******************************************************** 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) ) Kettle Moraine Broadcasting Company, Inc.) ) For Renewal of Licenses for)File Nos. BR-960730WR Stations WTKM(AM)/WTKM-FM) BRH-960730WS Hartford, Wisconsin ) MEMORANDUM OPINION AND ORDER Adopted: July 28, 1997 Released: August 1, 1997 By the Commission: I. INTRODUCTION 1.The Commission has before it for consideration: (i) license renewal applications filed by Kettle Moraine Broadcasting Company, Inc. ("licensee") for the above-captioned broadcast stations; (ii) a Petition to Deny the renewal applications filed by the Rainbow-PUSH Action Network; (iii) the licensee's opposition to the petition; and (iv) reply comments filed by the Rainbow-PUSH Coalition ("petitioner"), successor to the Rainbow-PUSH Action Network. II. BACKGROUND/PLEADINGS 2.The petitioner alleges that the stations violated our Equal Employment Opportunity ("EEO") Rule, 47 C.F.R.  73.2080. Accordingly, it requests 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 petitioner has 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); 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.Standing. The licensee claims that the petition should be dismissed because the petitioner has failed to establish standing. It argues that the petition's declaration is faulty since the declarant does not explain why he would seek employment at the stations. We disagree. Submitted with the petition is a statement under penalty of perjury by a Rainbow-PUSH Action Network member and resident of the stations' service area who affirms that he is a regular listener 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), as modified by Maumee Valley Broadcasting, Inc., 12 FCC Rcd 3487 (1997), recon. pending. Accordingly, we hold that the petitioner has established party in interest status. 5.Prima Facie. The petitioner derived its factual allegations from the licensee's EEO program and annual employment reports. As a threshold matter, we found that the petitioner 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 Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (Astroline). III. DISCUSSION 6.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 to 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 interview pools. 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) - (c). 7.Review of the stations' 1996 EEO Program Report and opposition reveal that the licensee had two full-time upper-level hiring opportunities from December 17, 1993, through December 17, 1996. The licensee reports that it used the following recruitment sources for the vacancies: four educational institutions, including an all-women's college; on-air announcements; and local high schools. The licensee reports that it did not receive any minority referrals for the two vacancies and that it hired a white female for one of the positions. 8.The petitioner faults the licensee for not hiring minorities during the license term and for not performing any minority-specific recruitment. Although the petitioner acknowledges that employment at the stations has been stable for the past three years, it asserts that the stations do not claim that employment was stable in the previous four years of the license term. Accordingly, the petitioner requests that the Commission investigate the stations' EEO performance during the period of 1990 - 1993. 9.The licensee attributes its lack of success in attracting minority applicants to the stations' format (polka music and agricultural news). It asserts that the Commission should evaluate the stations' EEO performance in light of labor force data for a five-county area that the stations primarily serve, rather than the Milwaukee, Wisconsin PMSA labor force which includes 13.8% minorities. See n.2 supra. Together, the five counties have less than a five percent minority labor force. The licensee also emphasizes its low rate of staff turnover. 10.In its reply comments, the petitioner disputes the licensee's contention that its ability to attract minorities is hampered by the stations' format. It contends that the licensee has provided no evidence as to how its recruitment efforts have been hampered. 11.In order to establish that an alternative labor force should be used, a licensee must demonstrate that: (1) the distance of the station from the areas with significant minority population is great; (2) commuting from those areas to the station is difficult (such difficulties may be based on distance but may also be based on other factors such as lack of public transportation); and (3) recruitment efforts directed at the Metropolitan Statistical Area minority labor force have proven fruitless. Buckley Broadcasting Corporation, 9 FCC Rcd 2099, 2101 (1994); pet. for recon. denied, 11 FCC Rcd 6628 (1996). However, the licensee does not adequately address these factors. For instance, the licensee does not illustrate significant attempts to recruit minorities from areas of high minority concentration in its PMSA. Moreover, the licensee's explanation that the stations' non- urban format has impeded its ability to attract minorities lacks merit because a station's format does not provide a basis upon which to justify application of an alternative labor force. See Stauffer Communications, Inc., 9 FCC Rcd 879, 885 n.9 (1994). In light of these facts, we do not believe that use of an alternative labor force is warranted. 12.With respect to the petitioner's contention concerning the number of minorities employed by the stations, we note that our primary focus is on a licensee's EEO efforts and not on its employment of a specific number of minorities. Compliance with our EEO Rule is not based on meeting or exceeding a numerical goal, but on the total efforts to recruit and employ minorities and females and the ongoing assessment of those efforts. 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 also Implementation of Commission's Equal Employment Opportunity Rules, 9 FCC Rcd 2047 (1994). 13.Finally, we ordinarily base our review on the last three years of a radio broadcaster's EEO performance. The petitioner has not persuaded us that we should depart from our usual practice in this case. 14.Based on the foregoing, 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. We note that the licensee had only two full-time hiring opportunities over a three-year period. Also, the licensee recruited for its vacancies using at least seven recruitment sources. 15. However, we are concerned as to the sufficiency of the licensee's efforts to self- assess the effectiveness of its EEO program. Although the licensee asserts that it engaged in self- assessment, it did not receive any minority referrals for its full-time vacancies. This paucity of minority referrals, despite the 13.8% minority presence in the stations' available labor force, indicates that greater efforts are warranted to find additional recruitment sources likely to refer minority applicants. We thus caution the licensee to recruit for each job vacancy, including part-time vacancies, and to evaluate and modify its recruitment sources and techniques in order to develop additional sources that might produce qualified minority applicants whenever job vacancies occur. IV. CONCLUSION 16.Based upon all of the evidence before us, we find that there are no substantial and material questions of fact and that grant of the renewal applications would be 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, we will grant the licensee's renewal applications unconditionally. V. ORDERING CLAUSES 17.Accordingly, IT IS ORDERED that the Petition to Deny filed against the stations' renewal applications IS DENIED. 18.IT IS FURTHER ORDERED that the stations' renewal applications ARE GRANTED. 19.IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Order be sent by Certified Mail -- Return Receipt Requested -- to the licensee and the petitioner. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary