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.