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EEO Audits Announced; FCC Eases Burdens, But For Whom?

Some filing requirements have been reduced, but underlying recordkeeping remains unchanged.

It's that time again. The FCC has announced its first round of random 2013 EEO audits to radio and television stations. And this year the Commission tells us that it’s trying to make life easier for the licensees who made the list. You might want to take that claim with a grain of salt, though.

Each year, the FCC audits approximately five percent of all radio and television stations, with the lucky stations selected randomly. (Here’s a list of this year’s selectees.) The goal of this spot-check ritual is presumably to keep everybody on their toes and ever-mindful of their ongoing EEO obligations. Those obligations require broadcast employment units with five or more full-time employees to recruit broadly for minority and female applicants for all job openings. “Recruiting broadly” entails (among other things) distributing notices of openings to multiple potential sources of referrals. The FCC also expects licensees to maintain detailed records of those recruitment efforts.

Historically, audited stations have been required to respond to the audit letter by submitting a lot of paperwork.  What’s a lot? Think dated copies of every notice (including advertisements, bulletins, letters, faxes, emails . . . you get the drift) sent to every one of the station's employment sources for every job opening that occurred during the period covered by the last two annual EEO public file reports. And for on-air ads, don’t forget dated log sheets for each time the ad ran. (Stations with fewer than five full-time employees in the relevant employment unit were spared the burden of sending all this paperwork in.)

But things are different this year.

The FCC – purportedly looking to reduce the burden imposed on audited stations – has made three changes to the documentation that stations are required to submit. 

The new audit letter instructs respondents to submit to the FCC only one copy of an employment notice sent to multiple sources along with a list of each of the sources to which it was sent. And for on-air ads, only one log sheet showing when an ad aired and a list of each of the other times the ad aired. The fact that you don’t have to submit all that paper doesn’t mean that you don’t have to have all that paper and make it available to the FCC should they decide, based on what you do submit, that they want to see more.

Note that, as a trade-off for paring back the number of documents that have to be submitted with an audit response, the Commission is now also insisting that responding stations include a statement advising “whether [the station] retain[s] copies of all notices sent to all sources used” and “all the log sheets for each time” the ad aired. (Hint: Since the Commission’s rules require that licensees retain such materials, it’s probably best if your statement confirms that, yup, the station does, in fact, retain those materials.)

Another supposed labor-saving change this year: if your employment unit participated in more than four recruitment initiatives during the period covered by the two EEO annual public file reports submitted with the response, that’s swell, BUT the FCC wants documentation about only four of them. You can and should summarize any other initiatives in your response, but the Commission doesn’t want the underlying paper. Again, though, it will be prudent to keep the documentation on any additional initiatives because the FCC could come back and ask for it.

Finally, the FCC has expressly instructed that stations not submit certain information with their response: applicant resumes, licensee/station training manuals, posters, employee handbooks, or company guidebooks. You can summarize what's in them if you think it’s useful or appropriate, but don't submit them to the FCC.

According to the Commission, it “intend[s] for reduced response burdens to encourage stations to have vigorous recruitment without needing to provide as much detail as before in audit responses.” While the sentiment there may be applauded, on closer analysis the Commission’s claim doesn’t make much sense. After all, licensees are still required to generate the same amount of paper records as before in connection with their EEO efforts. The only thing that’s changed is that the FCC isn’t requiring that all of that paperwork be copied and shipped to Washington in audit responses. But it’s hard to imagine that any licensee’s recruitment efforts have ever been less “vigorous” than they might otherwise have been because of concern for the amount of paperwork that might have to be packaged up and shipped to the Portals.

As a practical matter, the real beneficiary of the Commission’s new approach appears to be (wait for it) the Commission! Now the FCC won’t have to deal with the problems associated with the voluminous submissions, problems like “where do I put all this stuff” and “do I really have to read all this?”  If the Commission really feels that undue busy-work aspects of the EEO rules are depressing the “vigor” with which broadcasters are recruiting, then the Commission should address those busy-work aspects. The changes reflected in the latest audit don’t do that.

If you happen to get an EEO audit letter, be sure to review it carefully and follow all instructions.  It includes specific provisions for LMA’d stations.  Even stations with fewer than five full-time employees are required to respond by providing (a) a list of all full-time employees (along with their job titles and number s of hours each is regularly assigned to work each week) and (b) disclosure (all details, please) of any pending or resolved EEO-related complaints that have been filed.

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