Federal Communications Commission FCC 96-299 in Re Applications Of
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Federal Communications Commission FCC 96-299 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In re Applications of ) ) Bloomington Twin Cities ) File Nos. BR-890801VP Broadcasting Corporation ) BRH-890801WV ) For renewal of license of ) Stations WJBC(AM)/WBNQ(FM) ) Bloomington, Illinois ) MEMORANDUM OPINION AND ORDER Adopted: July 2, 1996 Released: July 24, 1996 By the Commission: I. INTRODUCTION 1. The Commission has before it for consideration: (i) license renewal applications filed by Bloomington Twin Cities Broadcasting Corporation for Stations WJBC(AM)/WBNQ(FM), Bloomington, Illinois ("WJBC(AM)/WBNQ(FM)"); (ii) a Petition to Deny timely filed on November 1, 1989, by the Illinois State Conference of Branches of the National Association for the Advancement of Colored People ("NAACP") and the Bloomington County Chapter of the NAACP;1 (iii) an opposition from the licensee; and (iv) the licensee©s response to a staff letter of inquiry. II. BACKGROUND 2. The NAACP alleges that WJBC(AM)/WBNQ(FM) violated our Equal Employment 1 The Petition to Deny was also directed against 12 other radio stations in Illinois. These stations© renewal applications have already been acted upon by the Commission. 9033 Federal Communications Commission FCC 96-299 Opportunity (EEO) Rule and policies. It requests that we conduct an investigation of the stations© employment practices pursuant to Bilingual Bicultural NAACP on Mass Media v. FCC. 595 F.2d 621 (D.C. Cir. 1978) (Bilingual) and designate the renewal applications for hearing. The licensee charges that the NAACP has presented no evidence of discrimination, that the record indicates compliance with the Commission©s EEO Rule, and that unconditional renewal is warranted. 3. Standing. In challenging an application pursuant to Section 309(d) of the Communications Act of 1934, 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. § 309(d)(l); Astroline Communications Co. v. FCC. 857 F.2d 1556 (D.C. Cir. 1988) (Astroline): Dubuque T.V. Limited Partnership. 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 knowledge of the facts alleged. 47 U.S.C. § 309 4. Submitted with the petition was a statement under penalty of perjury from the President of the Bloomington County, Illinois, branch of the NAACP. He states that he is a regular listener of WJBC(AM)/WBNQ(FM). We find that the declaration meets our requirements for standing. Accordingly, we hold that the NAACP has petitioner status against stations WJBC(AM)/WBNQ(FM). See American Legal Foundation v. FCC. 808 F.2d 84 (D.C. Cir. 1987); see also Petition for Rule Making to Establish Standards for Determining the Standing of a Party to Petition to Deny a Broadcast Application. 82 FCC 2d 89 (1980)(citing Warth v. Seldin. 422 U.S. 490, 511 (1975)). 5. Prima Facie Case. The NAACP derived its factual allegations from the licensee©s EEO program and annual employment reports. Review of its allegations led us to conclude, as a threshold matter, that the NAACP presented a prima facie case demonstrating that unconditional grant of the renewal applications would have been inconsistent with the public interest. See Section 309(d)(l) of the Communications Act of 1934, 47 U.S.C. § 309(d)(lY See also Astroline. 6. Review of the NAACP© s EEO allegations as well as the licensee©s renewal applications, opposition and inquiry response, however, leads us to conclude that there are no substantial and material questions of fact warranting designation for hearing. In addition, we find no evidence that the licensee engaged in discrimination. Thus, a grant of the renewal applications will serve the public interest. 47 U.S.C. § 309(d)(2). See Astroline. However, we will impose appropriate remedies. III. DISCUSSION 7. Section 73.2080 of the Commission©s Rules requires that a broadcast licensee 9034 Federal Communications Commission FCC 96-299 refrain from employment discrimination and establish and maintain a program reflecting positive and continuing efforts to recruit and promote qualified women and minorities. When evaluating EEO performance, the Commission focuses on the licensee©s efforts to recruit and promote qualified 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 73.2080(c). 8. Review of the licensee©s renewal applications, opposition and inquiry responses reveals that the stations had 23 full-time hiring opportunities, including 18 for upper-level positions, from August 1, 1986, through August 1, 1989.2 In its renewal applications,3 the licensee indicated contacting the following minority and general sources: the Illinois Broadcasters Association Minority Internship Program, the United Private Industry Council, the Pantograph. Radio and Records Magazine. Illinois State University, Illinois Wesleyan University, Eastern Illinois University, the Bloomington Human Relations Commission, the Illinois Department of Job Services, the Radio-TV News Directors Association and employee referrals. The licensee indicated that it received the following number of minority referrals from the following sources: the Illinois Broadcasters Association Minority Internship Program (3), Illinois State University (1), the Radio-TV News Directors Association (1) and employee referrals (1). 9. In response to letters of inquiry requesting recruitment efforts data, the licensee was unable to provide such information. It indicated that, prior to November 1988, it did not keep any records of actual sources contacted for each vacancy. However, the licensee claims that it contacted six recruitment sources on a regular basis, but not for every opening.4 Moreover, for the period prior to August 1989, the licensee was unable to provide the number, gender and race or national origin of those who applied or were interviewed for each position. The licensee 2 The Bloomington-Normal, Illinois Metropolitan Statistical Area ("MSA") is 5.1% minority (3.6% Black and 1.5% other). The stations© 1983 through 1989 Annual Employment Reports list no minorities on full-time staffs ranging from 43 to 51. 3 In its renewal applications, the licensee listed the number of hires occurring during the reporting year as three. In an amendment filed January 10, 1990, the licensee changed that number to 27 total hires, of which 23 were full-time. We sent a second inquiry letter to the licensee requesting an explanation for this discrepancy. In its response, the licensee contends that the inaccuracy was due to its misinterpretation of the information requested. The licensee believed that the form requested only the number of women and minorities hired for full-time positions during the reporting year, not all individuals hired. 4 The six sources included the Bloomington Human Relations Commission, the Illinois Department of Job Services, the Illinois Department of Rehabilitation Services, the United Private Industry Council, the Occupational Development Center and the Bloomington Chapter of the NAACP. Additionally, the licensee states that beginning in November 1988, it sent job vacancy announcements to all six sources listed above. 9035 Federal Communications Commission FCC 96-299 maintains that it was unaware of the recordkeeping requirements resulting from the Commission©s adoption of Amendment of Part 73 of the Commission©s Rule Concerning Equal Employment Opportunity in the Broadcast Radio and Television Services. 2 FCC Red 3967 (1987) (Broadcast EEO).5 Nevertheless, the licensee was able to provide the referral sources for 12 of the 16 hires that it made prior to November 1988. The following referral sources were used for these 12 hires: a general newspaper (7), employee referrals (4) and Illinois Job Service (1). Additionally, the licensee indicates mat it knew the exact number of minority applicants for each position during the period under review. The licensee states that two Blacks applied for a clerical position and one Black applicant was hired for an upper-level position in the news department. Furthermore, the licensee claims that for all of its news positions, including five of the 23 full- time vacancies, it contacted minorities who had placed advertisements with the Radio-Television News Directors Association. The licensee also asserts that it met with minority students at Illinois State University and wrote letters to minority degree candidates from Southern Illinois University, encouraging them to apply for positions at WJBC(AM)/WBNQ(FM). However, the licensee did not receive any applications from these contacts. 10. The NAACP contends that neither the licensee©s 1982 nor 1989 renewal applications reflect whether the licensee undertook an effective EEO program. Neither the 1982 nor 1989 EEO programs listed any minority organizations or schools as recruitment sources. The NAACP argues that three of the six minority referrals listed in the 1989 renewal application may not have been referrals for full-time positions because they were connected with an internship program. According to the NAACP,- most of the stations© referrals came from a daily newspaper which generated 59 female referrals. The NAACP theorizes that if those 59 referrals represented half the applicants during the renewal year, then the licensee had approximately 120 applicants and did little to diversify its applicant pool. The NAACP quotes the stations© 1975 through 1989 Annual Employment Reports and surmises that the licensee©s longstanding under-employment of minorities may be due to the licensee©s belief that it need not employ minorities on a regular basis. The NAACP. argues that the licensee should have known that aggressive corrective steps were required based on its previous license renewals.