WHFM(FM) consisted of three blacks (50%) and three women (50%). (I.D. Concl. 61; see Rust Exs. 43-44).

12. The Judge considered Rust's 1976 employment profiles in relation to the 5.49% representation of blacks and 39% representation of women in the Rochester area workforce and in relation to the entire record of Rust's affirmative action implementation explored in this proceeding. He concluded that Rust had reached the zone of reasonableness, except as to its employment of women at Station WHAM. Ultimately, the Judge concluded that Rust's post-designation affirmative action efforts turned what otherwise would have been an EEO record so deficient as to warrant denial of renewal for WHAM and WHFM(FM) into one which justified short-term renewals of the stations, and a concomitant close monitoring of Rust's future discharge of its EEO obligations. (I.D. Concls. 62, 64, 76).

C. Rust's Exceptions

13. Rust maintains that the Judge should have granted full, threeyear renewals to WHAM and WHFM(FM). It argues, first, that the Judge did not take account of, or should have given greater weight to, certain affirmative action efforts which Rust undertook from March 1972 through the May 1975 designation Order (Rust Br. at 30-35) and, secondly, that the Judge should have found that Rust met its affirmative action responsibilities because, as of the November 1976 hearing date herein, Rust's employment of minorities and women was within or approximated the "zone of reasonableness." (Rust Br. at 3841). On this record, both of these contentions border on the frivolous and need not detain us long.

14. First, we place Rust's arguments in their proper context. Following the 1969-1972 license term, action on Rust's 1972 renewal applications for WHAM and WHFM(FM) was deferred pending the Commission's evaluation of ABC's petition to deny and Metro-Act's complaint filed against the licensee, both of which questioned Rust's commitment to nondiscrimination and affirmative action in employment. Despite the clear notice that its EEO record was under serious challenge, Rust did virtually nothing during the next three years to implement an effective affirmative action program. Under these circumstances, it would constitute an abuse of discretion for the Commission to grant Rust's stations full-term renewals.

15. Secondly, we have examined the record carefully and find nothing of significance in Rust's favor which was overlooked in the Initial Decision. The Judge specifically noted, or alluded to, most of the steps which Rust claims were ignored. In this regard, the licensee would make much of the fact that its hiring rate for minorities and women during the 1972-1975 period compares passably with their representation in the Rochester area workforce.10 We acknowledge

10 Rust Br. at 36-38. Rust refers to the fact that of the sixty-four employees (fifty-two

that the new-hire figures have significance in helping to establish that Rust was not engaged in a pattern of intentional employment discrimination.11 Nevertheless, it bears repetition that Rust's obligation went beyond mere nondiscrimination, and the fact remains that, as reflected in their Annual Employment Reports, WHAM and WHFM(FM) together had fewer total women and minority employees in 1975 than they did in 1972. (See I.D. Fdg. 71).

16. Numbers, of course, do not tell the whole story. That is the fallacy in Rust's contention that its improved utilization of minorities and women after our designation Order brought it close to or within the zone of reasonableness, so as to justify full-term renewals under Commission precedent. (Rust Br. at 38-43). To be sure, the Commission has adopted a statistical rule of thumb to help in reviewing licensees' EEO records at renewal time. Under that approach, a station's levels of minority and female employment are considered to be within a zone of reasonableness if each group's proportion of the station's total fulltime staff exceeds 50% of its percentage of the area workforce and if each group's representation in the station's upper four job categories exceeds 25% of its percentage of the local workforce. See, e.g., Swanson Broadcasting Inc., 42 RR 2d 1002 (1978); Equal Employment Practices of Broadcast Stations, 42 RR 2d 1219 (1978). However, we have never looked solely to statistical data as the measure of a licensee's compliance with our EEO policy, see, e.g., Id.; Discrimination in the Employment Policies and Practices of Broadcast Licensees, 60 FCC 2d 226, 229 (1976); Equal Employment Rules, 44 RR 2d 907, 909 (Opinion of FCC General Counsel 1978), because in assessing the significance of disparities between a licensee's levels of minority and female employment and those groups' local workforce percentages, "a disparity that is reasonable in light of a recruitment policy might not be reasonable in its absence." Bilingual Bicultural Coalition on Mass Media, Inc. v.

full-time and twelve part-time) which it hired during the March 1972-May 1975 period, two were blacks, accounting for 3.1% of all new employees and 3.8% of new full-time employees, and sixteen were women, representing 25% of all new employees and 31% of new full-time employees. Such hiring rates, Rust maintains, compare very favorably with the 5.49% black and the 39% female composition of the Rochester SMSA workforce.

11 In the light of Rust's hiring of minorities and women during 1972-75, as well as the facts set forth in paragraph 7, supra, we are satisfied that no such pattern existed, and neither ABC nor Metro-Act argue differently in their exceptions. If a pattern of intentional employment discrimination had been established, whether overt or subtle, denial of the renewal applications for WHAM and WHFM(FM) would clearly be an appropriate sanction. Bilingual Bicultural Coalition on Mass Media v. FCC, — F.2d,42 RR 2d 1523, 1535 (D.C. Cir. 1978) (en banc) (“A documented pattern of intentional discrimination would put seriously into question a licensee's character qualifications to remain a licensee: intentional discrimination almost invariably would disqualify a broadcaster from a position of public trusteeship.") In this connection, we note that the ALJ, while setting forth subsidiary factual findings, failed to make an ultimate finding on the allegations of intentional discrimination. Since the designation Order specifically raised concerns about possible intentional discrimination (53 FCC 2d at 364) the ALJ should have addressed that issue squarely in his conclusions, as we have done here.

FCC ("Bilingual I"), 492 F.2d 656, 658 29 RR 2d 745, 747 (D.C. Cir. 1974). In short, a licensee's employment statistics do not exist in a vacuum. Ultimately, they must be interpreted against the licensee's overall implementation of its affirmative action program.12

17. What was the substance of Rust's pre-designation affirmative action effort? We conclude that the Judge's characterizations—“minimal," showing "noticeable insensitivity," "far from vigorous and continuing"-were apt. The licensee, in effect, continually relied on "word of mouth" recruitment. In light of its past experience, this clearly was not enough. 13 A licensee with zero minority employmentas was the case for WHAM throughout the March 1972-May 1975 period and for WHFM(FM) until the latter half of 1974-must make "every reasonable effort to recruit minority persons for every job opening-at least until some zone of reasonableness is entered." Sande Broadcasting Company, 58 FCC 139, 147 (1976). This Rust did not do. We conclude, therefore, that the Judge had not just the authority but the duty to impose the sanction of short-term renewals on WHAM and WHFM(FM) in consideration of Rust's entire EEO record. That sanction is consistent with the Commission's action in other instances where licensees had histories of seriously flawed affirmative action implementation.14

D. ABC's Exceptions

18. ABC excepts to the Judge's resolution of the EEO issues on two grounds-one going to the relevancy and the other to the weight of post-term EEO data. First, ABC contends that the Judge should not even have considered Rust's post-term upgrading of EEO performance. (ABC Br. at 51-52, 55–56). Secondly, ABC contends that, even if post-term actions could be considered, the Judge erred by allowing 12 Our Public Notice, Report No. 14932, released March 10, 1977, directing the Broadcast Bureau to conduct an in-depth review of the EEO program of any station whose minority or female employment levels are below specified percentages is consistent with this approach. In addition, the Commission has on occasion determined that licensees with highly disproportionate employment statistics were still in compliance with Commission EEO rules when their employment profiles were considered in light of affirmative programs whose comprehensiveness and vigor were not questioned. See, e.g., Time-Life Broadcasting Inc., 33 FCC 2d 1050, 1058–59 (1972). The importance which we assign to nonstatistical data is perhaps best illustrated by those instances where we have taken administrative action with respect to licensees whose female and minority employment profiles were acceptable, but whose implementation of affirmative action was lax in some respect. See, e.g., Rahall Broadcasting of Indiana, Inc., 66 FCC 2d 295, 299–300 (1977); WSM, Inc., 66 FCC 2d 994, 1009 (1977); Scott Broadcasting Corp., 52 FCC 2d 1029, 1031-32 1975). 13 Where minorities and women are not represented at all levels of a station's staffand they obviously were not at WHAM and WHFM(FM) during the 1972-75 period-"word of mouth" recruitment tends to perpetuate the existing staff composition. Triple, R, Inc., 42 RR 2d 907, 908 (1978), William M. Dunaway, 39 RR 2d 210, 211 (1976).

14 See note 20, infra, and the accompanying text.

his decision to turn on the assignment of heavy weight to Rust's "last ditch" EEO upgrading in the post-designation period. (ABC Br. at 53, 55-56). But for mishandling of the relevancy and weight matters, ABC argues that the Judge would have been compelled to deny the renewals of WHAM and WHFM(FM).

19. ABC's position on the relevancy of post-term EEO performance is based upon misinterpretations of Alabama Educational Television Commission ("AETC") 50 FCC 2d 461 (1975), and Office of Communication of United Church of Christ v. FCC ("UCC"), 359 F.2d 994, 7 RR 2d 2001 (D.C. Cir. 1966). These decisions hold that post-term programming improvements will be discounted and given little weight in a renewal proceeding.15 By contrast, to date it has been the Commission's policy routinely to consider the post-term results of licensees' EEO programs. 16 As we have explained, our consideration of a licensee's employment practices beyond the confines of one license period, if such information is available, derives from the fact that our EEO policy has been prospective, "seeking to lead a licensee who has not possessed an adequate affirmative action program in the past to adopt policies ensuring an active recruitment program and genuine equal employment opportunity in the future." National Broadcasting Co., 58 FCC 2d 419, 422 (1976). The prospective thrust of our EEO policy and the attendant consideration of post-term data has been judicially approved, see National Organization of Women v. FCC ("NOW"), 555 F.2d 1002, 1017-1020, 40 RR 2d 679, 701-706 (D.C. Cir. 1977); Bilingual Bicultural Coalition on Mass Media v. FCC ("Bilingual II”), — F.2d —, 42 RR 2d 1523, 1535 (D.C. Cir. 1978) (en banc), so long as responsible allegations of specific acts of intentional discrimination or other possible evidence of intentional discrimination are not left unexamined. See Black Broadcasting Coalition of Richmond v. FCC ("BBC") 556 F.2d 59, 40 RR 2d 815, (D.C. Cir. 1977); Bilingual II, F.2d at -, 42 RR 2d at 1535-37. In the instant case, as we have noted, specific acts of intentional discrimination were not demonstrated,17 and ABC does not now claim otherwise. We conclude that the Judge properly considered Rust's substantial post-designation affirmative action efforts as relevant to the resolution of the EEO issues. The timing of Rust's improvements-in the post-designation phase of the post-term period-does not in itself vitiate their relevance because

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15 See National Organization of Women v. FCC, 555 F.2d 1002, 1019, 40 RR 2d 679, 705 (D.C. Cir. 1977); AETC, 50 FCC 2d at 476; UCC, 359 F.2d at 1007, 7 RR 2d at 2015. See also Trustees of the University of Pennsylvania ("WXPN”), 69 FCC 2d 1394, 1421-25, (1978), reconsideration denied, FCC 79-189, released April 10, 1979.

16 In fact this policy difference is illustrated in AETC, one of the cases construed by ABC as disallowing post-term EEO upgrading. Thus, in AETC the Commission refused to accord decisional significance to post-term programming improvements (50 FCC 2d at 475-77), but it did consider post-term employment practices in resolving an EEO issue favorably to the licensee. 50 FCC 2d at 474-75.

17 Note 11, supra.

Commission policy has never drawn a distinction between post-term and post-designation EEO data.18

20. ABC's second contention that the Initial Decision gives too much weight to Rust's post-term (post-designation) upgrading-presents a close question. While we today announce a new policy in this connection, we affirm the ALJ's decision as being soundly based on the law as it existed when the licensee's conduct occurred and when the ALJ rendered his decision.

21. Among the cases cited by ABC in support of its contention is BBC, supra. There, the Court of Appeals reversed a Commission decision granting full-term renewals without holding a hearing to explore a licensee's deficient EEO record. Contrary to ABC's position, however, BBC does not require reversal of the Judge's short-term renewals of stations WHAM and WHFM(FM).19 In BBC the court held that a licensee's favorable post-term employment statistics, considered alone, did not eliminate the necessity of holding a hearing to resolve contested allegations that the licensee had engaged in intentional discrimination and to explore a questionable affirmative action program. See 556 F.2d at 64-65, 40 RR 2d at 823. Consistent with BBC, in the instant proceeding allegations of intentional discrimination have been fully explored in a hearing. They have been resolved in the licensee's favor. However, Rust's past record of inadequate affirmative action implementation, extending until the designation of this proceeding, led the Judge to restrict the renewals of WHAM and WHFM(FM) to one-year terms. We find that the sanction of shortterm renewals, based upon Rust's entire EEO record, comports with BBC and harmonizes with the actions we have taken on the renewal applications of other licensees who were responsible for deficient affirmative action implementation during the same time period explored in this proceeding.2

20

18 See AETC, 50 FCC 2d at 473-75, where we affirmed the Judge's resolution of an EEO issue favorably to the licensee based, in part, on post-designation EEO improvements; Town & Country Radio, Inc., 65 FCC 2d 694, 697–702 (Rev. Bd. 1977), review denied, FCC 78-483, released July 7, 1978, where the Review Board considered an applicant's EEO improvements which occurred at its existing stations after the specification of an EEO issue against it in a comparative proceeding for a new station.

19 ABC also cites our renewal denial in LeFlore Broadcasting Co., Inc., 65 FCC 2d 556 (1977), reconsideration denied, FCC 78-432, released June 15, 1978, appeal docketed, No. 78-1677 (D.C. Cir., July 19, 1978). LeFlore is distinguishable from the instant case on two grounds. First, whereas in LeFlore the record contained no evidence that the licensee complied with our EEO rules (65 FCC 2d at 564), the evidence in this case shows that Rust has done so, albeit belatedly. Second, and more significant, our denial of license renewal in LeFlore rested on the resolution of several issues, including misrepresentation charges, against the licensee. 65 FCC 2d at 557-8.

20 See, e.g., Malrite of New York, Inc., 54 FCC 2d 926, 929-32 (1975); Sande Broadcasting Co., 58 FCC 2d 139, 146-48 (1975), reconsideration denied, 61 FCC 2d 305 (1976); Triple X Broadcasting Co., 51 FCC 2d 585, 588-90 (1975).