Remember our article in February about the Federal Communications Commission (“FCC” or the “Commission”) eliminating a requirement for certain broadcast television and radio stations to file a Broadcast Mid-Term Equal Employment Opportunity (EEO) Report (a/k/a Form 397)? If you’re a regular CommLawBlog reader you might have noticed that fact in our monthly deadlines articles too. Now the Form’s date of death has been officially declared as June 5, 2019, because of a notice published in the Federal Register on that date. The Commission concluded “that the requirement to file Form 397 is outdated and unnecessary,” with the information reported in the form already available for the world to see in broadcasters’ online public inspection files (OPIF).
The Federal Register notice also announced that the Office of Management and Budget (OMB) has approved “non-substantive modifications” of other EEO-related OPIF reporting requirements stemming from the demise of Form 397. That means between now and four years from now, at the mid-term of the next round of broadcast radio station licenses, the FCC will add a question in their OPIF system asking licensees to certify, when uploading annual EEO reports, how many full-time employees work at their employment unit. If there’s more than 10 full-timers in a radio station employment unit, or more than 4 in a TV station employment unit, the licensee will still be subject to review of EEO rules compliance during the first half of its 8-year license term. The FCC is required by law to perform a broadcast license mid-term analysis, so it cannot ignore that legislative mandate.
One final note for broadcasters about OPIFs and license renewal applications: Just because you won’t be filing a Form 397 in the future, doesn’t mean that if you forgot to file one in the past you can ignore that when filling out your next license renewal application. One statement in broadcast license renewal applications is “Licensee certifies that the documentation required by 47 C.F.R. Section 73.3526 or 73.3527, as applicable, has been uploaded to the station’s public inspection file as and when required.” Form 397 is included in those cited rule sections. If you didn’t file a Form 397 four years ago and were required to (i.e. you exceeded the threshold for filing because of the size of your full-time staff at that time), you must answer “No” to the renewal application OPIF-compliance certification and explain why in an exhibit to the renewal application. As we mentioned in our article a few months ago about the broadcast license renewal process, the FCC can easily check a station’s OPIFs to see what you filed and when you filed it, so make sure your responses in the license renewal application are 100% accurate.