Federal Communications Commission FCC 97-230

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554

In re Applications of

WCLT Radio, Inc. File Nos. BR-960524WE BRH-960524WD For Renewal of Licenses of Stations WCLT(AM)/WCLT-FM Newark,

MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY

Adopted: June 26, 1997 Released: July 3, 1997

By the Commission:

I. INTRODUCTION

1. The Commission has before it for consideration: (i) license renewal applications1 filed by WCLT Radio, Inc. (the "licensee") for the above-referenced stations; (ii) a Petition to Deny filed by the National Rainbow Coalition ("Rainbow"); (iii) an opposition from the licensee; (iv) a reply to the licensee©s opposition by Rainbow; and (iv) the licensee©s response to a staff letter of inquiry. H. BACKGROUND

2. Rainbow alleges that the stations violated the Commission©s Equal Employment Opportunity ("EEO") Rule and policies. 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) to determine if we should designate the renewal applications for hearing. The licensee contends that Rainbow has presented no evidence of discrimination, that the record indicates compliance with the Commission©s EEO Rule, and that unconditional renewal is warranted. 3. In challenging an application pursuant to Section 309(d) of the Communications

The license terms under review ended on October 1, 1996.

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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)(l); Astroline Communications Co. v. FCC. 857 F.2d 1556 (D.C. Cir. 1988) (Astroline^: Dubuque T.V. Limited Partnership. 4 FCC Red 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)(l). 4. Standing. The licensee argues that Rainbow©s Petition to Deny should be dismissed because Rainbow has failed to establish standing. Although the Declaration supporting the Petition to Deny is from an individual who resides in the city of Columbus and claims to be a regular listener of the stations, the licensee contends that the AM station cannot be heard in Columbus and therefore the petitioner has failed to show party in interest status. The licensee does not claim that the FM station cannot be heard in Columbus, however, and we note that both the AM and FM stations are run by the same general manager, filed renewal applications with combined data, and jointly filed annual employment reports. We will therefore treat both stations as one employment unit. See Alabama and Georgia Renewal Applications. 6 FCC Red 5968, 5974 n.9 (1991); Community Communications. Inc.. 11 FCC Red 5266, 5267-8 (1996). Accordingly, since Rainbow has established standing to contest the FM station©s renewal application, we will grant standing with respect to the AM station as well. See NAB Petition forRulemaking. 82 FCC 2d 89,98-99 (1980), as modified by Maumee Valley Broadcasting. Inc.. 12 FCC Red 3487 (1997), pet, for recon. pending. 5. Prima Facie Case. Rainbow derived its factual allegations from the licensee©s EEO program and annual employment reports. Review of its allegations led us to conclude, as a threshold matter, that Rainbow presented a prima facie case demonstrating that unconditional grant of the renewal applications would have been inconsistent with the public interest. See 47 U.S.C. § 309(d)(l); Astroline. Review of the record as a whole leads us to conclude that grant of the applications will serve the public interest. 47 U.S.C. § 309(d)(2); Astroline. However, we will grant renewal with appropriate remedies and sanctions as discussed below. m. DISCUSSION 6. Section 73.2080 of the Commission©s Rules requires that a broadcast licensee refrain from employment discrimination and establish and maintain a 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

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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 licensee©s renewal applications, opposition, and inquiry response reveals that the stations had 17 full-time hiring opportunities, including 16 for upper-level positions, from October 1, 1993, through October 1, 1996.2 The licensee reports that it recruited for 15 of its 17 vacancies, and received 259 applications, including at least seven (2.7%) from minority applicants.3 The licensee could identify the gender, but not the race or ethnic origin of 107 (41%) of its 259 applicants, or the referral source of eight applicants.

8. The inquiry response shows that the licensee contacted the following recruitment sources for various vacancies and received the following minority applicants: two newspapers (1), six trade publications (1), on-air advertising (0), employee and other third party referrals (0), personal inquiries (0), 14 educational institutions (1), seven minority sources (1), seven broadcasting organizations (1), four employment agencies (2), the Newark Air Force Base (0), inter-office postings (0), and two women©s organizations (0). Six of the seven sources which produced minority referrals were used for one to five of the 15 vacancies where recruitment occurred. The licensee also used five to seven minority sources for six vacancies, and one to three minority sources for eight vacancies. The licensee reports that minorities were present in

2 According to the 1980 Census, the Columbus, Ohio Metropolitan Statistical Area ("MSA"), in which Stations WCLT(AM)/WCLT-FM are located, had an available labor force that was 43.2% female and 11.0% minority (9.7% Black, 0.6% Hispanic, 0.6% Asian/Pacific Islander, and 0.1% American Indian). The 1990 Annual Employment Report lists seven women (25.9%) and no minorities among 27 full-time employees, including four women (17.4%) among 23 upper-level job employees. The 1991 Annual Employment Report lists eight women (32.0%) and no minorities among 25 full-time employees, including six women (27.3%) among 22 upper-level job employees. The 1992 Annual Employment Report lists seven women (31.8%) and no minorities among 22 full-time employees, including six women (30.0%) among 20 upper-level job employees.

The Commission has begun using 1990 labor force statistics for licensee renewal applications filed after May 31, 1993 and for 1993 and subsequent Annual Employment Reports. See Public Notice #32651 (April 12, 1993). According to trie 1990 Census, the Columbus, Ohio MSA has an available labor force that is 46.5% female and 12.3% minority (10.0% Black, 0.7% Hispanic, 1.4% Asian/Pacific Islander, and 0.2% American Indian). The 1993 Annual Employment Report lists seven women (31.8%) and no minorities among 22 full-time employees, including six women (30.0%) and no minorities among 20 upper-level job employees. The 1994 Annual Employment Report lists ten women (41.7%) and no minorities among 24 full-time employees, including nine women (40.9%) among 22 upper-level job employees. The 1995 Annual Employment Report lists nine women (36.0%) and no minorities among 25 full-time employees, including seven women (31.8%) and no minorities among 22 upper-level job employees. The 1996 Annual Employment Report lists 11 women (42.3%) and no minorities among 26 full-time employees, including eight women (36.4%) among 22 upper-level job employees.

3 The licensee hired a temporary worker for one of the two vacancies for which it did not recruit. The licensee reports that hiring records for the other vacancy are missing. In one instance, we did not count the promotion of a part-time employee to full-time status as a vacancy requiring recruitment.

10028 Federal Communications Commission FCC 97-230 five (33%) of the 15 applicant pools, all upper-level.

9. The inquiry response also shows that the licensee interviewed 90 applicants, including four minorities, for the 15 vacancies. The stations© records reflect that minorities were present in four (27%) of the 15 interview pools, all upper-level. The licensee reports that it did not hire any minorities.

10. Rainbow faults the stations for not generating more minority applicants, for failing to specify whether recruitment sources were consistently used, and for not hiring any minorities in full-time upper-level positions throughout the license term. Rainbow also accuses the licensee of improperly relying on "word of mouth" as its primary means of recruitment. According to Rainbow, these alleged deficiencies suggest that the licensee has engaged in discrimination.

11. In response, the licensee denies that its EEO program is ineffective. It contends that the facts quoted in Rainbow©s petition are incomplete and fail to provide an accurate reflection of its EEO practices. The licensee states that it has made continuous efforts to recruit minorities and has attracted and hired minority and female applicants. It avers that it uses a wide variety of recruitment sources as reflected in its inquiry response.

12. The licensee also claims difficulty in attracting minority applicants because of the small minority labor force in Newark, the stations© community of license. The licensee contends that its EEO efforts should be evaluated in light of labor force data for Licking County, which has only 2.5% minorities in its labor force, rather than the Columbus MSA labor force which includes 12.3% minorities. See n.2 supra. Newark is located in Licking County, which, in turn, is part of the Columbus MSA. The licensee states that the minority population is concentrated in Franklin County, the home of the city of Columbus, and not in Licking County. According to the licensee, Licking and Franklin Counties are situated next to each other and share a common border of thirteen miles in length.

13. In support of its request for the use of alternative labor force data, the licensee states that: (1) the commuting distance between downtown Columbus and Newark is approximately 35 miles and 45 minutes to one hour each way; (2) no direct public transportation exists between Columbus and Newark for the commuting worker; (3) the stations© low wages are not attractive to residents outside of Newark; and (4) the stations© efforts to recruit Franklin County residents, including minorities, have proven fiuitless. Rainbow disagrees with the licensee©s argument that Licking County should be the correct labor force. It states that Newark is only 35 miles from Columbus and is considered a commuter suburb. 14. In certain circumstances, we permit licensees to use alternative labor force data if they can demonstrate that the use of such data is appropriate. The standard for such a request is a three-part test: (1) the distance of the station from the areas with significant minority

10029 Federal Communications Commission FCC 97-230 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 MSA minority labor force have proven fruitless. Buckley Broadcasting Corporation. 9 FCC Red 2099, 2101 (1994). However, the licensee does not adequately articulate or substantiate the factors required to meet the standard. For example, the licensee has not shown that the commute from Franklin County has impeded its ability to attract applicants from the Columbus MSA. See Capital Christian Broadcasting. Inc.. 3 FCC Red 1919, 1920 n.9 (1989). In response to our inquiry, the licensee admits that during the review period it hired 13 part-time and full-time applicants from Ohio who lived more than 25 miles from the stations at the time the offer was made. Of these 13 successful applicants, six (46.2%) were from Franklin County. The new hires either commuted or moved closer to the stations. The commutes included five of the six Franklin County applicants. Most importantly, the licensee did not document the race or ethnic origin of 107 (41%) of its 259 applicants, and thus was unable to demonstrate that recruitment efforts directed at the Columbus MSA minority labor force proved fruitless. See Gulf Atlantic Media Corporation. 8 FCC Red 603 (1993). In light of these facts, we do not believe that the licensee has provided an adequate and reasoned basis for reliance upon an alternative labor force.

15. With respect to Rainbow©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 minority employees. 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 Red 3967 (1987). See also Implementation of Commission©s Equal Employment Opportunity Rules. 9 FCC Red 2047 (1994).

16. Having reviewed all matters presented, we conclude that there are no substantial and material questions of fact warranting designation for hearing and that a grant of the applications would be consistent with Section 309(k) of the Communications Act of 1934, as amended, 47 U.S.C. § 309(k). See Astroline. Further, we find no indication of employment discrimination. The licensee recruited and interviewed minorities. Therefore, because the licensee is otherwise qualified, grant of the applications will serve the public interest. 47 U.S.C. § 309(dX2). 17. Nevertheless, we find the stations© EEO recruitment efforts to be deficient. Minorities were present in only five (33%) of 15 applicant pools and four (27%) of 15 interview pools. Consequently, the licensee failed to engage in meaningful self-assessment of its EEO program in that it did not make significant changes in recruitment efforts to attract qualified minorities. 47 C.F.R §73.2080. The licensee©s recruitment sources were largely unproductive in attracting minority applicants. For those few sources that did provide minority referrals, the

10030 Federal Communications Commission FCC 97-230 licensee did not consistently contact those sources for subsequent vacancies. The licensee also failed to maintain information regarding the race or ethnic origin of 41% of its applicants, data necessary for thorough and meaningful self-assessment of a station©s EEO program.

18. After carefully reviewing the facts, we find the record in the instant case is similar to that of WCWA(AM)/WIOT-FM, Toledo, Ohio, in Enterprise Media of Toledo. L.P.. 12 FCC Red 3920 (1997). In that case, the licensee contacted a variety of sources for 16 of 18 vacancies and had a total of 233 applicants and 60 interviewees. Of these, 11 applicants (4.7%) and one interviewee (1.7%) were minorities. Minorities were present in four of nine (44.4%) applicant pools and in one interview pool (11.1%).4 We concluded therein that although the licensee had engaged in some efforts to recruit minorities during the license term, it had not engaged in consistent recruitment efforts and failed to self-assess adequately. Accordingly, we renewed the licenses of WCWA(AM)/WIOT-FM subject to reporting conditions and a Notice of Apparent Liability for $8,000.

19. Both WCWA(AM)/WIOT-FM and WCLT(AM)/WCLT-FMare comparable in size (27 to 32 employees and 22 to 25 employees, respectively) and recruited for a similar number of vacancies (16 and 15, respectively). Both WCWA(AM)/WIOT-FM and WCLT(AM)/WCLT- FM failed to recruit consistently for minorities and adequately self-assess their EEO programs despite being located in areas with significant minority labor forces (12.2% and 12.3%, respectively). The recruitment sources used by both WCWA(AM)/WIOT-FM and WCLT(AM)/WCLT-FM were largely unproductive in producing minority applicants (only 11 or 4.7% out of 233 applicants and seven or 2.7% out of 259 applicants, respectively). Furthermore, the minority-specific recruitment sources used by both licensees produced few, if any, minority referrals. As a result of the poor minority recruitment efforts conducted by both licensees, minorities were absent from a significant number of their applicant and interview pools.

20. Given the facts of this case and broadcasters© familiarity with our long standing EEO rule, we conclude that the circumstances in this case justify the issuance of a Notice of Apparent Liability for $8,000. Further, we impose reporting conditions to monitor the licensee©s prospective recruitment and recordkeeping measures.

IV. CONCLUSION 21. Having reviewed all matters presented, we conclude that there are no substantial and material questions of fact and that a grant of the applications would be consistent with Section 309(k) of the Communications Act of 1934, as amended, 47 U.S.C. § 309(k). Further, we find no evidence of employment discrimination. Thus, because the licensee is otherwise

4 WCWA(AM)/WIOT-FM had only nine applicant and interview pools since multiple hiring searches were made from five of these pools.

10031 Federal Communications Commission FCC 97-230 qualified, grant of the applications will serve the public interest. 47 U.S.C. § 309(d)(2). Accordingly, we will grant renewal subject to reporting conditions and issue a Notice of Apparent Liability for $8,000. IV. ORDERING CLAUSES

22. Accordingly, IT IS ORDERED that the Petition to Deny filed by the National Rainbow Coalition against the renewal applications for the stations IS DENIED.

23. IT IS FURTHER ORDERED that the license renewal applications filed by the licensee for the stations ARE GRANTED 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.

24. IT IS FURTHER ORDERED that the licensee submit to the Commission an original and one copy of the following information on June 1, 1998, June 1, 1999, and June 1, 2000:

(a) Two lists divided by full-time and part-time job vacancies during the 12 months preceding May 1, 1998 for the first report, May 1, 1999 for the second report, and May 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 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;5

(b) A list of employees as of the May 1, 1998 payroll period for the first report, a list

5 Such a list might start: 1) News Director: Officials and Managers; Full-time.

3 Applicants: 1 White female A.W.R.T 1 Hispanic male National Hispanic Media Coalition 1 Black female Urban League

2 Interviewees: 1 White female A.W.RT 1 Hispanic male National Hispanic Media Coalition

Sources contacted - Local newspaper, A.W.R.T., National Hispanic Media Coalition and Urban League

Selected - Hispanic male, National Hispanic Media Coalition, (10/12/97)

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of employees as of the May 1, 1999 payroll period for the second report, and a list of employees as of the May 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 its efforts thereunder. 25. IT IS FURTHER ORDERED that one copy of this Memorandum Opinion and Order be sent to the licensee and the National Rainbow Coalition by Certified Mail - Return Receipt Requested. 26. The reports are to be filed with the Secretary of the Commission for the attention of the Mass Media Bureau©s Enforcement Division, EEO Branch. 27. 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

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