incumbent employee from knowing that the licensee was seeking his replacement. Therefore, for those vacancies, the licensee reviewed ads placed by prospective applicants in the Michigan Association of Broadcasters Job Bank postings. Although this source did not refer any minority applicants for these positions, it did refer two Black applicants, one of whom was hired, for another full-time position during the period under review. For the remaining 11 vacancies the licensee contacted at least 28 recruitment sources, including one female and eight minority sources. The licensee recruited for only three (27.3%) of its last 11 full-time vacancies occurring during the period under review, specifically vacancies occurring from July 13, 1995, until October 1, 1996, the end of the license term. 5. The stations had 22 applicant and interview pools (18 upper-level) because in three instances the same pool was used twice. The licensee reports that it attracted 215 applicants (136 for upper-level positions), including 31 minorities (18 for upper-level positions). The licensee reports that it attracted 91 interviewees (67 for upper-level positions), including 17 minorities (11 for upper-level positions). Minorities were present in nine (40.9%) of the licensee's 22 applicant pools, including seven (38.9%) of the licensee's 18 upper-level applicant pools. Minorities were present in eight (36.4%) of the licensee's 22 interview pools, including six (33.3%) of the licensee's 18 upper-level interview pools. The licensee reports that, during the period under review, it hired three Blacks and two Hispanics, including two Blacks and one Hispanic for upper-level positions. In addition, the licensee states that it offered an upper-level position to a Black female, who declined the position. 6. In its Form 396, the licensee states that it continually reassesses the stations' EEO program, maintains written and oral contact with a broad group of minority and female sources, keeps extensive records of EEO activities and has adopted a comprehensive quarterly EEO review. It further states that, although its minority recruitment sources have not been as productive as it would like, it continues to contact those sources in anticipation of an improved response while also actively searching for other recruitment sources for minority and female applicants. In its inquiry responses, the licensee describes its quarterly review in detail by stating that "[o]n a quarterly basis, the licensee completes special forms summarizing their Staff Profile, Hiring Activity, Referral Source Summary, Hiring Pool Summary, which it then sends to communications counsel for review." The licensee further states that the stations' incentive to increase minority employment remains, as their staff profiles have not been reflecting the racial composition of the general labor force. The result of the efforts the licensee have made, however, is shown...through the fact that the rate of hiring minority employees during the past three years exceeds parity." Referring to some of these vacancies in its first inquiry response, the licensee states that "no recruitment occurred when a good on air personality became available, a highly respected sales person in the market let it be known she was interested in working for the stations, or a good candidate identified in prior recruitment reapplied. The number of such cases was limited in number and did not exceed one-third of the full-time openings filled." In its second inquiry response, the licensee repeated the first sentence of the quote but changed the last sentence to read "[t]o recruit in such situations would have been unnecessarily formulaic." In a supplement to its inquiry response, the licensee asserts that its "recruitment efforts, formal or informal, were implemented for a full two thirds (66.67%) of the attributable job openings." (footnote omitted). 7. Our review of the stations' record reveals no evidence that the licensee engaged in employment discrimination. We conclude that grant of the renewal applications for Stations WFNT(AM)/WCRZ(FM) would be consistent with Section 309(k) of the Communications Act of 1934, as amended, 47 U.S.C.  309(k). The licensee recruited for, attracted, interviewed, and hired minorities during the review period. Thus, because the licensee is otherwise qualified, grant of the applications will serve the public interest. 47 U.S.C.  309(d)(2). 8. Nevertheless, we find WFNT(AM)/WCRZ(FM)'s overall recruitment efforts to be deficient because the licensee failed to recruit actively for 10 (40.0%) of its 25 vacancies, and, despite having minority applicants in only nine (40.9%) of 22 applicant pools and eight (36.4%) of 22 interview pools, failed to engage in meaningful self-assessment of its EEO program by making significant changes to improve its recruitment efforts. 47 C.F.R.  73.2080. In fact, it appears from the record that the licensee's recruitment efforts decreased sharply at the end of the license term, as evidenced by the fact that it recruited for only three (27.3%) of 11 vacancies during the last fourteen months of the term. From statements made by the licensee, discussed supra, it appears that the licensee believed that recruiting for approximately two-thirds of its vacancies during the period under review constituted adequate EEO efforts and that requiring recruitment for every vacancy would be "unnecessarily formulaic." However, Section 73.2080(c)(2) of the Commission's Rules requires licensees to contact potential sources of female and minority applicants when vacancies occur. 47 C.F.R.  73.2080(c)(2). "While we anticipate that licensees will report occasional, unexpected vacancies for which no recruitment occurred, we expect broadcasters to engage in consistent recruitment efforts." Applications of Enterprise Media of Toledo, L.P., 12 FCC Rcd 3920 (1997) (Toledo). The licensee states that it continually reassesses its EEO program and conducts a quarterly EEO review. Nevertheless, it failed to ensure that outside recruitment sources were contacted when vacancies occurred, despite the fact that there were no minorities in the ten applicant pools for which it failed to actively recruit. We believe that the record in this case is evidence that the licensee engaged in inadequate recruitment efforts and poor self-assessment of its EEO program, in violation of the EEO Rule, 47 C.F.R.  73.2080. 9. After carefully reviewing the facts, we find that the record in the instant case is similar to, but less egregious than, that of KXRM-TV, Colorado Springs, Colorado in KXRM Partnership, 11 FCC Rcd 17098 (1996). KXRM-TV failed to recruit for 16 (57.1%) of its 28 vacancies and included minority applicants in only ten (35.7%) of it 28 overall interview pools and eight (40.0%) of its 20 upper-level interview pools. In addition, the licensee failed to maintain complete applicant data. We concluded that the record in that case indicated that the licensee's recruitment efforts were deficient and that it failed to maintain adequate records for meaningful self-assessment. 47 C.F.R.  73.2080. Accordingly, we renewed the license of KXRM-TV subject to reporting conditions and issued a Notice of Apparent Liability for $13,000. 10. WFNT(AM)/WCRZ(FM) and KXRM-TV both engaged in inconsistent recruitment efforts and failed to self-assess adequately. WFNT(AM)/WCRZ(FM) and KXRM-TV were located in areas with significant minority labor forces, 17.3% in 1980 and 18.8% in 1990, and 13.4%, respectively; had a significant number of hiring opportunities, 25 and 28, respectively; and yet had minorities in only 36.4% and 35.7% of their interview pools, respectively. The licensee of KXRM-TV failed to keep complete applicant records, necessary for meaningful self-assessment, whereas the licensee in this case kept almost complete records of its EEO efforts. However, as discussed supra, it appears that the licensee of WFNT(AM)/WCRZ(FM) did not meaningfully self-assess the information that it maintained as evidenced by its failure to ensure that outside recruitment sources were contacted when vacancies occurred, despite having no minorities in the ten applicant pools for which it failed to actively recruit. Moreover, it appears that WFNT(AM)/WCRZ(FM)'s EEO efforts significantly decreased at the end of the license term, as shown by the stations' failure to recruit for eight of 11 vacancies occurring during the last fourteen months of the license term. KXRM-TV's record is more egregious than that of WFNT(AM)/WCRZ(FM) because the former failed to recruit for a larger overall percentage of vacancies than the latter, 57.1% and 40.0%, respectively. Given the facts of this case and broadcasters' familiarity with our long-standing EEO rule, we conclude that a Notice of Apparent Liability for $11,000 is justified. Further, we impose reporting conditions to monitor the licensee's prospective recruitment and recordkeeping measures. Accordingly, finding the licensee to be otherwise qualified, we will grant renewal subject to reporting conditions, and issue a Notice of Apparent Liability for $11,000. In addition, we admonish the licensee for initially filing incorrect information with the Commission in its Form 396 and in its first inquiry response. See note 2, supra. We expect licensees to exercise greater care in their submissions to the Commission. IV. CONCLUSION 11. After reviewing the record before us, we find that grant of the renewal applications for Stations WFNT(AM)/WCRZ(FM) is in the public interest. However, because the licensee's overall EEO efforts are deficient, we will grant renewal subject to an admonishment, reporting conditions, and a Notice of Apparent Liability for $11,000. V. ORDERING CLAUSES 12. Accordingly, IT IS ORDERED that the license renewal applications for Stations WFNT(AM)/WCRZ(FM) ARE GRANTED, subject to AN ADMONISHMENT, to the reporting conditions specified herein, and, pursuant to Section 503 of the Communications Act, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $11,000. 13. IT IS FURTHER ORDERED that the licensee of Stations WFNT(AM)/ WCRZ(FM) submit to the Commission an original and one copy of the following information on June 1, 1998, June 1, 1999, and June 1, 2000: (a) Two lists divided by full-time and part-time 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 of the position, the date of hire, the race or national origin, sex and the referral source of each applicant and interviewee for each job and the race or national origin and sex of the person hired. The list should also note which recruitment sources were contacted; (b) A list of employees as of the May 1, 1998, payroll period for the first report, May 1, 1999, payroll period for the second report, and May 1, 2000, payroll period for the third report, by job title and FCC job category indicating full-time or part-time status (ranked from highest paid classification), date of hire, sex and race or national origin; and (c) Details concerning the licensee's efforts to recruit minorities and women for each position filled 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, including identification of sources used and indicating whether any of the applicants declined actual offers of employment. In addition, the licensee may submit any relevant information with regard to the stations' EEO performance and efforts thereunder. 14. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order and Notice of Apparent Liability be sent by Certified Mail -- Return Receipt Requested -- to Faircom Flint, Inc. 15. The reports are to be filed with the Acting Secretary of the Commission to the attention of the Mass Media Bureau's EEO Branch. 16. With respect to the forfeiture proceeding, the licensee may take any of the actions set forth in Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, as summarized in the attachment to this Order. Any comments concerning the ability to pay should include those financial items set forth in the attachment. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary