It is a new year, and the FCC is starting with a new round of EEO audits. Letters to over 280 affected radio and TV stations went out late last week, and the FCC’s Public Notice of the audit, listing all of the affected stations, has just been released. The Commission has pledged to
Broadcasters are not the only ones with FCC-regulated EEO obligations. Cable system operators and other MVPDs have similar FCC EEO obligations, requiring wide dissemination of information about job openings and the maintenance of public file information. In a decision released today, the FCC proposed a $11,000 fine to an MVPD for failing to widely disseminate information…
Last week, I participated in an FCC-sponsored webinar to discuss its EEO rules. Along with two other private firm lawyers, the chief of the FCC’s Office that administers its EEO rules and one of his senior staff members participated on a panel to discuss the legal obligations of broadcasters and MVPDs in meeting the EEO rules. The panel, which lasted almost two hours, was a very thorough discussion of the requirements of the FCC rules. It provided insight into how the FCC identifies problems, and even suggested some ideas as to how broadcasters can assure compliance with the requirements in the easiest way possible. While lengthy, the webinar, which is archived on the FCC’s website, is worth viewing to get a very good summary of the FCC rules. If a station or MVPD has its management employees and others with hiring responsibility sit down and watch the video, and use it as part of a training program for management employees on EEO matters, it may even count as one of the non-job specific supplemental outreach initiatives that the FCC requires each entity subject to the EEO rules to conduct.
We wrote last week about a recent set of FCC fines to two broadcasters that had not widely disseminated information about all of their job openings – relying instead on only a combination of internal sources (word-of-mouth, station websites, intra-company referrals) and Internet websites for their outreach efforts for a substantial number of job openings. At the webinar, the FCC officials said that there were a number of other enforcement actions in the pipeline that should be public soon. The FCC is reviewing every license renewal application that is filed with the FCC to determine if its accompanying Form 396 provides information necessary to demonstrate compliance with the three prongs of the FCC’s EEO program – wide dissemination for all job openings, notice of job openings to community groups that request such notice, and non-vacancy specific initiatives that are designed to educate a community about the nature and requirements of broadcast jobs. Stations are also reviewed when the FCC conducts random audits (5% of all stations and MVPDs are supposed to be audited annually) and when complaints or other information comes to the attention of the FCC staff. Staff members remarked that they have even called stations to discuss issues when visiting a station website for personal reasons and noting the absence of the most recent Annual EEO Public File Report that needs to be posted on a station website on the anniversary date of the filing of the license renewal applications for stations in the state of the station’s city of license.
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.
Another EEO audit was announced by the FCC today – hitting about 100 radio stations this time around. 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 supplemental efforts to educate their communities…
The FCC has issued Notices of Apparent Liability against two radio licensees for apparent EEO violations at their respective station clusters. These NALs, issued on the next to last day of the FCC’s business year, are the first to address EEO violations in a year and a half. The common thread in both NALs was the licensee’s failure to properly recruit for new hires, relying primarily on "walk-ins" or referrals in lieu of the "wide dissemination" required for information about job openings. In one case, where the licensee failed to widely disseminate information about 28 job openings, the FCC proposed a fine of $20,000. In the other case, where the station owner was able to document recruitment efforts for some of its openings, the FCC proposed a fine of $8000 for the six jobs where the required recruitment efforts were found lacking.
In the first NAL, the $20,000 proposed forfeiture was based on a finding that the licensee failed to properly recruit for 28 of the 29 full-time vacancies filled over a six year period. Instead, the licensee relied on "walk-ins" and referrals for six vacancies, and used the Internet or on-air ads for 22 vacancies. These methods alone do not constitute sufficient dissemination of job vacancies under FCC rules. In a post last year, we explained that the FCC does not consider Internet advertising alone to be sufficient for recruitment purposes, and questioned whether that policy is appropriate in this day and age.
As I was preparing for a session updating and refreshing broadcasters about their obligations under the FCC’s EEO rules at the Iowa Broadcasters Association annual convention in Des Moines on June 30, I learned of what seemed to be a startling development – the Minority Media and Telecommunications Council, one of the most effective advocates in Washington for minority hiring and ownership, had urged the FCC to suspend its enforcement of the EEO rules. What was this all about? I went on with my presentation (the PowerPoint slides for which are available here, and the slides for the presentation that I did at another session providing an update on Washington issues for radio broadcasters are available here), quickly adding a summary of the MMTC request. While some broadcasters might have hoped that the request recognized that the EEO rules were no longer necessary as broadcasters were, on their own, making great strides in diversifying their workforce, in fact what the MMTC was seeking was tighter EEO enforcement, contending that the current rules are so ineffective as to not be worth the time spent on their implementation and enforcement.
While MMTC acknowledged that there have been a number of recent cases fining stations for noncompliance with the EEO rules, it contends that often the stations that are hit by such fines have very diverse workforces, and thus should not have to worry about EEO outreach. We have written about some of these fines. These cases demonstrate that the current rules are not targeted at minority and gender-based affirmative action, as FCC rules requiring any evaluation of minority and gender-based hiring were twice declared by the US Court of Appeals to be instances of unconstitutional reverse discrimination. Instead, the current rules are focused instead on bringing new people into the broadcast employment workforce – people recruited from a wide variety of community groups, and not exclusively by word of mouth or through other hiring avenues that simply take people from traditional broadcast hiring sources. But, as MMTC points out, these rules are not based on necessarily seeking to include members of minority groups or women in station workforces. Thus, as their focus is simply on wide dissemination of information about job openings, even stations that have high percentages of minorities and women on their staffs can still run afoul of the rules by not publicizing job openings.
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.
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.