Along with the draft NPRM we wrote about yesterday to consider changes to the FCC’s rules for granting new construction permits for noncommercial stations and LPFMs, the FCC last week issued another draft order to be considered at its January 30 meeting, assuming that the partial government shutdown has been resolved and the FCC has returned to normal operations. This draft order would adopt the FCC’s proposal advanced last year (see our article here) to abolish the filing of the FCC Form 397 Mid-Term EEO Report, as that form is no longer necessary as the information gathered by the form is now largely available in every broadcasters online public file – which the FCC can review at any time. As the information is already available, the draft order concludes that it is redundant to separately file that same information in a Form 397.

The Form 397 requires the filing of a licensee’s last two Annual EEO Public Inspection file reports. These are documents available in the online public file. The Form 397 also requires the name of person at the station who is in charge of EEO matters. The FCC says that this information is already generally available in the public file, both through an EEO Form 396 filed with the station’s last license renewal, and through the general station contact for questions about the website. The only information that would not be readily apparent from the online public file is whether or not the station is part of a station employment unit (a station or group of commonly owned stations serving the same general service area and sharing at least one common employee) subject to a Mid-Term EEO review. Any TV station who prepares an EEO Public Inspection File Report would be subject to a Mid-Term review as the law requires such review for all TV stations with 5 or more full-time employees – the same employee threshold at which a station must prepare a EEO Public Inspection File Report. But for radio, the Public Inspection File Report must be prepared if the employment unit has 5 or more full-time employees, while a Mid-Term Report is only triggered for radio if the employment unit has 11 or more full-time employees. To inform the FCC as to whether a station is still subject to Mid-Term review, the FCC will require, when a radio station uploads its Annual EEO Public Inspection file report, that it tell the FCC whether or not it is part of an employment unit with 11 or more full-time employees.

This makes clear a fact (stated explicitly elsewhere in the draft order) that the FCC will continue to conduct EEO Mid-Term reviews, even if the Form 397 is no longer required. The FCC conducts reviews of broadcast station’s EEO performance at the time of the filing of the license renewal application, in these Mid-Term Reports, and as a result of random audits, which 5% of all broadcast stations go through each year (see our article here about the last random audit). See our article here on the basics of broadcasters EEO obligations, as updated here by the FCC’s changes in its requirements for the wide-dissemination of information about station job openings.

If adopted at the January meeting, these changes will not go into effect until May 1. In the interim, TV stations in New York and New Jersey will still need to file their Form 397s by February 1 (assuming the FCC has reopened by then) and TV stations in Delaware and Pennsylvania will need to file their Form 397 reports on April 1, 2019. Radio is past the mid-term for all license renewals, with the first set of new radio renewal applications due to be filed in June of this year (see our artilce here on getting ready for license renewal) – with TV to begin filing in June of 2020. So, if adopted at the January meeting, the real effect of this rule change will not be felt until 2023, when radio next reaches the mid-term of the renewal cycle.