Before the Federal Communications Commission pec 94-20 Washington, D.C. 20554 In re Applications of STAUFFER COMMUNICATIONS, INC. ) BR-900329YH ) BRH-900329UE For Renewal of Licenses of ) Stations KGNC/KGNC-FM1 ) Amarillo, Texas ) WALLER BROADCASTING, INC. ) BR-900322UE ) BRH-900322UD For Renewal of Licenses of ) Stations KEBE/KOOI(FM) ) Jacksonville, Texas ) FIRST GREENVILLE CORPORATION ) BR-900330WY ) BRH-900330WL For Renewal of Licenses of ) Stations KGVL/KIKT(FM) ) Greenville, Texas ) MEMORANDUM OPINION & ORDER AND NOTICE OF APPARENT LIABILITY Adopted: January 31, 1994; Released: February 1, 1994 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) license renewal applications from the above-listed radio stations in Texas; (ii) a timely filed Petition to Deny by the Texas State Conference of Branches of the NAACP and its various local, branches (collectively "NAACP") against the license renewal KGNC-FM©s call sign was changed from KMLT(FM) effective November 2, 1992. 879 applications of the above-listed radio stations; p (iii) oppositions filed by the licensees; and (iv) the licensees© responses to staff letters of inquiry. II. BACKGROUND 2. NAACP alleges that the challenged stations violated our Equal Employment Opportunity (EEO) Rule and policies. Accordingly, it requests that we conduct an investigation of the employment practices of the stations pursuant to Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC. 595 F.2d 621 (B.C. Cir. 1978) (Bilingual) and designate the renewal applications for hearing. The licensees deny NAACP 1 s allegations and request unconditional renewals. III. PLEADINGS 3. Standing. The licensee of Stations KGNC/KGNC-FM argues that the declaration under penalty of perjury filed by NAACP regarding these stations is insufficient to establish standing because the President of the Amarillo Branch does not demonstrate that he is a resident within the service area of the stations. In challenging an application pursuant to Section 309(d)(1) of the Communications Act, a petitioner must demonstrate party in interest status. In addition, 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 inconsistent with [the public interest, convenience and necessity]." 47 U.S.C. Section 309(d)(1). See also Astroline Communications Co. NAACP also challenged the renewal applications for Stations KBIL/KBIL-FM in San Angelo, KMND/KNFM(FM) in Midland, KTEM/KPLE(FM) in Temple, KSAM/KSAM-FM in Huntsville, and KYKX(FM) in Longview, Texas. NAACP and NBMC also challenged the renewal of KEGL(FM) in Fort Worth, and KNUZ/KQUE(FM) in Houston, Texas. The Commission terminated Station KBIL(AM)©s authority to operate and deleted its call sign by letter dated June 10, 1992. Station KBIL-FM©s renewal and assignment applications were granted subject to conditions. See Application for License Renewal of Station KBIL-FM San Angelo. Texas. 7 FCC Red 5292 (1992) . The NAACP entered into settlement agreements with the licensees of KMND/KNFM (FM) and KTEM/KPLE (FM) . In addition, the NAACP and the licensee of KSAM/KSAM-FM filed a Joint Request for Approval of Withdrawal. The EEO records of these and the other stations will be reviewed in a separate order. 880 Ltd. Partnership v. FCC. 857 F.2d 1556 (B.C. Cir. 1988) (Astroline); Application of Bubuque T.V. Limited Partnership and Saae Broadcasting Corporation of Bubuque, Iowa for Assignment of Television License for KDUB-TV, Dubuque. Iowa. 4 FCC Red 1999 (1989). 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. Section 309(d)(1). 4. NAACP submitted timely statements under penalty of perjury from the Presidents of the Amarillo Branch regarding KGNC/KGNC- FM, the Tyler Branch regarding KEBE/KOOI(FM) and the Greenville Branch regarding KGVL/KIKT(FM). The declarations are from listeners of the respective stations and, therefore, meet the requirement for establishing standing for the designated branch and the Texas State Conference of Branches of the NAACP. See American Legal Foundation v. FCC. 808 F.2d 84 (B.C. Cir. 1987); Petition for Rulemaking to Establish Standing to Betermine the Standing of a Party to Petition to Benv a Broadcast Application. 82 FCC 2d 89, 98-99 (1980). Accordingly, we find that the challenge filed by NAACP constitutes a valid petition to deny against stations KGNC/KGNC-FM, KEBE/KOOI(FM) and KGVL/KIKT(FM). See 47 C.F.R. Section 73.3584. 5. Prima Facie Case. NAACP derived its factual allegations from the licensees© EEO programs and annual employment reports. Review of each licensee©s EEO record led us initially to conclude that NAACP presented a prima facie case demonstrating that unconditional grant of the renewal applications would have been inconsistent with the public interest. Section 309(d)(1) of the Communications Act, 47 U.S.C. Section 309(d)(1) ; Astroline. supra. Further inquiry was therefore necessary. See Beaumont Branch of the NAACP and the National Black Media Coalition v. FCC. 854 F.2d 501, 506 (B.C. Cir. 1988) (Beaumont); Bilingual, supra. 6. However, subsequent review of NAACP©s EEO allegations, as well as each licensee©s renewal applications, opposition and inquiry responses leads us to conclude that there are no substantial and material questions of fact warranting designation for hearing. In addition, we find no evidence of employment discrimination. Thus, grant of each application will serve the public interest. 47 U.S.C. Section 309(d)(2). Astroline. supra. Accordingly, we will grant renewal, but with appropriate remedies and sanctions. As is our practice in all cases, we reviewed the licensees© EEO efforts toward both women and minorities. We find each licensee©s record of recruiting women sufficient. 881 IV. DISCUSSION 7. Section 73.2080 of the Commission©s Rules requires that a broadcast licensee refrain from employment discrimination and establish and maintain an affirmative action program reflecting positive and continuing efforts to recruit, employ and promote qualified women and minorities. When evaluating EEO performance, the Commission focuses on the licensee©s efforts to recruit, employ and promote qualified women and minorities and the licensee©s ongoing assessment of its EEO efforts. Such an assessment enables the licensee to take corrective action if qualified women and minorities are not present in the applicant pool. The Commission also focuses on any evidence of discrimination by the licensee. See Sections 73.2080(b) and (c) of the Commission©s Rules, 47 C.F.R Sections 73.2080(b), 73.2080(c). 8. When a renewal application indicates an absence of discrimination and a record of adequate EEO efforts, the application is granted, if otherwise appropriate. When it fails to evidence a record of adequate EEO efforts, the Commission may impose a variety of remedies or sanctions, such as reporting conditions, renewal for less than a full term, forfeiture, or a combination thereof. Further, the Commission will designate the application for hearing if the facts so warrant. Amendment of Part 73 of the Commission©s Rules Concerning Equal Employment Opportunity in the Broadcast Radio and Television Services. 2 FCC Red 3967 (1987), petition for reconsideration pending; see also 4 FCC Red 1715 (1989) (request for clarification by National Association of Broadcasters). See e.g.. Beaumont. supra; Bilingual, supra. KGNC/KGNC-FM. Amarillo 9. The stations© 1990 EEO Program Report, opposition and inquiry responses reveal that the licensee filled 60 full-time vacancies, including 54 for upper-level positions, from April 1, 1987, to July 31, 1990. The licensee contacted one or more of The licensee notes that it hired an Hispanic female, apparently a referral from an Hispanic-oriented broadcast station, for a clerical position on August 1, 1990. Because this hire occurred on the date of license expiration, it is a post-term hire. See 47 C.F.R. Section 73.1020(a). Post-term EEO performance is not considered in the Commission©s evaluation of a licensee©s EEO record during a license term if that record, standing alone, is so deficient that it would merit denial of renewal or other sanctions. Rust Communications Group. Inc.. 79 FCC 39, 53 (1979). Here, we will not consider the licensee©s post-term Hispanic hire because, as we state, infra, we find that the licensee©s EEO record during the following sources for 44 vacancies and received minority referrals as follows: the Amarillo Globe News (five), on-air ads (four), the Texas Employment Commission (three), other broadcast stations (one), employees (one), West Texas State University Career Planning (one), the Amarillo Chamber of Commerce or a broadcast station (one), employment agencies (0), Amarillo College (0), Radio & Records (0), Broadcasting Magazine (0), Texas Tech (0) and a list of community and minority organizations (0). For 15 of the 16 remaining vacancies, the licensee used the following sources and received minority referrals, as follows: applications on file (0), walk-ins (0), or employee referrals (0) for seven vacancies; re-hired a former employee for one vacancy; hired applicants (including one minority), from other stations for five vacancies; hired an applicant, apparently from a real estate company, for one vacancy; and used the Texas State Network News Director, "person-to-person recruitment" and walk-ins for one vacancy. The licensee did not know which, if any, recruitment sources were contacted for the remaining vacancy. 10. The licensee did not provide separate applicant pool information, but did provide interview pool information. The licensee interviewed 18 minorities among 209 applicants overall, including 16 minorities among 184 applicants for upper-level positions. Minorities were considered for 14 of the 60 full- time vacancies.