******************************************************** 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 ) ) FARR COMMUNICATIONS, INC.) File Nos. BR-910320YA ) BRH-910320YL ) For renewal of licenses of ) Stations WESA(AM)/WESA-FM ) Charleroi, Pennsylvania ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: July 15, 1997 Released: July 24, 1997 By the Commission: I. INTRODUCTION 1.The Commission has before it for consideration: (i) our decision in In re Applications of Farr Communications, Inc., 11 FCC Rcd 7262 (1996) ("Farr") and (ii) a Request for Remission or Mitigation of Forfeiture filed by Farr Communications, Inc. ("FCI"), licensee of WESA(AM)/WESA-FM. In Farr, the Commission granted renewal of the licenses, subject to reporting conditions and a Notice of Apparent Liability for forfeiture in the amount of $15,000. For the reasons that follow, we deny FCI's Request for Remission or Mitigation of Forfeiture and issue a forfeiture order in the amount of $15,000. II. BACKGROUND 2.In Farr, we found no substantial and material questions of fact sufficient to warrant a hearing. In addition, we found no evidence that FCI, the licensee of stations WESA(AM)/WESA- FM, had engaged in discrimination. Accordingly, we granted renewal of the stations' licenses. However, we concluded that the licensee's EEO efforts were inadequate because the stations failed to contact recruitment sources for 70% of their 20 full-time vacancies and recruited only one minority for one vacancy. In addition, the licensee failed to maintain adequate records for meaningful self-assessment, in accordance with 47 C.F.R.  73.2080. Although we granted renewal, in light of the EEO deficiencies, we imposed reporting conditions and a Notice of Apparent Liability ("NAL") for $15,000. III. DISCUSSION 3.Once a Notice of Apparent Liability for Forfeiture has been issued, the respondent must show in writing why a forfeiture penalty should not be imposed, why it should be reduced or, in the alternative, pay the forfeiture. Any showing by the respondent must include a detailed factual statement and such documentation and affidavits as may be pertinent. 47 C.F.R.  1.80(f)(3). 4.First, FCI contends that the Commission incorrectly concluded that the Pittsburgh Metropolitan Statistical Area ("MSA") was the applicable labor force. FCI asserts that the Charleroi, Pennsylvania, market, the location of the stations, is served by neither convenient public transportation to Pittsburgh nor convenient roads to Pittsburgh and should, therefore, be viewed as an alternative labor force. FCI submitted various newspaper articles describing the poor condition of the roads between Pittsburgh and Charleroi, and therefore contends that Charleroi should not be considered as a part of the Pittsburgh MSA. Attachment A of FCI's supplemental data consists of: (1) the May 20-26, 1996, issue of The Real Estate Quarterly and (2) the June 14, 1996, issue of The Valley Independent. Both articles discuss the need for the development of the Mon/Fayette Expressway and the Southern Beltway within the Pennsylvania Turnpike. 5.We note that a similar argument was made by the licensee in the renewal proceeding and, thus, was considered in reaching our decision. In certain instances, we will evaluate a station's EEO efforts by reference to alternative labor force data if the licensee shows that the MSA labor force is not applicable to its circumstances. See Farr, 11 FCC Rcd at 7269 (discussion of alternative labor force test). Even if Attachment A of FCI's submission adequately demonstrated commuting difficulties from the areas of minority concentration to the station, it would not, standing alone, evidence impediments to attracting minority employees from the Pittsburgh MSA. Since the licensee did not document all of its referrals, applicants, or interviews, it is unable to show that its recruitment efforts directed at the MSA minority labor force were fruitless. Farr, 11 FCC Rcd at 7269. A licensee must show that "despite extensive recruitment involving use of minority referral sources, it was unable to obtain qualified applicants from areas of minority concentration in the MSA..." National Capital Christian Broadcasting, Inc., 3 FCC Rcd 1919, 1920 (1988). Thus, we affirm our earlier ruling that the Pittsburgh MSA is the appropriate labor force. 6.Second, FCI argues that since the current owners, who were two of the five shareholders and owners at the time of the EEO violations, did not manage the day-to-day operations of the stations, FCI should not be held liable for the deficient EEO practices of its stations prior to September 1989. We disagree. Rita Resick and Richard Stafford were president and secretary of FCI, respectively, and as wife and husband owned 45.3% of shares both before and after the transfer of control. Moreover, even if the day-to-day operations of the stations involved misconduct of FCI's employees instead of shareholders it is well established that a corporation must be responsible for the FCC-related misconduct occasioned by the actions of its employees in the course of their broadcast employment. "Merely standing back and waiting for disaster to strike or for the Commission to become aware of it will not insulate corporate owners from the consequences of misconduct." Policy Regarding Character Qualifications in Broadcast Licensing, 102 FCC 2d 1179, 1197 (1986). When a licensee delegates supervision over the operation of a station it must be held responsible under the concept of "respondeat superior". It is only by holding the licensee responsible that there can be any reasonable assurance of station operation in the public interest. See In re Application of Walton Broadcasting, Inc., 78 FCC 2d 857, 866 (1980). 7.Additionally, FCI's argument that it is being treated inconsistently by different branches of the Commission is without basis. Specifically, FCI argues that it is arbitrary for the FCC to hold the licensee, for EEO purposes, to a geographic area that does not correspond to its protected service contour. However, the Commission looks to the MSA in which the station's community of license is located to determine the relevant labor force for EEO purposes. A particular MSA is determined by the Office of Management and Budget. If a station is not licensed to a community located within an MSA, the Commission looks to the labor force statistics for the county in which the community is located. See In re Applications of Sunshine Wireless Co., Inc., 11 FCC Rcd 14290, 14293 (1996). However, the relevant labor force is not synonymous with the community of license. Thus, contrary to Farr's suggestion, a Commission ruling with respect to the area within which a licensee will be protected from interference has no bearing upon the relevant labor force for EEO purposes. Moreover, FCI's argument that the Commission's decision in Farr polarized the community along racial lines is not a mitigating factor. We are unpersuaded that a reduction is warranted because White local residents allegedly believe the NAL here was imposed because the licensee did not hire Blacks. The alleged concern is based on a misinterpretation of our EEO Rule and its application in this case and is in any event irrelevant to our determination. Such error cannot serve as a mitigating factor. 8.Lastly, the licensee states that it is unable to bear the financial hardship that the forfeiture would impose. However, the licensee's showing does not demonstrate an inability to pay. In support of such a showing, licensees are asked to submit data which include a profit and loss statement. (See attachment to Notice of Apparent Liability.) The data must not be older than one year from their submission and must include payments to principals. If the licensee is a corporation, the statement must be signed by an officer. The data submitted by the licensee do not include a profit and loss statement. Rather, they consist of what appear to be cash flow projections. For example, the last date shown actually postdates the submission. Furthermore, the submission is not signed by an officer and the only indication of payments to principals is a W2 Form for one principal only. Even if we were to read the data provided in the light most favorable to the licensee, arguendo, we would conclude that the licensee has not shown an inability to pay. The statements rely on projected non-cash expenses of depreciation and amortization in excess of $30,000. Such allowances are not actual expenditures which affect the licensee's cash availability in any negative way. Deducting them from the claimed losses leaves sufficient funds for payment of the forfeiture. IV. CONCLUSION 9.After reviewing the record before us we find that a remission or reduction of the forfeiture amount is not warranted. Therefore, for the reasons stated above, we issue a forfeiture order in the amount of $15,000. V. ORDERING CLAUSES 10.Accordingly, IT IS ORDERED that Farr Communications, Inc.'s Request for Remission or Mitigation of Forfeiture of the amount specified in In re Applications of Farr Communications, Inc., 11 FCC Rcd 7262 (1996) is DENIED. 11.IT IS FURTHER ORDERED, pursuant to Section 503(b), of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), that Farr Communications, Inc., licensee of stations WESA(AM)/WESA-FM, FORFEIT to the United States the sum of fifteen thousand dollars ($15,000) for violation of the Commission's EEO Rule. 47 C.F.R.  73.2080. In regard to this forfeiture proceeding, the licensee may take appropriate action as set forth in Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, and Section 504(a) of the Communications Act, as amended, 47 U.S.C.  504(a), as summarized in the attachment to this Memorandum Opinion and Order and Forfeiture Order. 12.IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Order and Forfeiture Order be sent by Certified Mail--Return Receipt Requested--to, Farr Communications, Inc., the licensee of Stations WESA(AM) and WESA-FM. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary