9 FCC Red No. 17 Federal Communications Commission Record FCC 94-196

PLGTF (and the PLGTF with ASPIRA) allege that the Before the above stations violated the Commission©s equal employ Federal Communications Commission ment opportunity (EEO) Rule and policies toward minor Washington, D.C. 20554 ities. PLGTF also alleges that Stations WEGX(FM) and WYSP(FM) violated the EEO Rule and policies regarding their recruitment of women.3 Accordingly, all the informal In re Applications of objectors request that the Commission conduct an inves tigation of the stations© employment practices pursuant to WHYY. Inc. File No. BRED-910401ZW Bilingual Bicultural Coalition on Mass Media v. FCC, 595 F.2d 621 (D.C. Cir. 1978) (Bilingual), designate the renewal applications for hearing and, thereafter, deny the applica For Renewal of License of tions. The licensees contend that they complied with the Station WHYY(FM) EEO Rule and deserve unconditional renewal. Philadelphia. Pennsylvania 2. This Memorandum Opinion and Order replaces an earlier version, FCC 94-186. which we hereby rescind pur Infinity File No. BRH-910401F2 suant to 47 C.F.R. § 1.108. The earlier version was adopted Broadcasting Corp. by the Commission on July 11. 1994. but not released. of Pennsylvania II. PLEADINGS For Renewal of License of 3. STANDING. In challenging an application pursuant to Station WYSP(FM) Section 309(d) of the Communications Act, a petitioner Philadelphia. Pennsylvania must demonstrate party in interest status. In addition, a petitioner must, as a threshold matter, submit "specific Malrite File No. BRH-910328YY allegations of fact sufficient to show... that a grant of the Guaranteed Broadcast application would be prima facie inconsistent with [the Partners. L.P. public interest, convenience, and necessity]." 47 U.S.C. Section 309(d)(l): Astroline Com. Co. Ltd. Partnership v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (Astroline); Dubuque For Renewal of License of T.V. Limited Partnership, 4 FCC Red 1999 (1989). The Station WEGX(FM)© allegations, except for those of which official notice may be Philadelphia, Pennsylvania taken, must be supported by the affidavit of a person with personal knowledge of the facts alleged. 47 U.S.C. Section 309(d)(l). MEMORANDUM OPINION AND ORDER 4. We note that the PLGTF and ASPIRA have failed to demonstrate party in interest status by filing affidavits from parties who are shown to be residents in the listening area Adopted: July 29, 1994; Released: August 1, 1994 of the above-listed stations or listeners to the stations. See Petition for Rulemaking to Establish Standards for Determin Bv the Commission: ing the Standing of a Panv to Petition to Denv a Broadcast Application, 82 FCC 2d 89. 98-99 (1980). Accordingly, we will treat these groups as informal objectors. 47 C.F.R. I. INTRODUCTION Section 73.3587: see also KDEN Broadcasting Co., 55 Rad. 1. The Commission has before it for consideration: (i) Reg. 2d (P&F) 1311. 1311-1312 (1984). the license renewal applications for the captioned radio stations: (ii) Petitions to Deny timely filed jointly by the Philadelphia Lesbian and Gay Task Force, the Pennsylva III. DISCUSSION nia and Philadelphia chapters of the National Organization 5. PRIMA FACIE CASE. The PLGTF and ASPIRA de for Women (NOW) (collectively PLGTF), and ASPIRA, rived their factual allegations from the licensees© EEO Inc. of Pennsylvania against the renewal applications;2 (iii) programs and annual employment reports. Review of the oppositions from the licensees: (iv) informal objectors© re allegations against the licensees in this Order led us to sponses to the licensee©s oppositions, and (v) the licensees© conclude that they presented a prima facie case demon responses to staff letters of inquiry. Petitions filed by strating that unconditional grant of the renewal applica-

© Station WEGX(FM) changed its call sign to WJJZ(FM) on stations, the PLGTF and other parties also challenged the re March 22, 1993. newals of the three stations in this Order on programming ©; The PLGTF challenged the renewal applications of six radio issues. These issues were resolved in License Renewal Applica stations, including WIP(AM), in Philadelphia, Pennsylvania, on tions of Certain Commercial Radio Stations Serving Philadelphia, equal employment opportunity (EEO) grounds. The renewal Pennsylvania, 8 FCC Red 6400 (1993). application of WIP(AM) was addressed in a separate action. See 3 The licensee of WHYY(FM) was not challenged regarding its Spectacor Broadcasting L.P., 9 FCC Red 1729 (1993) (Spectator). recruitment of women. Nonetheless, as is our practice in all This Order addresses three of the remaining five stations. The cases, we reviewed the licensee©s EEO efforts in this respect. We other two stations will be addressed in a separate action. found them to be sufficient. ASPIRA joined the PLGTF in the challenge of WIP(AM), WHYY(FM), and WYSP(FM). In a separate petition to deny challenging the renewal applications of 13 Philadelphia radio

3977 FCC 94-196 Federal Communications Commission Record 9 FCC Red No. 17

tions would have been inconsistent with the public interest. 8. A review of the licensee©s 1991 EEO Program Report, Section 309(d)(l) of the Communications Act. 47 U.S.C. opposition to the PLGTF/ASPIRA petition to deny and Section 309(d)(l). Astroline, supra. Further inquiry was. response to our inquiry reveals that the licensee had 13 therefore, necessary. See Beaumont Branch of the NAACP overall, including 10 upper-level, full-time hiring opportu and the National Black Media Coalition v. FCC, 854 F.2d nities from March 7, 1988, through July 8, 1991.4 The 501. 506 (D.C. Cir. 1988) (Beaumont); Bilingual, supra. licensee recruited for all of its vacancies and used 212 However, review of the entire record, including the li general recruitment sources and four female-specific censees© responses to further inquiries, indicates that there sources. It used 85 of these sources for all openings, includ are no substantial and material questions of fact warranting ing the four women©s organizations. The other 127 general designation for hearing regarding their EEO efforts. In sources were used for two to nine openings. They are addition, we find no evidence of employment discrimina summarized as follows: 54 schools and colleges; a union; tion. Thus, grant of each application will serve the public the National Association of Broadcasters (NAB); National interest. 47 U.S.C. Section 309(d)(2): Astroline, supra. How Society of Fundraising Executives (NSFRE) Newsletter; vet ever, we will grant renewal with appropriate remedies. erans, senior citizens, and handicapped organizations: sev 6. Section 73.2080 of the Commission©s Rules, 47 C.F.R. eral newspapers and magazines; Computer Learning Section 73.2080. requires that a broadcast licensee refrain Center; Corporation for Public Broadcasting (CPB) Em from employment discrimination and establish and main ployment Outreach Project: Jewish Employment Service: tain an affirmative action program reflecting positive and Public Radio News Directors Association Mailing List (100 continuing efforts to recruit, employ and promote qualified licensees nationwide); National Public Radio (NPR): 29 women and minorities. When evaluating EEO perfor radio and television stations: and others. WHYY(FM) inter mance, the Commission focuses on the licensee©s efforts to viewed minority referrals from these sources: Philadelphia recruit, employ and promote qualified women and minor Inquirer (15), NPR (five), employee referrals (five), Current ities and the licensee©s ongoing assessment of its EEO (three), and one each from Computer Learning Center. efforts. Such an assessment enables the licensee to take NSFRE Newsletter. Temple University, WHYY Job Line. corrective action if qualified women and minorities are not CPB outreach project, and Broadcasting. present in the applicant pool. The Commission also focuses 9. The licensee used 110 minority sources, 22 of which on any evidence of discrimination by the licensee. See were used for all 13 openings.5 Of the others, one minority Sections 73.2080 (b) and (c) of the Commission©s Rules, 47 source was used once and all others were used for two to C.F.R. Sections 73.2080 (b) and (c). nine openings. None of the 110 minority sources referred 7. When a renewal application indicates an absence of any of the minority referrals/interviewees: however, the discrimination and a record of adequate EEO efforts, the licensee©s records are incomplete concerning the total application is granted, if otherwise appropriate. When the number of minority referrals or applicants it received. licensee fails to evidence a record of adequate EEO efforts, 10. The licensee reported that it interviewed 34 minor the Commission may impose a variety of sanctions or ities out of 123 total interviewees. Minorities were present remedies, such as reporting conditions, renewal for less in 11 of 13 pools, eight upper-level. Of the 13 hires, seven than a full term, forfeiture, or a combination thereof. were minorities -- four Blacks, two Hispanics. and one Further, the Commission will designate the application for Asian. Of 10 upper-level hires, five were minorities two hearing if the facts so warrant. Amendment of Part 73 of the Blacks, two Hispanics, and one Asian." Commission©s Rules Concerning Equal Employment Opportu 11. The PLGTF/ASPIRA argue that the station failed to nity in the Broadcast Radio and Television Services, 2 FCC use minority schools or publications as recruitment Red 3967 (1987) (Broadcast EEO) ; see also 4 FCC Red sources. They argue that the licensee©s reliance on 1715 (1989) (request for clarification by the National Asso recruitment mass mailings is ineffective. They also argue ciation of Broadcasters) See e.g., Beaumont, supra; Bilingual, that there were never more than three Blacks in upper- supra. WHYY(FM) level jobs at any one time during the license term: minor-

4 The license terms of all stations in this Order ended on July dicates that the licensee employed 25 persons overall (24 31, 1991. upper-level) with two minorities (8.0%). both Blacks in upper- 5 These 22 sources are: Tri-State Black Media Coalition, How level positions (8.3%). In 1986. the licensee employed 26 persons ard University, Latin American Community Center, United overall (24 upper-level) with two Blacks (7.7%) in upper-level American Indians of the Delaware Valley. Philadelphia Associ positions (8.3%). In 1987, the licensee employed 27 persons ation of Black Journalists. Congreso Centro de Trabajos. Chief overall (25 upper-level) with two Blacks (7.4%) in upper-level Roy Crazy Horse. Chinese Cultural and Community Center. positions (8.0%). In 1988. the licensee employed 34 persons Urban League. Hispanic Community Center, Mayor©s Spanish overall (32 upper-level) with one Black (2.9%) upper-level Speaking Council, Minority Business Development Agency, (3.1%). In 1989. it employed 35 persons overall, including one Asian American Journalists Association, National Association of Black (2.9%) and two Hispanics (5.7%). The upper-level staff of Hispanic Journalists. NBMC, Honorable Angel Ortiz, Philadel 32 employees included one Black (3.1%) and two Hispanics phia Opportunities Industrialization Center (OIC). State Repre (6.3%). In 1990, the licensee employed 36 persons overall (34 sentative Ralph Acosta. Accion Comunal Latino Americana, upper-level) with three minorities, all Blacks (8.3%) in upper- Cheyney University. California Chicano News Media Associ level positions (8.8%). In 1991, the licensee employed 29 persons ation, and the National Association of Black Journalists (NABJ), overall (27 upper-level), with three Blacks (10.4%), two in In addition, 21 NABJ chapters in 17 states and Washington, D.C. upper-level jobs (7.4%). were among the other 88 minority sources contacted. 7 We note that the PLGTF/ASPIRA allegation that the licensee 6 The labor force for all of the licensees in this Order is the failed to use certain minority sources is incorrect, as shown Philadelphia, Pennsylvania Metropolitan Statistical Area (MSA), above. which is 42.7% female and 18.2% minority (15.4% Black. 1.7% Hispanic, 1.0% Asian-Pacific Islander, and 0.1% American In dian). The licensee©s Annual Employment Report for 1985 in

3978 9 FCC Red No. 17 Federal Communications Commission Record FCC 94-196 ities never had "significant" positions during the term; using numerous minority-specific, female, and general minority employment declined over the course of the term; sources for every opening, obtained minority applicants and the licensee has proposed no improvements in its EEO and interviewees in 85% of its overall pools and 80% of its program.8 upper-level pools, and hired minorities (seven of 13 hires 12. The licensee responded in its opposition that it has overall, five of 10 upper-level). In addition, the licensee revised its large list of recruitment sources nine times over engaged in self-assessment, revising its source list nine the three-year review period. Further, the licensee stated times and using 216 general and 110 minority sources that it sent job notices for specific vacancies to its sources. during the term. In light of all of the above, we believe WHYY(FM) also stated that it annually reaffirmed the unconditional renewal is warranted. WYSP(FM) participation of its regular recruitment contacts and sought 15. A review of the licensee©s 1991 EEO Program Re their assistance in identifying additional sources. The li port, opposition to the PLGTF/ASPIRA petition to deny censee noted that CPB assists by supplying its EEO and responses to our inquiries reveals that the licensee had recruitment kit which includes nationwide recruitment 22 overall, including 17 upper-level, full-time hiring op source lists. The licensee asserted that when it reviews the portunities from March 28, 1988, through March 28, 1991. list, it adds more sources from its local region. The licensee recruited for 16 of its vacancies and used 21 13. The licensee asserted that its loss of one upper-level general and 12 minority recruitment sources for various minority employee from 1990 to 1991 was due to a net numbers of openings.9 Its records on minority referrals are reduction in staff of seven employees both overall and incomplete, but it reported 29 minority referrals from gen upper-level, resulting from layoffs in 1990. The licensee eral sources as follows: 17 from the Philadelphia Inquirer, stated that it has sought to remedy its loss of any employees two from the Pennsylvania Job Center, one from Pierce through intensified recruitment of minorities and further Junior College, two walk-ins, one from a temporary em changes in its source list. The licensee reported that it ployment service, and the remaining six referrals from hired two minorities out of its three full-time hires from unknown sources. It reported only one minority referral January 1. 1991. through the end of the term and that its from a minority source, the Urban League. In addition, the one promotion in this period went to a minority employee. licensee©s records did not reflect how many women were In addition, the licensee©s records reveal that the five mi referred by each source. The licensee©s records indicated norities hired for upper-level jobs in the review period that minorities were present in 10 interview pools (five were hired for four reporter/producer positions and direc upper-level) and that it interviewed 30 minorities (6 upper- tor of development, which appears to contradict PLGTF©s level) out of 143 total interviewees. Women were present argument that minorities were never employed in signifi in 16 interview pools (11 upper-level) and the licensee cant positions. interviewed 82 women, including 22 for upper-level jobs. 14. After reviewing the record of Station WHYY(FM), The licensee hired five minorities, all Blacks, including we find no substantial and material questions of fact suffi one for an upper-level position. It hired 10 women, six of cient to warrant a hearing. See Astroline, supra. The li whom were hired for upper-level positions. 10 censee engaged in recruitment for all openings and hired 16. The PLGTF/ASPIRA argue that the licensee©s and employed minorities and women. Thus, we find no recruitment of women was inadequate and criticize the evidence to indicate discrimination. Moreover, we believe licensee for failing to obtain any female referrals from that its overall efforts were such that no sanction or rem women©s organizations or WYSP(FM) employees during edy is warranted. In this regard, the licensee recruited the renewal year. They allege that the licensee©s employ ment of women declined in 1991 from the number em-

8 In addition, PLGTF argues that EEO compliance should be employed 25 persons overall (20 upper-level) with three Blacks evaluated on the basis of full parity for minorities and women (11.5%), all of whom were in upper-level positions (15.0% of rather than the long-standing Commission standard of 50% of upper-level positions). The licensee employed 13 women parity with their presence in the labor force; that labor force (50.0%), seven (35.0%) in upper-level positions. In 1986, the figures more recent than the 1980 Census should be applied to licensee employed 30 persons overall (22 upper-level) with four Philadelphia stations, and that the Commission should amend Blacks (13.3%), three (13.6%) in upper-level positions. It em its EEO Rule to prohibit sexual orientation discrimination. The ployed 12 women (40.0%), five (22.7%) in upper-level positions. PLGTF raised these arguments in its petition against the re In 1987, the licensee employed 30 persons overall (23 upper- newal of Station WIP(AM), Philadelphia, Pennsylvania. All level), including four Blacks overall (13.3%) and three (13.0%) three arguments were either dismissed or found to be upper-level. It employed 12 women (40.0%), six (26.1%) in unpersuasive in Spectacor, supra. We see no reason to alter our upper-level positions. In 1988, it employed 30 persons overall decision. (22 upper-level), including four Blacks overall (13.3%) and g General sources included the Metropolitan Collegiate Center three (13.6%) upper-level. It employed 13 women (43.3%) over (used for 16 vacancies), Women in Transition (16). 11 schools all with seven (31.8%) in upper-level positions. In 1989, the and colleges (15), the Philadelphia Inquirer (15), Philadelphia licensee employed 31 persons overall (23 upper-level), with five Gay News (2), and Au Couranl (2). Minority sources and num Blacks (16.1%). three (13.0%) in upper-level positions. It em ber of vacancies for which they were contacted are as follows: ployed 15 women (48.4%) with nine (39.1%) in upper-level the Urban League (16 vacancies). Mayor©s Spanish Council (16), positions. In 1990, it employed 28 persons overall (20 upper- QIC (16), NAACP (16), NBMC (16), Tri-State Black Media level), with four Blacks (14.3%), including two (10.0%) upper- Coalition (16), Conicillio (a council of Spanish-speaking or level. It employed 13 women (46.4%) with seven (35.0%) in ganizations) (16), Cheyney University (15), Lincoln University upper-level positions. In 1991, the licensee employed 29 persons (15), Philadelphia Community College (15), La Actualidid (14), overall (22 upper-level), with six Blacks (20.7%), four (18.2%) and the Philadelphia Tribune (12). in upper-level positions. It employed 13 women (44.8%) with 10 See note 6, supra, for the Philadelphia MSA labor force. All seven (31.8%) in upper-level positions. of the minorities reported on the licensee©s annual employment reports during the license term were Black. The licensee©s Annual Employment Report for 1985 indicates that the licensee

3979 FCC 94-196 Federal Communications Commission Record 9 FCC Red No. 17

ployed in 1990. that employment of women part-time engaged in minority and female recruitment and inter declined over time from 1988 to 1991, and that women viewed and hired minorities and women. Therefore, we were employed below parity in upper-level positions every find no evidence to indicate discrimination. Accordingly, year except 1990. Also, they criticize the licensee for failing renewal of the license is in the public interest. The licensee to obtain minority referrals during the same time period recruited using minority sources for most openings, ob from minority sources, station employees, or schools. They tained 30 minority applicants and interviewees, included argue that, although the station employed Blacks overall minorities in almost half of its applicant/interview pools, and in upper-level positions above parity with the labor hired five minorities of 22 hires, and employed minorities force in 1991, "still only three of the 14 top two jobs are above 50% of parity both overall and upper-level every held by African Americans" at the station. 11 Lastly, the year of the license term. However, the licensee failed to PLGTF/ASPIRA argue that the licensee©s recruitment recruit for six (35%) of its upper-level openings. 12 Accord record-keeping was inadequate, especially records of ingly, we will renew the license subject to reporting con referrals. Consequently, the productivity of its sources was ditions. unknown. 17. Although WYSP(FM) did not list all of its female and WEGX(FM) minority referrals by recruitment source, it stated that it 21. A review of the licensee©s 1991 EEO Program collected some of this information and assessed its efforts as Report, opposition to the PLGTF petition and responses to well as the effectiveness of sources. It indicated that it our inquiries reveals that the licensee had 53 overall, in contacted sources at various times to confirm whether they cluding 40 upper-level, full-time hiring opportunities from were able to refer applicants and asked its female and March 1988 through February 1991. u The licensee re minority sources to recommend other sources likely to cruited for 47 vacancies but did not use any single, outside refer women and minorities. recruitment source for all 47 openings. The licensee used 18. Regarding its employment of women, the licensee general sources for openings as follows: two women©s or noted that the number of women employees was the same ganizations and a job service (41 vacancies). Philadelphia in the 1990 and 1991 annual employment reports for both Urban Coalition (39), a career center (31), two business overall and upper-level positions but that the percentage schools (31). Philadelphia Inquirer (21), Talent Agent (sev decreased because the stations added two upper-level and en), and a source that the licensee could not identify (one). one overall employee in 1991. Even then, in both years, The licensee contended that it sought employee referrals according to WYSP(FM), women were employed overall for all openings. The licensee could not identify the above parity and above 50% of parity upper-level. The sources of all minority referrals but reported minority licensee acknowledged that the number of female part-time referrals from the Philadelphia Inquirer (13) and the job employees decreased after 1988. It stated that the 1988 service (three). It reported that it contacted minority employees worked on marketing research and after the sources as follows: Urban League (40 vacancies), four dif licensee decided to switch to an outside market research ferent NAACP branches (41 vacancies for each). Council company to do this work, it no longer had positions for of Spanish Speaking Organizations (41). a Black city coun these part-time employees. cil member and community leader (14). OIC (13), a news 19. Regarding the six upper-level positions for which it paper specializing in serving the Black community -- the did not publicly recruit, the licensee stated that it either Philadelphia Tribune (nine openings). United American recruited a specific person for those jobs or created a job Indians (18). Burks Group Minority Recruitment (three), for an applicant that the station felt was especially quali and NBMC (one). The licensee reported minority referrals fied. It argued that the Commission will allow some use of from the Urban League (seven) and Burks Group (six). these practices, and cited South Carolina Renewals, 5 FCC 22. The licensee©s interview information indicated that it Red 1704, 1705 (1990) (concerning Stations interviewed 48 minorities (44 Black, three Hispanic, one WESC(AM)/WESC-FM, Greenville. South Carolina) Asian) for a total of 24 overall positions; 35 minorities (WESC). The licensee indicated that one of the six persons were interviewed for 17 upper-level positions. The Asian hired without recruitment was a woman. She was a walk-in hire was the only interviewee for the opening for which he hire. The other five hires were positions created for non- was hired. The licensee reported that it interviewed 391 minority males without recruitment. women for 38 overall positions; 337 women were inter 20. After reviewing the record of Station WYSP(FM), we viewed for 27 upper-level positions. Of the 53 hires, four find no substantial and material questions of fact sufficient were minorities (three Blacks and one Asian) and 25 were to warrant a hearing. See Astroline, supra. The licensee women. Of 40 upper-level hires, two were minorities (one Black and one Asian) and 14 were women. 14 The licensee

11 Although the PLGTF/ASPIRA do not explain how they that WYSP(FM) filled five of the positions prior to the Commis define "top two jobs," it is assumed that they are referring to sion©s March 1990 release of the South Carolina opinion. Hence, the top two job categories on the Annual Employment Report the licensee could not have relied on the decision in that order (1) officials and managers, and (2) professionals. as a rationale for its recruitment and hiring activity. Thus, we 12 WYSP(FM)©s reliance on South Carolina Renewals, supra, as remind the licensee to recruit for each hiring activity, particu justification for neglecting to recruit for six upper-level posi larly where, as here, five of the six non-recruited jobs were tions is misplaced. First, in that case the licensee reported only filled with non-minority males. three hires and failed to recruit for one of those positions. The 13 The licensee acquired WEGX(FM) on March 5, 1987, Commission stated, "We have determined that no administra through a voluntary assignment of license (BALH-861219HJ) tive action or further inquiry is warranted in view of the from WTRK, Inc. to Malrite Guaranteed Broadcast Partners. limited number of hiring and promotional opportunities, the 14 See note 6, supra, for the Philadelphia MSA labor force. The recruitment of minorities and the employment of minorities licensee of WEGX(FM) filed its Annual Employment Report for throughout the term." South Carolina at 1405. Second, we note 1987 almost immediately after it obtained the station. It in-

3980 9 FCC Red No. 17 Federal Communications Commission Record FCC 94-196

also reported that it offered full-time upper-level positions him as such was incorrect and inadvertent. Furthermore, to two minority women, one in June 1990 and another in the licensee did not elaborate on its failure to identify the January 1991, but that both declined the offers. female minority applicants who were offered jobs, but stat 23. The PLGTF made the following arguments: (1) the ed that they declined due to monetary considerations. licensee contacted no minority colleges as referral sources; 26. WEGX(FM) stated that it has assessed its EEO efforts (2) the station made no efforts to recruit Hispanics and a number of times and has increased record-keeping start employed no Hispanics except in 1989; (3) the station©s ing in June 1988, requiring monthly EEO recruitment annual employment reports from 1984 through 1991 show reports from department heads starting in 1989. It claimed a decline in the percentage of female and Black employees it engaged in a "constant expansion" of recruitment sources overall except for women in 1989; (4) the same reports from October 1988 through the end of the term. show a decline in female and Black employment in upper- 27. After reviewing the record of Station WEGX(FM), level positions, except for Blacks in 1991; (5) these down we find no substantial and material questions of fact suffi ward trends continued after the licensee took over the cient to warrant a hearing. See Astroline, supra. The li station in 1987; (6) the licensee admits that it misclassified censee engaged in recruitment and hired and employed a non-minority employee as Hispanic and. therefore, all of minorities and women. We find no evidence to indicate its EEO records are in question; and (7) the licensee claims discrimination. Therefore, renewal of the license is in the that two minority women declined offers of upper-level public interest. The licensee recruited using minority jobs but fails to identify them. sources for most openings, obtained 48 minority applicants 24. The licensee of WEGX(FM) admitted that it con and interviewees (including 35 applicant/interviewees for tacted only two schools during the license term, but argued upper-level positions), included minorities in almost half of that its sources included 12 minority sources. The licensee its applicant/interview pools, hired four minorities, and acknowledged that it has not employed Hispanics full-time employed minorities above 50% of parity both overall and but stated that it has recruited Hispanics. Citing Letter to upper-level every year of the five-year license term (except Howard B. Dolgoff, 5 FCC Red 7695. 7696 (1990) (con one year upper-level). However, the licensee failed to re cerning Station WTHZ-FM. Tallahassee, Florida) cruit using minority sources for 12 openings (22%) which (WTHZ-FM), it argued that the Commission does not con is significant given the absence of minorities in more than sider 1.7% to be a statistically "significant" number and half of the applicant and interview pools. Accordingly, we noted that 1980 census data show that Hispanics comprise will renew the license subject to reporting conditions. only 1.7% of the station©s job market. See also Applications of Certain Television Stations Serving Communities in the State of California, 6 FCC Red 2340, 2344 n.4 (1991) V. CONCLUSION (California), and Spectacor at para. 12 n.7. 15 28. After considering the information before us, we find 25. The licensee argued that it has not seen a significant that hearings are not warranted and the records of the decline in female or minority employees and notes that licensees support grant of their renewal applications. The minority employees have increased in number from license of WHYY(FM) will be renewed without sanction. 1987-91 overall and upper-level. It also noted that female In addition, the licenses of WYSP(FM) and WEGX(FM) employees are less than 1% below full parity with the will be renewed subject to reporting conditions. labor force overall and above 50% of parity in upper-level positions. In addition, it stated that both of its promotions in the review period were for Black employees, one of VI. ORDERING CLAUSES whom was a woman. Regarding the misclassified employee, 29. Accordingly, IT IS ORDERED that, pursuant to 47 the licensee stated that he had a surname that appeared to C.F.R. § 1.108, the Memorandum Opinion and Order be Hispanic and was so classified. When the licensee an adopted by the Commission on July 11. 1994. FCC 94-186. swered the Commission©s inquiry, it discovered that the IS RESCINDED. employee was actually not Hispanic and it said classifying

dicates that the licensee employed 23 persons overall (18 upper- The Commission found in WTHZ-FM that minorities level) with three (13.0%) Blacks, two of whom were in comprised 27.6% of the relevant labor force and that upper-level positions (11.1%). It employed 12 (52.2%) women Hispanics comprised only 1.2%. The Commission stated overall with seven (38.9%) in upper-level positions. In 1988. the that it considers a station©s overall minority employment licensee employed 35 persons overall (25 upper-level) with five (14.3%) Blacks, three (12.0%) in upper-level positions. It em in determining EEO compliance but that it focuses prin ployed 18 (51.4%) women, nine (36.0%) in upper-level posi cipally on the dominant minority or non-dominant mi tions. In 1989, the licensee employed 40 persons (28 upper-level) norities that are present in significant numbers. See with four (10.0%) Blacks, two (7.1%) in upper-level positions. It WTHZ-FM at 7696. In California, the Commission also employed 23 (57.5%) women, 13 (46.4%) in upper-level posi stated that it evaluates EEO efforts toward all minorities tions. In 1990. the licensee employed 45 persons overall (29 but focuses primarily on the dominant minority and upper-level) with six Blacks (13.3%) and one Asian (2.2%). Two found that Hispanics were the dominant minority in job Blacks (6.9%) and one Asian (3.4%) were in upper-level posi markets in which they comprised from 53% to 71% of tions, ft employed 22 (48.9%) women, nine (31.0%) in upper- minorities. See California at 2344 n.4. level positions. In 1991. it employed 43 persons overall (29 upper-level) with five Blacks (11.6%) and one American Indian Spectacor at para. 12 n.7. (2.3%). Three Blacks (10.4%) were in upper-level positions. The We note that the PLGTF criticized all three licensees in this licensee employed 18 (41.9%) women, eight (27.6%) in upper- Order for employing few (or no) Hispanics, and for failing to level positions. recruit Hispanics adequately. We find this argument without 15 As the Commission stated in Spectacor: merit for the reasons noted above.

3981 FCC 94-196 Federal Communications Commission Record 9 FCC Red No. 17

30. IT IS FURTHER ORDERED that the informal ob 36. The reports are to be filed with the Acting Secretary jection filed by the Philadelphia Lesbian and Gay Task of the Commission for the attention of the Mass Media Force and NOW against the licensees of WHYY(FM). Bureau©s EEO Branch. Should the parties have any ques WYSP(FM), and WEGX(FM) IS DENIED. tions regarding this action, they may telephone the Mass 31. IT IS FURTHER ORDERED that the informal ob Media Bureau©s EEO Branch at 202-632-7069. jection filed by ASPIRA. Inc. of Pennsylvania, against the licensees of WHYY(FM) and WYSP(FM) IS DENIED. FEDERAL COMMUNICATIONS COMMISSION 32. IT IS FURTHER ORDERED that the license re newal application filed by WHYY, Inc., for Station WHYY(FM) IS GRANTED. 33. IT IS FURTHER ORDERED that the license re newal applications filed by Infinity Broadcasting Corpora William F. Caton tion of Pennsylvania for Station WYSP(FM) and by Malrite Acting Secretary Guaranteed Broadcast Partners, L.P., for Station WEGX(FM) ARE GRANTED subject to the EEO report ing conditions specified herein. 16 34. IT IS FURTHER ORDERED that the licensees of Stations WYSP(FM) and WEGX(FM) file an original and one copy of the following information on April 1. 1995. April 1, 1996. and April 1, 1997:

(a) For each 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, 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;© 7 (b) a list of employees as of the March 1. 1995, payroll period for the first report and as of the March 1. 1996, and the March 1, 1997, payroll periods for the second and third reports, by job title, indicating part-time or full-time status (ranked from the highest paid classification), date of hire, sex and race or national origin; (c) details concerning the station©s efforts to recruit minorities for each position filled during the 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 relevant information with regard to the station©s EEO performance and efforts thereun der.

35. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail - Return Receipt Requested one copy of this Memorandum Opinion and Order to all parties.

16 On May 23, 1994, the Commission staff granted an assign matter of law and pass automatically to the assignee. See ment of WEGX(FM) from Malrite Guaranteed Broadcast Wool/son Broadcasting, Inc.. 4 FCC Red 6160 (1989). Partners. L.P., to Pyramid Communications WJJZ License Cor l/ Such a list might start: poration (Pyramid) conditioned on the granting of (1) News Director: Officials and Managers; Full-time. WEGX(FM)©s license renewal application (File No. BALH- 3 Applicants: 1 White female A.W.R.T. 940111GE). Also granted the same day was an application as 1 Black male Urban League signing control of Pyramid from Pyramid West Associated 1 Black female NAACP Limited Partnership to Pyramid Finance Corporation (File No. BTCH-940111GL). Upon consummation of those assignment ap Sources Contacted: Local Newspaper, A.W.R.T.. Urban League plications, reporting conditions will follow the license as a and NAACP. Selected: Black male (8/19/44).

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