EEO Compliance/Diversity

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At more and more broadcast conventions, station owners have been asking questions about their legal liability for the use of social media.  What is their liability for the use of Facebook, Twitter, MySpace or other services?  Could owners have liability if their station maintains its own page on which friends and followers may post statements which are defamatory or which could otherwise give rise to…

The Commission is worried about the future of the broadcast media, and they are trying to figure out what they can do.  The last two weeks have been full of news about actions being taken by the FCC which may or may not lead to a reshaping of broadcasting as we know it.  We wrote about the discussion of re-purposing some or all of the television spectrum for wireless broadband users.  We also told you about the workshops to be held this week as the first step in the Commission’s Quadrennial review of it multiple ownership rules – looking at whether to allow more media consolidation to help broadcasters compete in the new media landscape or, conversely, whether there should be a reexamination of the existing rules to make them more restrictive against big media.  Last week, the Commission announced two more actions – the appointment of a Senior Advisor to FCC Chairman Julius Genachowski to study "the future of media in a changing technological landscape", and a workshop on "Capitalization Strategies for Small and Disadvantaged Businesses."  What is the impact of all of these actions?

The appointment of the Senior Advisor, Steven Waldman, is perhaps the most interesting action.  Mr. Waldman, the founder of the website Belief.net (recently sold to News Corp), is charged with determining how the FCC can assure that the media will serve the public interest in the 21st century, and that "all Americans receive the information, educational content, and news they seek."  He is instructed to work with all Bureaus to determine how best to implement these ambitious goals.  It is interesting that, while one might be inclined to look at this with the assumption that his charge is to look at broadcasting, the public notice announcing his appointment and his charge does not once use the word "broadcast" or "broadcasting."  Instead, it talks almost exclusively about the new media and technology and the potential that they have for serving the public good.Continue Reading FCC Senior Advisor to Chairman to Study Media Change and a Workshop on Media Financing for Small Business – Looking to Reinvent the Broadcast Industry?

As we’ve written before, the FCC every year aims to randomly audit 5% of all broadcast stations and multichannel video programming distributors (MVPDs) to assure their compliance with the Commission’s EEO rules.  Every few months, the FCC releases a list of the lucky regulatees who have to respond to the audit.  Today, the Commission issued…

A request for advertising rates by an ad agency representing the Mini Cooper serves as a reminder to broadcasters of the recently-imposed obligation to insure that broadcast advertisers do not discriminate on the basis of race or gender.  As we wrote several months ago, the FCC has adopted a new requirement that a broadcaster certify at license renewal time that their advertising contracts require advertisers certify that they were not making advertising decisions based on the race or gender of the audience of the broadcast station.  This was to eliminate the "no urban/no Spanish" dictates that many felt were a discriminatory part of the advertising landscape.  As demonstrated by the controversy that erupted when this request for rates was circulated, stations need to insure that their contracts contain language prohibiting discrimination in advertising buys, as any such dictates will not be a secret.  And once they get out, if a station has run a campaign purchased by an advertiser who had included such dictates, the station running the campaign may have difficulty in making the required certification as the station knows that the actions of the advertiser contradict any certifications that the advertiser may have made in signing the station advertising contract containing the required certifications.

Our earlier post on the issue suggested some language to include in an advertising contract disclaimer, and also discussed the issue of the positive use of racial or gender advertising specifications for ads targeting minority and gender specific audiences.  But the issue in the Mini Cooper case makes clear that many in the advertising community, and probably many in the media community, do not know about the adoption of the FCC’s policy, or the proposal to extend the policy to cable advertising.  It is also interesting to note that the FCC has refused to provide more specific guidance on this rule, not even specifying the language that should be used in contracts.  Nor has the new license renewal form containing the required certification that the broadcaster must make about his compliance with this rule been released, making it unclear if this form has even passed review by the Office of Management and Budget under the Paperwork Reduction Act. Continue Reading Mini Cooper Ad Request Reminds Broadcasters of No Urban Dictate Certification

The FCC yesterday issued another in its series of EEO random audit notices, asking that approximately 170 radio stations nationwide provide information about their hiring practices.  Information requested includes the last two years worth of broadcast EEO Public File reports, plus more complete documentation of the efforts outlined in the Public File reports and demonstrating that the information provided in the annual report was really conducted and accurately reported.  In addition, the FCC asks that a station provide an explanation if their most recent EEO public fie report cannot be found on the Station’s website.  The FCC’s Public Notice about this audit, which lists the stations that must respond, can be found here.  That Public Notice also reminds broadcasters of the obligation to post the EEO public file report on the station’s website, perhaps indicating that the FCC has been investigating and has found instances where this is not being done.  Responses to the audit must be filed by September 21.  A form of the EEO audit letter is available here. 

On the same day as the FCC issued this audit for radio stations, it issued a Public Notice to remind Multi-Channel Video Programming Distributors (MVPDs) with six or more full-time employees, including cable systems, of their obligation to file by September 30 their Annual EEO Program Reports on FCC Form 396-C .  This form is to be filed through the FCC’s electronic filing system.  This notice also reminds certain cable systems of the need to submit supplemental information about their hiring efforts to the FCC. Continue Reading FCC Announces New Round of EEO Audits for Radio Stations; Reminds Broadcsters of Requirement to Post Annual EEO Public File Report on Station Website, and Cable Companies of Obligation to File EEO Program Annual Report

In three cases released last week, the FCC made clear that its EEO rules, requiring wide dissemination of information about job opportunities at broadcast stations (and cable systems), are not satisfied by solely posting of information about openings on websites.  Instead, the Commission required that additional outreach efforts be undertaken in order to assure that the notice of the job opening reaches all groups within a  community.  The decisions pointed to the FCC’s 2003 Report and Order adopting the current rules which stated that the FCC did not feel that the Internet was sufficiently ubiquitous that they could feel comfortable with on-line postings being sufficient to reach all groups within a community.  In the recent decisions, the FCC staff said that they were not ready to change the determination of the 2003 Commission.

What does this mean on a practical level?  The decisions hold that simply using internal station sources plus on-line postings (in one case website postings plus some combination of walk-ins, industry referrals, and internal postings; in another case  the use of the station’s website, plus employee referrals) were insufficient to assure wide dissemination.  To avoid getting caught in this trap, broadcasters must use some other traditional outreach services (e.g. employment agencies, community groups, educational institutions, and the local newspapers) to assure that they meet the Commission’s wide dissemination requirements. Continue Reading On-line Recruitment Not Sufficient EEO Outreach for the FCC

UPDATE:  On June 2, the FCC issued an erratum revising the Comment date in this proceeding to June 26th.  We’ve updated our earlier post to reflect the change.

The FCC today issued a Public Notice announcing the filing deadline for comments regarding potential modifications to the ownership report filing requirements for noncommercial broadcasters (see our…

The FCC today issued a Notice of Inquiry into the use of the Portable People Meter technology of radio audience measurement now being rolled out by Arbitron in radio markets throughout the country.  Several months ago, various groups petitioned the FCC for an inquiry into the PPM, contending that it has certain methodological flaws that undercounted particular groups, including minority groups, and thus could have an impact on the financial viability of the stations listened to by such groups (see our summary  of the petitions and the issues raised by these petitions).  The Notice of Inquiry asks about those perceived flaws, about the potential impact of any flaws on the use of Arbitron market definitions for purposes of the FCC radio multiple ownership rules, and on the more general question of whether the FCC even has the jurisdiction to regulate the use of the PPM.

Specific questions on which the FCC seeks comments include:

  • Does the use of this technology really undercount minority populations?
  • If so, what has been the impact on the economics of minority-formatted stations in markets where the system is in use?
  • Are there specific information gathering techniques that should be improved in the PPM system?
  • What has been the effect on the PPM system of settlements between Arbitron and the Attorneys General of several states – where Arbitron promised to change its sampling process?
  • What is the impact of Media Ratings Council accreditation for the PPM in certain markets, and its lack of accreditation in others?
  • Do the questions about PPM reliability have any impact on the use of Arbitron to define radio markets for FCC multiple ownership purposes?
  • What is the FCC’s jurisdiction to review Arbitron’s practices in connection with the PPM? 

Details of these questions can be found in the FCC’s Notice of Inquiry at pages 12-17.Continue Reading FCC Begins Formal Inquiry Into Arbitron PPM Audience Measurement

Last month, the FCC released its proposal to restrict the movement of FM stations from rural areas into larger markets (which we summarized here).  The proposals that the FCC has put forward would greatly restrict the ability of broadcast owners to move stations to cover larger population areas – in many senses reversing the decision of the FCC just two…

Rural communities – do their radio stations need government protection? The FCC seems to think so, proposing a series of new rules and policies that restrict the ability of the owners of rural radio stations to move their stations into Urban areas. These rules would make it harder for entrepreneurs to do “move in” applications – taking stations from less populated areas and moving them to communities where they can serve larger populations in nearby cities. The Commission states that it is making these proposals to attempt to live up to its obligations under Section 307(b) of the Communications Act to ensure a “fair, efficient and equitable” distribution of radio services to the various states and communities in the country. While this may be a noble goal, one wonders if it is a solution in search of a problem. Are there really rural communities that have an unmet demand for missing radio services – and which can economically support such services? And do these proposals conflict with other goals of the new Commission, by effectively decreasing the opportunities for minorities and other new entrants from acquiring stations in major markets – by taking away move-in stations that are often the only stations that these broadcast station owners can afford in urban markets?  These are questions that the FCC will need to resolve as part of this proceeding. 

A Section 307(b) analysis is done by the FCC when it faces conflicting proposals, specifying different communities of license, for new AM stations or requests for new FM allotments. It is also required when an applicant proposes to move a station from one community to another, as the applicant must demonstrate that the move to the new community would better serve the objectives of Section 307(b) than would the current location of the station. In the past, the 307(b)  analysis looks at several factors, or “Priorities.” These include:

 

  1. Service to white areas – when a proposed station will serve “white area,” an area where residents currently receive no predicted radio service (no “reception service” in FCC parlance). 
  2. Service to gray areas – when a proposed station will serve areas that currently receive only a single reception service
  3. Provision of a first local “transmission” service – where the proposed station will be the first station licensed to a particular community, and thus the first station that has the primary responsibility to serve the needs of that community
  4. Other public interest factors – usually meaning which proposal will provide the service to the most people (with service to “underserved areas,” i.e. those that receive 5 or fewer “reception services,” getting somewhat more weight).

Continue Reading FCC Proposes to Encourage Rural Radio By Making it More Difficult to Move Radio Stations to Urban Areas