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.