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Federal Communications Commission Record 9 FCC Red No FCC 94-85 Federal Communications Commission Record 9 FCC Red No. 10 MEMORANDUM OPINION AND ORDER Before the AND NOTICE OF APPARENT LIABILITY Federal Communications Commission Washington, D.C. 20554 Adopted: April 11, 1994; Released: April 28, 1994 In re Applications of By the Commission: Beacon File Nos. BR-910125UZ Broadcasting BRH-910125VG I. INTRODUCTION Corporation 1. The Commission has before it for consideration: (i) license renewal applications for the eight captioned radio stations in New York; (ii) a Petition to Deny timely filed For Renewal of Licenses of by the New York State Conference of Branches of the Station WBNR(AM) National Association for the Advancement of Colored Peo Beacon, New York ple (NAACP) and various local NAACP branches in New and York against the above-captioned renewal applications;2 Station WSPK(FM) (iii) oppositions from the licensees; and (iv) the licensees© responses to staff letters of inquiry. The NAACP alleges Poughkeepsie, New York that the above stations violated the Commission©s equal employment opportunity (EEO) Rule and policies toward Culver File No. BR-910125UX minorities. The petitioner requests that the Commission Communications designate the licensees© renewal applications for hearing Corp., Inc. and deny the applications. For Renewal of License of II. BACKGROUND Station WLVL(AM) 2. In challenging an application pursuant to Section Lockport, New York 309(d) of the Communications Act, a petitioner must dem onstrate party in interest status. In addition, a petitioner Great Lakes File No. BRH-9102010I must, as a threshold matter, submit "specific allegations of Wireless Talking fact sufficient to show... that a grant of the application Machine Company would be prima facie inconsistent with [the public interest, convenience, and necessity]." 47 U.S.C. Section 309(d)(l); For Renewal of License of Astroline Com. Co. Ltd. Partnership v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (Astroline); Application of Dubuque T.V. Station WZSH(FM) Limited Partnership and Sage Broadcasting Corporation of South Bristol, New York 1 Dubuque, Iowa for Assignment of Television License for KDUB-TV, Dubuque, Iowa, 4 FCC Red 1999 (1989). The Eagle File Nos. BR-910322YT allegations, except for those of which official notice may be Broadcasting BRH-910322YS taken, must be supported by the affidavit of a person with Company personal knowledge of the facts alleged. 47 U.S.C. Section 309(d)(l). For Renewal of Licenses of 3. Filed with the petition to deny were declarations under penalty of perjury from presidents of NAACP Stations WHCU(AM)/WYXL(FM) branches in the areas of each petitioned station. Each Ithaca. New York president claimed to be a regular listener to the station(s) in his or her area. We find that the declarations meet the Historic File Nos. BR-910130VI requirements for establishing standing for the NAACP. See Hudson Valley BRH-910130VE American Legal Foundation v. FCC, 808 F.2d 84 (D.C. Cir. Radio. Inc. 1987) (American Legal). Therefore, the challenge filed by the NAACP constitutes a valid petition to deny against the captioned stations. For Renewal of Licenses of Stations WGHQ(AM)/WBPM(FM) Kingston. New York III. PLEADINGS 4. The NAACP derived its factual allegations from the licensees© EEO programs and annual employment reports. Review of the allegations led us to conclude that they presented a prima facie case demonstrating that uncondi tional grant of the renewal applications would have been 1 WZSH(FM) changed its call sign to WRQI(FM) on December stations in New York. The current Order addresses the applica 26. 1991. tions of eight stations. We will address the applications of the 2 The NAACP challenged the renewal applications of 16 radio remaining stations separately. 2132 9 FCC Red No. 10 Federal Communications Commission Record FCC 94-85 inconsistent with the public interest. Section 309(d)(T) of WBNR(AM), Beacon, New York and WSPK(FM), the Communications Act. 47 U.S.C. Section 309(d)(l).3 Poughkeepsie, New York Astroline, supra. Further inquiry was, therefore, necessary. See Beaumont Branch of the NAACP and the National Black 7. A review of the licensee©s 1991 EEO Program Report, Media Coalition v. FCC, 854 F.2d 501. 506 (D.C. Cir. 1988) opposition to the petition to deny and response to our (Beaumont); Bilingual Bicultural Coalition on Mass Media, inquiry reveals that the licensee had 29 overall, including Inc. v. FCC, 595 F.2d 621 (D.C. Cir. 1978) (Bilingual). 24 upper-level, full-time hiring opportunities from January However, review of the entire record, including the li 28. 1988, through November 27. 1990."1 The licensee re censees© responses to further inquiries, indicates that there cruited for 24 of its vacancies and used general recruitment are no substantial and material questions of fact warranting sources for various numbers of openings. Used for 11 to 18 designation for hearing. In addition, we find no evidence openings were the National Association of Broadcasters that any of the licensees engaged in discrimination. Thus, (NAB), six colleges, and the Poughkeepsie Journal. Used for grant of each renewal application will serve the public one to nine openings were the Middletown Times Herald interest. 47 U.S.C. Section 309(d)(2). Astroline, supra. Ac Record, on-air ads. New York Department of Labor, The cordingly, the challenge against the licensees© renewal ap Evening News, Broadcasting, Radio & Records, Dutchess plications filed by the NAACP is denied and the renewal County Human Rights Commission. Radio and Television applications will be granted but with remedies and sanc News Directors Association, American Women in Radio tions as noted, infra. and TV, National Association of Media Women, Inc., four colleges, and an employment agency. The licensee reported 36 minority referrals from general sources as follows: IV. DISCUSSION Poughkeepsie Journal (18). Radio & Records (12), NAB (one). Middletown Times Herald Record (one), and walk-ins 5. Section 73.2080 of the Commission©s Rules requires (two). The two other referrals were minority interns at the that a broadcast licensee refrain from employment dis stations who applied for openings. The licensee used the crimination and establish and maintain an affirmative ac following minority recruitment sources for 12 to 18 open tion program reflecting positive and continuing efforts to ings: two nearby NAACP branches. Hudson Valley Black recruit, employ and promote qualified women and minor Press, and three predominantly Black colleges. Used for ities. When evaluating EEO performance, the Commission one to 10 openings were: the National Council of Negro focuses on the licensee©s efforts to recruit, employ and Women. Amsterdam News, The Afro Times Daily Challenge, promote qualified women and minorities and the licensee©s nine predominantly Black colleges, the National Black Me ongoing assessment of its EEO efforts. Such an assessment dia Coalition, the Urban League, the National Association enables the licensee to take corrective action if qualified of Black Journalists, the Dutchess County Commission women and minorities are not present in the applicant Against Racism, and the Martin Luther King Jr. New York pool. The Commission also focuses on any evidence of State Commission. The licensee reported seven minority discrimination by the licensee. See Sections 73.2080 (b) referrals from minority sources as follows: Amsterdam News and (c) of the Commission©s Rules, 47 C.F.R. Sections (four). Howard University (one). Hudson Valley Black Press 73.2080 (b) and (c). (one), and Afro Times Daily Challenge (one). 6. When a renewal application indicates an absence of 8. The licensee©s records on the race of applicants is discrimination and a record of adequate EEO efforts, the incomplete and it does not know the race of some ap application is granted, if otherwise appropriate. When it plicants, although it has applicant flow information for all fails to evidence a record of adequate EEO efforts, the openings. The licensee stated that it is certain it received Commission may impose a variety of sanctions or reme applications from at least 34 Blacks, seven Hispanics, and dies, such as reporting conditions, renewal for less than a two Asians and that it interviewed 23 Black applicants, five full term, forfeiture, or a combination thereof. Further, the Hispanics. and two Asians. One Asian was interviewed for Commission will designate the application for hearing if two positions. Applications from minorities were consid the facts so warrant. Amendment of Part 73 of the Commis ered for 18 positions (15 upper-level) and they were inter sion's Rules Concerning Equal Employment Opportunity in viewed for 17 (14 upper-level). Of the 29 hires, two were the Broadcast Radio and Television Services, 1 FCC Red minority (Black). Of 24 upper-level hires, one was minor 3967 (1987) (hereinafter Broadcast EEO), petition for re ity.5 In addition, the licensee reported that it offered a consideration pending; see also 4 FCC Red 1715 (1989) full-time upper-level disc jockey position to a Black ap (request for clarification by National Association of Broad plicant in December 1989. and offered a full-time upper- casters) (hereinafter Clarification of Broadcast EEO). See level news director position to a Black applicant in e.g., Beaumont, supra; Bilingual, supra. September 1990. but they declined the offers. © The licensees were not challenged regarding their no minorities. In 1986. the licensee employed 30 persons overall recruitment of women. Nonetheless, as is our practice in all (25 upper-level) with one (3.3%) minority (Black) in an upper- cases, we reviewed the licensees© EEO efforts in this respect and level position. In 1987, the licensee employed 28 persons overall found them to be sufficient. (24 upper-level) with no minorities. In 1988, the license em 4 The license terms for all of the stations in this Order ended ployed 25 persons overall (21 upper-level) with no minorities.
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