NEWSReport No. MM 97-4 MASS MEDIA ACTION January 31, 1997 FCC RENEWS LICENSES AND REDUCES FINE TO $25,000 FOR THE LUTHERAN CHURCH/MISSOURI SYNOD (MM DOCKET 94-10) The FCC has renewed the Lutheran Church/Missouri Synod's licenses for Stations KFUO(AM) and KFUO-FM, Clayton, Missouri, for a full term, subject to reporting conditions based on the Church's failure to comply with the Commission's EEO requirements. In addition, the Commission concluded that the Church made misleading statements about its EEO practices to the FCC but, in view of a pertinent provision of the statute of limitations, imposed a forfeiture of only $25,000 for this misconduct. KFUO(AM) has been broadcasting since 1924. It is a daytime-only station operating noncommercially with a religious programming format. KFUO-FM went on the air in 1948 and is now a full-time commercial station broadcasting classical music and some religious programming. This proceeding was initiated by a Hearing Designation Order and Notice of Opportunity for Hearing for Forfeiture to examine the licensee's compliance with the equal employment opportunity (EEO) requirements set forth in 47 C.F.R  73.2080, following the filing of a petition to deny by the NAACP and several responses by the licensee. Specifically, the Commission questioned the licensee's affirmative recruitment efforts and noted in particular that its reasons for failing to recruit -- among them, that it required "Lutheran training" for certain positions -- were unacceptable because they had a direct adverse impact on the recruitment of African Americans. The bona fides of this explanation, as well as an assertion that "classical music expertise" was required, were suspect because not all persons hired for the specified positions had such training or expertise and the licensee did not attempt to recruit minorities who did have these characteristics. The FCC further found that the licensee claimed that it recruited for vacancies as they occurred and that it actively sought female and minority referrals, but that its recruitment efforts were severely limited and that it failed to demonstrate that the persons actually hired met the licensee's purported requirements.For these reasons, the Commission stated that the licensee's representations in its renewal applications and in its responses to inquiries regarding the specifics of its EEO outreach efforts raised a question as to whether it misrepresented or lacked candor in providing information to the Commission concerning its recruitment and employment history and practices in violation of 47 C.F.R.  73.1015. - 2 - An FCC Administrative Law Judge found, with respect to the EEO issue, that for the first four and a half years of the stations' license term, the Church's overall affirmative action efforts were flawed but acceptable, whereas, for the remainder of the license term its efforts were unsatisfactory and not in substantial compliance with 47 C.F.R.  73.2080. The ALJ held that these deficiencies were sufficiently serious to warrant the imposition of EEO reporting conditions, but not severe enough to warrant non-renewal. With regard to the misrepresentation/lack of candor issue, the ALJ concluded that the Church lacked candor, first, in describing the stations' minority recruitment program in its 1989 renewal applications and, second, in informing the Commission that knowledge of classical music was a requirement for the position of salesperson at the FM station. The ALJ further held that because this misconduct was largely the product of the actions of one individual without the involvement of top management officials, including the President of the Church and the CEO of the stations, and because the licensee had an overall exemplary record of compliance for many years, non-renewal was not called for. Accordingly, the ALJ imposed a forfeiture of $50,000 for willful and repeated violation of 47 C.F. R.  73.1015. Thereafter, the Review Board concluded that the ALJ's decision was fully supported by the record and Commission precedent. Upon appeal to the Commission, the Church argued that the holding that it did not comply with the Commission's EEO requirements violates its constitutional right to religious freedom by improperly evaluating its recruitment efforts and employment criteria in light of whether particular jobs were reasonably connected to the espousal of the Church's views. In response, the Commission pointed out that, where a job position has no substantial connection with program content or where the connection is with a program having no religious dimension, the Court of Appeals has held that enforcement of the Commission's EEO rules does not violate a licensee's First Amendment right to freedom of religious expression. While the Supreme Court subsequently held that an exemption from such EEO requirements for religious institutions with respect to the nonprofit activities of religious employers did not violate the Establishment Clause of the First Amendment, the Commission stated that the Court did not consider whether such an exemption is required by the Free Exercise Clause of the First Amendment and that Congress has not specifically exempted religious organizations from the Commission's EEO requirements. The Commission concluded that there is thus no basis for a conclusion that the Commission's failure to provide an absolute exemption for religious institutions in its EEO rules is unconstitutional. The Commission, agreeing with the ALJ and the Review Board that the Church's recruitment efforts were deficient, granted the Church's renewal applications for a full license term, subject to reporting conditions. Moreover, the Commission found that the two episodes of lack of candor normally would warrant imposition of the substantial forfeiture of $50,000, but because only one of the violations, which pertains to the representation that classical music was a job requirement at KFUO-FM, fell within the three year statute of limitations in effect at that time, the amount of the forfeiture was reduced to $25,000, the maximum permitted for a single violation of the Commission's rules. - 3 - Action by the Commission on January 28, 1997, by Memorandum Opinion and Order (FCC 97-21). Chairman Hundt, Commissioners Quello, Ness and Chong. - FCC - News Media contact: Meribeth McCarrick at (202) 418-0256.