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Media Bureau staff continues to check station websites for compliance

A couple-three years ago, we warned readers that the staff of the FCC’s Media Bureau appeared to be browsing the websites of broadcast stations, checking for compliance with the EEO rules. Actually the FCC staffers were then apparently checking for compliance with an imaginary EEO requirement that didn’t – and still doesn’t – exist, but the important take-home message was the same regardless: FCC staffers were inspecting broadcasters’ websites.

It appears that that practice continues.

Recently, an FCC staff member emailed us, questioning whether one of our clients had posted its annual EEO report on its website. (As noted below, the rules do require such posting.) The staffer reported that she had been unable to find the report on the site. Happily, we were able to confirm (and demonstrate) that the report had in fact been posted – albeit not necessarily in the most obvious place on the station’s site – and the staffer apparently went away satisfied.

But that encounter prompts us to remind broadcasters that their websites are wide-open for inspection by anybody, including FCC staffers.  And nowadays those staffers are apparently motivated to engage in such inspection in connection with the license renewal process, which is swinging into high gear. (Two batches of renewals have been filed already, with more to come at two-month intervals for the next few years.)

The Commission’s rules currently specify only one type of “public file” document that must be included on a station’s website (assuming, of course, that the station has elected to have a website): the licensee’s most recent annual EEO report, the specs for which may be found in Section 73.2080(c)(6) of the rules. (Obscure regulatory factoid: The public file rule technically still requires that DTV transition education reports – Form 388 – be posted on websites. However, since the retention period for those reports is only one year, and since all but a dozen or so TV stations completed their move to digital more than a year ago and thus no longer have to file Form 388, the continuing impact of that particular requirement is minimal at this point.)

Of course, stations with fewer than five full-time employees are exempt from the annual EEO report requirement. But if you are not exempt, and if you do have a website, it would be a good idea to be sure that your most recent EEO report is posted there. While the rule does not specify how prominently the report is to be posted, it would probably be a good idea to make it pretty darned easy to get to the report from the station’s home page. That should assist FCC staffers in locating the report at your site – thus enabling them to move on to somebody else’s site that much quicker.

Our recent interaction with the staff did not indicate that the FCC is looking to dole out fines to stations that don’t happen to have posted their reports as required. But you never know.

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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?

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Last September we reported that FCC staffers were apparently sitting in the comfort of their cubicles in the Portals, checking out station websites to determine whether stations had posted their Form 397 EEO “Broadcast Mid-Term Report” on-line. After we did some checking, though, we updated that report to advise that, contrary to what had been told to us by a staffer, Form 397 is not required to be posted on the station’s website (although a copy is required to be placed in the station’s local public inspection file). This was confirmed by a supervisory FCC official, so we’re reasonably sure that it’s correct.

What, then, do we make of an email received from an FCC staffmember on January 30, 2009, with the subject line reading “Mid-Term Report (FCC Form 397)/[licensee name omitted here for obvious reasons]” and the content of which read, in its entirety, “A review of the above-noted stations' website shows that the 2007 public file report is still posted.  Please ask the licensee to upload the 2008 report by February 3, 2009.”

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Last month, in a blog posting about apparent FCC monitoring of station websites (to see if stations’ Form 397s – the mid-term EEO report – are being posted on those websites), we indicated that Form 397 is required to be posted on the website of each station required to submit a Form 397. That was based on what a Commission staffer informally told one of our colleagues. That staffer also advised that the staffer’s job activities include on-line checking on whether Form 397s have been posted on stations’ websites.

 We have since done some double- and triple-checking of our own, and as it turns out, the rules do not require Form 397 to be placed on a station’s website. No such requirement of website posting is imposed, implicitly or explicitly, by the public file rules (Section 73.3526 and 73.3527) or by the EEO rule (Section 73.2080). In fact, those rules don’t even require, explicitly or implicitly, that Form 397 be placed in the station’s hard-copy local public inspection file. While the instructions to Form 397 do explicitly state that a copy of the Form 397 “must be kept in the station’s public file”, those instructions say nothing about posting the Form 397 on the station’s website.

Still, as noted above and in our earlier posting, we were advised by the Commission’s staff that they understand that website posting of Form 397 is de rigueur and, moreover, that they are doing their own on-line spot-checks for compliance.

What to do?

We have contacted a senior FCC official whose responsibilities include EEO enforcement. He has confirmed our research: Form 397 is NOT required to be placed on any station’s website. He also assured us that, if there is any misunderstanding on that point among FCC staff, he will correct it right away.

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By now all radio and TV licensees with "station employment units" (SEUs) having five or more full-time employees should be in the habit of preparing the annual EEO report that must be placed in the station's local public inspection file each year on the anniversary of the due date for their renewal application. Those annual reports are also required to be posted on the station's website, IF the station has a website.  Ditto for FCC Form 397, the mid-term EEO report required of TV SEUs with five or more full-timers and radio SEUs with 11 or more full-timers at the mid-point of their license terms.  

One of the miracles of the Internet, of course, is the fact that pretty much anything that's posted there can be viewed by pretty much anybody pretty much anywhere. So it should come as no surprise that we have heard that FCC staffers – sitting in the comfort of their government-issued chairs in beautiful Washington, D.C. (our nation's capital) – have been checking station websites across the country to see whether those websites include FCC Form 397 like they're supposed to. 

So far we have not heard of any fines being issued for any apparent violations detected through this remote investigation technique, but it's probably just a matter of time. You have been warned.

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