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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) ) WCCB-TV, Inc. )File Nos.BR-950731YU )BRH-950731C4 For Renewal of Licenses of) Stations WPET(AM)/WKSI-FM ) Greensboro, North Carolina) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: November 26, 1996; Released: December 9, 1996 By the Commission: I. INTRODUCTION 1.The Commission has before it for consideration: (i) the license renewal applications for Stations WPET(AM)/WKSI-FM, Greensboro, North Carolina; (ii) a Petition to Deny timely filed on October 31, 1995, by the Southern Region of the National Rainbow Coalition ("Rainbow"); (iii) the licensee's opposition to the petition; (iv) Rainbow's reply to the licensee's opposition; and (v) the licensee's response to a staff letter of inquiry. 2.Rainbow alleges that WPET(AM)/WKSI-FM have violated our Equal Employment Opportunity (EEO) Rule and policies. Although Rainbow states that it would not be inappropriate to conduct an investigation of the stations' employment practices pursuant to Bilingual Bicultural Coalition on Mass Media v. FCC, 595 F.2d 621 (D.C. Cir. 1978) ("Bilingual"), it avers that a Bilingual investigation is not necessary here because the licensee's "pattern of recidivism and reversion to previous misconduct reflects deliberate action." Accordingly, it requests that we designate the renewal applications for hearing without investigation. The licensee responds that it is in full compliance with the EEO requirements and that the renewal applications should be granted unconditionally. II. BACKGROUND 3.In challenging an application pursuant to Section 309(d) of the Communications Act of 1934, a petitioner must demonstrate party in interest status. The allegations in the petition, except for those of which official notice may be taken, must be supported by the affidavit of a person with personal knowledge of the facts alleged. 47 U.S.C.  309(d)(1). 4.Rainbow submitted with its petition a declaration under penalty of perjury from Virginia Newell, a Rainbow member who resides in the service area of WPET(AM)/WKSI-FM. The declarant states that she is a regular listener of WPET(AM) and WKSI-FM and that she would be seriously aggrieved if the petition is not granted. The licensee contends that Rainbow failed to demonstrate an "injury in fact," and thus failed to establish standing as a party in interest under Section 309(d)(1) of the Communications Act, because it did not allege that any of its members have applied or will apply for employment at WPET(AM)/WKSI-FM. However, it is well-settled that individual listeners and viewers as well as groups representing them may qualify as parties in interest under Section 309(d)(1). See Office of Communication of the United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966); NAB Petition for Rulemaking, 82 FCC 2d 89 (1980) ("NAB Petition"). "A listener who charges a local station with EEO deficiencies satisfies the injury in fact requirement because the broadcaster's shortcomings are depriving him of the viewpoints of a significant segment of the community." NAB Petition, 82 FCC 2d at 100. Newell's declaration thus satisfies our requirements for standing. Accordingly, we hold that Rainbow has petitioner status with respect to Stations WPET(AM)/WKSI-FM. 5. Rainbow derived its factual allegations from the licensee's EEO program and annual employment reports. As a threshold matter, we found that these allegations made a prima facie showing that grant of the renewal applications would not serve the public interest. 47 U.S.C.  309(d)(1). See Astroline Com. Co. Ltd. Partnership v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) ("Astroline"). 6. Having reviewed the entire record, including responsive information provided by the licensee, we now conclude that there are no substantial and material questions of fact warranting designation for hearing and that grant of the applications would be consistent with Section 309(k) of the Communications Act, as amended, 47 U.S.C.  309(k). In addition, we find no evidence of employment discrimination. Thus, grant of the applications will serve the public interest. 47 U.S.C.  309(d)(2); Astroline. However, because the licensee's overall EEO efforts were deficient, we will grant renewal with appropriate remedies and sanctions. 7.Constitutionality of Commission's EEO Rule. The licensee contends that our EEO Rule is inconsistent with the holding in Adarand Constructors, Inc. v. Pena, 515 U.S. , 115 S.Ct. 2097 (1995) ("Adarand"). We disagree. 8. Adarand addresses the constitutionality of a race-based preference program arising under federal law. The Supreme Court held that where questions arise as to a violation of the personal right to equal protection of the laws as a result of such programs, courts should evaluate such challenges by invoking the "strict scrutiny" standard of judicial review. Under strict scrutiny, racial classifications are constitutional only if they are narrowly tailored measures that further a compelling governmental interest. 9. The requirements imposed by our EEO Rule, 47 C.F.R.  73.2080, are fundamentally different from a race-based preference program such as that at issue in Adarand. The Rule does not require that any person be hired or accorded a hiring preference based on racial or ethnic status. Rather, it requires that licensees make efforts to recruit minority and women applicants so that they will be ensured access to the hiring process. The ultimate decision as to whether to hire a particular applicant may be premised upon any non-discriminatory considerations, without regard to the applicant's race, ethnicity or gender status. Further, our Rule does not require licensees to hire any prescribed "quota" of minorities or women. Thus, our EEO Rule imposes no requirement that would operate to deprive any person of a benefit he or she might receive but for his or her race, ethnicity or gender. 10. We employ a two-step process in evaluating licensees' EEO efforts. In the first step, we seek to identify those licensees whose EEO efforts may be unsatisfactory so as to warrant further inquiry. Whether a licensee's employment profile as reflected in its Annual Employment Reports filed during the license term meets the processing guidelines is one factor considered in making this preliminary assessment, along with information contained in the renewal application, allegations raised by any petitions to deny or informal objections, and any other information available concerning the licensee's EEO record. We emphasize that these guidelines are used as an initial screening tool for determining the stations whose EEO programs might require further investigation. If the first step of review indicates that the station's EEO efforts are satisfactory, the station is found to be in compliance with our EEO Rule. In no situation are a station's efforts found to be unsatisfactory or is it found to have violated the EEO Rule solely because it does not meet the processing guidelines. Where we find that a station's efforts may be unsatisfactory, we will generally request additional information which is analyzed along with relevant pleadings to determine if, among other things, the station notifies sources of minority referrals when vacancies occur and engages in continuous self-assessment of its EEO program; if, in light of the evidence, the station violated our EEO Rule; and, if it did, what sanctions or remedies may be appropriate. Compliance with the processing guidelines is not a factor in this second step analysis. Broadcast licensees whose employment profiles are below our processing guidelines have been renewed without sanction. 11. Accordingly, we find no basis for concluding that our process denies any person equal protection of the laws. Indeed, the licensee has not identified any person who arguably suffered such injury as a result of the provisions of our Rule. As the Court emphasized in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) ("Croson"), the right to equal protection is a personal right. In the absence of any provisions in our EEO Rule that abridge the personal rights of any person, we conclude that Adarand does not implicate our EEO program. Our reading of the scope of the Adarand decision is consistent with the interpretation of the case by the Department of Justice (DOJ). An analysis of the Adarand decision by DOJ states: Mere outreach and recruitment efforts . . . typically would not be subject to Adarand standards. Indeed, post-Croson cases indicate that such efforts are considered race neutral means of increasing minority opportunity. In some sense, of course, the targeting of minorities through outreach and recruitment campaigns involves race- conscious action. But the objective there is to expand the pool of applicants or bidders to include minorities, not to use race or ethnicity in the actual decision. If the government does not use racial or ethnic classifications in selecting persons from the expanded pool, Adarand ordinarily would be inapplicable. III. DISCUSSION 12.Section 73.2080 of the Commission's Rules, 47 C.F.R.  73.2080, requires that a broadcast licensee refrain from employment discrimination and establish and maintain an EEO program reflecting 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 women and minorities 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 pool. The Commission also focuses on any evidence of discrimination by the licensee. See Section 73.2080(a), (b), and (c) of the Commission's Rules, 47 C.F.R.  73.2080(a), (b), and (c). 13. Review of the licensee's 1995 EEO Program Report and inquiry response reveals that the licensee filled 25 full-time vacancies, 21 for upper-level positions, from December 1, 1992, to December 1, 1995. The licensee's records indicate that it recruited for 23 of the 25 vacancies. For each of these vacancies, the licensee used several general recruitment sources, such as Greensboro News & Record, Burlington Times News, Winston-Salem Journal, Radio & Records, and the Employment Security Commission, and minority-specific sources, such as The Carolina Peacemaker and Winston-Salem Chronicle. In addition, the licensee claims that it mailed notices concerning the 23 vacancies to all of the sources included on its "EEO Referral List," an extensive listing of sources anticipated to attract female and minority applicants which was updated periodically throughout the license term. The licensee could not provide referral sources for 131 of the 361 applicants, but did indicate that it received minority referrals from the following sources: Greensboro News & Record (9), Burlington Times News (1), High Point Enterprise (2), The Carolina Peacemaker (1), the Employment Security Commission (4), employee referrals (4), and mail-ins from unknown sources (1). No minority referrals are attributed to any of the sources on the licensee's EEO Referral List. 14. Although the licensee reports that its recruitment efforts generated 361 applicants for the 23 vacancies, it provides race and ethnicity data for only 166 (46%) of the 361 applicants. These data show that the licensee attracted 22 minority applicants, including six for upper-level positions. The licensee had only 16 applicant pools (13 upper-level) because multiple hires were made from four upper-level pools. In the case of one multiple hire applicant pool, one hire was made approximately two months after the initial two hires even though there were no identifiable minorities in the applicant pool. In another instance, additional hires were made approximately one month and four months after the initial hire, again despite the fact that there were no identifiable minorities in the applicant pool. Minorities were present in eight (five upper-level) of the 16 applicant pools. It is unclear how many minorities were actually interviewed because the licensee did not begin tracking interview data until two months before the expiration of its license term. The licensee reports that it hired five minorities, all Black females, between December 1, 1992 and December 1, 1995, one for an upper-level position and four for lower-level positions. 15. In its petition, Rainbow alleges that minorities have been underrepresented in upper- level positions at WPET(AM)/WKSI-FM throughout the license term. Rainbow asserts that it is "surprising and disappointing to witness this type of EEO nonperformance from these particular stations," given that they drew EEO sanctions during the most recent license term. In this regard, Rainbow observes that reporting conditions were imposed on the licensee in 1990 because minorities were not included in its upper-level applicant pools, few recruitment sources were contacted when jobs were available, and there was no evidence of meaningful self-assessment. 16. The licensee argues in response that it operates a "vigorous" EEO program and has aggressively recruited minority applicants. While the licensee acknowledges that it has encountered difficulty in attracting large numbers of minorities to upper-level job openings, it maintains that it has fully discharged its obligation to inform minorities of job openings at the stations by contacting every source on its EEO Referral List for each job opening for which it actively recruited, by placing advertisements in local and regional newspapers for each such job opening, and by making daily announcements over-the-air concerning the stations' EEO policy. The licensee also asserts that it routinely engages in self-assessment of its EEO efforts and that the General Manager of the stations periodically reviews the EEO Referral List and makes additions to that list when made aware of new potential sources of minority applicants. The licensee states that the EEO Referral List currently contains 64 sources and includes every market-wide entity known to the licensee that would be likely to refer minority applicants. 17. In its reply, Rainbow criticizes the licensee's practice of recruiting by doing "mass mailings," noting that there is no evidence that the licensee interacted with its sources, informed them of its hiring needs, or encouraged them to send referrals. Rainbow points out that although minorities were in only six of its upper-level applicant pools, the licensee took no corrective steps. Moreover, Rainbow argues that the purpose of the EEO Rule is not merely to ensure that minorities learn of job openings, but also to ensure that they are given a chance to prove their merits as potential employees. Thus, Rainbow opines that it is particularly noteworthy that the licensee did not present any evidence as to how many minorities were interviewed and did not even keep records of its interview pools until after the investigation of its EEO practices began. Instead, Rainbow says, the licensee "maintained the fiction that as to a mere mailing list, 'if you build it, they will come.'" 18. Our review of the record reveals that there are no substantial and material questions of fact warranting designation for hearing. Astroline. Further, there is no evidence of employment discrimination. WPET(AM)/WKSI-FM recruited, attracted and hired minorities during the license term. Therefore, renewal of the licenses is in the public interest. 19. Nevertheless, we find the licensee's EEO efforts to be deficient because minorities were present in only eight out of 16 (five out of 13 upper-level) applicant pools and because the licensee failed to maintain the records needed to meaningfully assess the effectiveness of its EEO program. Although the licensee contends that it periodically reviewed its EEO program and made additions and deletions to its EEO Referral List, it is unclear how the licensee engaged in meaningful self-assessment without complete applicant, referral, and interview data. The licensee's EEO deficiencies during this license term are particularly troubling given that it was subject to reporting conditions due to similar deficiencies in its EEO performance during the last license term. 20. After carefully reviewing the facts, we find that the record in the instant case is similar to, but less egregious than, that of the licensee in WNRW-TV, Winston-Salem, North Carolina, in Act III Broadcasting of Nashville, Inc., 11 FCC Rcd 1172 (1995). The licensee of WNRW-TV recruited from five minority and 19 general sources for 14 of its 29 vacancies, but its recruitment records were incomplete. It could not report the referral source for any minority referrals, nor could it report the source for 135 of its 216 applicants. WNRW-TV also had no record of having received minority referrals from its minority sources. Additionally, WNRW-TV failed to maintain records of the race or national origin of any applicants, although its interview pool data showed that eight of its 54 interviewees were minorities and minorities were included in four of its interview pools. We renewed the license of WNRW-TV subject to reporting conditions and issued a Notice of Apparent Liability for $15,000. 21. Stations WPET(AM)/WKSI-FM are located in an area with a minority labor force that is similar in size to that of WNRW-TV -- 19.7% minority for the Greensboro stations and 17.8% minority for WNRW-TV. Despite these significant minority labor forces, WPET(AM)/WKSI-FM and WNRW-TV were able to document the presence of minorities in only eight out of 16 and four out of 29 applicant pools, respectively. Moreover, the minority recruitment sources used by both WPET(AM)/WKSI-FM and WNRW-TV were largely unproductive. Like WNRW-TV, WPET(AM)/WKSI-FM also failed to maintain complete records of their applicant and referral data, information that is crucial to meaningfully assess the effectiveness of recruitment efforts. However, we find the record of WPET(AM)/WKSI-FM to be less egregious than that of WNRW-TV because the former actively recruited for 23 of 25 vacancies. Given the facts of this case and broadcasters' familiarity with our long-standing EEO Rule, we conclude that a forfeiture of $12,000 is justified. Thus, we will grant the renewal applications of WPET(AM)/WKSI-FM subject to reporting conditions and issue a Notice of Apparent Liability for $12,000. IV. ORDERING CLAUSES 22.Accordingly, IT IS ORDERED that the Petition to Deny filed by the Southern Region of the National Rainbow Coalition regarding the license renewal applications of Stations WPET(AM)/WKSI-FM IS DENIED. 23.IT IS FURTHER ORDERED that the license renewal applications filed by WCCB- TV, Inc., for Stations WPET(AM)/WKSI-FM ARE GRANTED subject to the EEO reporting conditions specified herein and, pursuant to Section 503 of the Communications Act of 1934, as amended, 47 U.S.C.  503, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $12,000. 24.IT IS FURTHER ORDERED that the licensee of Stations WPET(AM)/WKSI-FM submit to the Commission an original and one copy of the following information on August 1, 1997, August 1, 1998, and August 1, 1999: (a) Two lists divided by full-time and part-time vacancies during the 12 months preceding July 1, 1997, for the first report, July 1, 1998, for the second report, and July 1, 1999, for the third report, indicating the job title and FCC job category of the position, the race or national origin, sex and the referral source of each applicant for each and the race or national origin and sex of the person hired. These lists should also note which recruitment sources were contacted; (b) A list of employees as of the July 1, 1997, payroll period for the first report, July 1, 1998, payroll period for the second report, and July 1, 1999, 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 stations' efforts to recruit minorities and women for each position filled during the 12 months preceding July 1, 1997, for the first report, July 1, 1998, for the second report, and July 1, 1999, 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. 25.IT IS FURTHER ORDERED that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- copies of this Memorandum Opinion and Order and Notice of Apparent Liability to the National Rainbow Coalition and the licensee of Stations WPET(AM)/WKSI-FM. 26.The reports are to be filed with the Acting Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 27. Regarding the forfeiture proceeding, the licensee of Stations WPET(AM)/WKSI-FM 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 ability to pay should include those financial items set forth in the attachment. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary