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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission FCC 97-132 Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) ) The Pikes Peak Broadcasting Company ) File No. BRCT-921201LR ) For Renewal of License for ) Station KRDO-TV ) Colorado Springs, Colorado ) ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: April 10, 1997; Released: April 16, 1997 By the Commission: 1. The Commission has before it for consideration: (i) a license renewal application for the above-captioned television station in Colorado Springs, Colorado; (ii) a Petition to Deny that application timely filed by the Colorado Springs Minority Coalition ("Coalition"); (iii) an opposition filed by the licensee; and (iv) the licensee's response to a staff inquiry. 2. The Coalition alleges that the above-captioned station violated our Equal Employment Opportunity (EEO) Rule and policies. Accordingly, it requests that we conduct an investigation of the station's employment practices pursuant to Bilingual Bicultural Coalition on Mass Media v. FCC, 595 F.2d 621 (D.C. Cir. 1978) (Bilingual) and designate the renewal application for hearing. The licensee states that the Coalition has presented no evidence of discrimination, that the record indicates compliance with the Commission's EEO Rule, and that unconditional renewal is warranted. Background/Pleadings 3. Standing. In challenging an application pursuant to Section 309(d) of the Communications Act, a petitioner must demonstrate party in interest status. 47 U.S.C.  309(d)(1); Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (Astroline). The allegations, except for those of which official notice may be taken, must be supported by the affidavit of a person with knowledge of the facts alleged. 47 U.S.C.  309(d)(1). 4. Submitted with the petition were declarations under penalty of perjury from the Coalition's Co-Chairmen who state that they are regular viewers of KRDO-TV, and that they would be aggrieved if the petition is not granted. One of the co-chairmen also lists Colorado Springs as his address on his declaration. The licensee of KRDO-TV challenges the Coalition's standing to petition to deny the instant renewal application. First, KRDO-TV contends that because the petition purports to be based on a study conducted by the NAACP, it should be rejected due to the absence of an affidavit from a member of that organization. Second, the licensee challenges the validity of the supporting declarations provided by the Coalition, arguing that standing should be denied because the declarants did not supply the information included in the petition. Third, the licensee states that the fact that the declarants are regular viewers of the station "is totally irrelevant and does not provide standing." Finally, the licensee claims that neither declarant has shown that he would be aggrieved by the grant of KRDO-TV's renewal application, as neither one claims to have applied for a position at the station or states that he intends to do so in the future. 5. In addition, the licensee of KRDO-TV contends that the Commission should not grant standing to the Coalition "[u]ntil and unless the Coalition can establish the validity of that organization and its charges...." Further, the licensee reasons that, as the petitioner has never complained about its EEO program before, the Commission should not undertake an investigation without a showing of discrimination. Finally, the licensee argues that the petitioner "must demonstrate an 'ongoing' dialogue" with stations and that the Commission should act in response to a petition only if "matters discussed in that dialogue ha[ve] been rejected or ignored." 6. The Commission has granted standing, notwithstanding a lack of information about petitioning groups, upon finding that one or more members of the petitioning group has standing. Here, the Coalition's co-chairman has established that he resides in Colorado Springs and regularly views the station. Thus, we find the Coalition has standing. NAB Petition for Rulemaking, 82 FCC 2d 89, 100 (1980). Further, we reject the licensee's arguments that the Coalition is required to establish its legitimacy prior to filing a petition to deny a renewal application. Similarly, we reject the licensee's suggestion that the Commission abstain from investigating a licensee's EEO record until the licensee and petitioner have engaged in "ongoing dialogue." It is the Commission's practice in all cases to review a station's EEO program and performance pursuant to Section 309 of the Communications Act of 1934, as amended, 47 U.S.C.  309. See, e.g., New England Radio Corporation, 8 FCC Rcd 8203 (1993). In sum, we find that the Coalition has standing in the instant case. 7. Prima Facie Case. The Coalition derived its factual allegations from the licensee's EEO program and annual employment reports. As a threshold matter, we found that the Coalition made a prima facie showing that grant of the renewal application would have been inconsistent with the public interest. See Section 309(d)(1) of the Communications Act, 47 U.S.C.  309(d)(1); Astroline. 8. Review of the Coalition's allegations, as well as the licensee's renewal application, opposition and inquiry response, leads us to conclude that there are no substantial and material questions of fact warranting designation for hearing. In addition, we find no evidence of employment discrimination. Grant of the application is consistent with Section 309(k) of the Communications Act of 1934, as amended, 47 U.S.C.  309(k). Thus, because the licensee is otherwise qualified, grant of the application will serve the public interest. 47 U.S.C.  309(d)(2). However, for the reasons discussed below, we grant renewal subject to reporting conditions and a Notice of Apparent Liability for $11,000. Discussion 9. Section 73.2080 of the Commission's Rules requires that a broadcast licensee refrain from employment discrimination and establish and maintain an equal employment opportunity 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 pools. The Commission also focuses on any evidence of discrimination by the licensee. See 47 C.F.R.  73.2080(a), (b), and (c). 10. Review of the licensee's renewal application, inquiry response, and opposition reveals that the station filled 53 full-time vacancies, including 43 upper-level positions, from November 3, 1989, to November 3, 1992. The station could document recruitment for 24 of its 53 (45.3%) hiring opportunities. Where recruitment occurred, the station contacted between one and nine general sources, one or two women's organizations, and one or two minority-oriented sources. 11. KRDO-TV did not maintain applicant or interview data for 34 (64.2%) positions. For those positions for which it had records, the licensee attracted 26 (5.8%) minorities out of 448 applicants overall, including 21 (9.5%) minorities out of 220 applicants for upper-level positions. Minorities were included in 17 (32.0%) of the station's applicant and interview pools, 12 (27.9%) of which were for upper-level positions. All minority applicants were interviewed, and they constituted 20.5% of 127 interviewees overall. Twenty-one (25.0%) minorities were among 84 candidates interviewed for upper-level positions. During the review period, the station reports hiring ten (18.9%) minorities, seven (13.2%) of whom were hired for upper-level positions. 12. The Coalition contends that the licensee's Annual Employment Reports and its renewal application indicate that the station has an "abysmal record" of minority hiring. First, the Coalition claims that KRDO-TV did not employ minorities at a rate equal to 50% of their presence in the labor force during any year of the license term except 1989. Further, the Coalition faults the station for failing to employ any minorities in part-time positions during the license term. In addition, according to the Coalition, the station's 1987 renewal application suggests a deficient program, as the licensee indicated that only one minority source was contacted and that only one out of 21 hires in 1987 was a minority. Thus, the Coalition concludes, the station should have been on notice as far back as 1987 that its EEO program needed improvement. With respect to KRDO-TV's current license renewal application, the Coalition notes that the station reported receiving only nine minority referrals, contacting only one minority-oriented source and hiring only one minority out of 18 hires between November 3, 1991, and November 3, 1992. Finally, the Coalition contends that the licensee's failure to complete an optional section of the renewal application -- in which licensees may provide additional information about their EEO efforts -- is evidence of a violation of the Commission's EEO Rule. 13. In response, the licensee contends that its entire minority employment record should be considered, rather than just the two-week reporting periods reflected on its Annual Employment Reports. Further, the licensee argues that it should be credited for 13 offers of employment it claims to have made to minorities who refused them. Additionally, the licensee has amended its renewal application to reflect three upper-level minority hires among 22 hires overall (16 upper-level) between November 3, 1991, and November 3, 1992, rather than the 18 overall hires, including one minority, that it originally reported. Thus, the licensee contends, based on the foregoing, its EEO record is better than it may appear at first glance. Finally, the licensee argues that because Section VIII of the renewal application is voluntary, the station's EEO program should not be considered defective as a result of its decision not to complete this section. 14. The Coalition submitted to the Commission on March 13, 1996, a newspaper article containing allegations about KRDO-TV personnel and policies. The Coalition asked that the article be considered as evidence in connection with the petition to deny. Hearsay, such as that contained in newspaper articles, is not reliable evidence. See RKO General, Inc. v. FCC, 670 F.2d 215 (D.C.Cir. 1981), cert. denied, 456 U.S. 927 (1982); Rothschild Broadcasting, Inc., 10 FCC Rcd 7226, 7227 (1995). Furthermore, a newspaper article is not an acceptable substitute for the requirement of Section 309(d) of the Communications Act that allegations in a petition to deny be supported by the affidavit of a person with personal knowledge of the facts alleged. See Table of Allotments, FM, Clermont and Cocoa, FL, 4 FCC Rcd 8320, 8323 (1989). Consequently, we will not consider the newspaper article submitted by the Coalition on March 13, 1996, as evidence. 15. There are no substantial and material questions of fact warranting designation for hearing. See Astroline. Moreover, there is no evidence that the licensee engaged in employment discrimination. The record indicates that the licensee attracted and hired minorities. 16. Additionally, we find baseless the Coalition's charge that the licensee's failure to complete an optional section of the renewal application amounts to evidence of a violation of the Commission's EEO Rule. A broadcaster can provide in the optional section of the renewal application additional information which may be helpful in assessing a station's EEO program. However, we do not view the absence of such information as an indication of noncompliance with the Commission's EEO Rule and policies. Also, we find the Coalition's argument regarding the station's 1987 renewal application to be irrelevant, as the information contained in that application concerns efforts the licensee made during the previous license term. 17. Nevertheless, we find KRDO-TV's overall EEO efforts during the most recent license term deficient. The station apparently recruited for less than half of its vacancies and minorities apparently were absent from 36 (67.9%) of the station's 53 applicant and interview pools. Further, we find that the station failed to maintain adequate records for meaningful self-assessment. 47 C.F.R.  73.2080. 18. Regarding the licensee's request that we consider its entire minority employment record, rather than just its annual employment reports, we note that we have considered the minority employment record, including the 13 rejected offers of employment made to minorities, in determining that there is no evidence of discrimination. However, our review of the licensee's recruitment program focuses primarily on efforts and we do not require licensees to employ a minimum percentage of minorities. See Channel 5 Public Broadcasting, Inc., 10 FCC Rcd 10388, 10389 (1995). See also, Amendment of Part 73 of the Commission's Rules Concerning Equal Employment Opportunity in the Broadcast Radio and Television Services, 2 FCC Rcd 3967, 3974 (1987). Furthermore, we compare a licensee's minority employment with the presence of minorities in the relevant labor force only as part of the preliminary analysis of a licensee's EEO performance, not as a numerical goal. 19. The record in the instant case is similar to that of the licensee of KTKA-TV, Topeka, Kansas, in Northeast Kansas Broadcast Service, Inc., 11 FCC Rcd 4083 (1996); (Notice of Forfeiture Issued) FCC 97-46 (released February 19, 1997). The licensee therein is located in a labor force that was 12.4% minority. It recruited for 35 of its 62 hires (56.5%). The licensee maintained applicant or interview data for only 26 (41.9%) of its openings. Twenty-seven (4.2%) of its 643 applicants were minorities, who were included in 19 of 62 applicant pools (30.7%). Furthermore, 18 of 102 interviewees (17.7%) were minorities, who were present in 13 interview pools (21%). In that case, because the licensee failed to self-assess its recruitment efforts and failed to recruit for 43.5% of its vacancies, we renewed the station's license subject to reporting conditions and issued a Notice of Apparent Liability for $11,000. 20. Stations KTKA-TV and KRDO-TV are located in areas with similarly-sized minority labor forces (12.4% and 13.4%, respectively). Neither licensee contacted recruitment sources for every hiring opportunity. Both licensees failed to maintain complete applicant or interview data. Such documentation is necessary for the ascertainment of efforts as well as for adequate self- assessment of an EEO program. In addition, both licensees had similar percentages of minority applicants (4.2% for KTKA-TV and 5.8% for KRDO-TV) and similar percentages of applicant pools containing minorities (30.7% and 32.1%, respectively). Both also had similar percentages of minority interviewees (17.7% for KTKA-TV and 20.5% for KRDO-TV). Furthermore, although KTKA-TV recruited for a slightly higher percentage of openings (56.5% compared with KRDO- TV's 45.3%), KRDO-TV included minorities in a higher percentage of interview pools (32.1% compared with 21% for KTKA-TV). Given the facts of this case and broadcasters' familiarity with our long-standing EEO Rule, we feel that the circumstances here justify issuance of a Notice of Apparent Liability for Forfeiture for $11,000. Accordingly, we will issue a Notice of Apparent Liability for Forfeiture for $11,000. Also, to ensure that better efforts are taken with respect to its EEO program, we will impose reporting conditions on KRDO-TV. Ordering Clauses 21. Accordingly, IT IS ORDERED that the Petition to Deny filed by the Colorado Springs Minority Coalition against the renewal application of KRDO-TV IS DENIED. 22. IT IS FURTHER ORDERED that, the license renewal application for Station KRDO- TV IS GRANTED, subject to the reporting conditions specified herein, and, pursuant to Section 503 of the Communications Act of 1934, as amended, a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $11,000. 23. IT IS FURTHER ORDERED that the licensee of Station KRDO-TV submit to the Commission an original and one copy of the following information on December 1, 1997: (a) Two lists divided by full-time and part-time job vacancies during the twelve months preceding November 1, 1997, 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 which recruitment sources were contacted; (b) A list of all employees as of the November 1, 1997, payroll period 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 station's efforts to recruit minorities for each position filled during the 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. 24. 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 Colorado Springs Minority Coalition and the licensee. 25. The report is to be filed with the Acting Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 26. 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