EEO Compliance/Diversity

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The FCC recently issued a declaratory ruling (which we summarized here) addressing the requirement that broadcasters widely disseminate information about all of their job openings in such a way as to reach all of the groups within their communities. The recent FCC decision stated that a broadcaster can now rely solely on online sources to meet the wide dissemination obligation. In the past, the sole reliance on online sources would have brought a fine from the FCC, so this is a big change for broadcasters – one which recognizes the realities in the world today as to where people actually go to find information about job openings .

This decision does not end all other EEO obligations imposed by the FCC rules. The Indiana Broadcasters Association recently asked me 5 questions about that new decision to highlight some of the other obligations that still arise under the FCC’s EEO rules. Here is that discussion of the continuing obligations under the EEO rules:

  1.  The FCC recently issued a Declaratory Ruling about how Job Openings should be posted.  What’s changing?

The FCC is now permitting broadcasters (and cable companies) to meet their obligation to widely disseminate information about their job openings solely through the use of online recruitment sources. In the past, broadcasters were fined if they did not, in addition to online sources, use recruitment sources such as community groups, employment agencies, educational institutions and newspapers to solicit candidates for virtually all open positions at any station. Under the FCC’s new ruling, a broadcaster can use online recruitment sources as their sole means of meeting their obligation to widely disseminate information about job openings, as long as the broadcaster reasonably believes that the online source or sources that it uses are sufficient to reach members of the diverse groups represented in its community.
Continue Reading 5 Questions on the Meaning of the FCC’s Recent Ruling on Online Recruiting – How Does it Change a Broadcaster’s EEO Obligations?

The FCC on Friday released a declaratory ruling making it significantly easier for broadcasters and MVPDs to meet their EEO obligations imposed by FCC rules.  These rules for broadcasters and MVPDs (cable and satellite TV providers) requires that these businesses, when filling job openings, widely disseminate information about the openings in a manner that is expected to reach members of all community groups in the area from which employees are likely to be found.  In the past, under the rules adopted in 2002, the Commission has not allowed recruitment to be conducted solely through online sources.  Instead, the 2002 order suggested that the daily newspaper would, in many communities, be an outlet that would reach the diverse groups within a community – though most broadcasters supplemented newspaper publication with notifications to numerous schools, community organizations, educational institutions and others who might possibly refer employee candidates.  Stations that relied solely on online sources faced substantial fines from the FCC (see the cases we summarized here and here).

The decision on Friday recognized that we are in a different world than when these rules were adopted almost 15 years ago.  Now, most recruiting is done online.  Thus, in response to a petition I filed on behalf of clients (summarized here), the FCC determined that a broadcaster or MVPD can rely solely on online sources in its recruiting.  It no longer needs to use the newspaper, reach out to community groups community groups or even use its own airwaves to give notice of job openings to satisfy the wide dissemination obligation.  The FCC encouraged stations to continue to use some of these outreach methods, but it is no longer required.  The broadcaster or MVPD needs to be reasonable in picking online sources that are likely to reach the members of various groups within its community – though the decision as to exactly which online employment sources to use will be left to the good-faith discretion of the broadcaster or MVPD.  The Commission went so far as to say that, depending on the circumstances, a single online source could reasonably be found to be sufficient.
Continue Reading FCC Finds Online Sources Satisfy EEO Requirements for Wide Dissemination of Job Openings by Broadcasters and MVPDs

Last week, we wrote about two of the three broadcast items to be considered at the FCC meeting on April 20. We wrote here about the draft order to restore the UHF discount, and here about the relaxation of the restrictions on fund-raising for third parties by noncommercial stations. The third item, also related to noncommercial licensees, is the resolution of the long-simmering dispute about whether or not to require that those individuals with attributable interests in noncommercial broadcast stations – officers and board members – to provide their Social Security Numbers or other personal information to the FCC to obtain an FCC Registration Number – an FRN. The draft order released last week indicates that the FCC will eliminate that requirement at its April 20 meeting.

The obligation to obtain an FRN was adopted so that the FCC could comprehensively track the ownership of broadcast stations, and determine the interests of individual parties across the broadcast media nationwide. This was principally done for purposes of assessing the diversity of ownership of the media – including by minorities and women. By making each attributable owner get their own FRN, interests across the broadcast media landscape could be tracked with greater precision. However, objections were raised when the FCC proposed to apply this obligation to noncommercial broadcasters, requiring that officers and board members provide their Social Security Number or other personal information to obtain an FRN. Despite these objections, the previous Commission ordered noncommercial broadcasters to provide this information, going so far as to suggest that attributable interest holders who did not provide the information necessary to obtain an FRN could be sanctioned. See our articles here and here. The current FCC under Chairman Pai rescinded the decision of the Media Bureau upholding the obligation (see our post here) – leading to the draft order to be considered at the April 20 meeting.
Continue Reading FCC to Eliminate Need for Social Security Numbers from Board Members of Noncommercial Licensees for Biennial Ownership Report

April has many important dates for broadcasters – both radio and TV.  This includes both regular regulatory obligations and dates unique to this April for both radio and TV – including the release of the FCC’s Closing Notice for the TV incentive auction and the effective date for the new rules liberalizing the location of FM translators used to rebroadcast AM stations.

The regular dates include the requirement for commercial and noncommercial full-power and Class A Television Stations and AM and FM Radio Stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas that they, by April 1, add to their public file (and upload to their websites for stations that have not yet converted to the FCC’s online public file) their Annual EEO Public File Report if the station is part of an Employment Unit with 5 or more full-time employees.  For Radio Stations in Texas which are part of an employment unit with 11 or more full-time employees; and for Television Employment Units with five or more full-time employees in Indiana, Kentucky, and Tennessee, by April 3 (as April 1 is on the weekend), these stations must file with the FCC their EEO Mid-Term Reports (see our summary of this requirement here).  The Mid-Term Report includes the last two EEO public file reports for these stations and other information about the station’s EEO program. 
Continue Reading April Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, Incentive Auction Closing Notice, AM Translator Site Relocation Relaxation Effective Date

A new President and a new Chair of the FCC have already demonstrated that change is in the air in Washington. Already we’ve seen Chairman Pai lead the FCC to abolish the requirement that broadcasters maintain letters from the public about station operations in their public file (which will take effect once the Paperwork Reduction Act analysis is finalized), revoke the Media Bureau guidance that had limited Shared Services Agreements in connection with the sales of television stations, and rescind for further consideration FCC decisions about the reporting of those with attributable interests in noncommercial broadcast stations and the admonitions given to TV stations for violations of the obligation for reporting the issues discussed in, and sponsors of, political ads (see our article here). Also on the table for consideration next week are orders that have already been released for public review on expanding the use of FM translators for AM stations and proposing rules for the roll-out of the new ATSC 3.0 standard for television. Plus, the television incentive auction moves toward its conclusion in the repacking of the television spectrum to clear space for new wireless users. Plenty of action in just over 3 weeks.

But there are many other broadcast issues that are unresolved to one degree or another – and potentially new issues ready to be discussed by the FCC this year. We usually dust off the crystal ball and make predictions about the legal issues that will impact the business of broadcasters earlier in the year, but we have waited this year to get a taste for the changes in store from the new administration. So we’ll try to look at the issues that are on the table in Washington that could affect broadcasters, and make some general assessments on the likelihood that they will be addressed this year. While we try to look ahead to identify the issues that are on the agenda of the FCC, there are always surprises as the regulators come up with issues that we did not anticipate. With this being the first year of a new administration that promises a different approach to regulation generally, what lies ahead is particularly hard to predict.
Continue Reading What’s Up for Broadcasters in Washington Under the New Administration – A Look Ahead at TV and Radio FCC Issues for the Rest of 2017

In the swirl of news about the deregulatory efforts of the new FCC, one could almost forget that there are still many regulations in place that require significant amounts of paperwork retention by broadcasters. That point was hammered home yesterday, when the FCC released its first EEO audit letter of 2017 for radio and TV broadcasters. The FCC’s public notice announcing the commencement of the audit includes the audit letter that was sent to all of the targeted stations.  The list of over 200 radio stations subject to the audit is here. The list of almost 80 TV stations is here. Responses are due March 28, 2017. As employment information for all stations within a named station’s “employment unit” must be provided in response to the audit, the reach of this notice goes far beyond the 300 stations targeted in the audit notices. While the FCC is considering a proposal to allow online recruiting sources to suffice to meet a broadcaster’s wide dissemination requirements (as we wrote here), that proposal is still at an early stage and, as this audit notice evidences, the underlying rules remain in place.

The FCC reminds stations that were targeted by the audit to put a copy of the audit letter in their public file. The response, too, must go into the file. For all the TV stations hit by the audit letter, and those radio stations that have already converted to the online public file, that will mean that the audit letter and response go into that FCC-hosted online public file.

The Commission has pledged to randomly 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 FCC EEO issues here, reminding broadcasters of the possibility of being audited.  The FCC also has the opportunity to audit larger broadcasters’ EEO performance when they file their FCC EEO Mid-Term Report. We also wrote about the start of the obligations for the filing of FCC Form 397 EEO Mid-Term Reports – which started the year before last for radio groups with more than 11 full-time employees and last year for TV licensees with 5 or more full-time employees in a few months, 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 Releases First EEO Audit for 2017 – Over 200 Radio and Almost 80 TV Stations Named in the Audit Notice

The FCC on Tuesday voted to abolish the 44 year old requirement that commercial broadcast stations retain, in their public file, letters (and emails) from the public dealing with station operations (see the full Order here). As noted by the Commissioners in their comments at the FCC meeting (and as we suggested here and here when this proposal was first introduced), these documents were rarely if ever accessed by the public. Mirroring our comments from last year, the Commission noted that, in today’s world, where social media is where so many people take to comment on each broadcaster’s every action, and where the comments are open to all and preserved for posterity, the requirement for the retention of letters in a paper public file was felt to be no longer necessary. Plus, with the rest of the public file either already online or soon to go online when the last radio stations convert to the FCC-mandated online public file next year (see our articles here and here), the elimination of this requirement allows stations to have more security at the main studios as people can’t just show up unannounced to view the file, as required under the current rules.  Note that this will change the rules only for commercial stations – noncommercial stations have never had the obligation to include letters from the public in their public inspection files.

Much of this was expected in light of the new deregulatory bent of the Commission. About the only issue that had not previously been highlighted was the associated elimination of the requirement for TV stations that they report letters from the public about violent programming in their license renewal applications. The statute requiring the disclosure of these letters applied only to letters which the FCC rules required to be retained by the station. As the FCC will no longer require those letters be retained, the FCC found that the need to report letters about violent programming was now moot – and instructed the Media Bureau to delete the requirement from the license renewal forms. Because the reporting requirement lacked any real purpose, since the FCC has never sanctioned a broadcaster for violent programming and likely has no jurisdiction to restrict such programming, the abolition seems to be nothing more than the elimination of an unnecessary paperwork burden on broadcasters.
Continue Reading FCC Votes to Abolish Requirement for Retaining Letters From the Public on Station Operations – First Step in Broadcast Deregulation?

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

The FCC’s Media Bureau yesterday issued an order denying reconsideration of the full Commission decision from last year, synchronizing the Biennial Ownership Report filing requirement for noncommercial broadcasters with that of commercial broadcasters, and requiring that all individuals who have attributable interests in these stations obtain an FCC Registration Number (an “FRN”)(see our summary of the FCC order from last year here). Yesterday’s decision triggered a rapid objection from the Commission’s Republican Commissioners, promising to review this decision after the Inauguration when Republicans will likely control the FCC. What is the controversy?

Obtaining an FRN requires supplying the FCC with an individual’s Social Security Number (“SSN”). Last year’s order also provided that stations could obtain a “Restricted Use FRN” for attributable interest holders who did not want to provide their SSN to the FCC, but such individuals would still have to provide at least the last 4 digits of their SSN, along with other specifically identifiable information including their residence address and date of birth. While none of this information is public (it is merely stored in FCC databases that issue the FRN), many noncommercial licensees objected to the requirements, believing that members of their governing boards, who are considered attributable owners for FCC purposes, may be very reluctant to provide that information to stations or the FCC. They pointed particularly to situations like university or other stations operated by educational institutions, where board members volunteer not because they are interested in broadcasting, but instead because they hope to influence the educational objectives of the university. The fear is that having to provide this information could discourage people from serving on these governing boards of educational and similar institutions. In some cases, noncommercial station board members have no real choice about their service – the position is required by virtue of public posts such as university president or school superintendent. See our summary here of those objections.
Continue Reading FCC Denies Reconsideration of Noncommercial Broadcasting Ownership Report Requirements – But Signs that New Commission May See Things Differently

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