10 FCC Red No. 13 Federal Communications Commission Record FCC 95D-06

(1) To determine whether Nicholas B. Mangione Before the made material misrepresentations with respect to his Federal Communications Commission involvement in the management of WCBM and the Washington, D.C. 20554 proposed management of WCBM Maryland, Inc. (2) To determine from the evidence adduced pursu ant to Issue (1) above, whether WCBM Maryland, Inc. possesses the basic qualifications to be the li MM Docket No. 90-125 censee of the facilities sought herein. In re Applications of The MO&O placed the burden of going forward with the evidence under Issue (1) upon Mount Vernon Broadcasting BENNETT GILBERT File No. BR-88083OUA ("MVB") and the burden of proof under Issue (2) upon GAINES. INTERLOCUTORY Bennett Gilbert Gaines ("Gaines") and WCBM Maryland. RECEIVER FOR MAGIC 680, INC. 2. A prehearing conference was held on February 11, 1994. Hearing sessions on the remanded issues were held For Renewal of License for on August 1, 2 and 3, 1994. Station WCBM(AM), 3. By Memorandum Opinion and Order, FCC 94M-531, Baltimore, Maryland released September 19, 1994, the Presiding Judge added the following issues in response to MVB©s motion: BENNETT GILBERT File No. BAL-881117EB GAINES, INTERLOCUTORY (1) To determine whether Bennett Gilbert Gaines and/or WCBM Maryland, Inc. neglected their pro- RECEIVER FOR MAGIC 680, INC. grams(s) of equal employment opportunity or en (Assignor) gaged in a pattern of employment discrimination at WCBM from 1989 to the present; and (2) To determine whether WCBM Maryland, Inc. will, if its assignment application is granted, institute WCBM MARYLAND. INC. and carry out an effective program of affirmative (Assignee) action at radio station WCBM; (3) To determine whether WCBM Maryland. Inc. For Consent to the Assignment of engaged in improper ex pane communications in this License of Station WCBM(AM) proceeding; and Baltimore, Maryland (4) To determine, in light of the evidence adduced pursuant to the foregoing issues, whether Bennett MOUNT VERNON File No. BP-880901AD Gilbert Gaines and WCBM Maryland. Inc. are quali BROADCASTING fied to be licensees of the Commission. Baltimore, Maryland The burdens of proceeding and proof on these issues were For a Construction Permit placed upon WCBM Maryland (Id.). for a New AM Station on 680 kHz at 4. Hearing sessions on the issues added by the Presiding Judge were held on December 14, 15, and 16, 1994 and on Baltimore, Maryland January 10, 1995. At the conclusion of the January 10, 1995 hearing session, the record was closed (Tr. 3517). See Order, FCC 95M-18, released January 25, 1995. Appearances Kathryn R. Schmeltzer, Esq., Gregory L. Masters, Esq. and Martin R. Leader, Esq. on behalf of WCBM Maryland, FINDINGS OF FACT Inc.; Barry Wood, Esq. on behalf of Mount Vernon Broad casting; Gary P. Schonman, Esq. and Charles Dziedzic, Esq. Remand and Misrepresentation Issue on behalf of the Mass Media Bureau. 5. The issue was specified because of the apparent discrepancy between Nicholas B. Mangione, Sr.©s SUPPLEMENTAL INITIAL DECISION OF ("Mangione") deposition testimony taken on October 12, ADMINISTRATIVE LAW JUDGE JOHN M. FRYSIAK 1990, and the subsequent sworn testimony by two former employees. According to the Commission:

Issued: June 13,1995; Released: June 20,1995 Mangione represented while under oath that he had spent between 30 and 60 hours a week ©physically© at the station. Deposition at 107. He further indicated PRELIMINARY STATEMENT that he was spending time at WCBM because he likes 1. This proceeding is on remand following the Commis ©to be around the people out there, so [he] . . . can sion©s release of its Memorandum Opinion and Order learn the business . . . .© Deposition at 66. ("MO&O"), 9 FCC Red 533 (1994), in which it remanded the proceeding on its own motion on the following issues:

6589 FCC 9SD-06 Federal Communications Commission Record 10 FCC Red No. 13

Remand Order, 9 FCC 534. By comparison, the Commis 9. Thomas P. Nowicki. Ill (a/k/a Scan Casey) sion observed: ("Nowicki") is currently employed at WCBM(AM). He began working at the station in November 1988. Between Myron Laufer, a former employee of WCBM. tes November 1988 and October 1990, the relevant period in tified that during his 11 month tenure as General question, Nowicki worked normal business hours, Monday Manager of WCBM he saw Mangione fewer than 10 through Friday. He also occasionally worked some week times, that Mangione attended only one meeting at ends (WCBM Phase II Ex. 3, pp. 1-2). Nowicki frequently the station, that for one period he did not see saw Mangione or Mangione©s car at the radio station be Mangione for 2 or 3 months, and that Mangione did tween November 1988 and October 1990 (WCBM Phase II not average 30 hours per week at WCBM during the Ex. 3, p. 1; Tr. 2692). Sometimes Mangione would discuss period that Laufer was General Manager. Mount Ver- station-related matters with Nowicki. At other times, non Rebuttal Exh. 1 at p. 4. Bernard McCain, an Mangione would simply pop his head in Nowicki©s studio other former employee, testified that, although he for a moment (Tr. 2692, 2698). According to Nowicki, worked at WCBM from October 1988 to March Mangione attended station meetings every calendar quarter 1990, he never saw Mangione at the station more (Tr. 2703). than once a week and that there were longer periods 10. Frank Luber ("Luber") also is currently employed at than a week when he never saw Mangione at the WCBM(AM). Luber started working at the radio station in station. Mount Vernon Rebuttal Exh. 2 at p. 3. October 1988 and October 1990, Luber recalls seeing Mangione at WCBM(AM) on many occasions. Luber fre Remand Order, 9 FCC Red 534. The Commission deter quently met with Mangione to discuss station-related busi mined that, because Mangione had not been afforded an ness during the relevant time period (WCBM Phase II Ex. opportunity to explain or otherwise address the apparent 7, pp. 1-2; Tr. 2710-2711). When he was in Florida, discrepancy, a further evidentiary hearing was necessary. Mangione spoke on occasion with Luber by telephone about station matters (Tr. 2713). Although Mangione was 6. According to his testimony at the remand hearing, at WCBM(AM) more often during the station©s start-up Mangione sometimes spent between 30 and 60 hours a period, he often worked on station-related business by tele week on average physically at the station between October phone during the latter part of the relevant time period. 1988 and November 1990 (Tr. 2588). Mangione explained There was never a lengthy period when Mangione was not that when he first began working at WCBM(AM) he spent at the station (Tr. 2721). a lot of time at the station learning all facets of the radio broadcasting business. The amount of time that Mangione 11. Between October 1988 and October 1990, Joe physically spent at the station gradually diminished as he Armacost ("Armacost") worked as a producer at came to feel that he had things at WCBM(AM) under WCBM(AM). Although his regular shift was 5:00 a.m. to control (Tr. 2588). 11:00 a.m., Armacost often remained at the station until approximately noon or 1:00 p.m. Armacost believes 7. that During the first four or five months that he was during the relevant period. Mangione spent a considerable running WCBM(AM), Mangione worked at the station be amount of time at WCBM(AM). although Mangione©s time tween 30 and 60 hours a week (Tr. 2596). Thereafter. at the station varied from day-to-day (WCBM Phase II Ex. Mangione concedes, he was not always physically at 5, p. 1). Armacost is unable to categorically state that he WCBM(AM) when he worked on station-related matter saw Mangione at WCBM(AM) during the relevant period (Tr. 2642). Between 1988 and 1990. most of the meetings between 30 and 60 hours per week (Tr. 2758-2759). that Mangione attended concerning WCBM(AM) were con ducted at the station. However, some meetings concerning 12. Gary St. Our ("St. Our") has been employed at WCBM(AM) were conducted away from the radio station WCBM since October 1988. During the period from Octo (Tr. 2612-1613). Mangione is unable to locate any of his ber 1988 through October 1990, St. Our worked the 10:00 calendars in which he referenced his appointments and a.m. to 6:00 p.m. shift, although from 3:00 p.m. to 6:00 meetings between 1988 and 1990 (Tr. 2607, 2615). p.m. each day he was in a studio where he was unable to Mangione believes the calendars were destroyed in 1993 or observe persons elsewhere at the radio station (WCBM 1994 yafter the conclusion of a tax audit (Tr. 2617). Phase II Ex. 6, p. 1; Tr. 2770). According to St. Our, Mangione also worked on station-related business while Mangione was physically at the station virtually every day, vacationing in Florida during periods in 1988, 1989, and in excess of 30 hours per week, during the first few months 1990 (Tr. 2664-2672). of the relevant time period. Beyond the first few months, St. Our believes Mangione visited the station less frequent 8. Mangione was asked twice at his deposition about the ly, perhaps several times per week (Tr. 2771-2772, 2774). extent of his work on behalf of WCBM(AM). Mangione was asked initially how many hours per week he spent on 13. Thomas © A. Marr ("Marr") has worked at station affairs, to which he responded "sometimes 40, WCBM(AM) since October 1988. Although Marr testified sometimes 50, sometimes 60." Some time later during the that Mangione©s visits to WCBM(AM) between October deposition, inquiry was made as to how much time 1988 and October 1990 were frequent and regular, he was Mangione physically spent at WCBM(AM) on station af unable to estimate the number of hours per week that fairs, to which Mangione responded, "I think I answered Mangione was present at the statio during the relevant time that before." Mangione insists that he never intended to period (WCBM Phase II Ex. 2, p. 1; Tr. 2782). misrepresent the amount of time he spent at the station; he 14. Olivia Contract ("Contract") has worked as an intern simply did not focus on the distinction between devoting and subsequently as a paid employee of WCBM(AM) since time generally to station business and being physically March 1990. Although Contract testified that between present at the station when doing so (WCBM Phase II Ex. March 1990 and October 1990, she saw Mangione all the pp. 2-3; Tr. 2657). time at WCBM(AM), she was unable to specify the number of hours that Mangione was actually at the radio station (WCBM Phase II Ex. 4, p. 1; Tr. 2794). Contract was not at

6590 10 FCC Red No. 13 Federal Communications Commission Record FCC 95D-06 the station every day. Furthermore, on the days when she for fewer than a half dozen classified advertisements was at WCBM(AM). she was not always there for a full (Gaines/WCBM Phase III, Ex. 6; Tr. 3067-3069, 3071-3074, eight-hour shift (Tr. 2794-2795). 3077-3078,3103,3110). 15. Dwight Weller ("Weller") worked at WCBM(AM) 21. Plumstead believes that the station contacted Morgan from September 1989 through December 1993. Between State University, a minority specific educational institution, September 1989 and October 1990, Weller worked week on only three occasions during his tenure at WCBM(AM). days, from 9:00 a.m. to 5:00 p.m. During the period of All of the contacts with Morgan State University were by time that he was employed by WCBM(AM), Weller op telephone. No minority specific organizations were con erated a business of his own called Weller Audio Visual. tacted when there were job vacancies because, according to He was ultimately informed by station management that he Plumstead, it would "just slow things down." (Tr. was being replaced because he could not devote his full 3072-3074). attention to WCBM(AM)©s needs (Mt. Vernon Phase II Ex. 22. Plumstead testified that there was no requisite num 2. p. 1: Tr. 2844-2849). ber of people from which a successful candidate was se 16. Weller claims that Mangione spent no more than five lected on each occasion. Although it usually came down to hours, if that much, at WCBM(AM). According to Weller, a choice between just two people, Plumstead really never Mangione visited the radio station once or twice per month looked at the particular number of people available (Tr. and stayed no longer than three hours during any one visit 3076). Plumstead maintains that he kept records of all (Tr. 2829, 2838, 2849). There were time when Weller say interviews that he conducted (Tr. 3077). However, no such Mangione©s car in the radio station parking lot, but he did records were proffered by WCBM Maryland, Inc. not actually see Mangione. Weller assumed that if 23. According to Plumstead, during the three year period Mangione©s car was parked in the radio station©s parking that he served as general manager of WCBM(AM). there lot, Mangione must be in the radio station (Tr. 2854). was no formal process in place by which he and his staff assessed the effectiveness of the station©s EEO program. EEO Issue According to Plumstead: 17. The only allegations of racial discrimination at WCBM(AM), and the primary bases for the addition of the we weren©t a very big radio station, we weren©t a very EEO issues in this case, are contained in a Declaration big company so there wasn©t a tremendous need nor dated August 2. 1994 by Dwight Weller, which was was there time to prepare a lot of these, you know, appended to MBV©s August 5, 1994 Motion to Enlarge administrative things that I©m sure, you know, looked Issues. Among other things, Weller claims to have been good to people that are looking at them but they just informed by a former general manager of the Station, eat up time. Michael J. Plumstead. that Mangione did not want Black persons working at WCBM(AM) and that Weller also al (Tr. 3087). leges that he was scorned by the station©s program director. Thomas Nowicki, for having hired a Black technician 24. Plumstead discovered at some point that no Annual (Mount Vernon Ex. 2). Employment Report (FCC Form 395-B) for 1989 had been filed with the Commission. The decision was made to file 18. Michael J. Plumstead ("Plumstead")Served as general both the ,1989 Annual Employment,Report and the 1990 manager of WCBM(AM) from November 1989 through Annual Employment Report at the same time. Plumstead December 1992. Plumstead states that at no time during his reviewed both reports before they were filed with the Com tenure at WCBM(AM) was he told by Mangione that mission, and he concluded that the information contained Mangione did not want Black persons working at the radio /in each report satisfied the Commission©s requirements (Tr. station. Plumstead further states that he never conveyed to 3080-3093). Plumstead could not recall whether an Annual anyone that Mangione did not want Black persons working, Employment Report for 1991 or 1992 was filed with the at WCBM(AM) (Gaines/WCBM Phase III, Ex. 5, p. 1). / Commission (Tr. 3094-3095). 19. Plumstead claims that he maintained an effective 25. Thomas Nowicki WCBM(AM)©s program director, EEO program at the station during the time he was©general denies ever telling Weller not to hire Black technicians manager. He is not sure whether the program was in (Mount Vernon Ex. 2). Nowicki vehemently maintains that writing. According to Plumstead, the thrustxtf the station©s any suggestion to the contrary is an outright fabrication EEO program was to hire the best qualified people and to (Tr. 3126-3127). have an active recruiting program^Jnsofar as women and Blacks are concerned. During, his tenure at the station, 26. Nowicki believes that WCBM(AM)©s EEO program Plumstead was responsible for overseeing compliance with in 1988 was the program contained in the station©s pending the Commission©s EEO rules and for implementing the renewal application (Mount Vernon Ex. 27, p. 3; Tr. 3163). station©s EEO program (Tr. 3067-3069). According to Nowicki, the EEO program that is contained in the station©s renewal application remains WCBM(AM)©s 20. According to Plumstead, the station hired approxi EEO program (Tr. 3166). mately 15 to 25 persons (full-time and part-time) during his three-year tenure at WCBM(AM). Plumstead further 27. In April 1991, Nowicki assumed responsibility for claims that on each and every one of the 15 to 25 occa hiring on-air announcers and board operators/producers. sions when there was an opening, the station placed a He had no responsibility for hiring persons in any other classified advertisement in the Baltimore Sun, a daily news capacity at the station (e.g., sales, engineering, clerical, etc.) paper of general circulation, and in the Baltimore African- (Tr. 3166). Since April 1991, Nowicki has hired approxi American, a weekly publication oriented toward the Black mately 15 board operators/producers and six or seven on- community. Plumstead maintains that he kept records of air announcers (full-time and part-time) (Tr. 3177). all classified advertisements that the station ran during his According to Nowicki, for some of the job openings which tenure. However, WCBM Maryland, Inc. proffered invoices he was responsible for filling, the station contacted by telephone the Broadcast Institute of Maryland, a voca-

6591 FCC 95D-06 Federal Communications Commission Record 10 FCC Red No. 13 tional-technical school, and Morgan State University. Ac was limited to visiting the station and observing the num cording to Nowicki, the Broadcast Institute of Maryland ber of employees who were members of minority groups has a reputation of providing minority applicants to radio (Tr. 3291). Gaines formed no opinion about the effective stations. Neither institution was contacted on a routine ness of the station©s EEO program at the time he signed basis, and Nowicki is unable to recall the names of any WCBM(AM)©s 1989, 1990, or 1993 Annual Employment referrals from either institution. Nowicki also conducted a Report. The station did not timely file an Annual Employ search at various radio stations for qualified candidates. ment Report for either 1991 or 1992. Gaines does not Because he usually needed to hire someone fast, he claims know why the station failed to timely file reports for those he did not have the "luxury" of going through a lengthy years (Tr. 3289-3300). interview process. Vacancy announcements were also post 32. Mangione estimates that there have been approxi ed at WCBM(AM) (Tr. 3173-3174). Nowicki does not recall mately 75 vacancies at WCBM(AM) since his company, ever placing a classified advertisement in a newspaper for WCBM Maryland, Inc., began operating the radio station. an on-air announcer. He does recall, however, sometimes In attempting to fill each of the vacancies, Mangione ini placing advertisements in the Baltimore Sun or the Bal tially claimed that letters were routinely sent to different timore African-American for board operators/producers. minority specific organizations and several educational in Nowicki does not recall contacting any minority specific stitutions, including Towson State University, Morgan State organizations on any occasion to fill an on-air announcer University, Coppin State University, and the University of or board operator/producer position (Tr. 3176-3179). Maryland. However, WCBM Maryland did not proffer 28. In order to assess the effectiveness of the station©s copies of any correspondence purportedly sent to educa EEO program, Nowicki had two or three informal discus tional institutions or minority specific organizations, and sions with members of his immediate staff prior to May Mangione subsequently testified that only about six to nine 1992. According to Nowicki, there were concerns as to letters actually went out. Additionally, Mangione was un "whether or not percentage-wise WCBM(AM) was in com able to estimate the number of referrals that resulted from pliance." (Tr. 3179-3182). Although Nowicki believes that the station©s contacts with any of the educational institu the station has, by and large, been in compliance, he tions. According to Mangione, the station also placed ad concedes that there came a time as a result of budget vertisements in the Baltimore Sun, the Baltimore African cutbacks and the abolishment of some positions when American, and the Jeffersonian, although not routinely for WCBM(AM) employed just one Black person, a situation each vacancy. Mangione does not think that the Jeffer about which Nowicki became concerned. Nowicki also sonian is a minority-specific publication (Tr. 3444-3459). acknowledges that WCBM(AM) has not. for the last three Of the approximately 75 vacancies that have come up since to five years, maintained proper records of its recruitment WCBM Maryland, Inc. began operating the station, ap efforts (Tr. 3188-3190). In retrospect, Nowicki believes that proximately 20 positions (full and part-time) were filled WCBM(AM)©s inadequate record keeping had a deleterious with minorities (Gaines/WCBM Phase III Ex. 3, pp. 8-9). impact on management©s ability to assess the effectiveness 33. Mangione testified that he periodically discussed of the station©s EEO program (Tr. 3195-3196). EEO matters with station management. The subject gen 29. Bennett Gilbert Gaines. as the court appointed Inter erally came up when there was a vacancy to be filled (Tr. locutory Receiver for Magic 680, Inc.. is the licensee of 3464). Mangione assessed the effectiveness of the station©s WCBM(AM). Although he asserts that there has been no EEO program by counting the number of minorities who employment discrimination or pattern of employment dis worked at the station (Tr. 3467). Mangione concedes that crimination at the radio station during the relevant years in he knew the station was "falling back in hiring minorities" question, Gaines concedes that WCBM(AM)©s EEO pro at one point in time (Tr. 3465, 3467). Mangione never gram, to the extent .that it requires appropriate record- blamed the station©s recruitment practices for the lack of keeping, has not always been the best (WCBM Phase HI, sufficient numbers of minorities employed at WCBM(AM). Ex. 1, p. 1-2). In Gaines© view, WCBM(AM) fell short of He always thought that if the station did not have enough the Commission©s requirements by not filing Annual Em minorities, it was because the pay wasn©t high enough to ployment Reports on time. Also, the .station did not main attract them (Tr. 3469-3470). Mangione never examined tain proper documentation of its recruitment efforts (Tr. the station©s FCC Forms 395-B (Annual Employment Re 3258-3259). port) in order to assess the effectiveness of WCBM(AM)©s 30. According to Gaines, the station©s current EEO pro EEO program (Tr. 3471). gram is essentially the same EEO program contained in 34. In the last few months, Mangione has implemented the pending renewal application (Tr.- 3281-3284). Since changes in the station©s EEO program to hire more minor October 1988, it has been the routine practice of ities. Toward this end, it has been decided that the next WCBM(AM) when recruiting individuals to work at the three vacancies at WCBM(AM) will be available only to, station to place classified advertisements in the Baltimore and filled with, minorities (Tr. 3472, 3474, 3480). Sun and the Baltimore African-American; contact educa tional institutions; and speak with existing employees. Gaines admits, however, to having no knowledge as to whether advertisements were placed in the two publica tions in each and every instance that a vacancy arose. Gaines also does not know if educational institutions were contacted every time there was a vacancy (Tr. 3285-3287). 31. Gaines recalls meeting with station management at least a couple of times each year to discuss a wide variety of topics including, from time to time, the station©s em ployment practices and EEO program. Gaines© routine for assessing the effectiveness of WCBM(AM)©s EEO Program

6592 10 FCC Red No. 13 Federal Communications Commission Record FCC 95D-06

Ex Parte Issue records documenting the station©s recruitment efforts; 35. In 1989, Mangione made an ex parte presentation to failed to consistently contact recruitment sources likely to United States Senator Paul Sarbanes (Mount Vernon Phase refer minorities when vacancies occurred; failed to evaluate III Ex. 6). Mangione learned from his counsel after he sent the station©s employment profile and job turnover against his letter to Senator Sarbanes that the presentation con the availability of minorities in its recruitment area; and stituted a prohibited ex pane contact that violated the failed to implement a formal process for analyzing Commission©s ex pane rules (Tr. 3495). WCBM(AM)©s EEO performance. 36. On June 13, 1994, Mangione made another ex parte 41. In an attempt to demonstrate to the Commission that presentation, this time to FCC Chairman Reed Hundt WCBM(AM) has taken steps to "beef up" its EEO program (Mount Vernon Phase III Ex. 7). When he sent his letter to and implement meaningful EEO practices, Mangione tes Chairman Hundt, Mangione did not think he was doing tified that the next three vacancies at the station will be anything that was impermissible; he was simply venting his available to, and reserved solely for, minorities. Such a frustration over the length of the instant proceeding. policy is discriminatory on its face and grossly inconsistent Mangione claims he never intended by his letter to Chair with the Commission©s EEO Rules. See Alabama/Georgia man Hundt to influence any particular decision in this Broadcasting Stations, 95 FCC 2d 1, 9 (1983). case (Gaines/WCBM Phase III Ex. 2, pp. 2-3; Tr. 3502-3505). Mangione believed that someone of Chairman Ex Parte Issue Hundt©s stature could expedite the hearing and bring this 42. Mangione made two improper ex parte presentations case to an end once and for all. Mangione did not care in this proceeding. In connection with the one made in whether he won or lost as a result; he simply wanted the 1989 involving Senator Sarbanes, Mangione testified that it proceeding to be concluded and a final determination wasn©t until after he sent the Senator the letter that he was rendered (Tr, 3506). WCBM Maryland, Inc.©s counsel sent apprised of the Commission©s ex pane rule by his counsel. copies of Mangione©s June 13, 1994, letter to the other With the second letter to Chairman Hundt, Mangione al parties in this proceeding on July 11, 1994 (Gaines/WCBM leges that he merely tried to have the proceeding expedited Phase III Ex. 8). and was not seeking any favorable resolution in his behalf. Mangione©s explanations are accepted in mitigation of the aforementioned ex pane violations. CONCLUSIONS OF LAW 37. It is well established that misrepresentation requires a false statement of fact made with an intent to deceive. Fox ULTIMATE CONCLUSIONS River Broadcasting, Inc., 93 FCC 2d 127, 129 (1983). The 43. The misrepresentation issue has been resolved in record shows that Mangione did not deliberately lie in the WCBM©s favor. However, it has been found that both course of testifying at his deposition. Mangione was ques Bennett Gilbert Gaines and WCBM Maryland, although tioned more than once during his deposition about the not guilty of any discrimination against minorities, did fail amount of time he worked on WCBM(AM) business. In to maintain an effective EEO program. Notwithstanding one instance, Mangione was questioned about the time he these findings, it is concluded that Bennett Gilbert Gaines physically spent at the station, and in another instance, he and WCBM Maryland are basically qualified to be a Com was questioned about the amount of time he devoted to mission licensee. station affairs without regard to location. Mangione insists 44. The competing application of Mount Vernon Broad that he never intended during the deposition to convey that casting has been dismissed pursuant to its approved he always was physically present at the station when he settlement agreement with Gaines and WCBM Maryland. claimed to have devoted 30 to 60 hours week to station- See Memorandum Opinion and Order, FCC 95M-139. filed related business. Rather, Mangione explains that he was concurrently with the Supplemental Initial Decision. There physically at WCBM(AM)©s studios up to 60 hours per is no impediment to the grant of the renewal and assign week during the initial start-up period, and he subsequent ment applications. However, The Bureau states that in ly devoted up to that many hours on station affairs, some order to achieve effective compliance with the Commis of which from other locations. sion©s EEO policy, the station©s new license term should be 38. Dwight Weller©s claim that Mangione was rarely limited to two years during which time WCBM Maryland, present at the radio station is rejected. Weller did not Inc. should be required to make periodic written reports to become employed at WCBM(AM) until well after the start the Commission in accordance with the attached Appen up period during which Mangione asserts he spent most of dix. Gaines and WCBM Maryland have agreed to accept his time at the station. Weller©s testimony is also flatly these conditions. See Joint Reply dated April 24, 1995. contradicted by the testimony of several current and for Accordingly, IT IS ORDERED, that unless an appeal mer employees. Indeed, Thomas Nowicki, Frank Luber, from this Supplemental Initial Decision is taken by a party, Joe Armacost, Gary St. Our, Thomas Marr, and Olivia or it is reviewed by the Commission on its own motion in Contract all consistently testified to having seen Mangione at WCBM(AM) more often than that suggested by Weller. 39. Accordingly, IT IS ORDERED that the misrepresen tation issue IS RESOLVED in WCBM Maryland©s favor.

EEO Issue 40. There is no record evidence that there was a pattern of employment discrimination against minorities at the radio station. However, WCBM Maryland. Inc. and, ulti mately, Bennett Gilbert Gaines, failed to maintain adequate

6593 FCC 9SD-06 Federal Communications Commission Record 10 FCC Red NO. 13

accordance with Section 1.276 of the Rules, the renewal and assignment applications ARE GRANTED,1 subject to the conditions stated in the Appendix hereto.

FEDERAL COMMUNICATIONS COMMISSION

John M. Frysiak Administrative Law Judge

Attachment

APPENDIX The licensee of Station WCBM(AM), Baltimore, Mary land, shall submit to the Commission, on the first and second anniversaries of the date on which the grant of the captioned application for renewal of license of WCBM(AM) becomes final, an original and one copy of a Report containing the following information:

(a) Each Report shall contain two lists, one identify ing all full-time vacancies during the preceding 12-month period, and the other identifying all part- time vacancies during the preceding 12-month pe riod. As to each vacancy, specify: (1) the specific job title and FCC job category of the position; (2) the recruitment sources contacted: (3) the race or na tional origin, gender, and the referral source of each applicant: and (4) the race or national origin and gender of the person hired. (b) Each Report shall further contain a list of em ployees on the WCBM(AM) payroll as of the first day of the month in which the Report is filed. Each employee shall be identified by his or her (1) job title and FCC job category; (2) full or part-time status: (3) date of hire, (4) gender; (5) and race or national origin. (c) Each Report shall further specify in detail all of the licensee©s efforts to recruit minorities for each position filled during the preceding 12-month period, including identification of sources used and whether any applicants declined actual offers of employment. The licensee may submit any other information rel evant to the station©s EEO performance and efforts thereunder.

1 In the event exceptions are not filed within 30 days after the release of this Supplemental Decision and the Commission does not review the case on its own motion, this Supplemental Initial Decision shall become effective 50 days after its public release pursuant to Rule 1.276(d).

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