2. In an Initial Decision, FCC 77D-34, released July 22, 1977, Administrative Law Judge (ALJ) Reuben Lozner granted short-term (one-year) renewals of the licenses of Stations WHAM and WHFM(FM). The Judge's decision to grant short-term renewals rested principally upon his conclusion that Rust's equal employment opportunity (EEO) record was very poor for an extended period and showed noticeable improvements only after the designation of this renewal proceeding.3 Had it not been for such improvements, the Judge concluded, denial of Rust's renewal applications would be warranted. (I.D. Concls. 62-64, 76). The Judge further concluded that the evidence with respect to the licensee's ascertainment efforts and program service does not warrant more severe action than short-term renewals. (I.D. Concls. 71-73). Finally, the Judge determined there is insufficient record evidence to support a finding that Rust's nonentertainment programming was meritorious, but that even if the record could support such a finding, the restriction of the renewals of Stations WHAM and WHFM(FM) to one-year terms would still be warranted. (I.D. Concl. 74, n. 84).

3. Action for a Better Community, Inc. (ABC) and Metro-Act of Rochester, Inc. (Metro-Act), two Rochester community organizations which participated as parties to this proceeding, have each filed consolidated exceptions and briefs opposing the Initial Decision. These parties urge that the totality of the record evidence in this case requires denial of Rust's renewal applications. Rust, on the other hand, has filed consolidated exceptions and a brief opposing the Judge's decision to grant one-year, rather than three-year, renewals to its stations. The Broadcast Bureau, in reply to the parties' exceptions, maintains that the Initial Decision is factually complete and legally sound and should be affirmed. The licensee requested oral argument, which was heard before the Commission en banc on November 28, 1978.

II. Introduction

4. This is a very close case. Particularly, on the designated EEO issues, we could deny the renewal applications for WHAM and WHFM(FM) and be well within the bounds of our discretion. By the same token, the Judge's action-imposing the sanction of one-year renewals-is defensible on the basis of existing Commission policy and case law concerning the post-term upgrading of licensees' EEO records. In other respects we also affirm the Judge's resolution of the designated issues. Therefore, we affirm his ultimate determination to grant short-term renewals to stations WHAM and WHFM(FM).

5. We uphold the Initial Decision with some reluctance. Our EEO rules, intended to encourage program diversity through employment of

3 I.D. Concls. 58–62 and 76. In this Decision the following abbreviated citation forms will be used: Initial Decision Findings of Fact ("I.D. Fdgs."); Initial Decision Conclusions (“I.D. Concls."); the hearing testimony (“Tr."); a hearing exhibit (“Ex.”); and a party's Consolidated Exceptions and Brief ("Br.”).

women and traditionally underrepresented minorities, require not merely nondiscriminatory employment practices by our broadcast licensees, but a program of affirmative action. By no stretch of the imagination did Rust commence a bona fide affirmative action effort prior to the time its licenses were designated for hearing. While we affirm the Initial Decision with its mitigated sanction based on precedents concerning post-term upgrading, this case teaches us that the time is past for prospective-only enforcement of our equal employment opportunity rules. Accordingly, we today put all licensees on notice that we will no longer permit post-term upgrading to mitigate an inadequate EEO record during the license term under review (see paras. 28-30, infra). Henceforth, on EEO performance a renewal applicant will be required to "run on his [license term] record." Office of Communication of the United Church of Christ v. FCC 359 F.2d 994, 1007, 7 RR 2d 2001, 2015 (D.C. Cir. 1966). As set out in greater detail below, we believe this conclusion is in accord with recent Commission and court decisions.

III. Rust Equal Employment Opportunity Record

A. The Designated Issues

6. In designating Issues 4 and 5 to explore Rust's EEO practices, the Commission concluded that the information then before it showed that Rust's affirmative action program was inadequate and additionally established a prima facie case of employment discrimination. The designation Order called for an inquiry into all the facts to determine whether Rust was in compliance with our EEO rules and, if not, to determine the appropriate sanction.4 53 FCC 2d 355, 363-64 (1975). A number of concerns underlay the designation of these issues: The Annual Employment Reports (FCC Form 395) of Stations WHAM and WHFM(FM) for 1971-1974 reflected no full-time black employees (except for a janitor in 1971) on a total staff ranging from 33 to 39 employees, indicating the licensee's performance was not within a "zone of reasonableness"; the licensee's employment of women (comprising 13.5% of the full-time staff in 1974) also warranted investigation. Rust's 1972 affirmative action program, having produced no positive results between 1971 and 1974 and apparently not having been adhered to fully, was inadequate. Rust's 1975 affirmative action program, measured against the licensee's past lack of minority

As a standard radio and FM licensee, Rust was subject to the identically worded EEO provisions of Sections 73.125 and 73.301 of the Commission's Rules, respectively; effective April 1, 1979, the Commission combined the EEO rules for all the various broadcast services into new Section 73.2080 of the Rules. See Amendment of Broadcast Equal Employment Rules and FCC Form 395, FCC 78-920, released January 29, 1979, 44 Fed. Reg. 6722, February 2, 1979. In essence, our EEO rules require Rust to refrain from employment discrimination and to maintain an affirmative action program encompassing positive efforts to recruit, employ and promote qualified women and members of minority groups.

employment and the apparent limitations built into the 1975 program, was also defective. The Commission was particularly concerned that the 1975 program, far from evidencing "vigorous and systematic efforts to locate and encourage the candidacy of qualified minorities" in the face of three years of zero minority employment, apparently represented a lessening of the licensee's recruitment efforts when compared with its 1972 program. The Commission also directed inquiry into Rust's commitment to seek out minority applicants through local referral sources in the light of the licensee's apparently qualified statements that it would do so "where feasible" and "when a suitable opening exists." Finally, the Commission was concerned about unresolved allegations surrounding Rust's dealings with a particular black job applicant. 53 FCC 2d at 362–64. The hearing, then, was to focus on Rust's compliance or lack of compliance with both aspects of our EEO rules-the obligation to refrain from employment discrimination and the concomitant obligation to pursue affirmative action.

B. The ALJ'S Conclusions

7. Nondiscrimination. At the hearing evidence was received concerning a number of specific incidents of alleged intentional discrimination on the part of Rust.5 The Judge made findings with respect to two of these incidents. In one instance, the Judge noted that in 1976 an unsuccessful job applicant, James Ridley, had filed with the State of New York, Division of Human Rights, a discrimination complaint which, upon investigation, was dismissed because "the evidence is insufficient to support a belief that the complainant was in any way unlawfully discriminated against." (I.D. Fdgs. 81-82, n. 66). The second instance involved a reporter-producer, Al White, who in November 1972, applied to produce a program for WHFM; he also was interested in part-time employment at the station. Mr. White never received a response from the station regarding his program proposal. However, in April 1974, he was offered employment at the station as a part-time news announcer, a position he declined. Later that year, at the request of WHFM, White auditioned for a different part-time announcer opening, which was subsequently filled by another job applicant. (I.D. Fdgs. 78–79). The Judge drew no specific conclusion as to whether the Ridley or White cases, or any other actions by Rust, constituted intentional employment discrimination.

8. Pre-Designation Affirmative Action. The Judge did make conclusions concerning Rust's affirmative action program. He concluded variously that Rust's efforts "to recruit and employ minorities were minimal" (I.D. Concl. 56); that in implementing its EEO program Rust showed "a noticeable insensitivity to minority problems" (I.D. Concl.

5 One incident, involving Mr. Charles Perkins (see Rust Ex. 2, pp. 14-15), occurred within the last three months of the June 1, 1969–May 31, 1972 license term; the rest occurred post-term, including during the period subsequent to the designation of this proceeding for hearing.

58); that Rust's affirmative action effort "was far from vigorous and continuing" (I.D. Concl. 59); and that based solely on the evidence covering the 1969-1972 license period and through our 1975 designation Order, "a denial of the renewal applications would be warranted." (I.D. Concl. 62; see I.D. Concl. 76). The factual bases for these conclusions are set forth in the Initial Decision. (I.D. Fdgs. 70-79, 83).

9. In essence, the Judge found that Rust did go through some of the mechanics of establishing and implementing an affirmative action program. Thus, the record shows: (a) Rust posted EEO notices at both radio stations and in its employment applications (I.D. Fdg. 76); (b) In 1972 and again in 1974, management distributed memoranda to supervisory personnel urging them to seek out and consider minorities and women as positions became available; other employees were instructed orally to refer female and minority job applicants (I.D. Fdgs. 75, 76; see, e.g., Tr. 962, 1014, 1802, 1855); (c) Rust documented that organizations which could refer minority group job applicants were contacted in writing on five occasions (I.D. Fdgs. 75–76; see Rust Ex. 46, pp. 2-11, 14–22); (d) During the period March 1972 through May 1975, Rust broadcast two announcements concerning specific job opportunities, (see ABC Ex. 41, p. 11; Tr. 864, 1410); (e) Prior to February 1972, Rust requested the assistance of the union representing its engineers and of ABC in recruiting minority job applicants (I.D. Fdg. 73); (f) Two minority individuals were hired at WHFM(FM) in 1974, but neither remained with the station for more than six months; prior to May 1975 Rust made firm offers (involving a part-time and a full-time position) to two other minority group members. (I.D. Fdg. 72, n. 54).

10. On the other hand, the Judge also found the following: (a) WHAM and WHFM(FM), together employing in excess of thirty individuals, had no minority employees when they filed Annual Employment Reports with the Commission in the years 1972 through 1975 (I.D. Fdg. 71); (b) The 1972-1975 Annual Employment Reports indicated that while the stations' combined workforce averaged thirtysix employees, female employees averaged just about five (14%) (I.D. Fdg. 71); (c) The affirmative action measures to recruit women and minority employees recited in paragraph 9, supra, occurred over the course of Rust's filling of sixty-four vacancies at WHAM and WHFM(FM) during the period from March 1972 until our 1975 designation Order (I.D. Fdgs. 72, 83); (d) Although Rust's written 1972 affirmative action program stated that the licensee would advertise

6 Although Rust's General Manager recalled that additional letters were sent, the licensee does not have copies of them and there is no record indication of how many such additional letters might have been sent before the designation of this proceeding. (See Tr. 711-12, 929-30).

7 This was the first written EEO program submitted by Rust following our adoption of the requirement in Petition for Rulemaking to Require Broadcast Licensees to Show Nondiscrimination in their Employment Practices, 23 FCC 2d 430 (1970).

job openings in newspapers having general circulation among minorities and women, Rust never in fact subsequently advertised job openings in such a newspaper;8 (e) Rust did not seek minority or female applicants through local schools or colleges. (I.D. Fdg. 75); (f) Rust's own management was at best confused about the extent of its affirmative action commitment. Thus, Rust's President was asked the purport of the phrases "where feasible" and "when a suitable opening exists" used to modify its commitment to utilize local organizations as referral sources of minority applicants in its 1975 affirmative action program. He stated the phrases meant that, in general, minority applicants would be sought except in emergencies (I.D. Fdg. 75). Rust's General Manager, on the other hand, interpreted the qualifying phrases to mean the stations were to contact local minority referral organizations when there were "realistic prospects" that the organization would be a source of job applicants for available positions. The Judge further found that on one of the very few occasions when Rust sought job applicants through minority organizations, it apprised the organizations of an accounting clerk's position but made no mention of a contemporaneous opening for a sales secretary. (I.D. Fdg. 75).

11. Post-Designation Affirmative Action. Evaluating Rust's EEO activities occurring after the May 1975 designation of this renewal proceeding, the Judge observed a sharp intensification of the licensee's affirmative action efforts: Rust instituted a training program to qualify minority group members for employment in broadcasting; it began contacting minority organizations whenever vacancies occurred at WHAM and WHFM(FM); Rust adopted a new EEO program following the Commission's development of a model plan;9 and the licensee's 1976 annual employment report showed dramatic improvements. (I.D. Fdgs. 71, 81, 84-85; I.D. Concls. 60-64). Thus, in March 1976, WHAM had twenty-nine employees, of which two (6.9%) were blacks and six (21%) were women; WHFM(FM) had seven employees, of which one (14%) was a black and four (57%) were women. In March 1976, the percentage of minority group members in the upper four job categories defined by our Annual Employment Report (FCC Form 395), i.e., officials and managers, professionals, technicians and sales workers, was 7.4% at WHAM and 14.3% at WHFM(FM); for women, this percentage was 14.8% at WHAM and 57% at WHFM(FM). When WHFM(FM) modernized its equipment, creating several positions that required newly trained employees, the station hired additional minority group members. By November 1976, the six employee workforce at

8 I.D. Fdgs. 73, 75. In November 1973, when an advertisement for a full-time announcer was placed in Broadcasting, a trade magazine, the ad did not indicate that Rust was an equal opportunity employer. (I.D. Fdg. 75).

See Nondiscrimination in the Employment Policies and Practices of Broadcast Licensees, 54 FCC 2d 354 (1975) (Notices of Inquiry and Proposed Rulemaking) and 60 FCC 2d 226 (1976) (Report and Order).