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
The FCC today released another Public Notice announcing the random audit of the EEO performance of a number of broadcast stations – listing both radio and television stations that have to respond, with stations spread throughout the country. The FCC has promised to annually audit 5% of all broadcast licensees to assess their compliance with the FCC’s EEO rules. These rules require the wide dissemination of information about job openings at their stations and "supplemental efforts" to educate their communities about employment opportunities at broadcast stations, even in the absence of employment openings. The FCC’s audit letter requires the submission of two years worth of the Annual Public File reports that stations prepare each year on the anniversary date of the filing of their license renewal applications. These reports are placed in the station’s public file and posted on their websites (if they have websites). The FCC’s public notice about this audit emphasizes the requirement for posting the Annual Report on a station’s website, perhaps confirming rumors that we have heard about the FCC’s staffers browsing station websites to look for these reports.
Stations are given until May 4 to complete the audit responses and submit them to the Commission. Note that information needs to be supplied not just for the station named on the list, but also for all other stations in the same "station employment unit," i.e. a group of stations under common control, that serve the same general geographic area, and which have at least one common employee. As recent audits have led to significant FCC fines (see our story here about fines issues just before the holidays), broadcasters who are listed on this audit list should take care in preparing their responses. The audit notice should also remind other licensees who are lucky enough to avoid having been selected for inclusion on this audit list to review their EEO programs for FCC compliance purposes, as they could very well find themselves not so fortunate when the next FCC audit is announced.
The FCC today provided two more examples of its policy that virtually any sort of interview program is going to be deemed a "bona fide news interview program" exempt from any claim of equal opportunities (or "equal time" as it is commonly referred to) if the program features an appearance by a political candidate. In the decisions released today, the FCC declared that the 700 Club produced by the Christian Broadcasting Network (decision here) and TMZ produced by Telepictures Productions (decision here), both syndicated across the country, were analogous to programs like Entertainment Tonight, which the FCC had previously found to be an exempt program. While these programs may focus on some unique aspect of the news or current affairs, the fact that they cover the candidates with their own particular slant (entertainment news, music news or whatever) does not prevent them from being considered bona fide news interview programs. Where the coverage of the candidate is done based on good faith determinations of what is newsworthy rather than to politically favor the candidate, and where the programming remains under the control of the program producers and not the candidate, the programming is considered exempt from equal opportunities. This is fully consistent with past Commission policy which we have written about many times before (see, for instance, our post on the evolution of this exemption in the context of political debates, here, and our posts on the candidacies of Fred Thompson and Stephen Colbert). Thus, while these decisions are not controversial, they do raise some questions that broadcasters and candidates should ponder.
The first interesting question is raised by a paragraph included in both of the decisions released today. The paragraph warns licensees that, if they are carrying syndicated programming that contains an appearance by a political candidate, and that program is relying on the news interview exception, the licensee must itself make a determination that the program is newsworthy. I think that this ties in with another line in the decisions stating that there is no evidence that the decisions by the program producers that the appearances by the candidates are newsworthy were not bona fide journalistic decisions. In other words, if the program producer was to include candidate appearances in a blatantly political way (e.g. by totally excluding the candidates of one party and promoting the candidates of the other), then the Commission could conclude that the decisions were not "bona fide," and that equal opportunities did apply.
In the last few weeks, I’ve received several calls from broadcasters about on-air employees who have decided to run for local political office, and the equal time obligations that these decisions can create. Initially, it is important to remember that equal opportunities apply to state and local candidates, as well as Federal candidates. And the rules apply as soon as the candidate is legally qualified, even if the spot airs outside the "political windows" used for lowest unit rate purposes (45 days before a primary and 60 days before the general election). For more information about how the rules apply, see our Political Broadcasting Guide. In one very recent example of the application of these rules, a situation in Columbia, Missouri has been reported in local newspaper stories concerning a radio station morning show host who decided to run for the local elective hospital board. To avoid having to give equal time to the host’s political opponents, the station decided to take the employee off the air. This was but one option open to the station, as set forth in the article, quoting the head of the Missouri Broadcasters Association, who accurately set out several other choices that the station could have taken.
These choices for the station faced with an on-air host who runs for office include:
- Obtain waivers from the opponents of the station employee allowing the employee to continue to do his job, perhaps with conditions such as forbidding any discussions of the political race.
- Allow the candidate to continue to broadcast in exchange for a negotiated amount of air time for the opponents
- Provide equal time to the opposing candidates equal to the amount of time that the host’s voice was heard on the air (if the opponents request it within 7 days of the host being on the air)
- Take the host off the air during the election
Other situations have also arisen concerning non-employees, running for office, who may work for another local station, for ad agencies, or for advertisers, but whose voice or picture appears on spots that run on a station.