NOTICE ************************************************************************* NOTICE ************************************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In re Applications of ) ) Prism Radio Partners, L.P. ) File Nos. BR-9600328WT ) BRH-960328WQ For Renewal of Licenses for Stations ) BRH-960328WR WWKY(AM), WVEZ(FM) and WTFX(FM) ) Louisville, Kentucky ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: August 29, 1996 Released: September 10, 1996 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) the above-referenced applications of Prism Radio Partners, L.P. ( Prism ) for renewal of the licenses for Stations WWKY(AM), WVEZ(FM) and WTFX(FM), Louisville, Kentucky, and (ii) supplemental information concerning Prism s Equal Employment Opportunity ("EEO") record provided by the licensee. 2. Review of the stations' renewal applications, annual employment reports, and the supplemental information submitted 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 of 1934, as amended, 47 U.S.C.  309(k). Further, we 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). However, for the reasons discussed below, we will grant renewal subject to reporting conditions and the issuance of a Notice of Apparent Liability for a forfeiture of $16,000 based on violations of our EEO Rule. II. DISCUSSION 3. Section 73.2080 of the Commission s Rules, 47 C.F.R.  73.2080, requires that a broadcast licensee refrain from employment discrimination 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 ongoing assessment of its EEO efforts. Such an assessment enables the licensee to take corrective action if qualified minorities and women are not represented in significant numbers in its applicant pools. The Commission also focuses on any evidence of discrimination by the licensee. See Sections 73.2080(a), (b), (c) of the Commission s Rules, 47 C.F.R.  73.2080(a), (b) and (c). Under our EEO Rule, licensees have an obligation to recruit for females and minorities for each vacancy. 4. Review of Prism s renewal applications and the supplemental information it has provided reveals that the stations had 60 hiring opportunities for full-time positions, including 47 for upper level positions, between June 1993, when Prism acquired the stations, until March 22, 1996. Prism reports that it maintained a standard list of recruitment sources throughout the period which included 21 agencies and educational institutions, including minority and women's organizations. The list also included a newspaper of general circulation, a local minority-oriented newspaper and internal station postings. The standard list was used in connection with 27 of Prism's hires. In the case of 10 additional hires, only a single outside source was used, including either a newspaper of general circulation, advertisements on Prism's stations or a temporary agency. In the case of 23 hires, no outside recruitment was documented. Prism did not utilize its EEO program for the most recent five hires during the review period, which occurred from October 25, 1995, to March 20, 1996. 5. The licensee had only 51 applicant/interview pools (39 upper-level) because multiple hires were made from some pools. The stations maintained records concerning the composition of 43 of the 51 applicant and interview pools. In the case of eight hiring pools in 1993 (six upper-level), however, Prism was unable to provide complete applicant/interviewee flow data. Prism's available records reflect that during the review period the stations had 529 applicants (313 for upper-level positions) and 173 interviewees (130 for upper-level positions). Of these, 18 applicants (10 for upper-level positions) and 13 interviewees (eight for upper-level positions) were minorities, and 266 applicants (104 for upper-level positions) and 99 interviewees (64 for upper-level positions) were female. Minorities were present in twelve (24%) of the 51 applicant pools (including eight (21%) of the 39 upper-level applicant pools) and 10 (20%) of the 51 interview pools (including seven (18%) of the 39 upper-level interview pools). Females were present in 37 (73%) of the 51 applicant/interview pools (including 25 (64%) of the 39 upper-level applicant/interview pools). The licensee reports that, during the review period, it hired two minorities (both Black) for upper-level positions; and 33 females, 22 for upper-level positions. 6. In its EEO Program Report submitted with the renewal applications, Prism conceded that it had difficulty in attracting minority applicants. It indicated that the General Manager met with the director of the local NAACP in January, 1996, to discuss the recruitment and referral of minority applicants. The EEO Program Report also indicated that the stations would host job fairs at a mall that has a heavy minority customer base. In a supplemental filing, Prism also asserted that it experienced difficulties because it frequently received applications in the mail that did not reflect the applicants' race or ethnic origin, so that Prism could not determine whether the applicants were minorities except for those it interviewed. Finally, Prism reported in its supplemental filing that, in view of its lack of success in recruiting minorities through "traditional channels", it had adopted a "direct action approach to minority recruitment." This consisted of offering jobs to minorities lacking in the usual qualifications for employment at the stations whom the stations' staff encountered and felt showed the potential to succeed in broadcasting careers with some training. As examples of this approach, Prism cited one full-time and two part-time hires. Prism indicated that it hired a salesman who worked for a client of the stations for a full-time sales position. This person was hired on March 20, 1996. On March 22, 1995, it hired an individual who worked as an attendant in the parking lot next to the station for a part-time lower-level position as Engineering Assistant. Thereafter, this individual's duties were expanded to include some engineering training. Finally, on March 4, 1996, Prism hired a university student who had applied for a sales position for a part-time lower-level position as Promotions Assistant. Prism did not modify its standard list of recruitment sources during the review period. 7. There are no substantial and material questions of fact warranting designation for hearing. Astroline Communications, Inc., 857 F. 2d 1556 (D.C. Cir. 1988). Moreover, there is no evidence of employment discrimination. Prism recruited, attracted and hired minorities during the license term. Accordingly, renewal of the stations licenses is in the public interest. 8. We find, however, that Prism s overall recruitment efforts with respect to minorities were deficient because the stations failed to recruit for 23 (38.3%) of the 60 full-time vacancies during the review period. Further, Prism contacted only a single general source for an additional 10 (16.7%) of the 60 vacancies, which was not a sufficient recruitment effort in view of the stations' difficulty in attracting minority applicants. Thus, it was able to attract only 18 minorities (3.4%) out of 529 applicants during the review period, and had only 13 minorities (7.5%) out of 173 interviewees. Moreover, minorities were present in only 12 (24%) of the stations' 51 hiring pools. Additionally, we find that Prism failed to adequately self-assess the effectiveness of its EEO Program. The licensee concedes that its efforts were inadequate. Despite its inadequate performance, the licensee did not reassess its standard list of recruitment sources. Moreover, it continued to fill vacancies without meaningful recruitment. In fact, there is no evidence that Prism engaged in any self-assessment until shortly prior to the filing of its renewal applications on March 28, 1996. It is reported that Prism's General Manager met with a representative of the local NAACP in January 1996. Nonetheless, even after that meeting, Prism continued to fill vacancies without recruitment and made no reported changes in its standard list of recruitment sources. Prism contends that its ability to self-assess the effectiveness of its EEO program was impaired since many applications received by mail did not indicate the applicant's racial or ethnic identity. However, there is no indication that Prism made any effort to address this problem. Our EEO Rule requires that licensees address any problems encountered in the implementation of their EEO program. See 47 C.F.R.  73.2080(c)(5). 9. It also appears that, although it had not previously engaged in serious recruitment or self-assessment efforts, Prism concluded as a result of its late-term self-assessment that it was in fact unable to successfully recruit by what it characterizes as "traditional" channels. It proposed to rely instead on the occasional hiring of minorities as a result of random encounters. However, while we encourage broadcasters to be creative in their outreach efforts, this process could, at best, serve as a supplement to the ongoing efforts to attract minority and female applicants for all vacancies required by our EEO Rule. Moreover, it would be difficult to assess the adequacy of recruitment through random, informal encounters of uncertain frequency. Finally, we emphasize that our EEO Rule is based on efforts to recruit minority and female applicants and does not establish a hiring quota or goal. 10. After carefully reviewing the facts of this case, we find that the record in the instant case is similar to that of KUTR(AM)/KCPX-FM, Salt Lake City, Utah, in Price Broadcasting Company, 11 FCC Rcd 3620 (1996). KUTR(AM)/KCPX-FM failed to recruit for 30 (73%) of 41 vacancies. Further, we found that the licensee of KUTR(AM)/KCPX-FM failed to adequately self-assess the effectiveness of its EEO program, since it failed to maintain adequate records. Finally, we found that the licensee's deficient EEO performance was aggravated by the submission of inconsistent information in its filings. We renewed the licenses of KUTR(AM)/KCPX-FM subject to reporting conditions and issued a Notice of Apparent Liability to the licensee for $16,500. 11. In the instant case, we find that Prism's EEO record is comparable to that of KUTR(AM)/KCPX-FM, except that the aggravating factor of inconsistent submissions is not present here. Prism failed to adequately recruit for 33 (55%) of its 60 vacancies. While KUTR(AM)/KCPX-FM failed to recruit for a greater percentage of its hires, Prism had more hiring opportunities and its labor force included a higher percentage of minorities. Further, the licensee of KUTR(AM)/KCPX-FM claimed that the stations had recruited, but was unable to document those efforts due to a lack of records. Prism's records are more complete, but they nevertheless affirmatively establish its recruiting failures. Moreover, Prism failed to utilize its EEO program for five vacancies at the end of the review period, even though it was aware of its previous inadequate results. Accordingly, we find Prism's continuing failure to recruit of comparable seriousness to that of KUTR(AM)/KCPX-FM. Prism also failed to adequately self- assess the effectiveness of its EEO efforts, as did the licensee of KUTR(AM)/KCPX-FM. As noted, Prism, for the most part, maintained adequate records. However, it failed to use them as part of ongoing, meaningful self-assessment efforts throughout the review period. Accordingly, we conclude that the issuance of a Notice of Apparent Liability in the amount of $16,000 is appropriate. III. CONCLUSION 12. Upon review of the record, we find that no hearing is warranted. Accordingly, finding the licensee to be otherwise qualified, we will grant Prism's renewal applications. However, because we find that Prism failed to recruit and self-assess the effectiveness of its EEO efforts as required by our EEO Rule, we will issue a Notice of Apparent Liability for $16,000. Further, we will impose reporting conditions to monitor the stations prospective EEO performance. IV. ORDERING CLAUSES 13. Accordingly, IT IS ORDERED that the license renewal applications of Prism Radio Partners, L.P., for Stations WWKY(AM), WVEZ(FM) and WTFX(FM) ARE GRANTED subject to the reporting conditions specified herein, and pursuant to Section 503, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $16,000. 14. IT IS FURTHER ORDERED that the licensee of Stations WWKY(AM), WVEZ(FM) and WTFX(FM) submit to the Commission an original and one copy of the following information on April 1, 1997, April 1, 1998, and April 1, 1999: (a) Two lists divided by full-time and part-time job vacancies during the twelve months preceding March 1, 1997, for the first report, March 1, 1998, for the second report, and March 1, 1999 for the third report, indicating the job title and FCC job category, date of hire, the race or national origin, sex and the referral source of each applicant for each job and the race or national origin and sex of the person hired. The list should also note what recruitment sources were contacted; (b) A list of employees as of the March 1, 1997, payroll period, for the first report, the March 1, 1998, payroll period, for the second report, and the March 1, 1999, payroll period, for the third report, by job title, 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 station's efforts to recruit minorities for each position filled during each respective 12-month period specified, including identification of sources used and indicating whether any of the applicants declined actual offers of employment. In addition, the licensee may submit any information it believes relevant regarding the station's EEO performance and its efforts thereunder. 15. The reports are to be filed with the Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 16. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- a copy of this Memorandum Opinion and Order and Notice of Apparent Liability to Prism Radio Partners, L.P. 17. 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. Section 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