******************************************************** 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. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) Maumee Valley Broadcasting, Inc. ) File Nos. BR-960524WM ) BRH-960524WL For Renewal of Licenses of ) Stations WONW(AM)/WZOM-FM ) Defiance, Ohio ) MEMORANDUM OPINION AND ORDER Adopted: March 14, 1997 Released: March 20, 1997 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) the license renewal applications for Stations WONW(AM)/WZOM-FM, Defiance, Ohio; (ii) a Petition to Deny timely filed on September 3, 1996, by the Southern Region of the National Rainbow Coalition ("Rainbow"); (iii) the licensee's opposition to the petition; and (iv) Rainbow's reply to the licensee's opposition. 2. Rainbow alleges that WONW(AM)/WZOM-FM have violated our Equal Employment Opportunity ("EEO") Rule and policies. It accordingly requests that we conduct an investigation of the stations' employment practices pursuant to Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC, 595 F.2d 621 (D.C. Cir. 1978) and designate the renewal applications for hearing. The licensee contends that Rainbow has failed to establish any violations of our EEO requirements and urges that its renewal applications be granted forthwith. 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. In addition, the petitioner must, as a threshold matter, submit specific allegations of fact sufficient to show that a grant of the application would be prima facie inconsistent with the public interest. 47 U.S.C.  309(d)(1); Astroline Communications Co. Ltd. Partnership v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) ("Astroline"). 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. Standing. Submitted with Rainbow's petition to deny was a declaration under penalty of perjury from Norma King, a Rainbow member who resides in Toledo, Ohio. Ms. King states that she is a regular listener of Stations WONW(AM) and WZOM-FM and that she would be seriously aggrieved if the petition is not granted. The licensee challenges Rainbow's standing, asserting that Ms. King's residence in Toledo is approximately 45 miles from Defiance and, as such, is well beyond either station's coverage area. It notes, in this regard, that WONW(AM) operates on 1280 kHz, with a power of 1 kW daytime and 500 W directional at night. This station, the licensee says, "clearly does not provide a listenable signal to Toledo." The licensee also argues that the signal of WZOM-FM, a Class A station, does not get close to Toledo. In support of this argument, the licensee submits a copy of WZOM-FM's coverage map, as it appears in the Commission's files, and observes that "Toledo is so far distant that it does not even appear on the map, let alone fall within the station's coverage." In reply, Rainbow avers that its Toledo Chapter serves the entire metropolitan area, including Defiance, and that Ms. King "listens to the stations as she travels throughout the area served by the Chapter." 5. We conclude that Rainbow has failed to establish standing to file a petition to deny the license renewal applications for WONW(AM)/WZOM-FM. Although Rainbow maintains that Ms. King listens to the stations as she travels throughout the area served by its Toledo Chapter, this is insufficient to establish standing. We have previously stated that we accord party in interest status "to residents of a station's service area, not to transients." National Broadcasting Co., Inc., 11 FCC Rcd 10779, 10780 (1996) (upholding the dismissal of a petition to deny the license renewal application for WNBC-TV, New York, New York, for lack of standing where the petitioner contended that he regularly viewed the station during his frequent travels to New York City). See also Kaye-Smith Enterprises, 66 FCC 2d 91, 92 (1977) (dismissing a petition to deny the renewal applications for WUBE/WUBE-FM, Cincinnati, Ohio, for lack of standing where the petitioner, a resident of Spokane, Washington, alleged that he made periodic visits to the stations in his capacity as engineering director for a subsidiary of the licensee). 6. We note that in NAB Petition for Rulemaking, 82 FCC 2d 89 (1980), we stated that "[a]ny individual may qualify as a party in interest if he alleges that he is a listener or viewer of the station in question or that he resides within the station's service area." Id. at 98 (emphasis added). Because the standard we apply here, which we conclude is the correct one, is inconsistent with that statement, we hereby overrule our earlier statement. Broadcast licensees are responsible for serving the needs of residents within their service areas, and it is consistent with this principle to require petitioners to deny seeking to represent the interests of their members to show that one or more of the members listens to or views a station and resides within its service area. See generally Office of Communication of United Church of Christ, 359 F.2d 994, 1005-1006 (D.C. Cir. 1966). Since Ms. King has failed to achieve standing in her own right, she cannot confer organizational standing on Rainbow, and we will dismiss its petition to deny. Nevertheless, we will treat the petition as an informal objection pursuant to Section 73.3587 of the Rules, 47 C.F.R.  73.3587. 7. Prima Facie Case. 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. 8. Subsequent review of all matters presented leads us to conclude that there are no substantial and material questions of fact 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). We also find no evidence of employment discrimination. Thus, because the licensee is otherwise qualified, grant of the applications will serve the public interest. 47 U.S.C.  309(d)(2); Astroline. However, for the reasons that follow, we will grant renewal subject to an admonishment. III. DISCUSSION 9. 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). 10. A review of the licensee's 1996 EEO Program Report and opposition reveals that the licensee filled six full-time vacancies, all upper-level, between January 1, 1994 and September 30, 1996. The licensee states that it contacted the following ten recruitment sources for each of these vacancies: Latin American Club, National Organization of Women, Business & Professional Women, American Association of Women in Radio/TV, NAB Employment Clearinghouse, Ohio Association of Broadcasters, Ohio Bureau of Employment Services, University of Toledo, Bowling Green State University, and Northwest State Community College. The licensee also claims that it aired a minimum of 50 60-second announcements on both stations announcing each of the vacancies and stating that it is an equal opportunity employer. The licensee does not indicate how many applicants its recruitment efforts generated, but it does report that it did not attract any minority applicants for the six vacancies. 11. Rainbow asserts that the statistical record of these stations is troubling. According to Rainbow, "[s]uch a record, in any one year, might mean little, but when carried throughout the entire license term, it is suggestive of discrimination or at least inattention to EEO responsibilities." 12. The licensee argues in response that Rainbow has presented no evidence that it has discriminated or failed to comply with Commission policies on employment. The licensee claims that it actively recruits Hispanics, the largest minority group in the local labor force, and other minorities for each vacancy by contacting the only Hispanic organization in the area as well as other sources likely to produce minority applicants. In addition, the licensee contends that it self-assesses regularly by reviewing its list of recruitment sources to see if others could be added. The licensee points out that Defiance County has a very small minority population, with Hispanics making up only 5.6% of the workforce and no other minority group having a significant presence in the workforce. It further notes that the stations have had little turnover. Citing Holiday Broadcasting Company, 10 FCC Rcd 4500 (1995), the licensee asserts that the Commission has recognized that a small minority workforce and low staff turnover are significant factors in assessing a station's compliance with the EEO Rule and policies. 13. Based on the foregoing, we find no substantial and material questions of fact warranting designation for hearing. See Astroline. Further, we find no evidence that the licensee engaged in employment discrimination. The licensee recruited for all of its vacancies using ten recruitment sources, including one minority source. We also note that the licensee had only six hiring opportunities over a three-year period and is located in an area with only a 7.8% minority labor force. Therefore, renewal of the stations' licenses is in the public interest. 14. We find, however, that the licensee's efforts to self-assess its EEO program were inadequate. The licensee's failure to attract even a single minority applicant for its six full-time vacancies indicates that greater efforts were warranted to seek out additional recruitment sources likely to refer Hispanics and other minority applicants. Accordingly, we admonish the licensee for failing to adequately self-assess its EEO program to address the absence of Hispanics and other minorities from its applicant pools. IV. ORDERING CLAUSES 15. Accordingly, IT IS ORDERED that the Petition to Deny filed by the National Rainbow Coalition concerning the license renewal applications for Stations WONW(AM)/WZOM- FM IS DISMISSED, and, when considered as an Informal Objection, IS DENIED. 16. IT IS FURTHER ORDERED that the license renewal applications filed by Maumee Valley Broadcasting, Inc. for Stations WONW(AM)/WZOM-FM ARE GRANTED. 17. IT IS FURTHER ORDERED that the licensee of Stations WONW(AM)/WZOM- FM IS ADMONISHED for failing to adequately self-assess its EEO program to address the absence of Hispanics and other minorities from its applicant pools, as required by the Commission's EEO Rule, 47 C.F.R.  73.2080. 18. IT IS FURTHER ORDERED that the Mass Media Bureau send copies of this Memorandum Opinion and Order by Certified Mail -- Return Receipt Requested -- to the National Rainbow Coalition and the licensee of Stations WONW(AM)/WZOM-FM. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary