Forgotten But Not Gone: Annual Broadcast Employment Form 395-B Re-Surfaces

A Federal Register notice suggests that the FCC may be thinking about re-imposing the Form 395-B requirement – but the notice neglects a couple of problems.

It’s baaaack – maybe. The Commission’s decade-dormant annual employment report form has stirred. In a Federal Register notice the FCC has advised that it is cranking up the process (mandated by the hilariously-named Paperwork Reduction Act) to secure the approval of the Office of Management and Budget (OMB) to continue to keep Form 395-B in the FCC’s roster of forms.

There are multiple problems here.

As longtime Commission watchers may recall, Form 395-B calls for broadcast stations to provide information, annually, detailing the racial, ethnic and gender composition of their full-time and part-time staff according to job category. If you’re a recent arrival to the broadcast industry – “recent” being within the last 15 years or so – you may not be familiar with Form 395-B. You can read about the history in this post of ours from last year.

The short version: Form 395-B was for a couple of decades an obligatory part of the Commission’s EEO rules. But those rules got tossed by the U.S. Court of Appeals for the D.C. Circuit in 1998, so the form went away, too. The Commission came up with another version of the form a couple of years later, but in 2001 the Circuit tossed that one, too. Not willing to take no for an answer, the Commission tried again in 2003. But by then Congress has passed the Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA), which imposes confidentiality limits on an agency’s use of information collected for statistical purposes. Because CIPSEA at least arguably puts the kibosh on the likes of Form 395-B, the FCC ended up keeping the form on the shelf. Bottom line: While the form has been in its current form since 2003 (with some revisions in 2008), broadcasters have not been required to file it since 1998, 16 years ago.

(As we reported last year, in early 2013 a notice appeared in the Federal Register indicating that Section 73.3612 – which codifies the annual employment report filing requirement – had gone into effect. It requires each AM, FM, TV, Class A TV and International Broadcast station with five or more full-time employees to file Form 395-B by September 30 every year. But also as we reported, that notice appeared to have taken even the Commission by surprise, and we have heard nothing about Section 73.3612 or Form 395-B since.)

The latest Federal Register entry announces that the Commission is going to go back to OMB for renewed approval of the form. The last three-year OMB approval, issued in 2011, and the one before that (in 2008), were both subject to a condition that, before implementing the form, the FCC must resolve the question of whether confidentiality is required. While the FCC did not necessarily agree that Form 395-B data has to be treated as confidential because of CIPSEA, the Commission has at least acknowledged that possibility since at least 2004, and OMB has seemingly concurred. And to date the question of confidentiality has remained unresolved. All of which explains, sort of, why Form 395-B hasn’t been required for more than a decade.

Now, fast forward to 2014. Once again, the FCC is asking OMB to renew its OK of Form 395-B. But the FCC’s request seems to be caught in a time warp. For example, the most recent Federal Register notice makes no mention of the clear condition that OMB has twice imposed.

Even more peculiarly, according the 2014 notice the FCC needs approval for the form because the form is “a data collection device used by the Commission to assess industry employment trends and provide reports to Congress.” Hold on there. Since Form 395-B hasn't been required to be filed for more than 15 years, it's simply not accurate to say that the form is used for anything: the form hasn’t been filed, so the Commission has obviously not been able to assess any trends, or provide any reports, based on the forms.

There’s more.

PRA notices require the FCC to state whether the proposed form involves any confidentiality issues. And in response, the FCC now advises that “[t]here is no need for confidentiality with this collection of information.” Oh really? The question of whether there is or is not a need for confidentiality is exactly what has kept Form 395-B in a state of suspended animation for over a decade.

It’s hard to know what to make of this latest twist in the long-running saga of Form 395-B. In view of the form’s extensive history, it seems unlikely that the FCC would seriously try to ignore that history. And the latest notice doesn’t merely ignore the history: it misstates it. Let's give the FCC the benefit of the doubt here and assume that that notice is the result of some bureaucratic oversight.

Still, it’s enough to cause us to alert our readers that they should be aware that Form 395-B (along with its associated annual filing requirement) is still lurking out there. If you'd care to lob in some comments in response to the latest Federal Register notice, you may do so until June 16, 2014.

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.

Once More, With Filing: The Return of the Annual Employment Report?

Federal Register notice reports that the rule requiring the filing of Form 395-B is now effective.  Really?

According to this morning’s Federal Register, Section 73.3612 – the rule requiring broadcasters to file annual employment reports on Form 395-B – is now in effect.  We’d like to be able to tell you what that means, but we don’t know.

Section 73.3612 was last amended back in 2004.  It requires each AM, FM, TV, Class A TV and International Broadcast station with five or more full-time employees to file Form 395-B by September 30 every year.  (Form 395-B calls for disclosure of the racial, ethnic and gender breakdown of the reporting station’s full-time and part-time staff, according to job category.)  Even though that rule has technically been on the books for nearly nine years already, apparently, it has not previously gone into effect.  According to an “effective date note” that has been appended to the rule since 2004, “[t]his section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget.”  OMB approval of Form 395-B was granted in due course back in 2004, and it has been renewed periodically since then, though a condition was later attached.  In any event, before the 2004 form’s due date, the FCC suspended the filing requirement until further notice.

That explains why you probably haven’t given much thought to annual employment reports lately.

Why has the rule been on ice for nearly nine years?  It’s complicated.

For the last 20-30 years of the last century, the FCC had imposed an annual employment reporting obligation on broadcasters as one element of its Equal Employment Opportunity program.  But in 1998, the U.S. Court of Appeals for the D.C. Circuit tossed the FCC’s EEO rules on constitutional grounds.  The Commission went back to the drawing board and, a couple of years later, came up with a new set of EEO rules, but they didn’t make it past the D.C. Circuit either, again because of constitutional problems.

In 2003 the Commission tried again, more successfully.  Following along in 2004 rules was a reinstitution of Form 395-B, which contemplated further revisions to be based upon a revised form (Form EEO-1 Employer Information Report) which was anticipated from the Equal Employment Opportunity Commission.  But in 2002, Congress had passed the Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA), which imposes some confidentiality limits on an agency’s use of information collected for statistical purposes.  Concerns about confidentiality of Form 395-B data had been expressed, strongly, by broadcasters for several years before then.

Although seemingly disposed not to treat Form 395-B data as confidential, the FCC wasn’t clear on whether CIPSEA might apply to those data, so it put that question out for comment in 2004.  In the meantime, it held off on making any of the new rules effective until further notice.

Despite the fact that Form 395-B was not in use, the Commission revised it again in 2008, as it had been directed by OMB, to conform to changes in the corresponding EEO Form EEO-1.  At that point the FCC asked again for comments on the revised form.  In response, broadcasters again raised confidentiality concerns, but said little about the actual revisions to the form.  Since the form had to be approved by the Office of Management and Budget (thanks to the Paperwork Reduction Act), the matter was also thrashed out before OMB. 

OMB approved the form in 2008, with the following caveat:

OMB approves this collection but FCC should not initiate using or collecting information with Form 395-A or Form 395-B until FCC decides whether the data collected from each form will be held confidential or not on an individual basis. Following such a decision, the Commission should consult with OMB prior to initiating usage of these forms to determine whether the decision regarding confidentiality results in a substantive change to the collections warranting formal review by OMB of the proposed revisions. If the Commission does not consult with OMB prior to initiating usage of these forms, OMB may request under 5 CFR 1320.10(f) for the Commission to submit these collections for formal review prior to their expiration date.

When that 2008 OMB approval expired in 2011, OMB agreed to extend its approval for another three years, but subject to the same condition.

Since the FCC has not, since first posing the question in 2004, ever resolved the confidentiality question, Form 395-B has sat on the shelf, gathering dust.

Until now . . . maybe.  This morning’s Federal Register notice clearly announces the effectiveness of Section 73.3612, which in turn means that broadcasters will, at least theoretically, be required to file Form 395-B this coming September. 

But a couple of factors suggest that that might not really be the case.

First, today’s notice cites OMB approval issued in 2004.  While it’s true that OMB did approve the form in 2004, that approval expired years ago. 

Second and more importantly, the current OMB approval was issued in 2011, and is subject to the condition noted above.  But the FCC, also as noted above, has not to date resolved the pesky confidentiality question, so it’s far from clear that the Commission could claim that Form 395-B can properly be used just yet.

To try to get to the bottom of this conundrum, we called an FCC official who would ordinarily be expected to know about things like this.  He indicated that he had not heard anything about any impending effectiveness of Form 395-B or other related developments and seemed surprised when told about the Federal Register notice.  His surprise arose in particular from the fact that the issue of the confidentiality of the Form 395-B data has yet to be resolved and his acute awareness of the condition on use of the form.

So there you have it.  The Federal Register is telling us one thing while the totality of the public record seems to be telling us another.  Stay tuned for further developments.

EEO: Web-only, Word-of-Mouth-only Recruitment NOT Enough

The Internet may be the go-to place for job-seekers, but the FCC still insists on an Old School approach when it comes to broadcast jobs and EEO.

Despite the fact that the Commission has itself acknowledged, repeatedly, that the Internet is an important, maybe even “critical”, resource for job-seekers, broadcasters with jobs to offer had better not rely on the Internet alone when recruiting for those jobs. If they do, they’re looking at a fine that could run into five digits. Ask a couple of licensees – one in Virginia, one in South Carolina – who just found out the hard way.

The FCC has long required broadcast employment units with five or more full-time employees to recruit broadly for minority and female applicants for all job openings. A report of recruitment efforts, including the referral sources that are notified of openings, must be placed in the public file of all stations in such employment units every year; they must also be posted on the stations’ websites (if they have websites). At the middle of the license term and at renewal time, those employment units must submit reports on their EEO efforts to the Commission. And each year the Commission also conducts random audits of EEO performance.

We have cautioned clients for at least a couple of years that the FCC insists on a broad spectrum of recruitment sources. The classic “word-of-mouth” approach and “referrals from friends” are not enough. And as we wrote just a year ago, the FCC has also cautioned that Internet-based recruitment cannot be relied on alone. (Irony alert: the fact that some businesses accept job applications only via the Internet has been touted by the Commission as a justification for its National Broadband Plan, which includes repurposing TV broadcast spectrum for wireless broadband.)

In the two recent cases (released on the last business day of 2011), the FCC nicked two station groups for $8,000 and $12,000 for inadequate dissemination of recruitment notices for some of their openings. For some, but not all, of their openings the groups had relied on Internet and word-of-mouth to spread the word. Not enough, the Commission announced. Its FCC’s words are direct and speak for themselves (although we’ve highlighted a particularly noteworthy sentence below):

The Licensee’s reliance on non-public sources such as word-of-mouth referrals and its own employee board, did not constitute sufficient recruitment as contemplated under the Commission’s rules, which require public outreach. …While the Commission does not require the use of a specific number of recruitment sources, if a source or sources cannot reasonably be expected, collectively, to reach the entire community, as here, a licensee may be found in noncompliance with the Commission’s EEO Rule. Further, the Commission’s interpretation of the EEO Rule does not allow a licensee to recruit solely from Internet sources to meet the requirement to widely disseminate information concerning the vacancy.   

We have been told over and over again by clients that the Internet is just about the only recruitment source that produces any results and that mailing notices of vacancies to a large list of community organizations is an exercise in futility.  That may be so in the Real World, but on Planet FCC things are apparently different – so the wise licensee will continue to keep a good supply of paper and postage stamps on hand.

Media Bureau Cracks The EEO Whip

Bureau whacks two licensees for $8K and $20K for inadequate recruitment and record-keeping

The Media Bureau celebrated the end of 2010 (or maybe the arrival of 2011) by serving warning that, for every single full-time job opening – no exceptions – broadcasters must notify multiple recruitment sources that are likely to refer applicants from diverse backgrounds. Exclusive reliance on over-the-air announcements and Internet postings will not do the trick.  Neither will reliance on word-of-mouth or unsolicited walk-ins standing alone.  And, of course, all notification activities (and other recruitment minutiae) must be documented in the annual EEO report that stations place in their public inspection file on the anniversary of their renewal application filing.

Happy New Year!

This celebratory heads-up was delivered in Notices of Apparent Liability (NAL) issued to two separate broadcast groups late on December 29.

In one case involving several stations in small Oregon communities, the licensee apparently failed to include its annual EEO public file reports for 2004 and 2005 with its 2005 renewal application. The Bureau wrote to the licensee, asking for those two reports – and oh, by the way, while you’re at it, please send along reports for 2006, 2007 and 2008, too. (The Bureau didn’t get around to asking for any of these reports until 2009. Time, apparently, was not of the essence when it came to processing the 2005 renewal applications.) And although it didn’t ask for the 2009 report, Bureau staffers checked that report out anyway on the licensee’s website. (You do remember that you have to post your most recent annual report on your website, don’t you?)

The reports showed that there were 29 vacancies during the 2003-2009 period. For six the licensee relied only on “walk-in/mail-in” applicants. For another seven, it relied exclusively on postings on Internet websites. For 15, it relied strictly on over-the-air-announcements.  Conclusion? The licensee violated the EEO rule “because it failed to use recruitment sources sufficient to disseminate information concerning the vacancies as required”.  

The licensee also didn’t have records of (a) the number of people it interviewed for each opening or (b) the recruitment source from which each interviewee learned of the opening. (While not every applicant is willing to disclose where he or she learned of an opening, you must ask. This requirement applies only to applicants you interview, not all applicants.)

Total fine: $20,000 – $16K for failing to recruit properly, $1K for failing to keep required records, $2K for incompleteness of public file reports, and another $1K for failing to adequately analyze the effectiveness of recruitment efforts.

The second NAL involved a group of stations in small communities in Missouri picked in 2008 as part of the Commission’s random audit process. During the reporting periods ending in 2006 and 2007, the licensee had 24 vacancies. For three openings, it relied on walk-in applicants; and for one opening each it relied on, respectively, word-of-mouth, a business referral, and an employee referral. The licensee noted that it broadcast “generic recruitment ads that promote different careers in radio and working at [the licensee]”, even when there were no current openings, and walk-in applicants may apply because of these spots. The public file report in one year failed to list job titles of seven vacancies, classifying them as “other”.

Total fine: $8,000 – $5K for failing to recruit properly, $2K for incomplete public file reports, and $1K for inadequate analysis of its recruitment efforts.

Both licensees used on-air or Internet announcements to get the word out about employment opportunities. These recruitment methods are likely to reach a race- and gender-blind audience, and people who want to work at your station are likely to listen to your station. Indeed, we hear from broadcasters all the time that on-air and Internet announcements are the only methods that produce any results. By contrast, mass mailings to organizations supposedly able to spread the word reportedly do little but use up postage and paper.

But to the FCC, it doesn’t matter. You must publicize every full-time opening to a variety of specific sources. There is no requirement that any of these sources ever refer any job applicants (much less any qualified ones), although consistent non-response is supposed to be a reason to look for new sources. Remember as well that any recruitment source that affirmatively requests to be notified must receive notifications of all openings.

Particularly surprising here is the conclusion of the Media Bureau’s EEO enforcers that “reliance on Internet sources is inadequately broad recruitment”.  In view of the Commission’s rabid promotion of broadband as a panacea for just about every conceivable economic problem, it’s difficult to understand why the Media Bureau is pooh-poohing broadband and insisting instead on Last Century approaches which have historically proven ineffective.

No matter. We are headed into a new cycle of broadcast license renewals, which will require EEO showings from all non-exempt licensees. (See below for exemptions.) After an eight-year respite, some stations may have gotten a tad rusty on the EEO front. It’s important NOT to let that happen. When you file your renewal application, you will have to submit your two most recent EEO public file reports. So even if you work extra hard to make your latest report complete, you could still get caught with your pants down if the report from the year before fell short.

While not mentioned in last week’s cases, all non-exempt licensees must also undertake two or four (depending on staff and market size) EEO “initiatives” every two years, drawn from a list of activities set out in the EEO rule (47 C.F.R. Section 73.2080). If you haven’t read that section lately, it would be a very good idea to read it now.

(A note on exemptions. Employment units with not more than four full-time (i.e., at least 30 hours/week) employees are exempt from the EEO recruiting/reporting rules.  “Full-time” means at least 30 hours per week. Employees with a 20% or greater ownership interest in the licensee are not counted in determining staff size. There are no blanket exemptions for low power TV or noncommercial stations.  Radio stations with at least five but no more than ten full-time employees do not have to file a mid-term EEO report (Form 397) between license renewals, but they are still subject to other EEO recruitment and reporting obligations (including the annual public file report).  Stations with religious programming formats need not go through a full-scale recruitment process where a specific faith is a relevant qualification for a particular job, but they are still expected to reach out widely to reach qualified potential applicants for those jobs and must recruit fully for positions where faith is not a relevant qualification.)

[Blogmeister's Note: We have revised the first and eleventh paragraphs of this post to clarify that, at least for the time being, the notification requirement relates only to FULL-TIME positions.  Under the current rules, part-time openings (less than 30 hours per week) are not subject to the recruitment requirement.  However, the FCC at one time proposed to extend the requirement to part-time jobs and may do so in the future.]

Parsing Form 397

Which TV licensees have to file?

Recently, the Minority Media & Telecom Council asked the FCC to suspend enforcement of the EEO rules for three months. (You can read MMTC’s request here; alternatively, you can read our monthly Memo to Clients summary of the request here.) At this point, it’s anybody’s guess as to whether the FCC will grant MMTC’s request – although, frankly, if even MMTC is asking that EEO enforcement be suspended, the Commission really should be wondering what’s wrong with this picture.

But regardless of what the Commission eventually does, it might want to take this opportunity to clean up at least one aspect of its EEO “Broadcast Mid-Term Report” (FCC Form 397) that seems oddly and unnecessarily confusing, if not flat-out inconsistent.

Form 397 is a cute little three-page form. The first page calls on the reporting licensee to provide its name and contact information and identify the stations covered by the report. No real surprises there.

But on page two, Section I consists of the following single yes/no question:

Does your station employment unit employ fewer than five full-time employees, if television, or fewer than eleven full-time employees, if radio?

Not an overly complicated question. Then the form reads:

If yes, you do not have to file this form with the FCC. However, you have the option to complete the certification below, return the form to the FCC, and place a copy in your station(s) public file.

This last instruction raises an obvious question – i.e., who in his right mind would “opt” to file a form that the FCC specifically says does not have to be filed? – but that’s not the problem. Rather, the problem arises from the fact that the “filing instructions” located immediately above Section I include the following:

If a television station employment unit employs fewer than five full-time employees, only the first two pages of this report need be filed.

So does that mean that TV stations with fewer than five have to file a report (even if the report is limited to only two pages), or does it not have to file anything at all (unless, of course, it opts to)?

Oh, and did we mention that the underlying rule (47 C.F.R. §73.2080(f)(2)) provides that

The Commission will conduct a mid-term review of the employment practices of each broadcast television station and each radio station that is part of an employment unit of more than ten full-time employees four years following the station's most recent license expiration date as specified in §73.1020.

Let’s get this straight. If you’re a TV licensee with fewer than five full-timers, according to Form 397 either “you do not have to file this form” or “only the first two pages of this report need be filed”. Huh? And Section 73.2080(f)(2) isn’t much help in sorting this out, since that section could be read to say that mid-term reports are expected from TV stations with more than ten FT employees – even though the 2002 Report and Order adopting the rules makes reasonably clear (check out Paragraph 153) that the Commission intended to limit mid-term EEO reviews to TV stations with five or more FT employees.

There is at least one possible way (see “Suggested Solution”, below) to twist this regulatory Rubik’s cube to make all the seemingly incongruous parts look consistent, but really, would it be that hard for the FCC to take the time to articulate its requirements clearly and consistently in the first place? Sure, we know that the number of TV stations with fewer than five full-time employees may be limited, but is that any excuse for at-best-ambiguous-at-worst-hopelessly-inconsistent forms?

[Suggested Solution:

Step 1: Understand that Section 73.2080(f)(2)’s clause reading “that is part of an employment unit of more than ten full-time employees” refers only to the term “each radio station”, and not to “each broadcast television station”.  That reading is not absolutely dictated by the grammatical structure of the particular sentence in question, but it’s also not clearly foreclosed by it.

Step 2: Since “television station” in Section 73.2080(f)(2) is not modified by the “more than ten” clause (see Step 1), refer back to the prefatory language of Section 73.2080(f). That language limits the reach of that section (including its subsections, such as 73.2080(f)(2)) to employment units with “five or more persons in full-time positions, except where noted”. Thus, the term “television station” as it appears in 73.2080(f)(2) can be read to be limited to TV stations with five or more full-timers. That assumes, of course, that the “except where noted” phrase in the preface is intended to refer to – and except out – the “more than ten” clause in (f)(2). Again, that assumption is not absolutely dictated by the rules’s language, but it’s also not clearly foreclosed by it. 

Step 3:   Assume that the FCC really means it when it says (in Section I of Form 397) that TV licensees with fewer than five FT employees “do not have to file this form with the FCC”.

Step 4: Assume that, when the form’s instructions say that “only the first two pages of this report need be filed” by TV licensees with fewer than five FT employees, it really means that those pages need be filed only if the licensee chooses to go ahead and file a report even though it doesn’t have to.

End result: TV employment units with fewer than five full-time employees need not file any mid-term EEO reports.]

Adventures in EEO-Land

Media Bureau hands out fines for re-hires, over-reliance on Internet recruitment

Following up on audits of the EEO performance of a number of broadcast licensees, the Media Bureau has dished out fines ranging from $3,000 to $12,000 to three licensees for various shortcomings. In addition to the fines, each of the three is also saddled with reporting requirements for the next three-four years – and if any of the stations happen to be sold in the meantime, the buyer will get stuck with the reporting chores. (Good luck explaining to the buyer exactly why he or she should bear that particular cross.) You can read the decisions here, here and here.      

As has been invariably the case for years, the “EEO” miscues at issue did not involve any actual, or even alleged, illegal discrimination. Rather, in each case the licensee failed to jump through various procedural hoops in just the right way. For example, one licensee failed to send out notices of vacancies to two organizations which had asked to be on its mailing list. It also neglected to “retain fully detailed documentation to support the data reported” in its annual EEO report in its public file. That’ll be $3,000, please – be sure to make the check payable to the FCC.

There’s more.

One of the licensees was taken to task for re-hiring a former employee to fill a vacancy without undertaking “sufficient recruitment” for that slot. While the Bureau’s decision provides virtually no description of the particular facts here, it seems strange that the Commission would not view re-hires as a permitted exception to the full-tilt-recruitment-uber-alles approach. After all, the licensee knows the former employee/re-hire candidate and is perfectly situated to know whether that candidate (who is presumably already familiar with the licensee’s operations) is suited for the job. 

Why then go through an elaborate recruitment dance if the result is, reasonably and legitimately, a foregone conclusion?  Don’t bother to try to answer that rhetorical question. (That’s kind of like when positions in government agencies are “posted” as if they’re really open for applications when, in fact, it’s understood by all concerned that the positions have already been filled.)   The fact of the matter is that, according to the Bureau, re-hires without “sufficient recruitment” can get you a $3,000 fine and, possibly, reporting conditions.  Again, just make that check payable to the FCC.

One element common to two of the cases was the fact that each licensee had, in its recruitment for at least one vacancy, relied solely (or at least primarily) on Internet web sites as recruitment sources. Bad idea. 

According to the Bureau, the Commission’s EEO policy “requires a licensee to recruit from non-Internet sources, in addition to any sources from the Internet, in order for its recruitment to sufficiently widely disseminate information concerning the vacancy.”

This neo-Luddite aversion to reliance on the Internet is a throw-back to 2002, when the Commission declined to permit such reliance. Back then, the FCC cautiously promised to “continue to monitor the viability of the Internet as a recruitment source” and to “consider whether future circumstances warranted a change”. Can we all agree that, in the intervening seven years, Internet accessibility has increased dramatically, as has the extent to which everybody – including the FCC itself – relies on the Internet to conduct routine, day-to-day business? (Any doubters out there are invited to go to the FCC’s “Forms” page and count the number of applications and reports that must be filed electronically.) Nevertheless, the Commission apparently doesn’t think that that dramatic increase is a “circumstance[ ] warrant[ing] a change” in its EEO policy. Go figure.

But if you really want to scratch your head, consider this. The Commission’s rules require that each licensee’s EEO public file report be posted on that licensee’s website. And the two guys that got whacked for over-reliance on the Internet? The reporting conditions that they are now subject to (for the next several years) specifically require them to demonstrate to the Commission, each year, that their EEO reports have been duly posted on the Internet.

Let’s get this straight: the Internet is so widespread that it is a matter of regulatory imperative that annual EEO reports must be posted there, but not widespread enough to give the Commission assurance that any interested – and motivated – prospective job applicant would be able to find out about job vacancies posted there. That doesn’t seem to make much sense -- but it’s not clear that sense is necessarily a factor here.

In any event, all broadcast licensees should be aware that the Commission’s EEO enforcement mechanism is still primed to lunge at the capillaries of procedural minutiae, rather than the jugular of actual discriminatory activity.