On Friday, the FCC issued a Public Notice announcing its first EEO audit of 2018. The Notice lists the almost 300 radio and television stations that will be subject to the review as well as the rules that apply to that audit. And those rules are somewhat new.  First, the notice itself was not sent by mail, but instead by email – the first time that email has been used to deliver the notice of an EEO audit.  Some broadcasters who received the email seemed surprised and wondered if the email really was an official FCC communication, so the FCC included verification methods in the letter including a link to the Public Notice.  So, if you are listed on the Public Notice, you are subject to the audit.

Second, the procedure for responding to the audit is different.  No longer does the broadcaster subject to the audit have to submit paper copies of all of its documents to the FCC through the FCC Secretary’s office.  Instead, the response will be filed in the station’s online public file.  The response must be uploaded to the online public file by April 12.  There, the FCC can review that response (as can anyone else anywhere, at any time, as long as they have an internet connection).  The audit requires that the broadcaster submit their last two EEO Public File Reports (which should already be in the online public file) and backing data to support the outreach efforts.  Broadcasters subject to the audit should carefully review the audit letter to see the details of the filing.
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At its meeting yesterday, the FCC adopted a Notice of Proposed Rulemaking suggesting the abolition of the EEO Mid-Term Report, FCC Form 397. That form is filed at the mid-point of the renewal term of TV stations with 5 or more full-time employees and radio clusters with 11 or more full-time employees (see our post here about the form). As the content of the report is principally made up of the broadcaster’s last two EEO Public Inspection File Reports, and those reports are available in a broadcasters online public inspection file (which should be in place for virtually all broadcast stations when the final radio stations covert to the online public file next week, see our post here), the FCC concluded that there is no real reason that these reports need to be separately submitted, and thus proposed its elimination.

The Notice of Proposed Rulemaking did suggest that there were issues on which comments would be appropriate. The one bit of information that would not be readily available without the filing of the Form 397 would be which TV stations have 5 full-time employees and which radio clusters have more than 11 full-timers. That is important as Congress required the mid-term review of the EEO performance of stations meeting these employment thresholds. So the FCC asks how that information should be tracked. It is also noteworthy that the FCC will continue to conduct the EEO mid-term review of stations meeting these employment thresholds even without the filing of the Form 397 reports.
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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.
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As summer approaches, many stations are preparing for the arrival of summer interns.  While internship programs can earn stations EEO “credit” towards meeting the requirement that they conduct non-vacancy specific outreach efforts (the so-called “menu options” or “supplemental efforts” offered by the FCC to encourage stations to reach out to their communities to educate community residents as to what jobs are available at broadcast stations, and how people can train for and find out about such openings (see the article here for a link to a presentation that I did on all of the FCC’s EEO requirements), stations need to be cautious in setting up their internship programs for other reasons. In recent years, there have been a large number of lawsuits in over whether interns need to be paid for their work. While these lawsuits have spanned many industries, several involved broadcasters and other media companies.  Thus, we felt the need for this cautionary note.

These disputes arise over wage and hour issues.  In the most general terms, lawyers for former interns who were not paid have argued that the interns should have been paid as they functioned as employees of the station.  In analyzing these issues, courts look at a number of issues, principally to determine if the internship was one that was meant more to benefit the intern and their education, or whether it was of a greater benefit it the station.  Where the interns do the work that a paid employee would normally do, then there is an argument that the intern should themselves have been paid. What issues do the courts review?
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The FCC yesterday issued a Public Notice announcing a new round of EEO audits.  Letters to about 180 radio stations went out asking for evidence of their compliance with the FCC’s EEO rules.  The Commission has pledged to audit 5% of all broadcast stations and cable systems each year to assure their compliance with the Commission’s EEO rules – requiring wide dissemination of information about job openings and non-vacancy specific supplemental efforts to educate their communities about job opportunities in the media industry. The form audit letter was also released by the FCC and attached to the Public Notice. Responses from the audited stations are due to be filed at the FCC by July 25. Licensees should carefully review the list of affected stations contained in the Public Notice to see if any of their stations are on the list. 

The audit letter requires all stations with 5 or more full-time (30 or more hours per week) employees to provide information about their EEO programs.  Even stations with fewer than 5 full-time employees need to report the names and positions of their employees, and provide any information about law suits, EEOC complaints or similar employment actions brought as a result of  equal employment or discrimination matters.  The requirements for stations with 5 or more employees are more significant.
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Fines of $14,000 and $8,000 were proposed by the FCC for violations of its EEO rules in two cases (here and here) released on the FCC’s last business day of the year.  In both cases, the fines were issued as these clusters of stations, on the FCC Form 396 EEO Reports filed with their license renewal applications, publicized a number of job openings without adequate recruitment.  In the cases faulted by the FCC, the stations’ recruitment relied solely on either internal station sources (e.g. word of mouth, referrals from existing employees, ads on the stations or on their own websites) or on on-line resources.  The Commission concluded that this was inadequate dissemination of the information about these openings.  Based on the failure to engage in broad outreach for all of their job openings, these fines were issued by the FCC – perhaps the first of more to come as the FCC reviews license renewal applications during the current license renewal cycle.  Perhaps coincidentally, the FCC will be conducting a webinar on its EEO rules on Wednesday, January 4, which is intended to help explain the obligations of broadcasters and other FCC regulated entities under these rules.

 The January 4 webinar will feature two panels.  The first will be a panel of FCC and private attorneys (I will be one of the participants) who will outline the legal obligations of broadcasters under the FCC’s EEO rules and policies and discuss how these rules are applied .  A second panel will feature industry representatives talking about EEO compliance best practices at their stations.  The webinar is free, but requires registration (here).  The FCC public notice of the webinar can be found here, and a further description of the seminar is available on its blog (here).  No doubt, the issues leading to the two fines announced on Friday will be discussed during the legal session.


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February 1 is the deadline by which broadcast stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma must place into their Public Inspection files their Annual EEO Public Inspection File Report.  The report must also be available on these stations’ websites, if they have such sites.  The Annual EEO Public Inspection File Report

As we reminded broadcasters earlier this month, the first filings of FCC Form 397, the Broadcast Mid-Term EEO Report, will be due to be filed at the FCC on June 1.  This report is filed 4 years after the due date for filing of a station’s license renewal application, and is to be filed by all radio station employment units with more than 10 full time employees, and all TV station employment units with five or more employees.  The first reports are due on June 1 by radio groups in Maryland, Virginia, West Virginia and the District of Columbia.  Every two months thereafter, stations in a different group of states will need to file their Mid-Term reports.  Last week, the FCC released a Public Notice clarifying some aspects of the filing process.

The Public Notice addressed two principal issues – (1) what happens when radio station clusters and their associated station employment units include stations in different states with different filing deadlines, and (2) what happens when employment units include both radio and television stations in the same state.  For radio employment units with stations in different states, the FCC reminds broadcasters that they should have made an election about which state’s filing deadline to use back in 2003 when the current EEO rules were adopted, and they should have been using that election for each of their public file reports since then.  That same election would control the filing deadline for the Mid-Term report. 


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