) Mystar Communications Corporation ) File Nos. BR-960401WO

___________ Federal Communications Commission________FCC 97-148 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In re Applications of ) ) MyStar Communications Corporation ) File Nos. BR-960401WO ) BRH-960401R7 For Renewal of Licenses for Stations ) BRH-960401P2 ) WMYS(AM)/WTPI(FM), Indianapolis, Indiana ) and WZPL(FM), Greenfield, Indiana ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: April 28, 1997 Released: May 2, 1997 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) the above-referenced applications of MyStar Communications Corporation ("MyStar") for renewal of the licenses for the above-captioned stations; (ii) a Petition to Deny timely filed by the National Rainbow Coalition ("Rainbow") and Operation PUSH ("PUSH"); (iii) MyStar©s opposition thereto; (iv) Rainbow/PUSH©s reply to the opposition; (v) MyStar©s response to a staff letter of inquiry requesting additional information concerning the stations© Equal Employment Opportunity ("EEO") record; (vi) a reply to the licensee©s response filed by Rainbow only; and (vii) additional information concerning its response submitted by the licensee in light of Rainbow©s reply. H. BACKGROUND/PLEADINGS 2. Rainbow and PUSH allege that the stations violated our EEO Rule and policies. Section 73.2080 of the Commission©s Rules, 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 applications for hearing with a view toward denying them. The licensee maintains that it has not engaged in discrimination, that its EEO program has been successful, and that unconditional renewal is warranted. 3. Initially, pursuant to Section 309(d)(l) of the Communications Act of 1934, as amended, 47 U.S.C. § 309(d)(l), a petitioner to deny must submit "specific allegations of fact sufficient to show that the petitioner is a party in interest . ." Rainbow has established that it is a party hi interest with respect to the stations© renewal applications based on a declaration under penalty of perjury from one of its members affirming mat he resides within the stations© service areas and is a regular listener of the stations. See NAB Petition for Rulemaking. 82 FCC 2d 89 (1980) as modified bv Maumee Valley Broadcasting. Inc.. FCC 97-96, released March 20, 5239 ______________Federal Communications Commission___ FCC 97-148 1997. However, PUSH has failed to present any evidence that it is a party in interest with respect to the above stations. Accordingly, we will dismiss PUSH as a party to this proceeding. Section 73.3584(d) of the Commission©s Rules, 47 C.F.R. § 73.3584(d). 4. Rainbow derived its factual allegations from the licensee©s EEO program and annual employment reports. As a threshold matter, we found that Rainbow made a prima facie case demonstrating that grant of the renewal applications would have been inconsistent with the public interest. Section 309(d)(l) of the Communications Act of 1934, as amended, 47 U.S.C. § 309(d)(l); Astroline Communications Co. v. FCC. 857 F.2d 1556 (D.C. Cir. 1988). After reviewing the licensee©s renewal applications, annual employment reports, opposition, and its inquiry response, we conclude that mere are no substantial and material questions of fact and that 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 qualified, grant of the applications will serve the public interest. 47 U.S.C. § 309(d)(2). However, for the reasons discussed below, we will grant renewal subject to reporting conditions and issue a Notice of Apparent Liability for a forfeiture in the amount of $12,000. n. DISCUSSION 5. Section 73.2080 of the Commission©s Rules, 47 C.F.R. § 73.2080, requires that a broadcast licensee refrain from employment discrimination and maintain an EEO program reflecting positive and continuing efforts to re<\oit and to promote qualified women and minorities. When evaluating EEO performance, the Commission focuses on the licensee©s ongoing assessment of its EEO efforts. Such an assessment enables the licensee to take corrective action if qualified minorities and women are not represented in significant numbers in its applicant pools. The Commission also focuses on any evidence of discrimination by the licensee. See Sections 73.2080(a), (b). (c) of the Commission©s Rules, 47 C.F.R. §§ 73.2080 (a), (b) and (c). 6. Review of MyStar©s renewal applications and inquiry response reveals that the stations had 34 hiring opportunities for full-time positions, including 23 for upper-level positions, from August 1, 1993, to August 1, 1996.© The licensee recruited for 31 of the 34 vacancies, including 21 of the 23 upper-level vacancies. In those instances where recruitment occurred, the licensee employed two general newspapers, one minority newspaper, educational institutions, job services, station postings, employee referrals and two Black, one Hispanic, and two women©s organizations. The licensee indicates that it did not recruit for one lower-level sales assistant position due to an emergency situation. It further indicates that a program director was hired for WZPL(FM) without recruitment because the individual hired had been recommended by the licensee©s programming consultant based on the consultant©s specific knowledge of the candidate©s experience and expertise in the station©s music format. Finally, the licensee states that it hired an operations manager for WMYS(AM) without recruitment because it had just 1 The licensee also included data about six internal promotions in its inquiry response. 5240 Federal Communications Commission FCC 97-148 acquired the station and the individual hired had previously worked for the station as chief engineer for 18 years under the prior ownership, giving him unique knowledge of the station©s technical facilities and directional antenna. 7. The stations had 31 applicant/interview pools (21 upper-level) because in three instances the same pool was used twice.2 The licensee reports that it attracted 611 applicants (455 for upper-level positions), including 41 minorities (21 for upper-level positions) and 280 females (149 for upper-level positions). The stations had 261 interviewees (183 for upper-level positions), including 40 minorities (20 for upper-level positions) and 146 females (85 for upper- level positions). Minorities were present in 15 (48.4%) of the licensee©s 31 applicant/interview pools, including eight (38.1%) of its 21 upper-level applicant/interview pools. Women were present in 27 (87.1%) of the licensee©s 31 applicant/interview pools, including 17 (80.1%) of its 21 upper-level applicant/interview pools. There were no minority applicants in each of the three pools from which two persons were hired. Of its 611 applicants for all full-time positions, the licensee listed as "unknown" the race or ethnicity for 370 (60.6%) applicants and the recruitment source for 380 (62.2%) applicants. It did not know the race or ethnicity for 287 (63.1%) of its 455 applicants for upper-level positions and the recruitment source for 299 (65.7%) of the applicants. Of its 261 interviewees for all full-time positions, the licensee listed as "unknown" the race or ethnicity for 26 (10%) interviewees and the recruitment source for 108 (41.4%) interviewees. It did not know the race or ethnicity for 20 (10.9%) of its 183 interviewees for upper-level positions and the recruitment source for 83 (45.4%) of the interviewees. My Star reports that, during the review period, it hired two Blacks for lower-level positions; and 20 females, including ten for upper-level positions.3 2 The 31 applicant/interview pools include the three pools where the licensee did not recruit. 3 The licensee acquired WTPI(FM) on January 29, 1990, WZPL(FM) on May 17, 1994, and WMYS(AM) on August 3, 1994. The relevant license term ended August 1, 1996. According to the 1980 Census, the Indianapolis, Indiana, Metropolitan Statistical Area, where the stations are located, had a 43.6% female and 13.5% minority labor force (12.1% Black, 0.7% Hispanic, 0.5% Asian/Pacific Islander and 0.2% American Indian). The 1990 Annual Employment Report for WTPI(FM) lists two Blacks (9.1%) and seven females (31.8%) out of 22 full-time employees. The report also shows one Black (5.6%) and five females (27.8%) out of 18 upper-level employees. The 1991 Annual Employment Report for WTPI(FM) lists two Blacks (8.7%) and nine females (39.1%) out of 23 full-time employees. The report also shows one Black (5.3%) and six females (31.6%) out of 19 upper-level employees. The 1992 Annual Employment Report for WTPI(FM) lists two Blacks (8.3%) and eleven females (45.8%) out of 24 full-time employees. The report also shows one Black (5.3%) and seven females (36.8%) out of 19 upper-level employees. The Commission has begun using 1990 labor force statistics for license renewal applications filed after May 31, 1993, and for 1993 Annual Employment Reports. See "EEO Branch of MMB To Use 1990 U.S. Census Data", Public Notice # 32651 (April 12, 1993). The 1990 Census for the Indianapolis, Indiana, Metropolitan Statistical Area shows a 46.9% female and 13.3% minority labor force (11.5% Black, 0.8% Hispanic, 0.8% Asian/Pacific Islander and 0.2% American Indian). The 1993 Annual Employment Report for WTPI(FM) lists two Blacks (8.3%) and eleven females (45.8%) out of 24 full-time employees.

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