Federal Communications Commission Record 11 FCC Red No.7

FCC 96-95 Federal Communications Commission Record 11 FCC Red No.7

III. PLEADINGS Before the Federal Communications Commission 3. Settlement Agreement. On April 23, 1992, Price Broad- casting Washington, D.C. 20554 Company (Price), licensee of Stations KUTRIKCPX-FM, and the NAACP, filed a Joint Request for Approval of their Settlement Agreement. The settlement agreement between Price and the NAACP was ap- In re Applications of proved by the Mass Media Bureau Chief by delegated authority in a related matter.3 Nonetheless, as is our prac- Price Broadcasting Company tice in all cases, we reviewed the stations' Equal Employ- ment Opportunity (EEO) Program and performance For Renewal of Licenses of File Nos. BR - 900601D3 pursuant to Section 309 of the Communications Act of 1934, as amended, 47 U.S.C. Stations KUTR(AM)/KCPX-FM BRH - 900601F2 § 309. We find that the Salt Lake City, Utah licensee failed to actively recruit for a substantial number of its vacancies and failed to maintain adequate records for meaningful self-assessment. We find, however, no evidence MEMORANDUM OPINION AND ORDER of employment discrimination. Thus, grant of the renewal application AND NOTICE OF APPARENT LIABILITY will serve the public interest. 47 U.S.C. § 309(d)(2); Astroline Communications Co. v. FCC, 857 F.2d Adopted: March 8, 1996; 1556 (D.C. Cir. 1988) (Astroline). Accordingly, we will Released: March 29, 1996 grant renewal, but with appropriate remedies and sanctions. By the Commission:

IV. DISCUSSION I. INTRODUCTION 4. Section 73.2080 of the Commission's Rules, 47 C.F.R. 1. The Commission has before it for consideration: (i) 73.2080, requires that a broadcast licensee refrain from license renewal applications filed for the captioned radio § employment discrimination and establish and maintain an stations in Salt Lake City, Utah;' (ii) a Petition to Deny equal employment opportunity program reflecting positive timely filed on September 4, 1990, by the Arizona State and continuing efforts to recruit and promote qualified Conference of Branches of the NAACP and the Ida- women and minorities. ho/NevadalUtah State When evaluating EEO perfor- Conference of Branches of the mance, the Commission focuses on the licensee's efforts to NAACP and by various local NAACP branches (NAACP) recruit and promote qualified minorities and women and against the renewal applications of these stations;2 (iii) an the licensee's ongoing assessment of its EEO efforts. Such opposition from the licensee; (iv) the licensee's response to an assessment enables the licensee to take corrective action a staff letter of inquiry; (v) and other pleadings. if qualified minorities and women are not present in the applicant pool. The Commission also focuses on any evidence of discrimination by the licensee. See § 73.2080(b) II. BACKGROUND and 73.2080(c). 2. The NAACP alleges that the above-captioned stations 5. When the renewal application indicates an absence of violated our Equal Employment Opportunity (EEO) Rule discrimination and a record of adequate EEO efforts, the and policies. Accordingly, the NAACP requests that we application is granted, if otherwise appropriate. conduct an investigation of the stations' employment prac- When it fails to evidence a record of adequate EEO efforts the tices pursuant to Bilingual Bicultural Coalition on Mass Commission may impose a variety of sanctions or reme- Media, Inc. v. FCC, 595 F.2d 621 (D.C. Cir. 1978) dies, such as reporting conditions, renewal for less than a (Bilingual). The licensee charges that the NAACP has pre- full term, forfeiture, or a combination thereof. Further, the sented no evidence of discrimination, that the records in- Commission will designate the application for hearing if dicate compliance with the Commission's EEO Rule, and the facts so warrant. Amendment of Part 73 of the Commis- that unconditional renewal is warranted. sion 's Rules Concerning Equal Employment Opportunity in the Broadcast Radio and Television Sert'ices, 2 FCC Rcd 3967 (1987)(Broadcast EEO), see also 4 FCC Rcd 1715 (1989)(request for clarification by the National Association of Broadcasters). See e.g., Beaumont Branch of the NAACP and the National Black Media Coalition v. FCC, 854 F.2d 501, (D.C. Cir. 1988).

The call letters for KUTR(AM) were changed to KCNR(AM) on August 11, 1992. The call letters for KCPX-FM were changed Application of Duffy II Corporation, 6 FCC Rcd 1876 (1991); to KVRI-FM on January Applications of Commonwealth Broadcasting of Northern Cali- 4, 1993, and to KBEE-FM on May 26, fornia, 9 FCC Rcd 2108 (1994) 1995. In this Order we will refer to the stations by their former petitions for recon. pending. Two call letters, other renewal applications were resolved by action of the Mass Media 2 The petition also included stations in Nevada and Arizona, Bureau Chief on May 18, 1992 (Stations KROW/KNEV-FM). The remaining applications will be re- Some have been addressed in separate Commission orders. See Applications of Sun Mountain Broadcasting Inc., viewed in a separate Commission order. 9 FCC Rcd The Bureau approved the settlement agreement in an action 2124 (1994) petitions for recon. pending; Applications of Edens Broadcasting, Inc., in which it granted the renewal and assignment applications of 8 FCC lcd 4905 (1993); License Renewal six other radio stations owned by the licensee.

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6. Review of the licensee's renewal application and in- during the period 1987 to 1990. Finally, according to the quiry response reveals that the licensee filled 41 full-time, licensee, the stations engage in "regular, self-evaluation of including 37 upper-level, jobs from May 1, 1987, through their recruiting program."7 We note, however, a April 30, 1990. The licensee reported receiving minority discrepancy in the licensee's records regarding its renewal referrals from the following recruitment sources during year activity. The renewal applications indicate that no that three-year period: Salt Lake Tribune (1), Deseret News minorities were hired from May 1, 1989, to April 30, 1990, (1), Salt Lake Community College (3), employee referrals for upper-level jobs; however, the inquiry response lists the (1), Radio & Records (1). One Hispanic male applied for hire of an American Indian during that period. Also, the an announcer position filled December 15, 1989. However, renewal applications indicate one upper-level hire during the licensee did not indicate the referral source for that the renewal year whereas the inquiry response lists 14 applicant. The inquiry response indicated that for 11 posi- upper-level hires during the same period. By way of ex- tions the licensee used a list of 57 referral sources4 in planation, the licensee indicated that it interpreted the conjunction with either newspaper advertisements (five upper-four job categories to mean, literally, the top four jobs), employment agencies (one job), or Radio & Records administrative positions at the stations. We accept the li- (one job).5 No recruitment was indicated for the remaining censee's explanation for these inconsistencies; however, we 30 jobs. Further, regarding hiree referral sources, the li- view its failure to more carefully review and comply with censee did not provide data for 22 of the 41 jobs filled FCC instructions on all necessary filing forms as contribut- during the three-year period. Moreover, applicant flow data ing to the inadequacy of its efforts to self-assess the effec- were not adequately maintained for 33 of the 41 jobs. For tiveness of its EEO program. example, the licensee either did not indicate the number, 8. Although there are deficiencies in recruitment and gender, and race of the applicants or provided only the self-assessment, our review of the record discloses no sub- number and gender of the applicants. For the remaining stantial and material questions of fact warranting designa- eight jobs, the licensee reported 107 applicants. Of those tion for hearing. See Astroline. KUTRIKCPX-FM employed 107 applicants, there were two minorities in two upper- minorities during the license term and attracted minority level hiring pools. However, no interviewee information applicants. We also find no evidence of employment dis- was provided. One American Indian was hired for an crimination. Therefore, grant of the renewal applications is upper-level vacancy.6 in the public interest. 7. In its inquiry response the licensee states that it has 9. However, we find KUTR/KCPX-FM's overall been difficult to attract qualified minority candidates for recruitment efforts deficient because the licensee failed to vacancies because there are few minorities in the MSA and recruit for 30 of its 41 vacancies. Also, the licensee failed a large number of other broadcast stations "vying for quali- to maintain adequate records for meaningful self-assess- fied minority candidates." Nevertheless, the licensee states ment.8 47 C.F.R. § 73.2080. that its Annual Employment Reports for two years, 1984 10. In 1994, we adopted a Policy Statement regarding and 1990, showed that the stations employed a minority forfeitures to be assessed for violations of our EEO rules. full-time in each year. Although its records do not include Standards for Assessing Forfeitures for Violations of the information on recruitment contacts for each job and Broadcast EEO Rules, 9 FCC Rcd 929 (1994) ('EEO Policy interviewee, the licensee maintains that its semi-annual Statement"). A court decision issued since the EEO Policy EEO update reports show that the stations were recruiting

The list of 57 sources included employment agencies, tech- censee's 1986 overall and upper-level staffs of 31) and 26 employ- nical schools, minority organizations, community organizations, ees. respectively. The 1986 report listed eight women (26.7%) colleges and schools, and womens' organizations. The licensee's overall, and four women (15.4%) on the upper-level staff. From use of the recruitment list, however, did not appear to affect 1987 to 1989, the licensee's Annual Employment Reports re- substantially the licensee's recruitment results. Only two mi- vealed no minorities among overall staffs ranging from 23 to 29 norities were referred by the sources contacted by the licensee employees and upper-level staffs ranging from 20 to 24 employ- for two upperlevel jobs in the renewal year. Also, we note that ees. In 1987, the licensee reported ten women (34.5%) overall, the licensee indicated its first use of the referral list for a including five women (20.8%) on its upper-level staff. The 1988 bookkeeper position filled June 16, 1988. The licensee's records report reflects nine women (34.6%) overall, including five did not indicate use of the list again until another bookkeeper women (22.7%) on the upper-level staff. In 1989, the licensee position was filled on May 2, 1989, which was also the first hire reported eight women (34.8%) overall, and five women (25%) of the renewal year (May 1, 1989, to April 30, 1990). In the upper-level. In 1990, the licensee reported 25 overall employees, intervening 12 months the licensee filled 16 jobs without any including eight women (32%), and one (4%) American Indian. apparent recruitment. The upper-level staff of 21 employees included four women The licensee reported an intern program for college and ç 19.1%), and one (5%) American Indian. technical schools, but did not report any minority interns or In its renewal applications, the licensee reported that a minority hires as a result. discrimination complaint was filed against the stations by a 6 KUTRIKCPX-FM is located in the Salt Lake City-Ogden Black male formerly employed with KUTRKCPX-FM. The li- MSA which includes 40.8% females, .8% Blacks, 4.5% Hispanic, censee, pursuant to our inquiry, reported that ancillary state 1.7% Asian/Pacific Islander, .5% American Indian. The licens- and federal claims were dismissed in December 1989. In March ee's 1984 Annual Employment Report indicated an overall staff 1993, the licensee prevailed in a Title VII action filed by the of 29 employees, which included six women (20.7%) and one same employee in U.S. District Court. Absent a court finding of Black (3%). The upper-level staff of 27 employees included four licensee discrimination, we find no evidence of discriminatory women (14.8%) and one Black (4%).The overall and upper- conduct where a complaint has been filed against the station. level staffs increased in 1985 to 31 and 28, respectively, with no The licensee is reminded that under our F.EO Rule, 47 minority employees reported on staff. The stations' 1985 report C.F.R. §73.2080, it has an obligation to recruit for females and reflected nine women (29%) on its overall staff, and six women (21.4%) upper-level. No minorities were reported on the Ii-

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Statement indicated that our general policy statement9 on 14. We believe that the facts in the instant case are, in forfeitures must be put out fo.r notice and comment. United several respects, more serious than those in States Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. WGRD(AM)/WGRD-FM. Here, our review indicates that 1994)("USTA"). While the USTA case did not address our the licensee did not recruit for 73% of its vacancies. The EEO Policy Statement, members of the broadcast commu- licensee used its referral list for a vacancy in June 1988 nity have called for the withdrawal of the EEO Policy and apparently did not contact its sources until 12 months Statement until it is likewise made available to the public later. In the intervening 12 months KUTRIKCPX-FM filled for notice and comment. See, e.g., Petition for Declaratory 16 jobs without any apparent recruitment. The licensee's Ruling by Eagle Radio, Inc. (filed August 11, 1994); Letter efforts resulted in only two minorities among 107 ap- from Henry L. Baumann to William E. Kennard, July 13, plicants. More consistent recruitment efforts may have re- 1994. In Streamlining Broadcast EEO Rule and Policies, sulted in a greater number of minority applicants. FCC 96-49, released February 16, 1996, we vacated the Moreover, the licensee failed to self-assess adequately as it EEO Policy Statement and advised licensees that we would kept incomplete data on hiree referral sources and ap- follow our recent practice of making forfeiture decisions by plicant and interview pools. We believe that maintaining relying on case precedent. such information would better enable the licensee to self- 11. We believe that the record in the instant case is assess the effectiveness of its recruitment efforts. Finally, we similar to, but more egregious than, that of the licensee of find that the licensee's submission of inconsistent informa- WGRD(AM)/WGRD-FM, Grand Rapids, Michigan, in Ap- tion in its renewal applications and inquiry response is an plications of Lanser Broadcasting Corporation et al., 7 FCC aggravating factor because it is further evidence that the Red 4254 (1992).b0 The licensee of licensee made insufficient efforts to monitor the effective- WGRD(AM)/WGRD-FM filled 34 full-time, including 31 ness of its EEO performance. Given the facts of this case, upper level, vacancies during the three-year review period broadcasters' familiarity with our long standing EEO Rule, and contacted 14 general and three minority-specific as well as our expanded forfeiture authority in this area, we sources. WGRD(AM)/WGRD-FM failed to maintain com- feel that the circumstances in this case justify issuance of a plete documentation regarding the number of referrals gen- Notice of Apparent Liability for $16,500. Accordingly, we erated by its sources and records concerning its minority will grant renewal subject to reporting conditions and a applicants and interviewees. In that case, we found that the Notice of Apparent Liability for $16,500. licensee failed to self-assess adequately and failed to maintain adequate documentation of its EEO efforts. We issued a $5,000 Notice of Apparent Liability to V. CONCLUSION WGRD(AM)[WGRD-FM and imposed reporting condi- 15. Upon review of the record, we find that grant of the tions. renewal applications, although subject to sanctions for 12. WGRD(AM)/WGRD-FM, although issued in 1992, EEO Rule violations, is justified. Therefore, we will renew was decided based on a former forfeiture authority, which the license subject to reporting conditions and a Notice of was significantly lower. Previously, the forfeiture penalty Apparent Liability for $16,500. assessed against a broadcaster could "not exceed $2,000 for each violation or each day of a continuing violation, except that the amount assessed for any continuing violation could VI. ORDERING CLAUSES not exceed a total of $20,000". In 1989, Congress substan- 16. Accordingly. IT IS ORDERED that the Petition to tially increased the dollar amounts of our forfeiture author- Deny filed by the Arizona State Conference of Branches of ity. Pub. L. No. 101-239. 103 Stat. 2131. Pursuant to the NAACP and the Idaho/NevadalUtah State Conference Section 503(h)(2), the forfeiture penalty assessed against a of Branches of the NAACP and their affiliate branches broadcaster may "not exceed $25,000 for each violation or against the renewal applications of KUTRIKCPX-FM IS each day of a continuing violation, except that the amount DISMISSED in view of the approval of the settlement assessedfor any continuing violation shall not exceed a total agreement. of $250,000 for any single act or failure to act". 17. IT IS FURTHER ORDERED that the license re- 13. The record in this case indicates that the licensee newal applications for KUTR/KCPX-FM ARE GRANTED failed to recruit for 30 jobs. In addition, KUTR/KCPX-FM subject to the reporting conditions specified herein, and (lid not maintain applicant flow data for 33 of the 41 pursuant to Section 503. a NOTICE OF APPARENT LI- (80%) vacancies. The information the station provided in- ABILITY FOR FORFEITURE in the amount of $16,500. dicated that it received two minorities (1.8%) among 107 18. IT IS FURTI-IER ORDERED that the licensee of applicants during the review period. Further, KUTR/KCPX-FM did not provide interview pool data or Stations KUTRJKCPX-FM submit to the Commission an the referral sources of most of its hires. original and one copy of the following information on June 1, 1996:

minorities for each vacancy. Inasmuch as KUTR!KCPX-FM ne- ' The Grand Rapids, Michigan, MSA had an available labor glected to recruit for 30 vacancies, female, as well as minority, force of 7.3% minority (4.3% Black, 2.0% hispanic, 0.6% recruitment was affected. Asian/Pacific Islander, and 0.4% American Indian). Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991), Section 503(b)(2) of the Communications Act of 1934, as recon. denied, 7 FCC Rcd 5339 (1992), revised, 8 FCC Rcd 6215 amended, 47 U.S.C. Section 503(b)(2), authorizes the Commis- (1993). sion to impose monetary forfeitures on broadcast station licensees or permittees for violations of the Act or of regulations promulgated thereunder.

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(a) For the report, please make two lists divided by full-time and part-time job vacancies during the twelve months preceding the respective reporting dates, 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 list should also note which recruitment sources were contacted;'2 (b) A list of all employees as of the May 1, 1996 payroll period for the 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 stations' efforts to recruit minorities for each position filled during the 12-month period 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.

19. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- copies of this Memorandum Opinion and Order and No- tice of Apparent Liability to all parties. 20. The report is to be filed with the Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 21. Should the parties have any questions regarding this action or require further information concerning employment reports, they may call the Mass Media Bureau's EEO Branch at (202) 418-1450. With respect to the forfeiture proceeding, the licensee of KUTRIKCPX-FM may take any of the actions set forth in Section 1.80 of the Commission's Rules, 47 C.F.R. Section 1.80, as summarized in the attachment to this Order. Any comments concerning its ability to pay should include those financial items set forth in the attachment.

FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

12 Such a list might start: Sources contacted - Local newspaper, A.W.R.T., National I-us- 1) News Director: Officials and Managers; Full-time, panic Media Coalition and NAACP 3 Applicants: 1 White female A.W.R.T Selected - Hispanic male (08/19/94) I Hispanic male National Hispanic Media Coalition I Black female NAACP

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