Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In re Applications of) ) Emmis AM License Corporation) of Indianapolis) ) For Renewal of License of)File No. BR-960401WK Station WIBC(AM),) Indianapolis, Indiana ) ) ) Emmis FM Radio License Corporation) of Indianapolis) ) For Renewal of License of)File No. BRH-960401U7 Station WNAP-FM,) Indianapolis, Indiana) ) ) Emmis FM License Corporation) of Indianapolis) ) For Renewal of License of)File No. BRH-960401P4 Station WENS-FM,) Shelbyville, Indiana) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: August 4, 1997; Released: August 13, 1997 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) the license renewal applications for WIBC(AM), WNAP-FM, and WENS-FM; (ii) the licensees' response to a staff inquiry; and (iii) other pleadings. The licensees maintain that they have followed the requirements of the Commission's Equal Employment Opportunity ("EEO") Rule and policies, 47 C.F.R.  73.2080, and that they deserve unconditional renewal. For the reasons that follow, we grant the applications with appropriate remedies and sanctions. II. BACKGROUND 2. Settlement Agreement. On July 1, 1996, the National Rainbow Coalition and Operation PUSH ("Rainbow") filed a petition to deny WIBC(AM)'s, WNAP-FM's, and WENS-FM's renewal applications. On September 11, 1996, Rainbow and the licensees filed a joint request for approval of settlement agreement, in which they requested that the Commission dismiss the petition to deny as it pertains to WIBC(AM), WNAP-FM, and WENS-FM. By letter dated January 24, 1997, Commission staff approved the agreement and dismissed the petition to deny. As is our practice in all cases, however, we reviewed the stations' EEO programs and performance pursuant to Section 309(d)(1) of the Communications Act of 1934, as amended, 47 U.S.C.  309(d)(1). III. DISCUSSION 3. 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 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 47 C.F.R.  73.2080(a), (b), and (c). 4.The licensee acquired Station WIBC(AM) in June 1994. A review of Station WIBC(AM)'s 1996 EEO Program Report, inquiry response, and other pleadings reveal that the station had 23 full-time hiring opportunities, including 21 for upper-level positions, from the time the licensee acquired WIBC(AM) to August 1, 1996. The licensee provided recruitment data only with respect to 12 hiring opportunities (ten upper-level). The licensee did not provide recruitment data with respect to 11 hiring opportunities, which were filled during the period of August 1994 to August 1995, claiming that records for these hires were "lost or destroyed." In its opposition, the licensee states that "[w]hen a job opening occurs, the Stations contact more than thirty referral sources in an effort to produce qualified female and minority applicants." According to the licensee, this statement is supported by a declaration, under penalty of perjury, by Norman H. Gurwitz, Executive Vice-President and Corporate Counsel of Emmis Broadcasting Corporation and its subsidiary licensee corporations. The declaration does not explain how the records for 11 hires became "lost or destroyed." Because the licensee was unable to document recruitment for the 11 hires and there is no basis for excusing this failure of documentation [compare KTEH-TV Foundation, 11 FCC Rcd 2994, 2996 (1996)], we are unable to credit its efforts for those vacancies. See Act III Broadcasting of Nashville, Inc., 11 FCC Rcd 1172 (1995). 5.Station WIBC(AM)'s recruitment efforts with respect to 12 positions included use of multiple sources, including 26 minority sources, six minority/female sources, and one female source for its openings. The licensee reports that the station received a total of 267 applicants, including 20 (7.5%) minorities, for 12 overall positions. With respect to ten upper-level positions, the station received a total of 138 applicants, including 15 (10.9%) minorities. The licensee interviewed a total of 94 applicants, including 16 (17.0%) minorities, for 12 overall positions. Of that total, 85 applicants, including 13 (15.3%) minorities, were interviewed for ten upper-level positions. Minorities were included in ten (43.5%) of the station's 23 applicant pools for overall positions, and eight (38.1%) of 21 applicant pools for upper-level positions. Minorities were included in nine of the station's 23 interview pools (39.1%) for overall positions, and seven of 21 interview pools (33.3%) for upper-level positions. In addition, the licensee points out that it hired three Blacks, two of whom were hired for upper-level positions. 6.The 1996 EEO Program Reports for Stations WNAP-FM and WENS-FM, as well as their inquiry response and other pleadings, reveal that the licensees filled 24 full-time vacancies, including 17 for upper-level positions, from August 1, 1993, to August 1, 1996. The licensees state that they recruited for all vacancies, using general and minority-oriented recruitment sources for all positions. In total, the licensees used eight minority sources, 23 minority/female sources, and four female sources for their openings. The licensees kept records on the referral source of 49 of their 53 minority applicants and report that at least 14 sources referred minority applicants. However, the licensees report that, although recruitment records were kept for all hiring opportunities, they lost records on applicants for three hiring opportunities, one in January 1994 and two in August 1994. The licensees assert that records with respect to two hiring opportunities were lost during office moves and that the record for a third was lost after a former supervisor left the company. The licensees provided complete records on the race and national origin of applicants and interviewees for all 21 of their remaining hires. They report that 53 (7.1%) minorities were among 747 total applicants and that 45 (11.5%) minorities were among 391 total interviewees for 21 hiring opportunities. Minorities were included in at least 15 (62.5%) applicant pools, nine (52.9%) of which were for upper-level positions. Minorities were included in at least 14 (58.3%) interview pools, nine (52.9%) of which were for upper-level positions. In addition, the licensees point out that they hired six Blacks, two of whom were hired for upper- level positions. 7. The licensees of all three stations maintain that they "made diligent efforts in good faith to attract minority employees" during the license term. The licensees also argue that they have taken steps to improve their record-keeping procedures in order to better document recruitment efforts. They state that these steps include ensuring that all personnel involved in implementing the EEO program "undergo appropriate training." They contend that their EEO efforts warrant unconditional renewal of the stations' licenses. 8.Our review of the record reveals that there are no substantial and material questions of fact warranting designation of this case for hearing. See Astroline Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988). Moreover, there is no evidence that the licensees engaged in employment discrimination. The stations recruited, attracted, hired, and employed minorities and women during the license term. Therefore, finding the licensees to be otherwise qualified, grant of the renewal applications for Stations WIBC(AM), WNAP-FM, and WENS-FM would be consistent with Section 309(k) of the Communications Act of 1934, as amended, 47 U.S.C.  309(k). 9.Nevertheless, we find Station WIBC(AM)'s recruitment efforts to be deficient. The station failed to document recruitment for 11 (47.8%) of 23 hiring opportunities during the review period. In addition, minorities were shown to be present in fewer than half of its applicant and interview pools for overall and upper-level positions. Further, we find that the station failed to maintain adequate records for meaningful self-assessment. 47 C.F.R.  73.2080. 10.We believe that the record of Station WIBC(AM) is similar to, but less egregious than, that of Stations WDOD(AM)/WDOD-FM, Chattanooga, Tennessee, in In re Applications of WDOD of Chattanooga, Inc. for Renewal of Licenses of Stations WDOD(AM)/WDOD-FM, Chattanooga, Tennessee, 12 FCC Rcd 6399 (1997) ("WDOD of Chattanooga, Inc."). Stations WDOD(AM)/WDOD-FM are located in a labor force that is 13.4% minority. The stations recruited for 14 of 21 hires (66.7%). In that case, because the stations could document recruitment for only 66.7% of their vacancies, included minorities in only four (19.1%) of the station's 21 applicant pools and three (14.3%) interview pools, and failed to maintain adequate records for meaningful self-assessment, we renewed the stations' licenses subject to reporting conditions and a Notice of Apparent Liability for Forfeiture in the amount of $11,000. 11.Stations WIBC(AM) and WDOD(AM)/WDOD-FM are located in areas with equivalent- sized minority labor forces (13.3% and 13.4%, respectively). Both licensees had similar numbers of hires [23 for WIBC(AM) and 21 for WDOD(AM)/WDOD-FM]. Both licensees argued that they routinely recruited for their openings, but neither could document recruitment for all of their vacancies. Station WIBC(AM) documented recruitment for only 12 (52.2%) of its 23 vacancies; and Stations WDOD(AM)/WDOD-FM documented recruitment for only 14 (66.7%) of their 21 vacancies. In both cases, this record-keeping failure hampered the stations' ability to engage in meaningful self-assessment for a sustained period of time. However, because WIBC(AM) had a higher percentage of applicant and interview pools that included minorities [43.5% and 39.1%, respectively, for WIBC(AM); and 19.1% and 14.3%, respectively, for WDOD(AM)/WDOD-FM], we find that WIBC(AM)'s record is less egregious than that of WDOD(AM)/WDOD-FM. On balance, we find that the circumstances here justify issuance of a Notice of Apparent Liability for Forfeiture for $10,000. Also, we impose reporting conditions on WIBC(AM) in order to monitor the station's record-keeping and self-assessment efforts. IV. CONCLUSION 12.After reviewing the record before us, we find that a hearing is not warranted and that grant of the renewal applications for Stations WIBC(AM), WNAP-FM, and WENS-FM is in the public interest. We grant the renewal applications for Stations WNAP-FM and WENS-FM without conditions. Because the overall EEO efforts of the licensee of Station WIBC(AM) were deficient, we will grant the renewal application for this station subject to a Notice of Apparent Liability for $10,000. We also impose reporting conditions on WIBC(AM) in order to monitor the station's record-keeping and self-assessment efforts. V. ORDERING CLAUSES 13. Accordingly, IT IS ORDERED that the license renewal application filed by Emmis AM License Corporation of Indianapolis for Station WIBC(AM) IS GRANTED subject to the EEO reporting conditions specified 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 $10,000. 14.IT IS FURTHER ORDERED that the licensee of Station WIBC(AM) 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)Two lists divided by full-time and part-time 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. These 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, March 1, 1999, payroll period for the second report, and 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 highest paid classification), date of hire, sex and race or national origin; and (c)Details concerning the station's efforts to recruit minorities and women for each position filled 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, including identification of sources used and indicating whether any of the applicants declined actual offers of employment. In addition, the licensee may submit any relevant information with regard to the station's EEO performance and efforts thereunder. 15.IT IS FURTHER ORDERED that the license renewal application filed by Emmis FM Radio License Corporation of Indianapolis for Station WNAP-FM and the license renewal application filed by Emmis FM License Corporation of Indianapolis for Station WENS-FM ARE GRANTED. 16.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 ("MO&O") to all the parties. 17.The reports are to be filed with the Acting Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 18.Regarding the forfeiture proceeding, the licensee of Station WIBC(AM) 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 MO&O. Any comments concerning ability to pay should include those financial items set forth in the attachment. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary