The FCC this week released its second EEO audit notice for 2023.  The FCC’s Public Notice, audit letter, and the list of stations selected for audit is available here.  Those stations, and the station employment units (commonly owned or controlled stations serving the same area sharing at least one employee) with which they are associated, must provide to the FCC (by uploading the information to their online public inspection file) their last two years of EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules.  The response to this audit is due to be uploaded to the public file of affected stations by December 14, 2023. The audit notice says that stations audited in 2021 or 2022, or whose license renewals were filed after October 1, 2021, can ask the FCC for further instructions, possibly exempting them from the audit because of the recent FCC review of their performance.  Perhaps for this reason, no stations in New England or the Mid-Atlantic (NY, NJ, PA, and DE) states, are included in the list of audited stations, as stations in these states were the last to file their license renewals.

With the release of this audit, and the recent $25,000 fine proposed for some Kansas radio stations that had not fully met their EEO obligations (see our article here), it is important to review your EEO compliance even if your stations are not subject to this audit.  The FCC has promised to randomly audit approximately 5% of all broadcast stations each year. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time.  The recent proposed fine, a fine imposed on Cumulus Media for a late upload of a single EEO Annual Public File Report last year (see our article here), and the FCC’s pending consideration of the return of the EEO Form 395 reporting on the race and gender of all station employees (see our article here), shows how seriously the FCC takes EEO obligations.Continue Reading FCC Announces Second EEO Audit of 2023 – 150 Radio and TV Stations Must Report on Their EEO Compliance

While there is a new administration in charge at the FCC, there are still those regular regulatory dates that broadcasters must face, as well as dates unique to pending proceedings that arise from time to time. Before we get to the February dates, we should remind broadcasters of those January 31 dates that they should be considering, including the deadline for signing up for the Interim License Agreement for those radio stations playing music represented by the new performing rights organization GMR (see our articles here and here). January 31 is also the deadline for payment of SoundExchange yearly minimum fees by webcasters (including broadcasters who stream their music on the Internet), as well as the date for comments to the House Judiciary Committee on the structure of the Copyright Office (see our article here) and with the Copyright Office on the qualifications for a new Register of Copyrights (see our article here).

With the start of February, there are routine regulatory dates for broadcasters dealing with EEO requirements. Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma that are part of an Employment Unit with 5 or more full-time employees, must place in their public file (or upload to their online file for TV and radio stations that have already converted) their EEO Public File Reports. Stations also need to put a link to the EEO Public File reports on the home page of their websites, if their station has a website (meaning they have to have a webpage for their most recent report if they have not converted to the online public file). For Radio Station Employment Units with 11 or more full-time employees in Kansas, Nebraska, and Oklahoma and Television Employment Units with five or more full-time employees in Arkansas, Louisiana, and Mississippi, FCC Mid-Term Reports on Form 397 must be submitted to the FCC by February 1. We wrote about FCC Mid-Term Reports here.
Continue Reading February Regulatory Dates for Broadcasters – EEO Reports and Comments on Ownership, EEO and Copyright Issues

Here we are at the start of a new year, and right away we have numerous regulatory deadlines for broadcasters. By the 10th of the month, all broadcast stations need to have placed in their public inspection files (online for TV and for those radio stations that have already converted to the online public file, and paper for the remaining radio stations), their Quarterly Issues Programs lists, documenting the issues of importance to their communities and the programs broadcast in the last quarter addressing those issues. TV stations have quarterly Children’s Television Reports due to be filed at the FCC by the 10th, addressing the programming that they broadcast to meet the educational and informational needs of children. Commercial TV stations should also add to their public file documentation to demonstrate their compliance with the commercial limits in programming addressed to children.

For TV stations, on the 1st of the year, new obligations became effective for online captioning. “Montages” of clips from TV programs, where all of those clips were captioned when broadcast, also need to be captioned when made available online. By July 1, clips of live and near-live programming must be captioned; however, they may be posted online initially without captions as long as captions are added to clips of live programming within 12 hours and to clips of near-live programming within eight hours after the conclusion of the TV showing of the full-length programming. For more on this requirement, see our article here.
Continue Reading January Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, Ownership and EEO Comments, Copyright Issues and More

The FCC yesterday issued a Public Notice of the filing of a Petition for Rulemaking asking the FCC to declare that a broadcaster, by using its own airwaves and online sources to publicize job openings at its station, satisfies the requirement that a broadcaster widely disseminate information about job openings to members of all groups within its likely recruiting area. In 2002, when the FCC adopted its current EEO rules, it determined that online recruiting would not widely disseminate information about job openings in the way that a local newspaper would given the digital divide that the FCC thought existed at that time. But, the FCC said that it would later revisit that decision as circumstances change. The petition suggests that circumstances have indeed changed in the 14 years since the rules were adopted, that online recruiting is how people now find and apply for new jobs, and that it is time that the FCC recognize that fact and allow online recruiting to satisfy the obligation that a broadcaster give its community notice of job openings. Comments are due January 30, and replies on February 14.

The FCC has up to this point actively enforced its prohibition on station’s relying solely on its own airwaves and online sources for recruiting purposes, fining stations who meet their wide dissemination obligations solely by relying on such sources (see our articles about such cases here and here). But some at the FCC itself have recognized that this position no longer makes sense – including Commissioner O’Rielly who, in a blog post we wrote about here, suggested that broadcast recruiting in today’s world is appropriately done online, and that the FCC’s rules should reflect that fact. As set out in the Petition, Julius Genachowski, then-chairman of the FCC, recognized in a speech that: “In today’s world, you need broadband to find a job and apply for a job, because companies increasingly require online applications.” The petition notes that the FCC has recognized that the Internet is fine for public files and contest rules, so shouldn’t it also be found to be sufficient to get out the word about job openings?
Continue Reading Should Online Recruiting Satisfy the FCC’s EEO Requirements for Wide Dissemination of Job Openings? – Comments Requested on Petition Saying that it Does

After months of speculation, Chairman Wheeler today announced that he will step down from the FCC on Inauguration Day. Together with the Senate not confirming the renomination of Commissioner Rosenworcel (as the Senate is effectively on recess and not expected to return before the end of the term, her renomination will almost certainly not be approved in this session of Congress, meaning that she must step down when the Congress adjourns on January 3), that leaves three Commissioners on the FCC. Two are the current Republican commissioners – Pai and O’Rielly – and Democratic Commissioner Mignon Clyburn. What will that mean for broadcasters?

First, it is expected that one of the two Republicans will be named as Acting Chairman to set the agenda for the first few months of the Trump administration, until a permanent Chair is announced (and confirmed by the Senate, if that Chair is not one of the two current Republicans). These commissioners have been vocal in their dissents on several big issues for broadcasters – including the repeal of the UHF discount (about which we wrote earlier this week) and on other issues dealing with the ownership of television stations – including the decision to not repeal the newspaper-broadcast cross-ownership rules, and the decision to reinstate the FCC’s ban on Joint Sales Agreements in TV unless they are done between stations that can be co-owned. We already speculated about these issues being on the Republican agenda soon after the election. What other issues are likely to be considered?
Continue Reading And Then There Were Three – Chairman Wheeler to Step Down on Inauguration Day Leaving a Republican-Controlled FCC – What’s It Mean for Broadcasters?

An FCC decision fining a cable company $11,000 for not adequately recruiting for job openings should be viewed as a warning to broadcasters as well as well as MVPDs – failure to recruit for job openings by disseminating information about those opening through diverse sources will likely result in a substantial fine under the current rules being enforced by the Commission’s Media Bureau. As the Commission has held before (see our article here), simply recruiting through online sources will not be enough to avoid the imposition of a fine. In this case, the FCC specifically points out that approximately 30% of the cable system’s service area did not have Internet access, so people in that group were likely not exposed to information about the station’s job openings. As the Commission requires that job openings be publicized so as to reach all groups within a system’s (or a broadcast station’s) recruitment area (which is related to its core service area), the decision found that the failure to recruit so as to reach this significant portion of the local population, together with the failure to complete one year’s EEO public inspection file report, merited a fine of $11,000.

One of the interesting aspects of this decision is the emphasis that the Media Bureau continues to put on the distinction between online recruiting and other more traditional means of reaching out to potential job applicants (e.g. using employment agencies, sending notices to community groups, using college job offices, etc.). Even though Commissioner O’Rielly has suggested that the Commission allow recruiting to be done solely using online sources (see our article here), as that is much more in tune with the way that job seekers today look for potential employment opportunities, the Commission continues to insist on station’s using these more traditional outreach efforts regardless of their success rate. In fact, the FCC has never revisited its 2003 EEO order that presumes that the local newspaper is a source that can reach most groups within a community, when it no doubt can be proven that, in today’s world, the circulation of online job sites is significantly greater than that of almost any newspaper. Commissioner O’Rielly notes that the FCC itself has recognized the reach of the Internet through actions such as the requirements that broadcast and MVPD public files be moved online, and that disclosures about contest rules can be made online. Yet, in the EEO world, online recruitment, unless tied with the use of other more traditional outside sources, will bring a fine. Certainly, it is an issue that the FCC needs to revisit – and one that perhaps will be revisited in appeals of decisions like this one, or in response to the calls of Commissioner O’Rielly and others.
Continue Reading $11,000 FCC EEO Fine for Recruiting Solely Through Online Sources – Time to Revisit the FCC Rules?

The FCC yesterday issued a Public Notice announcing its second EEO audit for 2015.  Letters to just over 100 radio (no TV stations were included in the current audit) went out on June 12 asking for evidence of their compliance with the FCC’s EEO rules.  Many of the stations included on this list appear to be noncommercial broadcasters. In yesterday’s notice, the FCC released the form audit letter and list of stations that will be audited. Responses from the audited stations are due to be filed at the FCC by July 27. Licensees should carefully review the list of affected stations contained in the Public Notice to see if any of their stations have been selected for the audit. Note that there are some blank pages included in the PDF version available at this link, so be sure to scroll through these blank pages to view the entire list of audited stations.

The Commission has pledged to audit 5% of all broadcast stations and cable systems each year to assure their compliance with the Commission’s EEO rules – including the requirements for wide dissemination of information about job openings and non-vacancy specific supplemental efforts to educate a station’s community about job opportunities in the media industry. We recently summarized the FCC EEO issues here, reminding broadcasters of the possibility of being audited. We also recently wrote about the start of the obligations for the filing of FCC Form 397 EEO Mid-Term Reports – which started this month for radio groups with more than 11 full-time employees and will extend to TV licensees with 5 or more full-time employees next year, and are filed on the 4th anniversary of the filing deadline for the station’s license renewal – which will give the FCC another chance to review station EEO performance.  
Continue Reading FCC Announces New Round of EEO Audits for Radio Companies

In a post on the FCC’s blog, Commissioner Michael O’Rielly proposed allowing broadcasters to meet their EEO wide dissemination obligations solely through Internet sources. As we recently wrote, broadcasters need to widely disseminate information about job openings at their stations, using sources that are designed to reach all of the major groups that may exist within a station’s recruitment area. These sources could include school groups, minority organizations, social or community organizations, or other population groups that may exist in a station’s community. The current EEO rules, adopted a dozen years ago, suggested that a significant newspaper of general circulation may be one way to reach most of the groups within a community. But, as the Internet was not seen as universally available at that point, the FCC ruled that online sources alone would not be sufficient to meet these wide dissemination requirements. The FCC has continued to enforce that decision, even penalizing stations that relied solely on online sources for wide dissemination purposes (see, for instance, our summary of one such decision fining a number of stations that relied primarily on online sources, here). Commissioner O’Rielly suggests that this does not make sense in today’s world, as the Internet is much more available than the newspaper and other more “traditional” recruitment sources.

The Commissioner cites many statistics about the current availability of the Internet to diverse populations, and points to the fact that virtually all public libraries now have public Internet access, and one of the principal reasons for such Internet access if often to provide employment opportunities. He points to all of the online job sites that now exist, and the relative paucity of job listings in today’s newspaper. Will his proposal go anywhere?
Continue Reading Commissioner O’Rielly Proposes to Bring Mandatory FCC EEO Recruiting Into the Modern Era by Allowing Reliance on Internet Resources

The FCC yesterday issued a Public Notice announcing the first set of EEO audits for 2015.  Letters to over 250 radio and TV stations went out asking for evidence of their compliance with the FCC’s EEO rules.  The Commission has pledged to audit 5% of all broadcast stations and cable systems each year to assure their compliance with the Commission’s EEO rules – requiring wide dissemination of information about job openings and non-vacancy specific supplemental efforts to educate their communities about job opportunities in the media industry. We recently summarized the FCC EEO issues here, reminding broadcasters of the possibility of being audited, and of the upcoming deadlines for the filing of FCC Form 397 EEO Mid-Term Reports, which will give the FCC another chance to review station EEO performance.  In yesterday’s notice, the FCC released the form audit letter and list of stations that will be audited. Responses from the audited stations are due to be filed at the FCC by March 24. Licensees should carefully review the list of affected stations contained in the Public Notice to see if any of their stations have been selected for the audit. 

The audit letter requires all stations with 5 or more full-time (30 or more hours per week) employees to provide a significant amount of information about their EEO programs and recruiting efforts (including copies of their 2 latest Annual EEO public file reports and documentation backing up the efforts listed on those reports).  Even stations with fewer than 5 full-time employees need to report the names and positions of their employees, and provide any information about law suits, EEOC complaints or similar employment actions brought as a result of equal employment or discrimination matters. 
Continue Reading FCC Announces EEO Audit of Over 250 Radio and TV Stations

With the Martin Luther King Day holiday just passed, it seems appropriate to review the FCC’s EEO rules, which look to promote broad access to broadcast employment opportunities.  The FCC’s EEO rules no longer seek exclusively to promote minority employment, but instead seek to have stations reach out to all groups within the area they serve to try to attract people from diverse sources into broadcasting – rather than allowing stations to simply recruit through word-of-mouth and traditional broadcast sources (e.g. referrals from consultants and friends).  We have written about the FCC audit process by which it will review the EEO performance of approximately 5% of all broadcast stations each year (see, e.g. our articles here and here) and also about recent fines for stations that did not comply with the FCC requirements in specific areas.  With EEO review also expanding this year through the filing of FCC Form 397 Mid-Term Reports by radio station clusters with 11 or more full-time employees located in certain states (see the list of states on our Broadcasters’ Regulatory Calendar), it might be good to review the basics of the FCC’s EEO requirements.

The FCC requirements, beyond forbidding any station from engaging in overt discrimination, also requires broad outreach to a station’s community to recruit for open employment positions at any station, as well as efforts to educate the community about the duties of and qualifications for  positions at broadcast stations, whether or not a station has any job openings.  These requirements apply to any station employment unit (a group of commonly-owned stations serving the same general geographic area and having one or more common employees) with 5 or more full-time (30 hours per week or more) employees.  What do the outreach rules require of stations?
Continue Reading Reminder: A Broadcaster’s FCC EEO Obligations