FCC 96-96 Federal Communicatiorts Commission Record 11 FCC Red No. 7

II. DISCUSSION Before the 3. NMP derived its factual allegations from the licensees' Federal Communications Commission license renewal applications. Review of the licensees' Washington, D.C. 20554 records led us initially to conclude that the NMP presented a prima f acie case against the two stations, demonstrating In re Applications of1 that unconditional grant of the renewal applications would have been inconsistent with the public interest. See Section Newport Broadcasting, Inc. 309(d)(l) of the Communications Act, as amended, 47 U.S.C. § 309(d)(l). Astroline Communications v. FCC, 857 For Renewal of License for F.2d 1556 (Astroline). Further inquiry was therefore neces­ sary. See Bilingual Bicultural Coalition on Mass Media, Inc. Station WADK(AM) File No. BR-901129VO v. FCC, 595 F.2d 621 (D.C. Cir. 1978). Newport, Rhode Island 4. However, subsequent review of NMP's EEO allega­ tions, as well as the licensees' renewal applications, opposi­ and tion and inquiry response, leads us to conclude that there are no substantial and material questions of fact warranting Perry Communications designation for hearing. In this regard, we find no evidence of Rhode Island, Inc. of employment discrimination. Thus, grant of the applica­ tion will serve the public interest. 47 U.S.C. § 309(d)(2); For Renewal of License for Astroline. Accordingly, we will grant renewal, but with appropriate remedies and sanctions because of the rule Station WOTB(FM) File No. BRH-901130VP violations detailed herein. Middletown, Rhode Island 5. 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 MEMORANDUM OPINION AND ORDER equal employment opportunity program reflecting positive AND NOTICE OF APPARENT LIABILITY and continuing efforts to recruit and promote qualified women and minorities. When evaluating EEO perfor­ Adopted: March 8, 1996; Released: March 29, 1996 mance, the Commission focuses on the licensee's efforts to recruit and promote qualified minorities and women and By the Commission: the licensee's ongoing assessment of its EEO efforts. Such an assessment enables the licensee to take corrective action if qualified minorities and women are not present in the I. INTRODUCTION applicant pool. The Commission also focuses on any evi­ 1. The Commission has before it for consideration: (i) dence of discrimination by the licensee. See Sections license renewal applications for the captioned radio sta­ 73.2080 (b) and (c) of the Commission's Rules, 47 C.F.R. tions;2 (ii) an Informal Objection filed on March 13, 1991, §§ 73.2080 (b) and 73.2080 (c).4 3 by Northeast Media Partners ("NMP"); (iii) a Joint Op­ 6. Review of the licensees' renewal applications, inquiry position filed by the licensees; and (iv) the licensees' re­ response and opposition reveals that the stations had 22 sponse to a staff letter of inquiry. full-time hires, including 18 upper-level hires, during the 2. NMP argues that the Commission should require the period of March 31, 1989 through March 31, 1991. s The licensees to submit details with respect to licensees' inquiry response does not reveal the number of WADK/WOTB(FM)'s Equal Employment Opportunity vacancies for which the stations affirmatively ·recruited. (EEO) program with regard to minorities, and that NMP The licensees' records indicate, however, contact with the should have an opportunity to comment on the licensees' following recruitment sources during the review period: submission. The licensees contend that NMP has not dem­ three newspapers, job advertisements on the stations, em­ onstrated that it has a special interest in this or any EEO ployment agencies, and current employees. matters, and that it should be required to submit informa­ WADK/WOTB(FM) used one minority source during the tion regarding its ownership. Additionally, the licensees review period. argue that NMP did not present any allegations that the 7. The licensees did not provide information regarding licensees violated the Commission's EEO Rule. the number, race, and gender of the applicants and interviewees present in each pool. Instead, the licensees make general representations regarding applicant and interviewee data. The licensees claim to have attracted eight minorities among 150 applicants, and interviewed "at least"

1 Applications for assignment of license of WADK/WOTB(FM) entities.). are currently pending (BAL-9510 I9GE, BALH-9510 IlJGF). 3 NMP is a partnership of individuals dedicated to improving 2 Although licensed to separate licensees and communities, the the standards of broadcasting in the northeastern United States. stations are commonly owned and operate as one employment 4 The licensees are reminded that under our EEO Rule 47 unit. See Alabama/Georgia Broadcast Stations, 95 FCC 2d. I. 5, C.F.R. § 73.2080, they have an obligation to recruit for females n.10 (1983) (In certain circumstances it is appropriate to treat and minorities for each vacancy. To the extent that a licensee the stations as one unit for EEO purposes rather than separate fails to do so, female. as well as minority, recruitment is af­ fected. 5 The license term under review expired on April I, 1991.

3624 11 FCC Red No. 7 Federal Communications Commission Record FCC 96-96 two minorities among 100 interviewees. The licensee hired 10. The licensees assert that NMP should be required to one minority, a Black male, during the period under re­ provide details as to whether its principals have any owner­ view. This minority was hired for an upper-level vacancy. ship interest in or connection with a broadcast station, and The stations also promoted an American Indian from a whether NMP has any connection with the licensees' ser­ part-time to a full-time position.6 vice areas. Further, the licensees argue that while certain 8. The licensees indicate that after the license term ex­ communities in Newport County are located in an MSA, pired, the stations "attempted to recruit" two Black males the cities of license for Stations WADK/WOTB(FM) are for upper-level jobs, but could not meet their salary de­ not in any MSA. In addition, the licensees state that the mands. The licensees do not state that they made offers of studios for WADK/WOTB(FM) are located in Newport employment to the Black males. Post-term EEO perfor­ County. mance, however, is not considered in the Commission's 11. The licensee's argument that NMP has not dem­ evaluation of a licensee's EEO record during the license onstrated an interest in EEO matters, and that NMP term if that record, standing alone, is so deficient that it should provide information concerning its ownership inter­ would merit sanction. See Rust Communications, Inc., 73 est warrants no further consideration. Our rules do not FCC 2d 39, 53 (1979). Accordingly, we will not consider require any such showing. We find that NMP has complied the licensees' post-term efforts because, as we state infra, we with the procedures for filing an informal objection. See find that the licensees' EEO record during the license term Section 73.3587 of the Commission's Rules, 47 C.F.R. § warrants a sanction. 73.3587. 9. In its Informal Objection, NMP notes that the li­ 12. The licensees are correct in stating that the stations censees' renewal applications state that minorities consti­ should be evaluated using Newport County data. However, tute less than 5% of the Newport County labor force. NMP the data on which they relied for Newport County were contends that the appropriate labor force data for the sta­ erroneous. See paragraph 20. The stations' cities of license tions are for the Providence, Rhode Island Primary Metro­ are located in Newport County and not within an MSA. politan Statistical Area (PMSA) and/or the Further, the studios are located in Newport County. There­ Providence-Pawtucket-Fall River, Rhode Island-Massachu­ fore, we will use labor force data for Newport County to setts Consolidated Metropolitan Statistical Area (CMSA). assess WADK/WOTB(FM)'s EEO efforts. See Amendment Specifically, NMP claims that the Jamestown portion of of Part 73 of the Commission's Rules Concerning Equal Newport County is in the Providence, PMSA, and the Employment Opportunity in the Broadcast Radio and Televi­ Little Compton and Tiverton portions of Newport County sion Services, 2 FCC Red 3967, 3973 (1987) (EEO Order). 7 are in the Providence Pawtucket-Fall River, CMSA. The 13. Our review of the record discloses no substantial and labor force for the Providence MSA is 4.7% minority, and material questions of fact warranting designation for hear­ the labor force for the Providence-Pawtucket-Woonsocket ing. See Astroline. The licensees attracted minority appli­ 8 MSA is 4.8% minority. NMP contends that the Commis­ cants and hired minorities during the license term. sion should require the licensees to provide information Therefore, renewal is in the public interest. regarding the stations' recruitment efforts regarding minor­ 14. However, we find WADK/WOTB(FM)'s overall ities. recruitment efforts deficient because the stations did not maintain records documenting recruitment or identifying the composition of its applicant and interview pools. As a

6 WADK/WOTB(FM) is located in Newport County, Rhode The licensees state that the Black employee hired during the Island, which has a labor force of 4.:\.6% females, and 5.6% review period was originally from Cape Verde Island off the minorities (3.6% Black, 1.3% Hispanic, .-l% Asian/Pacific Is­ coast of Africa. The stations indicate that when the employee lander, and .3% American Indian). From 1985 through 1987, was hired in 1990, he did not want to be identified as Black. the licensees reported no minority employees on an overall staff Consequently, he is not identified as a Black full-time employee of 20 to 23 employees, nor an upper-level staff which ranged on the licensee's Annual Employment Reports. from 19 to 21 employees. The 1985 Annual Employment Report The licensees also indicate that they employed a Hispanic fe­ lists eight women (.:\0%) among 20 overall employees, and seven male in an upper-level position. in 1987 and 1988. However, at women (58.3%) among 19 upper-level employees. The 1986 the time the licensees believed that it was improper to ask report lists nine women (39.1 % ) among 23 overall employees, employees information regarding race. Thus, this employee is and seven women (33.3%) among 21 upper-level employees. In not reflected on the stations' Annual Employment Reports. In the 1987 report, seven women (33.3%) are reflected among 21 addition, the licensee does not report this employee as a hire full-time employees overall, and five women (26.3%) are listed during the review period. Consequently, the employee is not among 19 upper-level employees. The licensees' 1988 Annual reflected in the total number of hires. Employment Report revealed an overall staff of 19 employees, 7 The Providence, Rhode Island Metropolitan Statistical Area including eight women (.:12.1%), one Black (5.26%); and the (MSA), contains 44.8% females, and 4.7% minorities (2.1% upper level-staff of 17 employees included six women (35.3%) Blacks, 1.9% Hispanic, 0.5% Asian/Pacific Islander, and 0.2% and one Black (5.8%). The licensees reported no minorities on American Indian). The Providence-Pawtucket-Woonsocket MSA an overall staff of 15 employees in 1989 and 1990, and 16 includes -l-t.7% females, and 4.8% minorities (2.2% Blacks, employees in 1991. The licensees' reports for 1989 through 1991 1.9% Hispanic, 0.5% Asian/Pacific Islander, and 0.2% American reflect no minorities on an upper-level staff of 1-t employees. In Indian). the 1989 report, seven women (.:\6.7%) are listed among 15 8 In any event, if the licensees were evaluated using the labor employees, and six women (42.9%) are listed among 14 upper­ force data for either location, they would not be required to file level employees. The 1990 report reflects seven women (.:\6.7%) an EEO Program regarding minorities. given that the minority among 15 full-time employees overall, including six women labor force for both MSAs is below 5%. (42.9%) among 14 upper-level employees. In the 1991 report, six women (37.5%) are listed among 16 employees, and four women (28.6%) are among 14 upper-level employees.

3625 FCC 96-96 Federal Communications Commission Record 11 FCC Red No. 7

result the stations were unable to adequately conduct a for each hiring opportunity. Further, the licensees did not meaningful self assessment as required by our EEO Rules. specify the referral sources of applicants and interviewees. 47 C.F.R. §§ 73.2080(c)(2), (c)(5). Moreover, WADK/WOTB(FM) failed to maintain applicant 15. In 1994, we adopted a Policy Statement regarding and interview records for each vacancy. However, it ap­ forfeitures to be assessed for violations of our EEO Rules. pears that the stations received eight minority applicants, Standards for Assessing Forfeitures for Violations of the and interviewed two minorities during the review period. Broadcast EEO Rules, 9 FCC Red 929 (1994) ("EEO Policy 19. We believe that the deficiencies in the instant case Statement"). A court decision issued since the EEO Policy are comparable to, albeit more egregious than, those of Statement indicated that our general policy statement9 on WLCS(FM). In both cases, the licensees failed to maintain forfeitures must be put out for notice and comment. United adequate records for meaningful self-assessment. We believe States Telephone Ass'n v. FCC, 28 F.3d 1232 (D.C. Cir. that retention of referral source information, as well as 1994)("USTA"). Although the USTA case did not address recruitment activity for specific vacancies, would have en­ our EEO Policy Statement, members of the broadcast com­ abled the licensees to analyze the productivity of their munity have called for the withdrawal of the EEO Policy sources, and to modify their program accordingly. Statement until it is likewise made available to the public 20. In addition, we are troubled that the licensees appar­ for notice and comment. See, e.g., Petition for Declaratory ently believed that the stations did not have an obligation Ruling by Eagle Radio, Inc. (filed August 11, 1994); Letter to implement an EEO program directed towards minor· from Henry L. Baumann to William E. Kennard, July 13, ities. Specifically, the renewal applications state that minor· 1994. In Streamlining Broadcast EEO Rule and Policies, ities comprise less than 5% of the labor force, and, thus, FCC 96-49, released February 16, 1996, we vacated the the stations did not provide EEO program information EEO Policy Statement and advised licensees that we would with regard to minorities. However, the applicable labor follow our recent practice of making forfeiture decisions by force is 5.6% minority. The licensee does not indicate the relying on case precedent. source of its labor force data. We remind the licensees that 16. We believe that the record in the instant case is the Commission relies on U.S. Census data, and caution similar to, but more egregious than, that of the licensee of the licensees to exercise diligence in obtaining accurate WLCS(FM), North Muskegon, Michigan in Goodrich labor force statistics and implementing an appropriate Broadcasting, Inc., 7 FCC Red 6655 ( 1992). 10 The licensee EEO program. Given the facts of this case, including the of WLCS(FM) had 18 full-time overall and 13 upper-level relatively small minority labor force, broadcasters' familiar­ hiring opportunities. The licensee recruited for each va­ ity with our long-standing EEO rule, as well as our ex­ cancy using both general and minority specific sources panded authority to assess forfeitures in this area, we feel during its review period. However, despite its recruitment that the circumstances in this case justify issuance of a efforts, the licensee received only two minorities in two Notice of Apparent Liability for $3,500. Further, we will applicant pools. The station did not keep complete ap­ impose reporting conditions to monitor the licensees' pro­ plicant and interviewee data. As a result, the station could spective recruitment measures. identify the composition of only two applicant pools. We renewed the license of WLCS(FM) subject to reporting conditions and issued a Notice of Apparent Liability for III. CONCLUSION $2,000. 21. Upon review of the record and the arguments sub· 17. WLCS(FM), although issued in 1992, was decided mitted by all parties, we find a hearing is not warranted based on a forfeiture authority which was significantly and that renewal of the licenses is appropriate. However, lower in amount than the current' one. 11 Previously, the we will grant renewal subject to reporting conditions and a forfeiture penalty assessed against a broadcaster could "not Notice of Apparent Liability for $3,500. exceed $2,000 for each violation or each day of a continu­ 22. In view of the pending applications for assignment of ing violation. except that the amount assessed for any license of WADK/WOTB(FM), we note that upon con­ continuing violation could not exceed a total of $20,000". summation of the assignment, the reporting conditions will In 1989, Congress substantially increased the dollar pass to the new licensee. See Woolfson Broadcasting, Inc., 4 amounts of our forfeiture authority. Pub. L. No. 101-239, FCC Red 6160 ( 1989); Beacon Broadcasting Corporation, 9 103 Stat. 2131. Pursuant to Section 503(b )(2), the forfeiture FCC Red 2132, 2138 n. 15 (1994). penalty assessed against a broadcaster may "not exceed $25,000 for each violation or each day of a continuing violation, except that the amount assessed for any continu­ IV. ORDERING CLAUSES ing violation shall not exceed a total of $250,000 for any 23. Accordingly, IT IS ORDERED that the Informal single act or failure to act". See 4 7 U .S.C. § 503(b )(2). Objection filed by Northeast Media Partners IS DENIED. 18. Here, the record reflects that WADK/WOTB(FM) 24. IT IS FURTHER ORDERED that the license re­ conducted minimal efforts to self-assess its EEO program. newal applications filed by Newrmrt Broadcasting, Inc. and The licensees did not list the vacancies for which they Perry Communications of Rhode Island, Inc .. for Stations recruited, nor which sources were contacted in recruiting

9 Standards for Assessing Forfeitures, 6 FCC Red -1695 ( 1991), 11 Section 503(b)(2) of the Communications Act of 193-l, as recon. denied, 7 FCC Red 5339 ( 1992). revised, 8 FCC Red 6215 amended, -17 U.S.C. Section 503(b)(2), authorizes the Commis­ p993). sion to impose monetary forfeitures on broadcast station li­ 0 The Muskegon, Michigan Metropolitan Statistical Area censees or permittees for violations of the Act or of regulations (MSA), in which WLCS(FM) was located. had a 10.9% minority promulgated thereunder. labor force (8.5% Black, l.6% Hispanic, .2% Asian/Pacific Is­ lander, and .6% American Indian).

3626 11 FCC Red No. 7 Federal Communications Commission Record FCC 96-96

WADK/WOTB(FM) ARE GRANTED, subject to reporting FEDERAL COMMUNICATIONS COMMISSION conditions specified herein, and pursuant to Section 503 of the Communications Act of 1934, as amended, 47 U.S.C. § 503, a NOTICE OF APPARENT LIABILITY FOR FOR­ FEITURE in the amount of $3,500. 25. IT IS FURTHER ORDERED, that the licensees sub­ William F. Caton mit to the Commission an original and one copy of the Acting Secretary following information on December 1, 1996, and Decem­ ber 1, 1997:

(a) For each report, please make two lists divided by full-time and part-time vacancies during the 12 months preceding November 1, 1996 for the first report and November 1, 1997 for the second report, indicating the job title and FCC job category of the position, the race or national origin, sex and the referral source of each applicant for each and the race or national origin and sex of the person hired. These lists should also note which recruitment sources were contacted;12 (b) A list of employees as of the November 1, 1996, payroll period for the first report, and a list of em­ ployees as of the November 1, 1997 payroll period for the second 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 ap­ plicants declined actual offers of employment. In ad­ dition, the licensees may submit any relevant information with regard to the station's EEO perfor­ mance and efforts thereunder.

26. IT IS FURTHER ORDERED, that the Mass Media Bureau send by Certified Mail -- Return Receipt Requested -- one copy of this .\femorandum Opinion and Order and Notice of Apparent Liability to each party. 27. The reports are to be filed with the Acting Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. 28. Should you have any questions regarding this action or require further information concerning employment re­ ports, you may call the Mass Media Bureau·s EEO Branch at (202) 418-1450. With respect to the forfeiture proceed­ ing, the licensee may take any of the actions set forth in Section 1.80 of the Commission's Rule, 47 C.F.R. § 1.80. as summarized in the attachment to this Order. Any com­ ments concerning the ability to pay should include those financial items set forth in the attachment.

12 Such a list might start: Sources Contacted: National Hispanic Media (I) News Director; Officials and Managers; Full-time Coalition, A.W.R.T., Urban League 3 Applicants: I White female A.W.R.T. Selected: Black female, Urban League (03/15195) I Hispanic male National Hispanic Media Coalition I Black female Urban League

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