Broadcast Law Blog : Broadcast Lawyer & Attorney : Davis Wright Tremaine Law Firm : Broadcast Law Blog : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai

While there was discussion about the Internet issue, and whether, in today's world, the Internet had become the one easy way to reach all groups within a community (replacing the large daily newspaper whose classified ads the FCC used to look at as the safe harbor for broadcasters to use for their wide dissemination of information about job openings), the FCC staff indicated that there was no movement within the Commission currently on the horizon to change their current position.  However, the FCC staff members offered a willingness to reevaluate the issue if they were presented with information about the pervasiveness of online job searching.  In the interim, broadcasters need to reach out to all the significant community groups in their area with information about job openings using these more traditional sources, like the local newspaper and direct outreach to community groups through direct emails or letters.  All the panelists agreed that making at least some personal contact with outreach groups - including local colleges and trade schools, minority and community organizations, employment agencies and others - helps to make the outreach effort more effective.

We also discussed the "internal promotion" exception to the wide dissemination requirement.  If a station wants to promote a current full-time employee, no recruitment is necessary (the assumption being that if, for instance, a sales person is promoted to sales manager, there would be an opening for a new sales person, and recruiting for that open position would take place).  Promoting a part-time or temporary employee to a full-time position can take advantage of this internal promotions exception, if the part-timer or temp was hired using wide-dissemination.  While there is an old proceeding outstanding about whether or not to extend the wide-dissemination requirements to part-time hiring, at this point the FCC staffers indicated that no decision was imminent.  But, obviously, using outreach efforts to fill part-time positions is advantageous so a part-timer can be promoted to full-time without the outreach efforts if they prove to be a valuable employee.

There was also much discussion about the non-vacancy specific employment initiatives, or supplemental efforts, that stations need to conduct to comply with the FCC rules.  These supplemental efforts are conducted by all broadcast employment units with five or more full-time employees, whether or not the station has any job openings.  The idea is that stations help to educate the public about the types of jobs available at a station, the qualifications for those jobs, how to find out about those jobs.  Also counted are programs to train existing employees to acquire new job skills.  The FCC staffers on the panel seem to take an expansive view of these efforts - evidencing a willingness to count any meaningful activity where station employees take on this educational role.  Credits or partial credits can be obtained for employees speaking at schools, for station visits by boy scout troops, for station promotional efforts in the community where some information is provided to attendees at the event about broadcast employment issues, and (in some instances) for training of existing station employees.  Internships have always been a staple of meeting these supplemental efforts requirement and, as the efforts are judged on a two year period, the FCC staff saw nothing wrong for claiming credit for two separate internship programs where there was recruitment at different times.  In other words, if you have an intern in the fall semester, and then recruit at a school for an intern who you host in the spring semester, the FCC staff seemed open to counting this for two credits.  But, as I warn broadcasters at all EEO seminars that I do, overachieve on these initiatives, as we have yet to see any cases where the FCC formally interprets what does and does not count in connection with these programs.

Documentation and self-assessment were also discussed.  The FCC, in virtually every case where there has been an EEO fine, has also assessed a fine for failure to self-assess the EEO program.  Self-assessment is written into the rules, so stations should be meaningfully reviewing their programs to make sure that they are being properly conducted, all of the required records are being kept, and that the programs are actually producing interviewees from recruiting sources outside of the traditional, in-house sources which the FCC felt that broadcasters in the past relied on too heavily. 

These are but some of the issues tackled during this program, and just some of the issues to be considered in evaluating your EEO program.  For more information about EEO compliance issues, look at some of past articles on this issue, and check out some of our other advisories on the subject.  Our Guide to the FCC's EEO Rules is available here.  Our most recent advisory about the requirements for the annual public inspection file report is available here.  And slides from a recent presentation that I did about these rules for a state broadcast association are available here. 

In both cases, a significant amount of the hiring relied on a limited number of outreach sources. The FCC's rules require broad dissemination of information about all station job openings that do not qualify for some very limited exceptions.  In doing such recruiting, companies must reach beyond their internal sources (what I have characterized in some of the seminars that I've done on this subject as the "old boys network" - see slides from a recent seminar on the EEO rules here), meaning that they can't just rely on word of mouth, referrals from existing employees and the station's own airwaves and websites.  In addition, in prior cases, the FCC has determined that Internet sources cannot be the only sources relied on by a company to supplement these in-house sources, fearing that there are still many potential job-seekers who do not have routine access to the Internet (whether that is still true is open to debate, particularly given the proliferation of job websites that have replaced the traditional newspaper classified ads as the first place that many job-seekers check to look for openings - but it is still the current FCC policy). To comply with FCC rules, broadcasters must reach out to other local groups and organizations with information about their job openings - using other media designed to reach the entire community (e.g. a large daily newspaper), or reaching out to educational institutions and other community groups that represent broad cross-sections of the local community.  As the companies in these cases did not engage in what the Commission considered adequate outreach for all of their job openings (insufficient recruiting was found in 8 of 13 openings in one case, and 5 of 14 in another), the significant fines were proposed. As usually done in these cases, the FCC also faulted the licensees for not doing sufficient self-assessment as they did not catch these problems themselves. 

More information on the Commission's EEO rules is also available from the Davis Wright Tremaine Guide to the EEO Rules, available here.

On a more theoretical level, one wonders whether the Commission ought to reexamine this policy.  In the 2003 Order, the FCC assumed that the principal daily newspaper in a community would reach all groups in that community.  Query whether that makes sense 6 years later, especially when some communities (like Detroit) no longer even have a daily paper.  In the 6 years since that decision, the FCC has never addressed the Petitions for Reconsideration that were filed requesting a reexamination of that determination.  In these days where Craigslist and Monster.com have replaced the traditional newspaper classified ads as the place to go for job information in many cities, the FCC should look more closely at its policies.

The decisions also demonstrate that even large broadcasters are not immune from problems in meeting their EEO recruiting obligations.  The fines were all imposed against clusters of local stations owned by large broadcast group owners.  In one of the cases, the local cluster had not put its annual EEO public inspection file report on its website, as required by the rules (a failing which the FCC could, and did, check from its offices in Washington).  In another, the group did not keep adequate records of the wide dissemination that it engaged in, and did not notify community groups that had asked to be notified about station job openings (a notification required by the rules). 

Many of these issues were discovered by EEO audits, which the FCC continues to conduct (the last one occurring just months ago).  Thus, stations need to be alert for these issues, and avoid the potential fines that they can bring - at least until the FCC revisits its policies on these issues.