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It's almost summer time, and broadcast stations and other media companies are getting ready for the arrival of the summer associates.  As we've written in our Guide to the FCC's EEO Rules, all FCC-licensed stations with 5 or more full-time employees must, in addition to widely disseminating information about their job openings, must complete a certain number of "supplemental efforts" from a menu list provided by the FCC - efforts intended to educate the public about broadcast employment, the training necessary for such employment and how to locate such employment. One of the menu options is an internship program - and many stations have such programs, some conducted in connection with various broadcast associations, some conducted with local educational institutions, and some just set up by the station itself.  As with anything else, stations, especially commercial stations, need to consider the legal issues that internship programs raise - especially unpaid internships.

In particular, stations need to be careful that interns don't cross the line, doing more "real" work at a station and displacing paid employees, in a way that might create wage and hour liability to the station.  Our Davis Wright Tremaine Employment Practice Group has just published a great memo, setting out the details of an analysis that all employers should go through in setting up an internship program to make sure that the don't run afoul of the wage and hour laws - in a simple and straightforward way .  You can find that advisory, Summertime Blues: Limits on Using Unpaid Student Interns and Volunteers, here.   Read it, and make your summer worry-free!

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The FCC has announced another round of EEO audits - looking at the compliance with the FCC's EEO rules and policies of several hundred radio and TV stations across the country.  Those stations selected for the audit (see the list here) must provide the FCC with the last two year's public inspection file reports, plus all records maintained by the selected stations that back up the data reported in the annual reports.  The full list of the documents that must be produced is contained in the FCC's letter that went out to stations who were selected (a copy of that letter is available here).  In the FCC's Public Notice  announcing the audit, the FCC emphasized that stations need to post the most recent EEO public file report on their websites, and this requirement was also included in the audit letter.  The FCC emphasized that station's who do not meet this obligation (which the FCC can check from their desks in Washington) are subject to fines.  Responses to the audits are due by May 9, 2011.

EEO is again important to the FCC.  We wrote about the recent reminders about the advertising nondiscrimination clauses that broadcasters must include in their advertising contracts.  Broadcasters will also need to report on their EEO compliance at license renewal time - and license renewals are coming up for all stations across the country in the next 4 years - beginning with radio stations in Maryland, DC, Virginia and West Virginia in June (see our advisory on Preparing for the License Renewal, here).  And, as we reported in December, the FCC has been fining stations for less than complete EEO efforts.  So be prepared.  For further information about a licensee's EEO obligations, see our advisory setting out the basics of the FCC's EEO rules and our most recent advisory on the requirements for the annual EEO public inspection file report. 

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The nuts and bolts of legal issues for broadcasters were highlighted in two sessions in which I participated at last week's joint convention of the Oregon and Washington State Broadcasters Associations, held in Stephenson, Washington, on the Columbia River that divides the two states.  Initially, I conducted a seminar for broadcasters providing a refresher on their EEO recruiting obligations set out under FCC rules.  With some public interest groups calling for stricter enforcement of a broadcaster's EEO obligations, and with the license renewals for Oregon and Washington State radio broadcasters coming up in 2013 (with TV the next year), broadcasters cannot slack off on these important obligations to widely disseminate information about job openings and to educate their communities about broadcast employment issues as required by the FCC rules.  Slides from my PowerPoint presentation on a broadcaster's EEO obligations are available here.  Broadcasters looking for more information on EEO obligations can review the Davis Wright Tremaine Guide to the EEO rules, here, and our most recent reminder about the obligations for the annual EEO public inspection file report, here.

At a second session, we discussed the variety of legal issues facing broadcasters in the current environment.  Many of the same issues discussed in this session were also discussed in my Top Ten List of Legal Issues to Keep Broadcasters Awake at Night, details of which can be found here.  Some specific questions were raised during the Oregon-Washington session include questions about the FCC rules covering contests that stations conduct, and the rules that apply to such contests.  See our blog post on some of those issues here and here.  The obligations for the public file of broadcasters are also set out in our advisory, here.  Another issue that broadcasters should remember is the new obligation for their advertising contracts to include terms that state that advertising is not sold for any discriminatory purpose, to avoid no-urban, no Spanish dictates (see our post here for details).  As we wrote recently in connection with fines issued to a couple of stations for multiple day-to-day violations of the FCC rules, the attention to these details now will avoid major financial headaches for broadcasters later, and potentially long-term issues at license renewal time as well. 

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The FCC today released a Public Notice announcing the next group of broadcast stations subject to a random audit of their compliance with the FCC’s EEO rules. The Notice lists radio and television stations across the country that nust respond to a Commission inquiry and provide information and documentation about their EEO efforts. Annually, the FCC audits approximately 5% of all broadcast licensees to assess their compliance with the FCC's EEO rules.  As hopefully all broadcasters know, these rules require the wide dissemination of information about job openings at the broadcast stations and "supplemental efforts" to educate communities about employment opportunities at broadcast stations, even in the absence of employment openings.  The FCC's audit letter requires the submission of two years worth of the Annual Public File reports that stations prepare each year on the anniversary date of the filing of their license renewal applications.  These reports are placed in the station's public file and posted on their websites (if they have websites). 

Stations subject to this round of audits have until June 1^st to respond and submit the necessary materials to the Commission. Note that information needs to be supplied not just for the station named on the list, but also for all other stations in the same "station employment unit," i.e. a group of stations under common control, that serve the same general geographic area, and which have at least one common employee. Previous audits have led to significant FCC fines, and broadcasters who are included on today’s list should take care in preparing their responses. The audit notice should also remind other licensees who were lucky enough to have avoided this round of audits to review their EEO programs for FCC compliance purposes, as they could very well find themselves less fortunate when the next FCC audit is announced.

For more information about the FCC's EEO requirements, see our comprehensive memo on the EEO requirements, available here.  In addition, today’s Public Notice is available here, with the sample Audit letter available here. The list of radio stations selected is here, and the television station list is here.

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As we've written before, the FCC every year aims to randomly audit 5% of all broadcast stations and multichannel video programming distributors (MVPDs) to assure their compliance with the Commission's EEO rules.  Every few months, the FCC releases a list of the lucky regulatees who have to respond to the audit.  Today, the Commission issued another one of these audit lists - this time for MVPDs, principally cable systems.   No broadcasters are on the list - this time.  The cable systems and other MVPDs who are subject to the audit are listed on the attachment to the FCC's Public Notice released today, here.

Broadcasters may not have been subject to this round of audits, but the audits will roll around again, and broadcasters will be subject the audit when the next one is conducted.  Thus, broadcasters should review their practices to ensure that they are in compliance with the requirements of the Commission's rules.  Our Advisory setting out those requirements can be found here.

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The FCC today released another Public Notice announcing the random audit of the EEO performance of a number of broadcast stations - listing both radio and television stations that have to respond, with stations spread throughout the country.  The FCC has promised to annually audit 5% of all broadcast licensees to assess their compliance with the FCC's EEO rules.  These rules require the wide dissemination of information about job openings at their stations and "supplemental efforts" to educate their communities about employment opportunities at broadcast stations, even in the absence of employment openings.  The FCC's audit letter requires the submission of two years worth of the Annual Public File reports that stations prepare each year on the anniversary date of the filing of their license renewal applications.  These reports are placed in the station's public file and posted on their websites (if they have websites).  The FCC's public notice about this audit emphasizes the requirement for posting the Annual Report on a station's website, perhaps confirming rumors that we have heard about the FCC's staffers browsing station websites to look for these reports.

Stations are given until May 4 to complete the audit responses and submit them to the Commission.  Note that information needs to be supplied not just for the station named on the list, but also for all other stations in the same "station employment unit," i.e. a group of stations under common control, that serve the same general geographic area, and which have at least one common employee.  As recent audits have led to significant FCC fines (see our story here about fines issues just before the holidays), broadcasters who are listed on this audit list should take care in preparing their responses.  The audit notice should also remind other licensees who are lucky enough to avoid having been selected for inclusion on this audit list to review their EEO programs for FCC compliance purposes, as they could very well find themselves not so fortunate when the next FCC audit is announced.

For more information about the FCC's EEO requirements, see our comprehensive memo on the EEO requirements, here.  Also, a PowerPoint presentation that I prepared last week in connection with a webinar on the EEO rule for the Maine Association of Broadcasters, outlining the FCC requirements, will be available here shortly. 

For ease of reference, the FCC's Public Notice of this audit is here, the text of the audit letter is here, the list of radio stations selected is here, and the television station list is here. 

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Just after Christmas, the FCC gave a number of broadcasters the equivalent of coal in their stocking - fining six different licensees for violations of the FCC's EEO rules.  The fines issued that day ranged between $7,000 and $20,000, and included penalties issued to major broadcasting companies including Fox and Cumulus.  Also included were fines against Urban Radio in New York City and Puerto Rico Public Broadcasting - demonstrating that the FCC's EEO rules, adopted in late 2002 after previous rules were declared unconstitutional essentially on "reverse discrimination" grounds (as they encouraged broadcasters to make hiring decisions not based on qualifications but instead based on race or gender), are truly race and gender blind.  It would be logical to assume that Urban Radio and Puerto Rico Public Broadcasting both had significant numbers of minority-group members on their staffs but, as they could not demonstrate that they had complied with the new rules requirements to reach out to all groups in their communities (as opposed to just racial or gender focused groups), they were assessed fines.  Reporting conditions, requiring that the broadcasters regularly file reports with the FCC so that their EEO efforts can be monitored, were also imposed.  All of the decisions can be found on the FCC's Daily Digest for that day, here.

The basis of all of these fines was the failure of the licensees to be able to demonstrate that they had "widely disseminated" information about all of their job openings.  The core of the 2002 EEO regulations was the requirement that licensees broadly disseminate notice about their job openings in such a way so as reach all of the significant groups within the community that the station serves.  The Commission was not looking to specifically force minority hiring, but instead to push for hiring from diverse sources.  The Commission wanted to push broadcasters to use recruitment sources beyond the existing broadcast community - so that hiring was not simply done by word of mouth or from within other professional broadcast circles.   Thus, the rules require that broadcasters use recruitment sources that reach out to various groups within their community and document those efforts. 

The rules require that these outreach efforts be documented.  Specifically, the FCC looks for information about the sources used to recruit for each opening, and to keep track of the recruitment sources of those who are interviewed for each position.  It may well be that the broadcasters who were fined in December had recruited for most of their positions but, because they were not able to document their employment efforts, they were fined.

The rules also require that broadcasters assess their programs from time to time and, if the programs do not bring in prospective employees from diverse sources, to expand or modify their programs.  Thus, where broadcasters do not maintain sufficient information to document their efforts, the FCC adds an additional fine for the licensee's failure to "self-assess" its program.  Essentially, the FCC finds that an applicant who doesn't know what sources it used to recruit for a specific job opening, it can't appropriately determine if its recruitment sources are bringing in applicants from a diverse cross-section of their communities.

These issues were discovered by the FCC either through the requirement that a broadcaster file two years worth of EEO Public Inspection File reports with its license renewal application, or through the FCC audit process - where the FCC randomly audits the EEO performance of approximately 5% of all broadcast licensees each year.  In the last two years, broadcasters also have to submit a Form 397 EEO Mid-Term Report - 4 years after the submission of their license renewal applications - another opportunity for the FCC to review their EEO performance.  The next Mid-Term EEO Mid-Term Reports are due on February 1 for Radio Stations in Kansas, Nebraska and Oklahoma and TV Stations in Arkansas, Louisiana and Mississippi.  More information about the February 1 filing date can be found in the Davis Wright Tremaine Advisory on the Form 397 and the Annual Public File Report.   Our memo on the full requirements for compliance with the FCC's EEO requirements can be found here.  Make sure that your EEO program is in compliance to avoid that lump of coal from the FCC in your stocking. 

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The FCC has released another Public Notice that it is auditing the EEO performance of a number of the entities that it regulates.  However, this time, the audits are not of broadcasters, but instead of cable companies and other multichannel video programming distributors who are subject to essentially the same EEO rules as broadcasters.  The list of MVPDs that have been hit by the audit can be found appended to the Notice.  Each company that was audited has 30 days to respond to the FCC with details of its compliance with the EEO rules, including information about the wide dissemination of information about each of its job openings and other EEO outreach efforts that it has made.  The FCC's policy is that it will audit the EEO performance of 5% of all of its broadcasters and MVPDs each year - so use this audit notice as a reminder to review your EEO program.  Details of the FCC's requirements for a broadcaster's EEO obligations can be found in Davis Wright Tremaine's advisory, here.

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In two recent actions, the FCC has evidenced its concern about the EEO performance of its licensees.  Last week, the Commission's Enforcement Bureau entered into a Consent Decree with DIRECTV, by which DIRECTV paid the FCC $150,000 in lieu of a fine for the company's failure to abide by the FCC's EEO rules by not preparing an Annual EEO Public File Report or submitting a Form 396-C for several years.  The FCC also released a Public Notice announcing changes in the racial categories to be used in FCC Form 395 - the Form breaking down the employees of a broadcaster or cable company by race and gender.  That form has not been filed for years, as its use was prohibited when the FCC EEO rules were declared unconstitutional.  In adopting new EEO rules in 2003, the FCC promised to return the form to use, but has been wrestling with the issue of whether or not the form should be publicly available or whether it should simply used internally by the FCC to collect data about industry employment trends. The adoption of new definitions for the racial categories specified on the form may signal the return of this form.  Together, these actions demonstrate that the FCC has not lessened its concern about EEO in any fashion.

The DIRECTV fine was the result of the company's failure to prepare Annual EEO Public File Reports or to submit 2003 and 2004 Form 396-C reports - reports that are more detailed versions of the Form 396 filed by broadcasters with their license renewals and the Form 397 Mid-Term Employment report.  The Form 396-C requires that multichannel video providers detail their hiring in the previous year and the outreach efforts made to fill job vacancies, the supplemental efforts that the employment unit has made to educate its community about job openings, and other details on the company's employment practices.  After review of the company's efforts, the Commission not only faulted the company for its paperwork failures, but also determined that the company had not engaged in sufficient outreach for all of its employment openings - relying solely on the Internet and on word-of-mouth recruiting for many job openings, which the Commission found to be insufficient.  Broadcasters need to make sure that they do not forget to file their required EEO forms, prepare their annual EEO Annual Public File Report, and engage in wide dissemination of information about all job openings.  Details of the FCC's EEO rules, policies and requirements applicable to broadcasters can be found in Davis Wright Tremaine's EEO Advisory.

The Form 395B is a report that was filed annually by all broadcasters with 5 or more full-time employees, breaking down all station employees into 8 categories of employment positions, and then categorizing each employee by their race and gender.  The form as last used by broadcasters can be viewed here.  The form has not been used since a prior version of the FCC's EEO rules were ruled unconstitutional as they were found to implicitly force broadcasters to make hiring decisions on racial and gender basis.  As the Form 395B reported this information and was on occasion used to support petitions to deny arguing that broadcasters had not done enough to reach out to minorities and women as their employment profile did not reflect sufficient representatives of those groups.  In 2003, when it adopted its current EEO rules and policies, the FCC stated that it had to revive the Form 395 as Congress required the collection of employment data on broadcasters in legislation adopted several years before.  However, the Commission did not immediately reimpose the requirement to file the form until it could resolve arguments as to whether that information could be collected without making public the employment profile of individual broadcasters.  Broadcasters have feared that station-specific information could be used to pressure broadcasters to make hiring decisions based on the racial or gender characteristics of job applicants, while public interest groups have contended that broadcasters should have nothing to fear by having that information public as the FCC has promised not to use it for enforcement purposes.

In its recent action announcing that it had adopted changes to the wording of the racial and ethnic categories used on the Form, the FCC refused to consider comments that were filed recently on the issue of whether the form would be public or private - presumably delaying consideration of that question for a subsequent order.  So watch for that order and the reimposition of the requirement for the filing of Form 395B in the near future.

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June 1^st marks the deadline for two FCC EEO requirements.  First, by June 1^st, radio and television stations located in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming, must prepare their Annual EEO Public File Reports.  Specifically, stations or Station Employment Units (SEUs) in those states (and DC) with five or more full time employees (30 hours or more per week) must:  (1) prepare their Annual EEO Public File Report; (2) place it in the public inspection file of each station comprising the SEU; and (3) post the Report on the websites, if any station in the SEU has a website, all by June 1.  The Annual EEO Public File Report summarizes the hiring and EEO activities conducted by the station or SEU during the past 12 months.  The Report provides information about the full time job positions filled in the last year, the recruitment sources used to fill those positions, and the outreach activities that the station or SEU performed during the year.  In preparing their Annual Reports, stations are encouraged to carefully review their EEO activities and take the time to organize their records.  Stations should have appropriate documentation to back up each of the recruitment sources used for each job opening, as well as for each outreach activity.  This annual report is also a good time for the station or employment unit to assess the success of its outreach and the efficacy of its recruitment sources, and to make any adjustments necessary to improve EEO compliance in the coming year.  A copy of our longer EEO advisory can be found here. 

Second, in addition to preparing the Annual EEO Public File Report by June 1, larger radio stations in Michigan and Ohio (those with eleven or more full-time employees), and television stations in the District of Columbia, Maryland, Virginia, and West Virginia must also prepare and file electronically with the Commission an FCC Form 397 Mid-Term EEO Report.  The Form 397 provides the FCC with copies of the SEU's two most recent Annual EEO Public File Reports, and is an important part of both the station’s compliance with the EEO rules and the Commission’s monitoring procedures.  While normally the Annual Report is simply prepared and placed in the station's public file and on the website, at the mid-point of the license term stations must actually provide the FCC with copies of its two most recent Reports.  Notably, June 1st marks the first time that television stations will have filed the Form 397, as television renewals are staggered from radio renewals.  Following the renewal anniversaries, television stations in other states will follow later this year and next.  And again, only radio stations or SEUs located in Michigan and Ohio that have 11 or more full-time employees, and television stations in DC, Maryland, Virginia, and West Virginia with five or more full-time employees are required to file an FCC Form 397. 

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As we wrote last week, the FCC recently admonished two major broadcasters, each of which had a station group which had not complied with the FCC's EEO rules.  In both cases, the FCC would have issued fines instead of the admonishments had it not been for renewal applications that were granted between the time of the violations and the FCC's EEO audit that uncovered the issues.  This past week, the FCC issued another list of stations that will be audited to determine their EEO compliance.  The list of stations to be audited is here.  The FCC's Public Notice of the audits is here.  As stated in the Notice, the FCC will audit 5% of all broadcast stations and all multi-channel video providers each year.  So expect more EEO audits in upcoming months.  To be sure that you are prepared to meet the FCC's requirements for EEO compliance if your station is audited, see our EEO Compliance Guide, here.

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The FCC today announced another round of EEO audits of broadcast stations throughout the country.  The FCC's Public Notice of the audits, and the list of the stations that are affected, can be found here.  Broadcasters should review this list carefully, both by call letter and licensee name, as we have noted situations where the FCC's list of licensee names used in this audit is not accurate, even though the licensee is correct elsewhere in the FCC's databases.  The audit letters were dated June 12, and responses are due in 30 days.  These letters usually require answers to an extensive list of questions, as well as the submission of supporting documentation to show a licensee's compliance with the FCC's EEO rules over the last two years.  We have written a Guide to the FCC's EEO requirements, which can be found here, to help broadcasters assure their compliance with these rules.  Whether or not a broadcaster is on this audit list, this opportunity should be used to review your EEO compliance, as the Commission conducts these audits on a regular basis - so you could be next. 

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As we reminded broadcasters earlier this month, the first filings of FCC Form 397, the Broadcast Mid-Term EEO Report, will be due to be filed at the FCC on June 1.  This report is filed 4 years after the due date for filing of a station's license renewal application, and is to be filed by all radio station employment units with more than 10 full time employees, and all TV station employment units with five or more employees.  The first reports are due on June 1 by radio groups in Maryland, Virginia, West Virginia and the District of Columbia.  Every two months thereafter, stations in a different group of states will need to file their Mid-Term reports.  Last week, the FCC released a Public Notice clarifying some aspects of the filing process.

The Public Notice addressed two principal issues - (1) what happens when radio station clusters and their associated station employment units include stations in different states with different filing deadlines, and (2) what happens when employment units include both radio and television stations in the same state.  For radio employment units with stations in different states, the FCC reminds broadcasters that they should have made an election about which state's filing deadline to use back in 2003 when the current EEO rules were adopted, and they should have been using that election for each of their public file reports since then.  That same election would control the filing deadline for the Mid-Term report. 

The issue about co-owned radio-television combinations arise as radio stations in a state filed their renewals one year before TV stations in the same state.  Thus, the mid-point of their renewal terms fall a year apart.  The FCC has concluded that for such radio-TV combinations, the filing date for the television station will control.  In other words, the radio-TV combination would file a year after all the non-affiliated radio stations in the same state submit their Mid-Term report, on that date 4 years after the TV renewal was to have been filed. 

Our comprehensive memo on the FCC's EEO requirements can be found here.  Our most recent memo summarizing the yearly filing requirement for station's public file report, and providing a model for that report, can be found here.  As we've reported, here, the FCC has recently fined stations for less than full compliance with the EEO rules, indicating that they are tightening enforcement of these rules.  As the filing of the Mid-Term Report offers the Commission another opportunity to discover instances of noncompliance, stations should be using whatever time is available between now and the due date for filing in their states to insure that their EEO practices are in full compliance with the FCC's expectations.

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