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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission FCC 97-150 Before the Federal Communications Commission Washington, D.C. 20554 In re Applications of ) ) Pathfinder Communications Corporation ) ) For Renewal of Licenses for ) File Nos. BR-960329B7 Stations WHWD(AM)/WMEE-FM ) BRH-960404ZA Fort Wayne, Indiana ) ) and ) ) JAM Communications, Inc. ) ) For Renewal of License of ) File No. BRH-960401B4 Station WQHK-FM ) Decatur, Indiana ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: May 1, 1997 Released: June 10, 1997 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) license renewal applications for WHWD(AM)/WMEE-FM and WQHK-FM (collectively referred to as "the stations"); (ii) a Petition to Deny jointly filed by the National Rainbow Coalition ("Rainbow") and Operation PUSH (collectively referred to as "petitioners"); (iii) an opposition jointly filed by Pathfinder Communications Corp., licensee of WHWD(AM)/WMEE-FM, and JAM Communications, Inc., licensee of WQHK-FM (collectively referred to as "the licensee"); (iv) the licensee's response to a staff letter of inquiry; and (v) reply comments. II. BACKGROUND/PLEADINGS 2. The petitioners allege that the stations violated our Equal Employment Opportunity ("EEO") Rule, 47 C.F.R.  73.2080. Accordingly, they request that we 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), and designate the renewal applications for hearing. The licensee argues that the petitioners have failed to establish any violations of our EEO requirements and that unconditional renewal of the licenses should be granted. 3. In challenging an application pursuant to Section 309(d) of the Communications Act of 1934, as amended, a petitioner must, as a threshold matter, submit "specific allegations of fact sufficient to show that the petitioner is a party in interest and that a grant of the application would be prima facie inconsistent with [the public interest, convenience, and necessity]." 47 U.S.C.  309(d)(1); Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (Astroline); Dubuque T.V. Limited Partnership, 4 FCC Rcd 1999 (1989). The allegations, except for those of which official notice may be taken, must be supported by an affidavit of a person or persons with personal knowledge of the facts alleged. 47 U.S.C.  309(d)(1). 4. Submitted with the petition is a statement under penalty of perjury by an Operation PUSH member who affirms that he is a regular listener of the stations and resides within the stations' service areas and would be aggrieved if the petition is not granted. We find that this declaration meets our requirements for standing. See NAB Petition for Rulemaking, 82 FCC 2d 89, 98-99 (1980) (NAB Petition), as modified by Maumee Valley Broadcasting, Inc., FCC 97-96, released March 20, 1997, pet. for recon. pending. Accordingly, we hold that Operation PUSH has established party in interest status. However, Rainbow did not file a declaration. We therefore find that Rainbow has failed to establish petitioner status. See NAB Petition. Accordingly, we will dismiss Rainbow as a petitioner. See 47 U.S.C.  309(d)(1); 47 C.F.R.  73.3584(d). 5. Operation PUSH derived its factual allegations from the licensee's EEO program and annual employment reports. As a threshold matter, we found that Operation PUSH presented a prima facie case demonstrating that grant of the renewal applications would have been inconsistent with the public interest. See Section 309(d)(1) of the Communications Act of 1934, 47 U.S.C.  309(d)(1); Astroline. 6. Review of Operation PUSH's allegations, as well as the licensee's pleadings, lead us to conclude that there are no substantial and material questions of fact warranting designation for hearing. Further, we find no evidence of employment discrimination. However, we will impose appropriate remedies and sanctions for deficiencies in the stations' EEO program. III. DISCUSSION 7. Section 73.2080 of the Commission's Rules 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 to 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 and interviewee pools. The Commission also focuses on any evidence of discrimination by the licensee. See Section 73.2080, subsections (a), (b), and (c) of the Commission's Rules, 47 C.F.R.  73.2080(a)-(c). 8. The stations' renewal applications, opposition, and inquiry response reveal that the licensee filled 31 permanent full-time vacancies, all for upper-level positions, from August 1, 1993, to August 1, 1996. The licensee indicates that it recruited for all 31 vacancies during the inquiry period and used eight minority sources, seven educational sources, two female sources, and seven general recruitment sources for each vacancy. The licensee did not maintain records of minority referrals from its sources. For the period from April 1993 to April 1996, the licensee reports that it received 575 applications for all of its vacancies, including part-time and temporary positions which it did not identify, and that at least 15 of these applications were from minorities (eight Blacks, four Hispanics, and three Asians). 9. Although the licensee maintained some records on the race of applicants and interviewees during the inquiry period, it did not do so in all cases until September 1995, when it initiated a monthly self-assessment of the stations' EEO performance. Hence, the licensee reports complete applicant and interviewee information for only 12 of its 31 permanent full-time vacancies. This information reveals that the stations attracted 197 applicants for full-time employment, including six minorities, and interviewed 77 applicants, including four minorities, for the 12 positions. Although the licensee's records indicate that minorities were present in four applicant and interview pools, the licensee also reports that it hired two minorities (one Hispanic and one Asian), for which complete applicant and interviewee data were not reported. Thus, minorities were in at least six of the 31 applicant and interview pools. Further, the licensee states that it began participating in the Federated Media Minority Intern Program in September 1994 and in December 1994 offered permanent full-time employment to a Black intern from this source, who declined the offer. 10. Operation PUSH faults the stations for failing to hire any minorities during the reporting year, March 1, 1995 to February 29, 1996. According to Operation PUSH, this alleged deficiency suggests that the licensee engaged in discrimination. Operation PUSH also criticizes the licensee for its "confused and uninformed" inquiry response and suggests that the Commission undertake a site visit to gain more data. Further, it urges the Commission to discount the licensee's recruitment list since it is dated after the conclusion of the license term and thus apparently did not exist until then. 11. Although one of the copies of the licensee's recruitment list is dated August 1996 (the end of the stations' license term), we note that in its FCC Form 396 dated March 20, 1996, the licensee reported using substantially the same recruitment sources from March 1, 1995 to February 29, 1996, its reporting year. Hence, we will accept the licensee's recruitment list as valid during its license term. With respect to Operation PUSH's contention concerning the number of minorities hired by the stations during the reporting year, we note that our primary focus is on the licensee's EEO efforts. Our EEO Rule does not require licensees to employ a specific number of minority employees. See Amendment of Part 73 of the Commission's Rules Concerning Equal Employment Opportunity in the Broadcast Radio and Television Services, 2 FCC Rcd 3967 (1987). See alsoImplementation of Commission's Equal Employment Opportunity Rules, 9 FCC Rcd 2047 (1994). 12. After reviewing the stations' records, we find no substantial and material questions of fact sufficient to warrant a hearing. See Astroline. Moreover, we conclude that there is no evidence of employment discrimination. The licensee recruited minorities and included minorities in its applicant and interview pools. 13. While we recognize that the licensee participates in a minority intern broadcast training program and that the licensee, since September, 1995, has begun to maintain more complete records, we find the licensee's program efforts during the entirety of its license term inadequate. The licensee failed to maintain documentation regarding the minority referrals generated by its recruitment sources during most of that term. Further, the stations did not maintain complete applicant and interviewee records for each vacancy. Such information is essential for conducting meaningful self-assessment as required by Section 73.2080(c)(5) of our rules. 14. We find that the record in the instant case is similar to the record involving the licensee of stations KDYL(AM)/KSFI-FM, Salt Lake City, Utah. See Holiday Broadcasting Company, 10 FCC Rcd 4500 (1995); recon. denied, 11 FCC Rcd 1125 (1996). There, we granted stations KDYL(AM)/KSFI-FM full-term renewal subject to reporting conditions, and issued an $8,000 Notice of Apparent Liability. Stations KDYL(AM)/KSFI-FM hired 16 full-time employees during its review period. The relevant labor force included 7.5% minorities. KDYL(AM)/KSFI-FM reported that it recruited for 14 of the 16 vacancies, but attracted only one minority applicant. The Commission found that the licensee's shortcomings in attracting qualified minority applicants and its failure to keep complete EEO records until the last two years of the license term evidenced inadequate self-assessment as required by the Commission's EEO Rule. 15. Stations KDYL(AM)/KSFI-FM and WHWD(AM)/WMEE-FM/WQHK-FM are located in areas where minorities constitute similar percentages of the local labor force, 7.5% and 8.1%, respectively. Both licensees made recruitment efforts. The licensee of KDYL(AM)/KSFI-FM recruited for almost 90% of its openings, while the licensee of WHWD(AM)/WMEE-FM and WQHK-FM recruited for all of its vacancies. Notwithstanding their recruitment efforts, neither licensee was successful in attracting minorities to a significant percentage of their applicant or interviewee pools. Although more of the stations' applicant/interviewee pools included minorities than did those of KDYL(AM)/KSFI-FM (six and one, respectively), WHWD(AM)/WMEE-FM and WQHK-FM had more hiring opportunities than KDYL(AM)/KSFI-FM (31 and 16, respectively). Also, the records of both licensees reveal that they failed to maintain adequate EEO records and to conduct meaningful self-assessment of their EEO programs. However, WHWD(AM)/WMEE-FM and WQHK-FM did not maintain any records of minority referrals while KDYL(AM)/KSFI-FM reported some referral data. In view of all of the foregoing factors and broadcasters' longstanding familiarity with our EEO Rule, we find that a notice of apparent liability for forfeiture in the amount of $8,000 is warranted, as well as reporting conditions to ensure that the licensee improves its self- assessment. We do not grant renewal of the licenses at this time because of other pending matters. IV. ORDERING CLAUSES 16. Accordingly, IT IS ORDERED that the National Rainbow Coalition IS DISMISSED for lack of standing as a party to the Petition to Deny the renewal applications of Stations WHWD(AM)/WMEE-FM and WQHK-FM . 17. IT IS FURTHER ORDERED that the Petition to Deny filed by Operation PUSHconcerning the renewal applications of Stations WHWD(AM)/WMEE-FM and WQHK-FM IS DENIED. 18. IT IS FURTHER ORDERED that Stations WHWD(AM)/WMEE-FM and WQHK- FM are subject to reporting conditions as described 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 $8,000. 19. IT IS FURTHER ORDERED that the licensee submit to the Commission an original and one copy of the following information on April 1, 1998, April 1, 1999, and April 1, 2000: (a) For each report, two lists divided by full-time and part-time job vacancies during the 12 months preceding March 1, 1998, for the first report, March 1, 1999, for the second report, and March 1, 2000, 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 and interviewee for each job and the race or national origin and sex of the person hired. The lists should also note which recruitment sources were contacted; (b) A list of employees as of the March 1, 1998, payroll period for the first report, a list of employees as of the March 1, 1999, payroll period for the second report, and a list of employees as of the March 1, 2000, payroll period for the third report, by job title and FCC job category indicating full-time or part-time status (ranked from the highest paid classification), date of hire, sex and race or national origin; and (c) Details concerning the stations' efforts to recruit minorities for each position filled during the 12-month periods 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 stations' EEO performance and their efforts thereunder. 20. IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Orderbe sent by Certified Mail -- Return Receipt Requested -- to the licensee, Operation PUSH and the National Rainbow Coalition. 21. The reports are to be filed with the Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch, Enforcement Division. 22. 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 Memorandum Opinion and 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