Federal Communications Commission___FCC 96-450 in Re
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_____________Federal Communications Commission____ FCC 96-450 Before the Federal Communications Commission Washington, D.C 20554 In re Application of ) ) KTBY, Inc. ) ) For Renewal of License for )© File No. BRCT-930923KF Station KTBY(TV) ) Anchorage, Alaska ) MEMORANDUM OPINION AND ORDER Adopted: November 18,1996 Released: November 25, 1996 By the Commission: L INTRODUCTION 1. The Commission has before it for consideration: (i) a license renewal application for the captioned television station; (ii) a Petition to Deny filed by Bobby Duffy ("petitioner"); and (iii) the licensee©s opposition to the petition. 2. Duffy alleges that KTB Y(TV) violated our Equal Employment Opportunity (EEO) Rule and policies. Accordingly, he requests mat we conduct an investigation of the station©s employment practices pursuant to Bilingual Bicultural Coalition on Mass Media v. FCC. 595 F.2d 621 (D.C. Cir. 1978) (Bilingual) and designate the renewal application for hearing. The licensee opposes Dufiy©s allegations, urging that he has failed to establish any violations of our EEO requirements and that unconditional renewal of the license should be granted IL BACKGROUND * 3. Standing. In challenging an application pursuant to Section 309(dXl) of the Communications Act of 1934, as amended, 47 U.S.C. § 309(dXl), a petitioner must demonstrate party in interest status. The allegations, except for those of which official notice may be taken, must be supported by the affidavit of a person with personal knowledge of the facts alleged. 47 U.S.C. § 309(dXl). 4. Submitted with the petition is a statement under penalty of perjury supplied by Duffy stating that he is a resident of Anchorage and a regular viewer of KTBY(TV) who would be aggrieved if the petition is not granted. We find that this statement meets the requirements for standing. See NAB Petition for Rulemaking. 82 FCC 2d 89 (1980). Accordingly, we hold that Duffy has standing with respect to Station KTBY(TV). 5. Prima Facie Case. A petitioner must, as a threshold matter, submit, "specific allegations of fact sufficient to show...that a grant of the application would be prima facie 19643 _____________Federal Communications Commission______ FCC 96-450 inconsistent with [the public interest, convenience, and necessity]." 47 U.S.C. § 309(dXl); Astroline Communications Co. v. FCC. 857 F.2d 1556 (D.C. Cir. 1988) (Astroline). The petitioner derived his factual allegations from the licensee©s EEO program and Annual Employment Reports. As a threshold matter, we found that the petitioner made a prima facie showing that grant of the renewal application would have been inconsistent with the public interest See Section 309(dXO of the Communications Act of 1934, 47 U.S.C. § 309(dXl); Astroline. 6. Review of the petitioner©s EEO allegations, as well as the licensee©s renewal application and opposition leads us to conclude that there are no substantial and material questions of fact warranting designation for hearing. In addition, we find no evidence that the licensee engaged in discrimination. However, we find that the licensee©s EEO efforts warrant a remedy. EL DISCUSSION 7. Section 73.2080 of the Commission©s Rules, 47 C.F.R § 73.2080, requires that a broadcast licensee refrain from employment discrimination and establish and maintain an EEO program mat reflects 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 minorities and women and the licensee©s ongoing assessment of its EEO efforts. Such an assessment enables the licensee to take corrective action if qualified minorities are not present in the applicant pools. The Commission also focuses on any evidence of discrimination by the licensee. See Sections 73.2080 (a), (b) and (c) of the Commission©s Rules, 47 C.F.R. §§ 73.2080 (a), (b) and (c).1 8. Review of the licensee©s renewal application and opposition reveals that the station had 21 full-time hiring opportunities, including 11 for upper-level positions for the period September 9, 1990 through January 1, 1994. The licensee recruited for all 21 vacancies. For 16 jobs, KTBY(TV) used a combination of 10 sources, including general sources, minority sources2 and employee referrals. During the renewal year, which began September 1, 1992, KTBY(TV) modified its recruitment efforts and contacted two general, twenty minority and three women©s sources for three of five remaining positions.3 As a result of these contacts, KTBY(TV) received 21 minority applicants among 250 total applicants, including one minority and two female referrals provided by the station©s employees. 1 Hie licensee is reminded that under our EEO Rule, 47 C.F.R. § 73.2080, it has an obligation to recruit for females and minorities for each vacancy. To the extent mat licensees fail to do so, female, as well as minority, recruitment is affected. 2 Minority sources were contacted for six jobs and, these sources produced three minority applicants. 3 In its opposition, the licensee indicated that in December 1992 h began using a list of 20 minority and female recruitment sources. Our review discloses that these sources were initially used to recruit for a vacancy in January 1993. Use of these minority sources attracted two minority referrals and one minority applicant 19644 _____________Federal Communications Commission_____ FCC 96450 9. Minorities were present in 10 (52.63%) of the 19 overall applicant pools and six (66%) of the nine applicant pools for upper-level positions.4 Minorities were included in nine (47%) of the 19 overall interview pools and three (33%) of the nine upper-level interview pools. KTBY(TV) reported two minority hires, including one minority hire for an upper-level vacancy. 5 10. The petitioner argues that the licensee has failed to implement a legally sufficient program for the employment of minorities and has failed to self-assess its program. He contends that the licensee©s EEO program is deficient as evidenced by an alleged "underrepresentation" of minorities in KTBY(TV)©s workforce. He further contends that the licensee contacted no minority-specific recruitment sources and failed to obtain more than two minority applicants for its 21 vacancies. Finally, Duffy concludes that the licensee©s 1993 EEO Program Report (FCC Form 396) reflects even less activity than did its 1988 Report. He notes that the 1988 Report reflects only three minority applicants, one minority hire, and three EEO complaints. In contrast, he states that the 1993 Report reveals two minority applicants, no minority referrals and no minority hires. 11. The licensee responds that the petitioner has based his arguments solely on its Annual Employment Reports (FCC Form 395-B). The licensee argues that this "limited data" highlighted by Duffy, "does not reflect the full extent and effectiveness of its actual EEO efforts." In opposition, KTBY(TV) states that it has "consistently" made EEO efforts, but those efforts were hampered by "very low turnover" and usually only four full-time vacancies per year. The licensee adds that minorities applied for ten (50%) of the positions filled during the license term and, thus, maintains that its recruitment efforts were productive. It further adds that it hired two minorities for permanent positions at the station and made two additional offers of permanent 4 The licensee used the same applicant pool on two different occasions. In the first case, a single applicant pool was used to fill two Account Executive positions in February and March of 1991. In the second instance, the same pool was used for an Account Executive position and Accounting Assistant position filled in July 1992 and January 1993, respectively. Thus, the number of hires differs from the actual number of applicant pools. 5 The license term for KTBY(TV) ended February 1, 1994. The following is based on labor force data for the Anchorage, AK Metropolitan Statistical Area (MSA). In 1980, the Anchorage MSA had a labor force that was 44.30% female and 12.60% minority (430% Black, 2.30% Hispanic, 2.10% Asian/Pacific Islander and 3.90% American Indian). The 1989 report reflects 11 women (47.83%) among 23 overall employees, including seven women(41.18%)Hstedamong 17 employees in upper-level positions. The 1990 report reflects nine women (37.50%) among 24 employees overall, including 5 women (29.41%) among 17 employees in upper-level positions. The 1991 report reflects nine women (32.14%) among 28 employees overall, including 5 women (25.00%) among 20 employees in upper-level positions. In the 1992 report, nine women (37.50%) and one American Indian (4.17%) were reported among 24 employees, including 5 women (27.78%) and one American Indian (5.56%) are listed among 18 employees in upper-level positions. No minority employees are listed for 1989, 1990 and 1991, The Commission began to use 1990 Census data for license renewal applications filed after May 31, 1993, and for 1993 Annual Employment Reports. See "EEO Branch of Mass Media Bureau to Use 1990 U.S. Census Data," Public Notice released April 12, 1993, FCC No. 32651. In 1990, the Anchorage MSA had a labor force that was 46.20% female and 18.00% minority (4.90% Black, 3.60% Hispanic, 4.50% Asian/Pacific Islander and 5.00% American Indian). The 1993 Annual Employment Report lists 10 women (43.48%) among 23 employees overall, including six women (35.29%) listed among 17 employees in upper-level positions. No minority employees are reported. 19645 _____________Federal Communications Commission_______FCC 96-450 employment to minorities, but these offers were declined.6 The licensee notes that had the offers been accepted, KTBY(TV) would have "hired minorities at a rate exceeding their representation in the area labor force." It also notes that "in a number of instances, [its] outreach was limited to the use of local newspaper ads..." because these sources produced more minority referrals than all other sources combined.7 The licensee further notes that local newspapers produced 17 of KTBY(TV)©s 21 minority applicants while minority sources produced four minority applicants.