**Before the**

**Federal Communications Commission**

Washington, D.C. 20554

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | NAL/Acct. No.                |
|                                  | *) | MB-200841410014              |
| **Puerto Rico Public             | ** |                              |
| Broadcasting Corporation**       |    | FRN: 0005832233              |
|                                  | *  |                              |
| Applications For Renewal of      | *) | Facility I.D. No. 53859      |
| Licenses for Stations            | ** |                              |
|                                  |    | File No. BRET-20040930BWP    |
| WIPR-TV, San Juan, Puerto Rico   | *  |                              |
|                                  | *) | Facility I.D. No. 53863      |
| WIPM-TV, Mayaguez, Puerto Rico   | ** |                              |
|                                  |    | File No. BRET-20040930BWL    |
| Licensee of Stations             | *  |                              |
|                                  | *) | Facility I.D. No. 53860      |
| WIPR-FM, San Juan, Puerto Rico   | ** |                              |
|                                  |    | File No. BRED-20031014AHQ    |
| WIPR(AM), San Juan, Puerto Rico  | *  |                              |
|                                  | *) | Facility I.D. No. 53861      |
|                                  | ** |                              |
|                                  |    | File No. BR-20031014AFV      |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER AND**

**NOTICE OF Apparent Liability for Forfeiture**

**Adopted: August 11, 2008 Released: December 30, 2008**

By the Commission: Commissioners Copps and Adelstein issuing a joint
statement.

**I. INTRODUCTION**

1\. In this *Memorandum Opinion and Order and* *Notice of Apparent
Liability for Forfeiture ("NAL")* issued pursuant to Sections 309(k) and
503(b) of the Communications Act of 1934, as amended (the "Act"), and
Section 1.80 of the Commission's Rules (the "Rules"),[^1] we find that
Puerto Rico Public Broadcasting Corporation (the "Licensee"), licensee
of Stations WIPR-TV, WIPR-FM and WIPR(AM), San Juan, Puerto Rico, and
WIPM-TV, Mayaguez, Puerto Rico (the "Stations"), apparently willfully
and repeatedly violated Sections 73.2080(c)(3), 73.2080(c)(5),
73.2080(c)(6)(iii), 73.2080(c)(6)(iv) and 73.3526(e)(7) of the
Commission's Rules (the "Rules")[^2] by failing to comply with the
Commission's Equal Employment Opportunity ("EEO") self-assessment,
record keeping, recruitment source information, interviewee information
and public file requirements. Based upon our review of the facts and
circumstances before us, we conclude that the Licensee is apparently
liable for a monetary forfeiture in the amount of eight thousand dollars
(\$8,000). We impose reporting conditions on the Licensee and any
successor licensee of any of the Stations to prevent future violations
of these requirements. We also grant the captioned renewal applications
for Stations WIPR-TV and WIPM-TV.

**II. BACKGROUND**

2\. Section 73.2080(c)(1) of the Rules requires that a broadcast
licensee recruit for every full-time job vacancy in its employment unit
operation. In this regard, the Rules impose, *inter alia*, the following
respective obligations on such licensees:

-   Section 73.2080(c)(3): analyze the recruitment program for the
    licensee's unit on an ongoing basis to ensure that it is effective
    in achieving broad outreach to potential applicants, and address any
    problems found as a result of its analysis;

-   Section 73.2080(c)(5): retain records of its EEO efforts;

-   Section 73.2080(c)(6)(iii): maintain recruitment source data; and

-   Section 73.2080(c)(6)(iv): maintain interviewee data.

In addition, Section 73.3526(e)(7) requires commercial licensees to
include certain EEO-related materials in their station public files.

3\. *EEO Audit and Review.* The Media Bureau audited the Licensee for
its compliance with Section 73.2080 of the Rules[^3] at the Stations and
we have before us the Licensee's responses to the audit.[^4] We also
have before us the Licensee's captioned license renewal applications for
Stations WIPR-TV and WIPM-TV and accompanying Broadcast EEO Program
Report (Form 396). Our review of these materials shows that, during the
reporting periods at issue (March 10, 2003, through September 30, 2003;
October 1, 2003, through September 30, 2004; and October 1, 2004,
through September 30, 2005), the Licensee did not retain adequate EEO
records, as required by Section 73.2080(c)(5). Also, the Stations' 2004
EEO public file report failed to list the recruitment source that
referred the hiree for each full-time vacancy, as required by Section
73.2080(c)(6)(iii). In addition, the Stations' 2003, 2004 and 2005 EEO
public file reports failed to list the total number of interviewees
referred by each of the station's recruitment sources, as required by
Section 73.2080(c)(6)(iv). The Stations' 2005 EEO public file report
failed to list the total number of interviewees for all of the 15
Station full-time vacancies filled, as required by Section
73.2080(c)(6)(iv), because it listed the number of interviewees for only
two of 15 vacancies. The Licensee also failed to place this information
in the public inspection file of each station in the unit in violation
of Section 73.3526(e)(7). These failures, some of which continued over a
period of two and a half years, reveal a continuing lack of
self-assessment, in violation of Section 73.2080(c)(3).

**\
III. DISCUSSION**

4\. We conclude that the Licensee violated Section 73.2080(c)(5) by
failing to maintain adequate recruitment records for all of its
vacancies for its 2003, 2004 and 2005 reporting periods, which consisted
of seven vacancies in the 2003 reporting period, 14 vacancies in the
2004 reporting period, and 15 vacancies in the 2005 reporting period. We
also conclude that the Stations' 2004 EEO public file report failed to
list the recruitment source that referred the hiree for nine of 14
full-time vacancies, as required by Section 73.2080(c)(6)(iii). Further,
the Stations' 2003, 2004 and 2005 EEO public file reports failed to list
the total number of interviewees referred by each of the Stations'
recruitment sources, as required by Section 73.2080(c)(6)(iv). The
Stations' 2005 EEO public file report failed to list the total number of
interviewees for all of the 15 Station full-time vacancies filled, as
required by Section 73.2080(c)(6)(iv), because it listed the number of
interviewees for only two of 15 vacancies. Because of the Licensee's
lack of records of interviewees and referrals, we find that it was not
possible for it to have adequately analyzed its recruitment program to
ensure that it was effective in achieving broad outreach, in violation
of Section 73.2080(c)(3). Finally, we find that it failed to place the
required information in its public inspection file, in violation of
Section 73.3526(e)(7).

5\. This *NAL* is issued pursuant to Section 503(b)(1)(B) of the Act.
Under that provision, any person who is determined by the Commission to
have willfully or repeatedly failed to comply with any provision of the
Act or any rule, regulation, or order issued by the Commission shall be
liable to the United States for a forfeiture penalty.[^5] Section
312(f)(1) of the Act defines willful as "the conscious and deliberate
commission or omission of \[any\] act, irrespective of any intent to
violate" the law.[^6] The legislative history of Section 312(f)(1) of
the Act clarifies that this definition of willful applies to both
Sections 312 and 503(b) of the Act,[^7] and the Commission has so
interpreted the term in the Section 503(b) context.[^8] Section
312(f)(2) of the Act provides that "\[t\]he term 'repeated,' when used
with reference to the commission or omission of any act, means the
commission or omission of such act more than once or, if such commission
or omission is continuous, for more than one day."[^9]

6\. The Commission's *Forfeiture Policy Statement* and Section
1.80(b)(4) of the Rules do not establish base forfeiture amounts for
specific EEO rule violations, such as a failure to self-assess EEO
performance. However, they do establish a base forfeiture amount of
\$10,000 for violation of the Commission´s public file rules, of \$3,000
for failure to file required information, and of \$1,000 for failure to
maintain required records.[^10] In determining the appropriate
forfeiture amount, we may adjust the base amount upward or downward by
considering the factors enumerated in Section 503(b)(2)(D) of the Act,
including "the nature, circumstances, extent and gravity of the
violation, and, with respect to the violator, the degree of culpability,
any history of prior offenses, ability to pay, and such other matters as
justice may require."[^11]

7\. As discussed *supra*, the Licensee failed to maintain adequate EEO
records for all of its vacancies for the 2003, 2004 and 2005 reporting
periods; list recruitment source data on its 2004 EEO public file
report; list interviewee data on its 2003, 2004 and 2005 EEO public file
reports; list the total number of interviewees for all of the Station 15
full-time vacancies on its 2005 EEO public file report; self-assess its
EEO program; and place required information in its public inspection
file. Accordingly, based upon the facts before us, and the factors noted
above, and pertinent precedent,[^12] we find that the Licensee is
apparently liable for the following respective forfeiture amounts for
its willful and repeated violations of these Rules: \$2,000 for its
violation of Section 73.2080(c)(3); \$2,000 for its violation of Section
73.2080(c)(5); \$1,000 for its violation of Section 73.2080(c)(6)(iii);
\$2,000 for its violation of Section 73.2080(c)(6)(iv), and \$1,000 for
its violation of Section 73.3526(e)(7), for a total proposed forfeiture
in the amount of \$8,000.[^13] We will also impose reporting conditions
as set forth below, to ensure that the Licensee and any successor
licensee of any of the Stations maintains an adequate EEO program in
compliance with the Rules.

8\. *License Renewal Applications*. In evaluating an application for
license renewal, the Commission's decision is governed by Section 309(k)
of the Act. That Section provides that if, upon consideration of the
application and pleadings, we find that: (1) the station has served the
public interest, convenience, and necessity; (2) there have been no
serious violations of the Act or the Rules; and (3) there have been no
other violations which, taken together, constitute a pattern of abuse,
we are to grant the renewal application.[^14] If, however, the licensee
fails to meet that standard, the Commission may deny the application --
after notice and opportunity for a hearing under Section 309(e) of the
Act -- or grant the application "on terms and conditions that are
appropriate, including a renewal for a term less than the maximum
otherwise permitted."[^15]

9\. We find that the Licensee's violations of the Commission's EEO rules
discussed above do not constitute "serious violations" of the Rules of
such gravity that they warrant designation for evidentiary hearing.[^16]
We also find no evidence of violations that, when considered together,
evidence a pattern of abuse.[^17] Further, we find that the Licensee
served the public interest, convenience, and necessity with Stations
WIPR-TV and WIPM-TV during their respective license terms. We will
therefore grant the captioned license renewal applications for those
stations below.[^18]

**IV. ORDERING CLAUSES**

10\. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of the
Commission's Rules, that Puerto Rico Public Broadcasting Corporation is
hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount
of eight thousand dollars (\$8,000) for its apparent willful and
repeated violation Sections 73.2080(c)(3), 73.2080(c)(5),
73.2080(c)(6)(iii), 73.2080(c)(6)(iv), and 73.3526(e)(7) of the
Commission's Rules.

11\. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
Rules, that, within thirty (30) days of the release of this *NAL*,
Puerto Rico Public Broadcasting Corporation SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.

12\. Payment of the forfeiture must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Account Number and FRN
Number referenced above. Payment by check or money order may be mailed
to Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank --
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations Group
Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures.

13\. The response, if any, must be mailed to Office of the Secretary,
Federal Communications Commission, 445 12^th^ Street, S.W., Washington
D.C. 20554, ATTN: Lewis Pulley, Assistant Chief, Policy Division, Media
Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above.

14\. The Commission will not consider reducing or canceling a forfeiture
in response to a claim of inability to pay unless the respondent
submits: (1) federal tax returns for the most recent three-year period;
(2) financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and objective
documentation that accurately reflects the respondent's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.

15\. Requests for full payment of the forfeiture proposed in this *NAL*
under the installment plan should be sent to: Associate Managing
Director - Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington D.C. 20554.[^19]

16\. IT IS FURTHER ORDERED that Puerto Rico Public Broadcasting
Corporation and any successor licensee for any or all of Stations
WIPR-TV, WIPM-TV, WIPR-FM and WIPR(AM)[^20] shall submit to the Federal
Communications Commission, Media Bureau, EEO Staff, an original and one
copy of the following information on November 3, 2009; November 2, 2010;
and November 1, 2011:

\(a\) the Stations' most recent EEO public file reports,

\(b\) dated copies of all advertisements, bulletins, letters, faxes,
e-mails, or other communications announcing each full-time vacancy for
the preceding reporting year;

\(c\) the recruitment source that referred the hiree for each full-time
vacancy; and

\(d\) the total number of interviewees for each full-time vacancy for
the preceding reporting year and the referral source for each
interviewee.

17\. IT IS FURTHER ORDERED, pursuant to Section 309(k) of the
Communications Act of 1934, as amended, that the renewal applications
for Stations WIPR-TV, San Juan, Puerto Rico, and WIPM-TV, Mayaguez,
Puerto Rico, ARE GRANTED.

18\. IT IS FURTHER ORDERED that, pursuant to Section 73.3526(e)(10) of
the Commission's Rules, Puerto Rico Public Broadcasting Corporation
place a copy of this *NAL* in the public inspection files of Stations
WIPR-TV, WIPM-TV, WIPR-FM and WIPR(AM).

19\. IT IS FURTHER ORDERED that copies of this *NAL* shall be sent, by
First Class and Certified Mail, Return Receipt Requested, to Puerto Rico
Public Broadcasting Corporation, PO Box 190909, Hato Rey, Puerto Rico
00919, and to its counsel, Elizabeth Hammond, Esquire, Drinker Biddle &
Reath, 1500 K Street, N.W., Suite 1100, Washington D.C. 20005-1209.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**JOINT STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

**AND**

**COMMISSIONER JONATHAN S. ADELSTEIN**

 

Re:       *Dickey Broadcasting Company, Notice of Apparent Liability for
Forfeiture; Urban Radio I, LLC, Memorandum Opinion and Order and Notice
of Apparent Liability for Forfeiture; Puerto Rico Public Broadcasting
Corporation, Memorandum Opinion and Order and Notice of Apparent
Liability for Forfeiture; W.S. Communications, L.L.C., Memorandum
Opinion and Order and Notice of Apparent Liability for Forfeiture;
Cumulus Licensing L.L.C., Notice of Apparent Liability for Forfeiture;
Fox Television Stations, Inc., Notice of Apparent Liability for
Forfeiture*

The Commission's enforcement of Equal Employment Opportunity ("EEO")
rules related to self-assessment, recordkeeping, recruitment source
information, interviewee information, and public file requirements is
one of the principal ways we strive to promote employment diversity and
opportunities in the communications industry. While this is
unquestionably the right thing to do, Sections 334 and 634 of the
Communications Act specifically authorize the Commission to take steps
to promote equality of employment opportunities for women and members of
racial and ethnic minority groups. Our EEO rules, for example, require
wide dissemination of job vacancies in order to attract all qualified
employees. According to reports, from 1971 to 1997, employment of people
of color in broadcasting increased from 5 to 19 percent, and from 12 to
43 percent for women during the same period.

In recent years, however, Commission enforcement of EEO rules has been
inconsistent and, as one consequence, employment in broadcasting does
not reflect America. As the Minority Media and Telecommunications
Council has found, while the average forfeiture amount for EEO
violations has increased, the Commission's EEO docket has decreased by
96 percent. Between 1994 and 1997, the Commission decided 251 cases,
resulting in 86 forfeitures. Between 2004 and 2007, however, the
Commission decided only 10 cases, resulting in 8 forfeitures.

Lax EEO enforcement has yielded less diversity in employment. The most
recent report on employment trends in broadcasting by the Radio and
Television News Directors Association/Hofstra University found that,
while the minority population in the United States has risen 8.1 percent
in the past 18 years, minority workforce in TV news is up 5.8 percent,
and the minority workforce in radio is up by just 1 percent.

So it is clear that the Commission's recent efforts to promote
employment diversity have been woefully inadequate. If we are truly
committed to employment diversity, as required by law, we must get
serious about restoring an effective and rational EEO enforcement
program. This level of commitment is currently lacking at the FCC.

There are other, more pro-active, steps we should consider. At a
minimum, we should make our process more transparent by compiling and
releasing FCC Form 395 data, as well as developing annual and
longitudinal employment reports. As we work with industry and advocacy
groups in a cooperative manner, these initial steps should help us
better understand employment trends in the communications industry and
permit us to better craft more effective oversight.

Having a communications industry that reflects our nation's diversity
would best serve a wide range of consumer and societal interests. It is
not only a legal obligation, it is also the right thing to do.

[^1]: 47 U.S.C. §§ 309(k) and 503(b); 47 C.F.R. § 1.80.

[^2]: *See* 47 C.F.R. §§ 73.2080(c)(3), 73.2080(c)(5),
    73.2080(c)(6)(iii), 73.2080(c)(6)(iv), and 73.3526(e)(7).

[^3]: Letter from Lewis Pulley, Assistant Chief, Policy Division, Media
    Bureau, to Puerto Rico Public Broadcasting Corporation (Sept. 29,
    2005).

[^4]: Letters from Puerto Rico Public Broadcasting Corporation to EEO
    Staff, Policy Division, Media Bureau (Nov. 15, 2005, and Apr. 25,
    2007).

[^5]: 47 U.S.C. § 503(b)(1)(B). *See also* 47 C.F.R. § 1.80(a)(1).

[^6]: 47 U.S.C. § 312(f)(1).

[^7]: *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982).

[^8]: *See Southern California Broadcasting Co.*, Memorandum Opinion and
    Order, 6 FCC Rcd 4387, 4388 (1991).

[^9]: 47 U.S.C. § 312(f)(2).

[^10]: *See Forfeiture Policy Statement and Amendment of Section 1.80(b)
    of the Rules to Incorporate the Forfeiture Guidelines*, Report and
    Order, 12 FCC Rcd 17087, 17113-15 (1997) *("Forfeiture Policy
    Statement"),* *recon. denied*, 15 FCC Rcd 303 (1999); 47 C.F.R. §
    1.80(b)(4), note to paragraph (b)(4), Section I.

[^11]: 47 U.S.C. § 503(b)(2)(D); *see also Forfeiture Policy Statement,*
    12 FCC Rcd at 17100-01, ¶27; 47 C.F.R. § 1.80(b)(4); 47 C.F.R. §
    1.80(b)(4), note to paragraph (b)(4), Section II.

[^12]: In *Waitt Omaha, LLC*, we proposed an \$8,000 forfeiture for a
    licensee's violations of various EEO rules, specifically Sections
    73.2080(c)(3), 73.2080(c)(5), 73.2080(c)(6)(iii), 73.2080(c)(6)(iv),
    and 73.3526(e)(7). The licensee had failed to maintain required EEO
    records, list the recruitment source of hirees, provide data on the
    numbers of person interviewed and referred from each recruitment
    source, self-assess adequately, and place required EEO information
    in its public inspection file. *Waitt Omaha, LLC*, Notice of
    Apparent Liability for Forfeiture, 22 FCC Rcd 2661 (2007) (response
    to NAL pending).

[^13]: The forfeiture amounts do not consider any violations that
    occurred before December 7, 2004, for WIPR-FM and before April 13,
    2004, for WIPR(AM) because the stations' renewal applications were
    granted on those dates. *See* File Nos. BRED-20031014AHQ and
    BR-20031014AFV, respectively; *see also* 47 U.S.C. § 503(b)(6)(A)
    (Commission is barred from issuing an NAL to broadcast licensees for
    violations which occurred during the previous license term if the
    license has already been renewed for the current term.) 47 C.F.R. §
    73.3526(e)(7) requires EEO information to be kept in a station's
    public inspection file until final action has been taken on the
    station's next license renewal application. The renewal grant
    becomes final 40 days after public notice of the grant of the
    renewal application, unless a petition for reconsideration or
    application for review is timely filed or the Commission otherwise
    sets aside the grant. *See* 47 C.F.R. §§ 1.106, 1.115, 1.117.

[^14]: 47 U.S.C. § 309(k)(1). The renewal standard was amended to read
    as described by Section 204(a) of the Telecommunications Act of
    1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). S*ee Implementation
    of Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, Order, 11 FCC Rcd 6363
    (1996).

[^15]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^16]: *See e.g., New Northwest Broadcasters LLC,* Memorandum Opinion
    and Order and Notice of Apparent Liability, DA 06-1921 (MB Sept. 27,
    2006); *Viper Communications*, Memorandum Opinion and Order and
    Notice of Apparent Liability, 20 FCC Rcd 20254 (MB 2005).

[^17]: For example, we do not find here that the Licensee\'s operation
    of either WIPR-TV or WIPM-TV \"was conducted in an exceedingly
    careless, inept and negligent manner and that the licensee is either
    incapable of correcting or unwilling to correct the operating
    deficiencies.\" *See Heart of the Black Hills Stations*, 32 FCC 2d
    196, 198, ¶6 (1971). Nor do we find on the record here that \"the
    number, nature and extent\" of the violations indicate that \"the
    licensee cannot be relied upon to operate \[its stations\] in the
    future in accordance with the requirements of its licenses and the
    Commission\'s Rules.\" *Heart of the Black Hills Stations*, 32 FCC
    2d at 200, ¶11. *See also Center for Study and Application of Black
    Economic Development*, 6 FCC Rcd 4622 (1991); *Calvary Educational
    Broadcasting Network, Inc*., 7 FCC Rcd 4037 (1992).

[^18]: *See* 47 U.S.C. § 309(k).

[^19]: *See* 47 C.F.R. § 1.1914.

[^20]: In the event of an assignment of any of the Stations, this
    continuing obligation will run to the assignee with regard to each
    Station assigned.