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.