FCC 89-358 Federal Communications Commission Record 5 FCC Red No. 1 Before the Federal Communications Commission Washington, D.C. 20554 LETTER December 20, 1989 Released: December 29, 1989 Mr. Michael B uxser Vice President and General Manager Station WLVK (FM) 4701 Hedgemore Drive Suite 801 Charlotte, NC 28209 Dear Mr. Buxser: Re: Application for Renewal of License of Station WL VK (FM) Statesville, NC This refers to your pending application for renewal of the license of station WLVK (FM), Statesville, North Carolina (File No. BRH-880801ZS). 1 The North Carolina State Conference of Branches of the NAACP, its branches operating in your service area, and the National Black Media Coalition filed a petition to deny on November 1, 1988. By letter dated January 20, 1989, the petitioners moved to withdraw the petition and requested that the Commission renew your license. Nonetheless, it is our practice in all cases to review a station's equal employ­ ment opportunity (EEO) program and performance pur­ suant to Section 309 of the Communications Act of 1934, as amended, 47 U.S.C. Section 309. Review of the EEO record of WL VK (FM) for the license term reflects a failure to comply with the Commission's EEO rule. Section 73.2080 of the Commission's Rules, 47 C.F.R. Section 73.2080, requires that a broadcast licensee refrain from employment discrimination and establish and main­ tain an affirmative action program reflecting positive and continuing efforts to recruit, employ and promote quali­ fied women and minorities. When evaluating EEO perfor­ mance at renewal time, the Commission focuses on the licensee's efforts to recruit, employ and promote qualified minorities and women and the licensee's ongoing assess­ ment of its EEO efforts. The latter enables the licensee to take corrective action if qualified minorities and women are not present in the applicant pool. The Commission also focuses on any evidence of discrimination by a li­ censee. When a renewal application indicates an absence of evidence of discrimination and an adequate record of EEO efforts, the application is granted, if otherwise ap­ propriate. When the application indicates an inadequate record of EEO efforts, see Section 73.2080 (b) and (c) of the Commission's Rules, 47 C.F.R. Section 73.2080 (b) and (c), the Commission may impose a variety of sanc­ tions, such as reporting conditions, the submission of a modified EEO program, renewal for less than a full term, 194 forfeiture, or a combination thereof. Further, if substan­ tial and material questions of fact exist or if we otherwise cannot find that a grant of the application would be consistent with the public interest, we designate the ap­ plication for hearing. 47 U.S.C. Sec. 309 (d)(2); Amend­ ment 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 4 FCC Red 1715 (1989) (re­ quest for clarification by National Association of Broad­ casters). See also Beaumont Branch of the NAACP v. FCC, 854 F.2d 501 (D.C. Cir. 1988); Bilingual- Bicultural Coali­ tion on the Mass Media, Inc. v. FCC, 595 F.2d 621 (D.C. Cir. 1978). Our review of your renewal application and your re­ sponse to our inquiry shows no evidence of discrimina­ tion but does reveal a record of inadequate EEO efforts. It appears that you did not contact minority recruitment sources when vacancies occurred and that you did not include minorities in the applicant pool. Moreover, it does not appear that you undertook a meaningful self­ evaluation of your EEO program as required by the Commission's EEO rule. Had you done so, you would have seen that your recruitment sources have been in­ effective in attracting minority applicants, and you would have modified your EEO efforts prior to receiving our inquiry letter. Your 1988 EEO Program Report (FCC Form 396) lists as referral sources the Charlotte Observer, the Charlotte Post, Queens College, Johnson C. Smith College, the North Carolina Employment Security Commission, an employment agency, and existing employees. You docu­ ment no referrals from these sources. In an attachment to your EEO Program Report, you state that the Equal Employment Opportunity Commission (EEOC) discour­ ages pre-employment inquiries regarding the race or gen­ der of applicants. You further assert that until the publication of the revised Form 396 (1987), you were unaware that the Commission expected broadcasters to retain such information. You also note that because you generally cannot ascertain a person's race or gender based on his or her resume, you could only obtain such data from interviewees. You submit, however, that this in­ formation would be unreliable because so few applicants are personally interviewed. By letter dated May 12, 1989, we requested additional information regarding your EEO efforts from the time Capitol Broadcasting acquired the station in December 1984 until August 1, 1988. Your submission shows that from August 1, 1987 through July 31, 1988, you hired one lower-level minority among 22 full-time hirees over­ all, 20 of them in upper level positions.2 Of 70 ascertain­ able interviewees, 57 of them for upper-level jobs, the only minority interviewed was the Black female you ulti­ mately hired for a clerical position. That position appears to be the only vacancy for which you contacted a minor­ ity referral source. You list the recruitment sources as "Unknown" for 12 of the 22 hirees while the rest, except for the aforementioned clerical position, were filled via non-minority recruitment sources. In addition, you are unable to provide the number of minorities interviewed for 13 positions. For two of those 13 positions, however, you are able to recall the number of persons interviewed overall, as well as the number of female interviewees. 5 FCC Red No. 1 Federal Communications Commission Record FCC 89-358 Your earlier recruitment information is even less de­ tailed. From December 1984 through July 1987, you doc­ ument three lower-level minorities among 53 total hires, 46 in upper-level positions. 3 You fail to list the referral source for all but seven hirees. Moreover, you provide no interviewee data. Your response to our inquiry also notes, however, that you have recently modified your EEO pro­ gram to yield more minority referrals and that you are keeping more detailed records. 4 Although the 1988 reporting year is the last reporting year included in the license term under review, which ended on December 1, 1988, you request that we consider WLVK's 1989 employment profile. While we are encour­ aged by the improvement in WLVK's EEO record, we do not believe that your recent actions are related to EEO efforts made during the license term and we therefore will not consider your 1989 Annual Employment Report. Rust Communications Group, Inc., 73 FCC 2d 39 (1979). In addition, we are not satisfied with your explanation regarding the lack of recruitment data on your 1988 EEO Program Report. As we stated in Amendment of Part 73 of the Commission's Rules Concerning Equal Employment Op­ portunity in the Broadcast Radio and Television Services, 4 FCC Red 1715, 1716 (1989) (NAB Report and Order), the EEOC "has long recognized that information as to an applicant's race and sex can be collected pursuant to an affirmative action plan." The NAB Report and Order also discusses the information collection requirements of the updated Form 396, concluding that a licensee can be expected to possess the requested data, especially in light of the requirement that it engage in ongoing assessment of its EEO program. Id. We do not doubt that it is difficult to discern a person's race and, to a lesser extent, gender from his or her resume alone. Your claim that few ap­ plicants are interviewed, however, is undermined by the fact that you document 75 hiring opportunities during the license term, for which at least 123 persons were inter­ viewed. We are also concerned that you misunderstand the purpose of our processing guidelines. Your response to our inquiry states that your 1989 Report complies with the guidelines and that "WLVK hired minority employees prior to the end of the subject license term to achieve such compliance." As we have stated, meeting or exceed­ ing the processing guidelines no longer automatically demonstrates that adequate EEO efforts were made. See Arkansas Educational Television Commission, 3 FCC Red 1923, 1925 (1988). While this case does not warrant designation for an evidentiary hearing, we find it appropriate to impose sanctions and remedies for your failure to comply with our EEO rule. Your EEO record is similar to that of the licensee in Woolfson Broadcasting Corporation, 4 FCC Red 6160 (1989) (WSBY I WQHQ). In WSBY I WQHQ, we found that the licensee neither followed its EEO program nor hired any minorities despite 33 full-time hiring op­ portunities from February 1986 through September 1988 in an area where minorities constitute 20% of the labor force. The licensee of WSBY/WQHQ used minority recruitment sources for only 14 of those 33 vacancies and received only two minority referrals. Accordingly, we granted a short-term renewal subject to reporting con­ ditions and a $15,000 forfeiture. Similarly, you do not appear to have followed your EEO program despite 75 hiring opportunities in less than four years. While you did hire some minorities for lower- 195 level positions, your use of non-minority specific sources generally was unproductive. Yet, notwithstanding this fact, your self-assessment was deficient insofar as you docu­ ment use of minority referral sources for only one of those 75 vacancies. Moreover, your recordkeeping was sporadic until the final year of the license term. There­ fore, while we find that grant of the license renewal is in the public interest, we also find it appropriate to grant renewal for a short term, subject to periodic reporting conditions and a Notice of Ap~arent Liability for For­ feiture in the amount of $15,000. Accordingly, IT IS ORDERED, that the application of Capitol Broadcasting Corporation for renewal of licenses for station WLVK(FM) IS GRANTED FOR A SHORT TERM ending November 30, 1992 subject to the reporting conditions specified herein. IT IS FURTHER ORDERED, that, pursuant to Section 503 of the Communications Act of 1934, as amended, 47 U.S.C. Section 503, Capitol Broadcasting Company is hereby advised of its apparent liability for forfeiture of $15,000 in light of its repeated failure to comply with Section 73.2080 of the Commission's Rules, 47 C.F.R. Section 73.2080, in the manner described above. IT IS FURTHER ORDERED, that the licensee of station WL VK(FM) is directed to submit to the Commission an original and one copy of the following information on August 1, 1990, August 1, 1991, and August 1, 1992: (a) For each report, a list of all job vacancies during the 12 months preceding the respective reporting dates, indicating the job title and full or part-time status of the position, 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 contact­ ed;6 (b) A list of employees as of the July 1, 1990 payroll period for the first report and as of the July 1, 1991 and July 1, 1992 payroll periods for the second and third reports by job title, indicating full-time or part-time status (ranked from highest paid classifica­ tion), date of hire, sex, and race or national origin; and (c) Details concerning the stations' efforts to recruit Blacks for each position filled during the 12-month periods 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 information it believes relevant regarding the station's EEO performance and its efforts thereunder. The reports are to be filed with the Secretary of the Commission for the attention of the Mass Media Bureau's EEO Branch. Should you have any questions regarding this action or require further information concerning the employment reports, you may telephone the Mass Media Bureau's EEO Branch ((202) 632-7069). With respect to the for­ feiture proceeding, you may take any of the actions set forth in Section 1.80 of the Commission's Rules, 47 C.F.R. Section 1.80, as summarized in the attachment to this letter. Any comments concerning your ability to pay should include those financial items set forth in the at­ tachment. FCC 89-358 Federal Communications Commission Record BY DIRECTION OF THE COMMISSION Donna R. Searcy Secretary FOOTNOTES 1 The license of WLVK was conditionally assigned from Capitol Broadcasting Corporation to the Trumper Communica­ tions of North Carolina Limited Partnership on September 21, 1989 (File No. BALH-890720HK). 2 You indicate that a non-minority announcer was promoted from part-time to full-time status. This is not counted as a new hire but as a promotion. 3 You do not distinguish between part-time and full-time status for positions filled prior to August 1987. It appears that the jobs you list were full-time, since you state that some of the successful candidates were promoted from part-time positions. As we have noted, such persons are not considered new hires. Nor are persons furnished by an employment agency on a temporary basis considered new hires. 4 The available labor force for Iredell County, the county in which Statesville is located, is 15.9% minority (14.9% Black, .8% Hispanic, .1% Asian/Pacific Islander, .1% American Indian). Your Annual Employment Reports (FCC Form 395-B) filed during the license term show that during the 1988 reporting year, i.e., the 12-month period prior to the end of the license term, WLVK employed 26 persons full-time, 22 of them in upper-level positions. Your 1988 report lists one full-time mi­ nority (3.8%), a lower-level Black female. Your 1987 report lists no minorities among 24 overall employees and 20 upper-level employees. Your 1986 report lists one lower-level minority (4.0%) among 25 overall employees and 21 upper-level employ­ ees. Your 1985 report lists no minorities among 19 overall employees and 17 upper-level employees. 5 We are mindful of the conditional assignment of the license of WLVK(FM) from Capitol Broadcasting Corporation to the Trumper Communications of North Carolina Limited Partner­ ship. We intend that the forfeiture be assessed on the assignor and that the short-term renewal and reporting conditions pass automatically to the assignee. See Woolfson Broadcasting Cor­ poration, 4 FCC Red at 6161. 6 Such a list might start: (1) News Director; Officials and Managers; Full-time 3 Applicants: I white female A.W.R.T. I black male Urban League I black female NAACP Sources Contacted: Local Newspaper, A.W.R.T., Urban League, and NAACP Selected: black male (03/15/91) 196 5 FCC Red No.1