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.
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.