As I was preparing for a session updating and refreshing broadcasters about their obligations under the FCC’s EEO rules at the Iowa Broadcasters Association annual convention in Des Moines on June 30, I learned of what seemed to be a startling development – the Minority Media and Telecommunications Council, one of the most effective advocates in Washington for minority hiring and ownership, had urged the FCC to suspend its enforcement of the EEO rules. What was this all about? I went on with my presentation (the PowerPoint slides for which are available here, and the slides for the presentation that I did at another session providing an update on Washington issues for radio broadcasters are available here), quickly adding a summary of the MMTC request. While some broadcasters might have hoped that the request recognized that the EEO rules were no longer necessary as broadcasters were, on their own, making great strides in diversifying their workforce, in fact what the MMTC was seeking was tighter EEO enforcement, contending that the current rules are so ineffective as to not be worth the time spent on their implementation and enforcement.
While MMTC acknowledged that there have been a number of recent cases fining stations for noncompliance with the EEO rules, it contends that often the stations that are hit by such fines have very diverse workforces, and thus should not have to worry about EEO outreach. We have written about some of these fines. These cases demonstrate that the current rules are not targeted at minority and gender-based affirmative action, as FCC rules requiring any evaluation of minority and gender-based hiring were twice declared by the US Court of Appeals to be instances of unconstitutional reverse discrimination. Instead, the current rules are focused instead on bringing new people into the broadcast employment workforce – people recruited from a wide variety of community groups, and not exclusively by word of mouth or through other hiring avenues that simply take people from traditional broadcast hiring sources. But, as MMTC points out, these rules are not based on necessarily seeking to include members of minority groups or women in station workforces. Thus, as their focus is simply on wide dissemination of information about job openings, even stations that have high percentages of minorities and women on their staffs can still run afoul of the rules by not publicizing job openings.
So what does MMTC want? Seemingly, in some ways, they are seeing a return to an earlier scheme of EEO enforcement. They ask for modifications of the FCC’s EEO rules to include the following:
- The return of FCC Form 395, which requires each station annually provide to the FCC a profile of its workforce based on its racial and gender composition. The flings of Form 395 has been suspended for over 7 years, as a reaction to the court cases declaring the use of racial and gender profiling of broadcast workforces as part of the FCC’s EEO enforcement regime to be unconstitutional. Since then, the FCC has been seeking a way to bring back the form for statistical profiling of the industry without risking having the information used for enforcement purposes, but has not, as yet, adopted procedures to do so.
- More EEO audits. The FCC currently audits 5% of all stations annually for EEO compliance. MMTC suggests that 20% of all stations be audited annually, with some audits being done on site at the stations, rather than simply being a paperwork exercise filed at the FCC.
- An increase in the size of the FCC’s EEO staff so that audits will be more thorough, and completed more quickly. MMTC pointed out that, in several cases, no fines were issued to companies with insufficient EEO efforts as, by the time their EEO efforts were reviewed, a renewal application had been granted, cutting off the FCC’s ability to fine the station for actions taken in a prior renewal period.
- Moving EEO from the Media Bureau to the Enforcement Bureau. The Enforcement Bureau seemingly has been more ready to take aggressive action against stations for FCC rule violations generally than the Media Bureau.
- Exempt stations with diverse workforces from EEO penalties
- Work with the EEOC to investigate more instances where discrimination complaints are filed and take such complaints into account in an FCC review.
- An investigation into whether word-of-mouth hiring remains too common in the broadcast industry
- Start an FCC investigatory hearing into why minority representation in broadcast journalism is decreasing
Whether any or all of these steps is taken remains to be seen. But what we are looking at in MMTC’s request is a return to an emphasis on minority and female hiring, not on simply hiring from all groups within the community, not exclusively from the “old boys” network as currently required by the rules. Watch this space for more developments on the MMTC petition. And, for more information on the FCC’s current EEO requirements, see our advisory on the EEO rules here, and our regular reminders on the FCC’s mandatory public inspection file report, the most recent of which is available here.
