[Federal Register: January 7, 2003 (Volume 68, Number 4)]
[Rules and Regulations]
[Page 670-710]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ja03-2]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 73 and 76
[MM Docket No. 98-204; FCC 02-303]
RIN 4223
Review of the Commission's Broadcast and Cable Equal Employment
Opportunity Rules and Policies
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document the Commission adopts a new broadcast Equal
Employment Opportunity (EEO) rule in response to the decision of the
U.S. Court of Appeals for the District of Columbia Circuit in MD/DC/DE
Broadcasters Association v. FCC. The Commission also amends and
modifies their EEO rules for multichannel video programming
distributors (MVPDs). The EEO rules make clear that broadcasters and
MVPDs are not required to employ a staff that reflects the racial or
other composition of the community or to use racial preferences in
hiring. The intended effect is to adopt effective EEO rules for the
broadcasting and MVPD industries.
DATES: Effective March 10, 2003.
FOR FURTHER INFORMATION CONTACT: Lewis Pulley, Media Bureau, (202) 418-
1456 or via e-mail at lpulley@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Media Bureau's
Second Report and Order (``2R&O'') MM 98-204; FCC 02-303, adopted
November 7, 2002 and released November 20, 2002. The complete text of
this 2R&O is available for inspection and copying during normal
business hours in the FCC Reference Center, Room CY-A257, 445 12th
Street, SW., Washington, DC and may also be purchased from the
Commission's copy contractor, Qualex International, Portals II, 445
12th Street,
[[Page 671]]
SW., Room CY-B-402, Washington, DC 20554, telephone (202) 863-2893,
facsimile (202) 863-2898, or via e-mail qualexint@aol.com.
Synopsis of Second Report and Order
I. Introduction
1. In this 2R&O, we adopt a new broadcast equal employment
opportunity (``EEO'') rule in response to the decision of the U.S.
Court of Appeals for the District of Columbia Circuit in MD/DC/DE
Broadcasters Association v. FCC, 236 F.3d 13, rehearing den. 253 F.3d
732 (D.C. Cir. 2001), cert. denied, 122 S.Ct. 920 (2002)
(``Association''). In addition, we amend our EEO rules and policies
applicable to cable operators, and other multichannel video programming
distributors (``MVPDs''), to conform them, as much as possible, to the
broadcast EEO rule. The new broadcast EEO rule and modified EEO rules
for MVPDs, adopted herein, emphasize outreach in recruitment to all
qualified job candidates and ban discrimination on the basis of race,
color, religion, national origin or gender. We are also issuing a Third
Notice of Proposed Rule Making (``3rd NPRM'') requesting comment as to
the applicability of our rules with respect to part-time employees.
II. Background
2. We have administered regulations governing the EEO
responsibilities of broadcast licensees since 1969, and of cable
television operators since 1972. Our responsibilities in this area were
codified with respect to cable television operators in 1984. They were
further codified with respect to television broadcast licensees and
extended to other MVPDs in 1992. In 1998, the U.S. Court of Appeals for
the District of Columbia Circuit held that the Commission's EEO program
requirements for broadcasters were unconstitutional in Lutheran Church-
Missouri Synod v. FCC.
3. In 1998, we issued a Notice of Proposed Rule Making (``NPRM''),
(63 FR 66104, December 1, 1998), for the purpose of adopting EEO rules
for broadcast licensees and MVPDs consistent with the Court's decision
in Lutheran Church. In 2000, we adopted new EEO program requirements
for broadcasters, Report and Order (``R&O''), (65 FR 7448, February 15,
2000). Substantially the same program requirements were applied to
MVPDs. The Commission explained that the new rules required more ``than
merely refraining from discrimination.'' They also required
broadcasters and MVPDs ``to reach out in recruiting new employees
beyond the confines of their circle of business and social contacts to
all sectors of their communities [because] * * * repeated hiring
without broad outreach may unfairly exclude minority and women job
candidates * * * .'' The Commission concluded that nondiscrimination in
hiring was not enough when not all potential applicants have had a fair
opportunity to apply. ``Outreach in recruitment must be coupled with a
ban on discrimination to effectively deter discrimination and ensure
that a homogenous workforce does not simply replicate itself through an
insular recruitment and hiring process.''
4. The new rule contained two primary requirements--a prohibition
on discrimination based on race, color, religion, national origin or
gender in hiring, and a requirement that broadcasters reach out in
recruiting new employees to ensure that all qualified individuals had
an opportunity to apply for and be considered as job candidates. The
core of the recruitment requirement was that broadcasters widely
disseminate information concerning all job vacancies. The Commission
concluded that this basic requirement ``is essential to meaningful
outreach.'' The Commission left it largely to broadcasters' discretion
concerning how they would fulfill this requirement, so long as their
procedures were sufficient to ensure wide dissemination of information
about all job openings to the entire community.
5. In addition to the basic requirement of wide dissemination of
information concerning job openings, the new rule provided broadcast
licensees with two recruitment options. Under ``Option A,'' they were
required to undertake two types of supplemental recruitment measures.
The first measure required licensees to provide notification of job
vacancies to any recruitment organization that requested such notice
from the broadcaster. The second supplemental measure under Option A
required broadcasters to participate in additional recruitment
activities beyond the traditional recruitment that occurs with
individual vacancies. These additional measures were to be selected
from an open-ended menu of types of activities that included: Job
fairs, job banks, scholarship programs, and community events related to
employment opportunities in the industry, among others. Broadcasters
were permitted to comply with the supplemental requirement by
participating in activities other than the listed ones so long as they
were designed to disseminate information about employment opportunities
to candidates who might otherwise not learn of them. Broadcasters who
selected Option A were required to maintain, but not routinely submit
to the Commission, records documenting their compliance with the wide
dissemination and supplemental recruitment requirements.
6. The Commission also adopted an ``Option B'' for recruitment that
permitted licensees to forego the supplemental recruitment measures
required under Option A and to design their own outreach program to
suit their needs, as long as they could demonstrate that their program
is inclusive, i.e., that it widely disseminated job vacancies
throughout the local community. The court held, however, that Option B
was unconstitutional under the equal protection component of the Due
Process Clause of the Fifth Amendment. The Commission filed for hearing
and rehearing en banc, arguing that Option B was not essential to
achieving its goal of ensuring that broadcasters engage in broad
outreach in recruiting new employees and that it had made plain its
intent that Option B be severable. The court denied rehearing.
7. We issued the Second Notice of Proposed Rulemaking (``2NPRM''),
(67 FR 1704, January 14, 2002) to request public comment on the
adoption of new broadcast and MVPD EEO rules consistent with
Association. An En Banc open hearing on the proposed rules was held
before the full Commission on June 24, 2002. Having reviewed the
suggestions contained in the comments submitted, both in writing and at
the En Banc hearing, we are adopting new EEO rules that consist
primarily of the elements of our former rules that the Court upheld as
constitutional in Association, with modifications.
III. Summary
8. In this order, we adopt new outreach requirements applicable to
broadcast and MVPDs. We are also retaining the nondiscrimination rules
applicable to broadcasters and MVPDs.
9. The following is a summary of the three-pronged outreach
requirement we are adopting as it relates to broadcasters:
Prong 1: Widely disseminate information concerning each full-time
(30 hours or more) job vacancy, except for vacancies filled in exigent
circumstances;
Prong 2: Provide notice of each full-time job vacancy to
recruitment organizations that have requested such notice; and
Prong 3: Complete two (for broadcast employment units with five to
ten full-
[[Page 672]]
time employees or that are located in smaller markets) or four (for
employment units with more than ten full-time employees located in
larger markets) longer-term recruitment initiatives within a two-year
period.
The following is a summary of recordkeeping and reporting
requirements:
(a) Collect, but not routinely submit to the Commission: (i)
Listings of all full-time job vacancies filled by the station
employment unit, identified by job title; (ii) for each such vacancy,
the recruitment sources used to fill the vacancy (including, if
applicable, organizations entitled to notification, which should be
separately identified), identified by name, address, contact person and
telephone number; (iii) dated copies of all advertisements, bulletins,
letters, faxes, e-mails, or other communications announcing vacancies;
and (iv) documentation necessary to demonstrate performance of the
Prong 3 menu options, e.g., job fairs, mentoring programs; (v) the
total number of interviewees for each vacancy and the referral source
for each interviewee; and (vi) the date each job was filled and the
recruitment source that referred the hiree.
(b) Place in the station public file annually a report including
the following: (i) A list of all full-time vacancies filled during the
preceding year, identified by job title; (ii) recruitment source(s)
used to fill those vacancies (including organizations entitled to
notification of vacancies pursuant to Prong 2), including the address,
contact person, and telephone number of each source; (iii) a list of
the recruitment sources that referred the people hired for each full-
time vacancy; (iv) data reflecting the total number of persons
interviewed for full-time vacancies during the preceding year and the
total number of interviewees referred by each recruitment source; and
(v) a list and brief description of Prong 3 menu options implemented
during the preceding year.
(c) Submit the station's EEO public file report to the Commission
as part of the renewal application and midway through the license term
for the Commission's mid-term review for those stations subject to mid-
term review (television stations with five or more full-time employees
and radio stations with more than ten full-time employees). EEO public
file reports for the preceding two year period will be required because
broadcasters have two years in which to complete the Prong 3 menu
options. Broadcasters must also post the current EEO public file report
on their web site, if they have one.
10. The same requirements will apply to MVPDs, except as necessary
to comply with different statutory requirements. The Commission is also
required to certify that MVPD employment units are in compliance with
the EEO requirements on an annual basis. To comply with the Prong 3
requirements, MVPD employment units with six to ten full-time employees
and employment units located in smaller markets will be required to
undertake one recruitment initiative each year and larger employment
units located in larger markets two recruitment initiatives per year.
MVPD employment units are not subject to a renewal process at the
Commission. Pursuant to section 634(e)(2) of the Communications Act,
the Commission is required to conduct a more thorough review of each
cable employment unit's EEO compliance every five years. Hence, MVPDs
with six or more full-time employees will submit a copy of their most
recent EEO public inspection file report to the Commission every five
years.
11. The Commission has implemented the MVPD annual reporting
requirement under section 634 by FCC Forms 395-A (cable operators) and
395-M (other MVPDs). We will create a new Form 396-C for all MVPDs that
will encompass the same information concerning the unit's EEO outreach
efforts that was formerly required in FCC Forms 395-A and 395-M. The
prior forms were also used to collect data concerning the race/
ethnicity and gender of the unit's workforce. The form we are adopting
today will not encompass such data because, as indicated below, we will
defer action on the collection of workforce data.
12. We are not acting at this time on issues raised in the 2NPRM
concerning the broadcast annual employment report (FCC Form 395-B),
which has in the past been used to collect data concerning the
workforces of broadcast employment units, including data concerning the
race/ethnicity and gender of those workforces. We are similarly not
acting on a comparable form for MVPDs. The Office of Management and
Budget (``OMB'') adopted new standards for classifying data on race and
ethnicity in 1997 that must be incorporated in any such forms beginning
in 2003. We must incorporate these new standards in our future forms.
In addition, a party has raised issues concerning the collection and
processing of the forms. Because the employment reports are filed on
September 30 of each year, the next reports would not be due earlier
than September 30, 2003.
IV. Discussion
A. Statutory Authority for EEO Program Requirements and Anti-
Discrimination Rules
1. EEO Rules Applicable to Multichannel Video Programming Distributors
13. The Commission is explicitly authorized by section 634 of the
Communications Act to adopt and enforce the MVPD EEO rules. Indeed,
section 634 requires us to enforce EEO rules for MVPDs.
14. Although the Commission is required by section 634 to enforce
EEO ruless for the MVPD industry, Congress built into section 634
flexibility by allowing the Commission to implement MVPD EEO rules by
rulemaking rather than simply prescribing MVPD EEO requirements by
statute; by stating in section 634(d)(2) that the ``rules shall specify
the terms under which'' an entity shall take the actions specified in
that section; and by providing in section 634(d)(4) that the Commission
may amend the MVPD EEO rules ``from time to time to the extent
necessary to carry out the provisions of this section.'' Our rulemaking
authority, particularly under sections 634(d)(2) and 634(d)(4), permits
us to adopt new, race-neutral outreach requirements and to revise the
FCC Forms filed by MVPDs to make them consistent with our modified
broadcast EEO rules.
15. Section 634(d)(2) obligates the Commission to implement the
listed requirements only ``to the extent possible,'' consistent with
other conflicting requirements or limitations. The court's decision in
Association delineates constitutional limitations with which we must
reconcile the MVPD EEO rules. We believe that section 634(d)(2) permits
the Commission to eliminate those provisions of the MVPD EEO rules that
are similar to those struck down by the court in Association because it
is not ``possible'' for the Commission to enforce a provision that a
court has found unconstitutional. We modify the MVPD EEO rules in this
2R&O to remove provisions similar to those found unconstitutional in
Association. We also revise the forms filed by MVPDs to conform them
with our modified rules.
2. EEO Rules Applicable to Broadcasters
16. In 1992, Congress enacted section 334 of the Communications Act
as part of the Cable Television Consumer Protection and Competition Act
of 1992, Pub. L. 192-385, 106 Stat. 1460 (``1992
[[Page 673]]
Cable Act''). Section 334 provides that ``the Commission shall not
revise:''
(1) The regulations concerning equal employment opportunity as in
effect on September 1, 1992 (47 CFR 73.2080) as such regulations apply
to television broadcast station licensees and permittees; or
(2) The forms used by such licensees and permittees to report
pertinent employment data to the Commission, 47 U.S.C. 334(a).
The Conference Report accompanying this legislation indicates that
section 334 ``codifies the Commission's equal employment opportunity
rules, 47 CFR 73.2080'' for television licensees and permittees.
Section 334 thus grants the Commission explicit authority to regulate
the EEO practices of television broadcasters. Section 334 was enacted
as part of section 22 of the 1992 Cable Act, which sets forth
Congressional findings that, despite existing FCC EEO rules, there were
few women and minorities in managerial positions in the MVPD and
broadcast industries; that increased employment of women and minorities
in managerial positions will advance the national policy favoring
diversity of viewpoints in the electronic media; and that rigorous
enforcement of EEO rules is required to effectively deter racial and
gender discrimination.
a. Congressional Ratification
17. The Commission has maintained nondiscrimination and EEO program
requirements for broadcasters for more than 30 years. In 1968, the
Commission concluded that the national policy against discrimination
and the fact that broadcasters are licensed under the Communications
Act to operate in the public interest required the Commission to
consider allegations of employment discrimination in licensing
broadcast stations. In 1969, the Commission adopted rules prohibiting
broadcast stations from discriminating against any person in employment
on the basis of race, color, religion, or national origin, and
requiring stations to maintain a program designed to ensure equal
opportunity in every aspect of station employment. It reiterated its
view that discriminatory employment practices are incompatible with a
station's obligation to operate in the public interest, and relied on
sections 4(i), 303, 307, 308, 309 and 310 in adopting the new rules.
Relying on its authority to license and regulate broadcasters in the
public interest, the Commission has revised and extended its rules on
numerous occasions since 1969 to, inter alia, refine its EEO program
requirements, require licensees to file information concerning these
programs and other statistical employment information with the
Commission, and prohibit discrimination against, and require outreach
to, women.
18. Over the last 30 years, the Commission has vigorously enforced
its EEO requirements, sanctioning broadcast licensees in numerous cases
for failing to comply fully with those requirements. Commission
decisions enforcing the EEO requirements have been challenged both by
licensees who have been sanctioned for noncompliance and by petitioners
who believed that Commission enforcement was not vigorous enough.
Indeed, the Court of Appeals for the DC Circuit held more than 20 years
ago that the Commission must investigate broadcasters' employment
practices and, in assessing the character qualifications of broadcast
licensees, consider whether they have engaged in intentional employment
discrimination. And the Supreme Court observed in the seminal case
addressing the scope of an agency's authority to serve the ``public
interest'' that FCC regulation of the employment practices of its
licensees ``can be justified as necessary to enable the FCC to satisfy
its obligation under the Communications Act of 1934 * * * to ensure
that its licensees' programming fairly reflects the tastes and
viewpoints of minority groups.''
19. During the three decades that the Commission has administered
EEO program requirements and nondiscrimination rules, Congress has
repeatedly expressed awareness of the rules and has not only acquiesced
in them, but has also referred to them approvingly, confirming our view
that the Commission has statutory authority to promulgate these rules.
Congress has ratified the Commission's authority to adopt and enforce
EEO requirements against broadcasters under its statutory mandate to
license and regulate broadcasters in the public interest.
20. In 1984, Congress enacted section 634 of the Communications Act
as part of the Cable Communications Policy Act of 1984, Pub. L. 98-549,
98 Stat. 2779 (``1984 Cable Act''). Although the Commission at that
time already had rules in place regulating the EEO practices of cable
operators as well as broadcasters, section 634 was intended to
``codif[y] and strengthen[] the Commission's existing equal employment
opportunity regulations.'' Section 634 granted the Commission broad
authority to adopt rules banning employment discrimination by cable
operators and requiring cable operators to ``establish, maintain, and
execute a positive continuing program of specific practices designed to
ensure equal opportunity in every aspect of its employment policies and
practices * * *.''
21. The legislative history of section 634 makes it unmistakably
clear that Congress believed that the Commission already possessed
authority to regulate the EEO practices of mass media entities--
broadcast as well as cable. The House Commerce Committee Report on the
bill proposing the provisions on which section 634 was based explicitly
confirmed the Commission's authority to adopt EEO rules. The House
Commerce Committee stated:
(1) It is well established that the Commission has the authority
to regulate employment practices in the communications industry.
Among the Commission's efforts in the equal employment opportunity
(EEO) area over the last several years has been the enforcement of
employment standards in the cable industry. Section 634 endorses and
extends those standards.
(2) Because of the potentially large impact cable programming
and other services provided by the cable industry has on the public,
the employment practices of the industry have an importance greater
than that suggested by the number of its employees. The committee
strongly believes that equal employment requirements are
particularly important in the mass media area where employment is a
critical means of assuring that program service will be responsive
to a public consisting of a diverse array of population groups.
22. In addition to the explicit recognition of the Commission's
broad and ``well established'' authority to regulate employment
practices in the communications industry, the legislative history of
section 634 shows that Congress viewed the legislation as codifying,
strengthening and building upon the Commission's pre-existing
regulatory scheme, which it viewed as well within the Commission's
statutory authority.
23. Additional evidence of congressional ratification can be found
in the Cable Television Consumer Protection and Competition Act of
1992, which further strengthened the cable EEO requirements, extended
those requirements to all MVPDs, and codified the Commission's EEO
program and nondiscrimination requirements as applied to broadcast
television licensees. Congress once again explicitly acknowledged the
existence of the Commission's broadcast and cable EEO requirements and
proclaimed that vigorous enforcement of those rules served the public
interest. Congress made the following findings in section 22(a) of the
1992 Cable Act:
(1) Despite the existence of regulations governing equal
employment opportunity,
[[Page 674]]
females and minorities are not employed in significant numbers in
positions of management authority in the cable and broadcast
television industries;
(2) Increased numbers of females and minorities in positions of
management authority in the cable and broadcast television
industries advances the Nation's policy favoring diversity in the
expression of views in the electronic media; and
(3) Rigorous enforcement of equal employment opportunity rules
and regulations is required in order to effectively deter racial and
gender discrimination.
By extending the cable EEO requirements to every entity that
provides multiple channels of video programming, such as MMDS operators
and DBS licensees, Congress was building upon and closing the gaps in
the Commission's regulatory scheme, ensuring that every electronic mass
media provider would be subject to EEO regulations enforced by the
Commission.
24. The 1992 Cable Act not only strengthened and extended the cable
EEO requirements, it also codified the Commission's EEO requirements
for broadcast television stations in section 334 of the Act. Section
334 thus explicitly recognizes the existence of the Commission's
broadcast EEO rule and requires the Commission to keep its EEO
requirements in effect for television broadcasters.
25. Section 22(g) of the 1992 Cable Act required the Commission to
report to Congress within two years on ``the effectiveness of [the
Commission's] procedures, regulations, policies, standards, and
guidelines in promoting the congressional policy favoring increased
employment opportunity for women and minorities in positions of
management authority.'' The Commission was required to include in that
report ``such legislative recommendations to improve equal employment
opportunity in the broadcasting and cable industries as it deems
necessary.'' Congress would not have directed the Commission to review
the effectiveness of its broadcast and cable EEO policies and
regulations then in effect, and recommend whether further legislative
action was necessary, had Congress not believed that those policies and
regulations were within the Commission's lawful authority. Section
22(g) is further evidence of Congress's affirmative approval of the
Commission's authority to adopt equal employment opportunity
requirements for broadcasters.
26. There is another compelling reason to find in the current
statutory context that Congress has ratified our authority to regulate
the EEO practices of broadcasters. The Supreme Court has held on
numerous occasions that courts should interpret a statute ``as a
symmetrical and coherent regulatory scheme'' and ``fit, if possible,
all parts into an harmonious whole.'' In interpreting statutes granting
administrative or judicial jurisdiction, the Supreme Court has held
specifically that any interpretation of congressional intent that will
result in a ``bizarre jurisdictional patchwork'' is to be disfavored
absent legislative history or a persuasive functional argument to the
contrary. In this case, Congress has explicitly granted the Commission
authority to regulate the EEO practices of television broadcasters,
cable operators, and all other MVPDs, including such relative newcomers
as DBS and MMDS operators. Thus, rejecting the inference of
congressional ratification would leave us in the anomalous situation of
having jurisdiction to regulate the EEO practices of broadcast
television and MVPDs, but not radio broadcasters. There is no
indication in the legislative history that this was Congress's intent
and none of the broadcasters commenting in this proceeding even
attempts to explain why Congress would have intended such a result.
27. The Commission since 1969 has interpreted the Communications
Act's grant of authority to license and regulate broadcasters as the
public interest, convenience and necessity require as authorizing the
Commission to regulate the equal employment practices of broadcasters.
Specifically, it has interpreted the statute as granting it authority
to prohibit broadcast stations from engaging in employment
discrimination and to require them to maintain programs designed to
ensure equal opportunity in all aspects of station employment,
including recruitment. It is that interpretation of the scope of the
Commission's statutory authority under the Communications Act that
Congress has ratified over the course of many years.
B. Broadcast and MVPD EEO Rules, Policies, and Forms
1. Anti-Discrimination Provisions
28. In the 2NPRM we proposed to retain the nondiscrimination
provisions of our broadcast and MVPD EEO rules. We noted that the anti-
discrimination provision of the broadcast EEO rule, Sec. 73.2080(a),
was not challenged in Association. Nonetheless, in rejecting the
contention that the unlawful Option B could be severed from the EEO
rule, the court stated that the ``entire rule'' must be vacated. In
order to avoid any confusion arising from the language in the court's
decision, we recodify the nondiscrimination requirement.
Nondiscrimination is an essential component of every licensee's
obligation as a trustee of a valuable public resource. In Bilingual
Bicultural Coalition on Mass Media, Inc. v. FCC, the court stated that
``[a] documented pattern of intentional discrimination would put
seriously into question a licensee's character qualifications to remain
a licensee: intentional discrimination almost invariably would
disqualify a broadcaster from a position of public trusteeship.''
Finally, we are required by statute to prohibit discrimination by
broadcast television licensees and MVPDs.
29. As proposed in the 2NPRM, we will retain our policy of
generally deferring action on individual complaints of employment
discrimination against broadcasters and MVPDs pending final action by
the Equal Employment Opportunity Commission (``EEOC'') or other
government agencies and/or courts established to enforce
nondiscrimination laws. We will also retain the discretion to take
action, notwithstanding the absence of a final decision by the EEOC or
other agency/court, where the facts of a particular case so warrant. As
indicated in the R&O, our policy generally reflects the fact that
Congress intended the EEOC to be primarily responsible for the
resolution of discrimination complaints and our separate adjudication
of such complaints could result in duplicative or inconsistent
decisions.
30. The rule adopted by the R&O defined a ``religious broadcaster''
as ``a licensee which is, or is closely affiliated with, a church,
synagogue, or other religious entity, including a subsidiary of such an
entity, 47 CFR 73.2080(a).'' In the R&O, we clarified that, in the
event of a controversy, we would determine on a case-by-case basis
whether a licensee was a religious broadcaster by considering such
factors as whether it operates on a non-profit basis, whether it has a
distinct religious history, whether the entity's articles of
incorporation set forth a religious purpose, and whether it carried
religious programming.
2. Broadcast EEO Program Requirements
a. Rules and Policies
i. General Considerations
31. Several broadcast commenters have challenged the basis for our
adopting any EEO rule for broadcasters. Initially, they seek to
characterize our proposals in the 2NPRM as constituting ``re-
regulation.'' In fact, we have never
[[Page 675]]
``de-regulated'' in this area; the court decisions that have
invalidated various aspects of our EEO rules have been premised on
specific legal defects found in our programs, not on a finding that
nondiscrimination rules or outreach requirements are unnecessary.
32. First, our concern is not limited to intentional
discrimination. It is not based on Constitutional provisions or on
Title VII, but on the public interest standard in the Communications
Act. In adopting the Cable TelevisionConsumer Protection and
Competition Act of 1992 (``Cable Act''), Congress expressly found in
pertinent part: ``Rigorous enforcement of equal employment opportunity
rules and regulations is required in order to effectively deter racial
and gender discrimination.'' Congress has made it clear that the public
interest standard is sufficiently broad to cover not only intentional
discrimination, but also discrimination that may arise as a result of
practices and policies that are not intentionally discriminatory.
Further, our policy is not limited to imposing sanctions in response to
specific past discrimination; it is also intended to deter
discrimination in the first instance. Our policy is designed to prevent
both intentional and unintentional discriminatory practices in the
broadcast and MVPD industries, and to ensure equal opportunity in
employment practices, including recruitment.
33. Second, it is not necessary to find that the broadcast industry
``as a whole'' has engaged in discrimination in order to justify
regulations to prevent discrimination. We do not suspect that the
entire broadcast industry, or even most of it, engages in intentional
or unintentional discrimination.
34. Third, although we commend the broadcast associations for the
various activities detailed in their comments, they do not demonstrate
that an EEO rule is unnecessary.
35. Some broadcasters support the adoption of an EEO rule. Our
proposed EEO requirements also are generally supported by the MVPD
industry.
36. Discrimination may be easy to hide and difficult to prove.
Allegations of discrimination may never be fully litigated because a
violator will elect to settle any litigation before it reaches the
stage of a final judgment. It is thus impossible to quantify reliably
the extent of actual discrimination that exists today.
37. Many of the opponents of our EEO program cite language from the
2R&O that ``[o]utreach in recruitment must be coupled with a ban on
discrimination to effectively deter discrimination and ensure that a
homogenous workforce does not simply replicate itself through an
insular recruitment and hiring process.'' These parties contend that
the broadcast workforce is not homogeneous and that it does not employ
insular recruitment and hiring practices to replicate itself. The cited
language was intended to explain why outreach in recruitment as well as
a ban on discrimination is necessary to deter discrimination. We did
not intend to suggest that every broadcast station has a homogeneous
workforce. We recognize that in many significant respects the industry
has become more diverse over the past decades. We attribute this in
large measure to the fact that the industry has been subject to our
various EEO requirements since 1969.
38. We accordingly conclude that adoption of new outreach rules for
broadcast and MVPDs is supported by the record in this case. The
evidence in this proceeding demonstrates an ongoing need to deter
discrimination and ensure equal employment opportunity in the
broadcasting and MVPD industries. Moreover, Congress has made clear its
intention that we should enact EEO rules for the broadcast and MVPD
industries.
39. Finally, as noted, our primary goal in adopting EEO program
requirements is to ensure broad outreach in recruitment for broadcast
and MVPD employment vacancies. We seek to do so in a manner that
affords some flexibility to affected industries. The regulations we are
adopting today provide sufficient flexibility. Entities will have broad
discretion as to the type of recruitment sources they will use, the
number of recruitment sources they will use, and the Prong 3 menu
options they will implement. We are also providing that entities in
smaller markets may implement fewer menu options than those in larger
markets.
ii. EEO Program and Related Provisions
40. In the 2NPRM, we proposed a three-prong EEO program requirement
designed to ensure equal opportunity to all potential applicants,
including all races and both genders, without infringing on the rights
of any group. The rules were further designed to be flexible enough to
avoid imposing an undue burden and to apply reasonably and effectively
to broadcasters and MVPDs in differing circumstances. Based on our
review of the comments, reply comments and other presentations filed in
this proceeding, we adopt the proposed program, with some
modifications.
41. Outreach Prong 1--Recruitment for All Full-time Vacancies. We
will adopt the requirement that broadcasters recruit for all full-time
vacancies, except in exigent circumstances. Recruitment for
substantially all vacancies using sources designed to achieve broad
outreach is necessary to ensure that all segments of the population
have an equal opportunity to compete for broadcast (and MVPD)
employment and that no segment is subjected to intentional or
unintentional discrimination.
42. The effectiveness of our requirements in the past does not
justify eliminating them now. Nor can we justify such a conclusion
based on recent outreach efforts by the broadcast industry commendable,
given that this has been an area under high scrutiny for some time. We
can draw no inference from these facts; therefore, regarding the likely
behavior of licensees in the absence of any current on proposed EEO
program. Second, our requirements provide sufficient flexibility to
design recruitment programs appropriate for different positions and
circumstances.
43. In the 2NPRM, we recognized that there might be occasional
exigent circumstances in which recruitment may not be feasible. We
cited as an example the need to replace immediately an employee who
departs without notice and whose duties cannot be fulfilled, even
briefly, by other station employees. We stated in the R&O that we could
not anticipate every circumstance which might justify filling a
position without recruitment and indicated that we would rely on the
good faith discretion of broadcasters. We nonetheless cautioned that we
expected nonrecruited vacancies to be rare relative to the number of
vacancies for which recruitment is conducted, because our rule
generally requires recruitment for every vacancy. We will incorporate
this approach in our new rules.
44. The requirement that broadcasters recruit for every full-time
vacancy, unless exigent circumstances exist, will become a component of
our rule. Recruitment for only some openings could leave the most
desirable positions open to a limited number of potential applicants,
possibly excluding significant segments of the community. We will
require that broadcasters develop and use for each vacancy a
recruitment source or list of recruitment sources (which may be freely
modified as circumstances warrant) sufficient to ensure wide
dissemination of information about the opening. We will not dictate the
number or type of sources that a broadcaster must use. If, however, the
source or sources used cannot reasonably be expected,
[[Page 676]]
collectively, to reach the entire community, the broadcaster may be
found in noncompliance with our EEO rule. A broadcaster may widely
disseminate job postings through any combination of methods sufficient
to ensure that its recruitment efforts are inclusive. Broadcasters may
contact the FCC's EEO staff with any questions on this matter. We also
clarify that the same recruitment sources need not be used for every
hire. We do not require licensees to use recruitment sources that, in
their good faith judgment, are unlikely to elicit responses from
qualified applicants in light of the demands of a particular job. We do
expect them, however, to use whatever recruitment source or sources can
reasonably be expected to widely disseminate notice of the vacancy to
qualified applicants. Although our rule seeks to achieve broad outreach
to the community, this does not preclude the use of regional or
national recruitment sources. We will accordingly give consideration to
a broadcaster's use of such sources in assessing its EEO record.
Whatever sources a licensee uses, however, or whatever a licensee's
perception is regarding whether anyone in its community is qualified
for a unique job, we are requiring that sources reach qualified
potential applicants in the licensee's community. Licensees are not
permitted to target any group in the community for exclusion from the
recruitment process.
45. With reference to the definition of community for purposes of
the broad outreach requirement, we proposed in the 2NPRM to define
``community'' as encompassing, at a minimum, the county in which a
station is licensed or MVPD employees are primarily located, or the
Metropolitan Statistical Area (``MSA'') in the case of counties located
in an MSA. We will instead define ``community'' for the purpose of the
broad outreach requirement in accordance with the approach taken in the
Recon, (Memorandum Opinion and Order, 65 FR 76948, December 8, 2000).
There, we left the definition of ``market'' or ``community'' to the
licensee's good faith discretion. We indicated, that in making this
determination, a broadcaster should assess the technical coverage of
its station(s); its marketing, promotional, and advertising practices;
the pertinent market definitions adopted by public agencies or
commercial services, such as Nielsen and Arbitron; and requests for
notices of job vacancies from locally-based community groups. We will
adopt the same policy for purposes of our new rule. (Although we are
according discretion regarding the definition of ``community,'' we
expect broadcasters to be able to provide a reasonable explanation for
their determinations should it become pertinent. We would be concerned
if the circumstances suggested that a broadcaster is unreasonably
defining its community in a manner that excludes certain areas or
populations that it clearly does serve.)
46. We require only that EEO recruitment sources be reasonably
calculated to reach the entire community. We do not require that
broadcasters demonstrate that any particular segment of the community
actually was aware of any vacancy. Nor do we require that recruitment
be targeted to a specific segment or that broadcasters prove that they
obtained a response from a particular segment. Prong 1 neither requires
nor precludes the use of any number or type of sources a broadcaster
deems appropriate to achieve broad outreach. Further, we leave the
definition of ``community'' to the licensee's good faith discretion. We
also recognize that it is difficult for licensees to recruit for
vacancies in exigent circumstances. Thus, Prong 1 allows broadcasters
flexibility in implementing appropriate recruitment programs for their
individual circumstances.
47. Notwithstanding the greater availability of job-related
Internet sites, the record does not reflect the extent to which the
Internet has become well known as a principal resource for job seekers
or the nature of any difficulties that Internet recruitment would
create. We anticipated in the R&O that we would be able to assess the
extent of any such difficulties based on our experience under the rules
adopted therein. Because those rules were in effect for only a few
months, we do not have the experience necessary to reach definitive
conclusions in that respect.
48. With regard to the access of minority and rural populations to
the Internet, our concerns arose from a series of reports by the
National Telecommunications and Information Administration (``NTIA'')
in 1995, 1998 and 1999.
49. Proponents of the use of the Internet as a sole recruitment
source cite the improvements reflected in NTIA's 2002 report. Although
the NTIA 2002 report shows increases in Internet usage, the report also
indicates continuing disparities in usage among different segments of
society. Indeed, only about half of all U.S. households had Internet
service as of September 2001, and only slightly more than half of
individuals used the Internet from any location. We are unable to
conclude that Internet usage has become sufficiently widespread to
justify allowing it to be used as the sole recruitment source. As we
indicated in the R&O, we will continue to monitor the viability of the
Internet as a recruitment source and will consider petitions seeking to
demonstrate in the future that circumstances have changed sufficiently
to warrant a change in our policy.
50. As indicated in the R&O, we expect broadcasters to allow a
reasonable time after recruitment is initiated for applications to be
filed before the position is filled. We recognize that occasionally a
shorter time might be necessary because of extraordinary circumstances.
We caution that excessive instances of hires being made shortly after
the initiation of recruitment could result in a finding of
noncompliance if the evidence suggests that the broadcaster is not in
good faith allowing adequate time for applicants to respond to its
outreach efforts or is not considering their applications. Also, it is
not the intention of our rule to prohibit word of mouth recruitment.
Our purpose is to ensure that word-of-mouth recruitment practices are
not the sole method of recruitment and that all members of the public
have an opportunity to compete for available jobs. Broadcasters are
free to use non-public recruitment sources and to interview and hire
persons referred by such sources, so long as they also use public
recruitment sources sufficient to achieve broad outreach and fairly
consider the applications generated by those sources.
51. We will continue our policy stated in the R&O that broadcasters
may engage in joint recruitment efforts. Broadcasters may also rely
upon the services of outside organizations or individuals to assist it
in designing or implementing their recruitment efforts. Each
broadcaster (or MVPD) remains individually responsible for compliance
with our rule. No broadcaster (or MVPD) is required to use the services
of an outside party.
52. We will not require recruitment for internal promotions, nor
will we require recruitment for temporary employees. Typically, we view
temporary employees as including those hired as emergency replacements
for absent regular employees or those hired to perform a particular job
for a limited period of time. If a person is hired full-time to perform
a regular station function for an extended period of time (e.g., more
than six months), such a hire will be treated as a permanent hire for
which recruitment would be required. We recognize that some
broadcasters may wish to hire employees initially on
[[Page 677]]
a temporary basis with the possibility of retaining them on a permanent
basis if their performance is satisfactory. In such circumstances, if
recruitment is done at the time of the temporary hire, any later
decision to convert the employee's status to full-time in the same, or
essentially the same, job may be treated as a promotion. If an employee
is hired as a temporary employee without recruitment, recruitment
should occur if the employee is later considered for a permanent
position. We caution that excessive instances of temporary hires being
converted to permanent hires, without a meaningful opportunity for
recruited applicants to compete, could result in a finding of
noncompliance. (If an employee is hired with the expectation that
successful completion of an initial probation will result in an
eventual elevation to permanent status, we would not regard that as a
temporary hire and would expect regular recruitment for that position.)
53. We will continue to define ``full-time employee'' as a
permanent employee whose regular work schedule is thirty hours or more
per week. In the Recon, we indicated that, as in the case of temporary
hires, if a part-time employee is initially hired after broad outreach
to all segments of the community, the decision subsequently to convert
him or her to full-time in the same, or essentially the same, job may
be treated as a promotion. If the broadcaster did not engage in full
recruitment at the time of the initial part-time hire it would have to
recruit before converting the employee to full-time. Also, as in the
case of temporary hires, excessive instances of temporary hires being
converted to permanent hires without a meaningful opportunity for
recruited applicants to compete could result in a finding of
noncompliance. We will apply the same policy under the rule being
adopted today.
54. Outreach Prong 2--Notification to Community Groups. Under the
Option A rules adopted in the R&O, we required that broadcasters and
MVPDs provide notification of full-time job vacancies to organizations
involved in assisting job seekers upon request by such organizations.
We will incorporate this requirement into our new rules. This
requirement provides a ``safety valve'' to ensure that no segment of
the community is inadvertently omitted from recruitment efforts.
Organizations or other entities with ties to specific segments of the
labor force, such as persons with disabilities, college students, or
members of different racial, ethnic, or religious groups could help
broaden the reach of recruitment efforts. Organizations that come
forward to request vacancy notifications may prove to be very
productive referral sources. Further, this approach will enable
interested groups to more closely monitor and, if necessary, seek to
improve, broadcasters' recruitment efforts. We also expect broadcasters
to make reasonable efforts to publicize the notification requirements
so that qualifying groups are able to learn of the new procedure. Joint
announcements by broadcasters or state broadcasters' associations--such
as press releases, newspaper ads, and notices posted on the web site--
would satisfy the requirement to publicize. Similarly, broadcasters and
MVPDs could satisfy this requirement by individually issuing such
announcements, or by providing on-air announcements.
55. We will provide broadcasters discretion to determine the method
of providing notice to requesting parties. Such methods may include
electronic mail and facsimile which may require fewer personnel and
financial resources to fulfill the notification requirement than more
traditional methods. For example, a broadcaster may maintain an
electronic list of recruitment sources and notify all the sources
simultaneously with a single e-mail when a vacancy occurs. We will also
allow notifications to be made as part of joint recruitment efforts
among broadcasters. However, each broadcaster participating in the
joint recruitment efforts remains individually responsible for ensuring
that requested notifications relating to its employment unit are made.
For example, a state broadcast association may have a job bank that
notifies certain sources on behalf of an employment unit when a vacancy
becomes available at that employment unit. As long as the state
broadcast association notifies all organizations requesting vacancy
announcements from that employment unit as part of this process, the
employment unit itself need not do so. Therefore, given the flexibility
provided by electronic forms of notice and joint recruitment, we expect
that the notification requirement will place minimal burdens on
broadcasters.
56. An organization that wishes to be notified of vacancies need
only notify a broadcaster once in order to be entitled to notification
of all future full-time vacancies. If a broadcaster is uncertain as to
the status or continuing interest of a particular group, it is free to
contact the group to resolve any questions. So long as the group
indicates its continued interest in receiving notifications, it is
entitled to receive them.
57. The obligation to notify recruitment sources that request
notice of vacancies is intended as a supplement to, not a substitute
for, broadcasters' core, non-delegable obligation to widely disseminate
information concerning all job vacancies. Although recruitment sources
will have the right to ask broadcasters for notices of vacancies, they
have no obligation to do so. And even if a broadcaster does not receive
a single request for notice of vacancy information, it will
nevertheless be responsible for ensuring that notice of vacancies is
widely disseminated. If it fails to do so, it is not a legitimate
excuse that no recruitment organizations requested notices.
58. Prong 2 of the EEO rule requires broadcasters and MVPDs to
provide requested notification of full-time job vacancies to
organizations involved in assisting job seekers, regardless of whether
they are minority or women's organizations.
59. Outreach Prong 3--Menu Options. Under the rules adopted by the
R&O, we required, under Option A, that broadcasters and MVPDs engage in
a specified number of activities selected from a menu of options, such
as job fairs, community events relating to broadcast employment,
internship programs, scholarships, and similar activities. These
activities are designed to go beyond the normal recruitment activities
directed at filling particular vacancies. They are designed to
encourage outreach to persons who may not be aware of the opportunities
available in broadcasting or the MVPD industry or have not yet acquired
the experience to compete for current vacancies. Interested members of
the community will not only have access to information concerning
specific job vacancies, but also will be encouraged to develop the
knowledge and skills to pursue them. This approach remains justified
and is not unduly burdensome. Various menu options encourage outreach
to students and others who would benefit from training, mentoring and
scholarships, which can work to enhance the employability of persons
seeking jobs in the broadcasting or MVPD industries. These menu methods
of outreach also are designed to further broaden outreach efforts to
reach segments of the labor force who may be inadvertently omitted from
vacancy-specific recruitment. As indicated, under this approach,
broadcasters and MVPDs have great flexibility to design the types of
recruitment activities best suited to their organizations and
communities. In the rule we are adopting today, we will adopt this
[[Page 678]]
requirement while providing additional flexibility by incorporating
additional menu options that have been suggested by the parties. We are
also reducing the number of menu options that employment units located
in smaller markets must perform.
60. The first three specific menu options include participation in
at least four job fairs by station personnel who have substantial
responsibility for hiring decisions; hosting at least one job fair; or
co-sponsoring at least one job fair with an organization in the
business and professional community whose membership includes
substantial participation of women and minorities. Job fairs are a
useful method to reach a broad range of individuals who are interested
in employment in the industry. The fourth option is participation in at
least four activities sponsored by community groups active in broadcast
employment issues, including conventions, career days, workshops and
similar activities. The fifth option is the establishment of an
internship program designed to assist members of the community to
acquire skills needed for broadcast employment. Such an endeavor would
serve the goal of broad outreach by increasing the number of qualified
potential employees not only for one broadcaster, but for all
broadcasters in the area. The sixth option is participation in general
(as opposed to vacancy-specific) outreach efforts by such means as job
banks or Internet programs such as those described in the model program
developed by NASBA. While such sources may be used as recruitment
sources when specific vacancies occur, they can also be useful even
when there is no specific vacancy to elicit interest from persons who
may later be considered for a specific position. The seventh option is
participation in scholarship programs directed to students desiring to
pursue a career in broadcasting. The benefit of this outreach is that
it attracts students of both genders and all races to careers in
broadcasting, ultimately increasing the number of qualified potential
employees. The eighth and ninth options are, respectively, the
establishment of training and mentoring programs designed to enable
station personnel to acquire skills that could qualify them for higher
level positions. These options would not be satisfied by ordinary
training required for employees to perform their current positions.
These options are rather intended to increase employee skills so they
can qualify for higher positions.
61. The tenth option is participation in at least four events or
programs relating to career opportunities in broadcasting sponsored by
educational institutions. Such participation again serves the purpose
of increasing the universe of potential employees from which
broadcasters attract job applicants. The eleventh option includes
sponsorship of at least two events in the community designed to inform
the public as to employment opportunities in broadcasting. Such
activities can serve to increase public awareness of the opportunities
available in broadcasting. The twelfth option would entail listing each
upper-level opening in a job bank or newsletter of a media trade group
with a broad-based membership, including participation of women and
minorities.
62. The thirteenth option will consist of providing assistance to
outside non-profit entities in the maintenance of web sites that
provide counseling on the process of searching for broadcast employment
and/or other career development assistance pertinent to broadcasting.
The fourteenth option consists of providing training to management
level personnel as to methods of ensuring equal employment opportunity
and preventing discrimination. The fifteenth option consists of
providing training to personnel of outside recruitment organizations
that would enable them to better refer job candidates for broadcast
positions.
63. The sixteenth option (which was the thirteenth option in our
former rule) includes participation in activities other than the
fifteen listed options that the licensee has designed to further the
goal of disseminating information about employment opportunities in
broadcasting to job candidates who might otherwise be unaware of such
opportunities. This will provide flexibility for worthwhile initiatives
that broadcasters may develop but that are not strictly within the
scope of the menu options we have specified. The inclusion of this
option makes it clear that the list of menu options is an open-ended
list intended to guide, rather than limit, broadcasters and MVPDs.
64. In the R&O, we required station employment units with more than
ten full-time employees to implement four of these options every two
years. If that time period is less than two years, the number of menu
options may be reduced proportionally to the amount of time available.
If a station is required generally to perform four menu options every
two years, it would be expected to perform one for each six-month
period between the effective date of the rule and the next regular
pertinent anniversary. Although we ordinarily do not dictate when a
broadcaster must complete its menu options during the regular two-year
period, when a broadcaster owns a station or stations for less than the
full two-year period, it must complete the prorated number of menu
options within the available time period. We will require employment
units with five to ten full-time employees as well as employment units
in certain smaller markets to perform two of the menu options every two
years.
65. We will also permit broadcasters to perform menu options on a
joint basis, either with other broadcasters, organizations such as
state broadcaster associations, or with a corporate licensee's
corporate headquarters. A station seeking credit for a particular menu
option performed on a joint basis must have a meaningful involvement in
the activity for which credit is sought. It is not sufficient for the
station merely to lend its name to an activity or provide money where
the activity is otherwise entirely conducted by another entity such as
a trade association or the licensee's corporate headquarters. In the
Recon, we discussed a number of circumstances where credit might be
sought for activities engaged in on a joint basis. This discussion
remains applicable to joint efforts engaged in pursuant to the rules we
are adopting herein.
66. We note that the term ``sponsor'' as used in connection with
several options set forth in Sec. 73.2080(c)(2) of the old rule, which
we also use in our new rule, was apparently misunderstood by some as
referring only to a financial contribution. Our intent for the purpose
of these options is that a ``sponsor'' should have a meaningful input
into the planning and implementation of a specified event. Simply
lending one's name or making a monetary contribution would not be
sufficient. Events can be jointly sponsored, so long as each
broadcaster seeking credit for sponsoring the event is actively
involved in planning and implementing the event.
67. With respect to the maintenance of a scholarship program by a
corporate licensee, it is reasonable for a corporate licensee to
maintain a scholarship program for those employment units it owns. Any
such scholarship program should incorporate involvement by the
employment units for which credit will be claimed in such areas as the
design of the program, the solicitation of prospective scholarship
recipients, the interviewing and selection of scholarship recipients,
on-air promotion of the program, and evaluation of the effectiveness of
the program. While each
[[Page 679]]
employment unit need not be involved in every aspect of the program,
meaningful involvement in the program is essential to ensure that the
employment unit is fulfilling its responsibility under our rule. In
addition, the number of employment units seeking credit for a
scholarship program should bear a reasonable relationship to the number
or type of scholarships awarded by the corporate licensee.
68. Unrelated broadcasters may also jointly maintain a scholarship
program, which could be done through a state or local broadcast
association, including efforts by such associations to coordinate
regional efforts. We believe that the program should incorporate
meaningful involvement by each broadcaster seeking credit for the
initiative in such areas as the design of the program, the solicitation
of prospective scholarship recipients, the interviewing and selection
of scholarship recipients, on-air promotion of the program, and
evaluation of the effectiveness of the program. As in the case of
corporate scholarship programs, the number or type of scholarships
awarded by the joint scholarship program would have to bear a
reasonable relationship to the number of employment units seeking
credit for it.
69. With respect to mentoring, internships, or training programs
administered by a corporate licensee, employment units of the licensee
could claim credit for such a program even if not implemented in the
community where the employment unit is located, but only so long as
personnel from the employment units are participants in the mentoring,
internships or training program. Similar questions arose under our
former rule as to job fairs hosted by a corporate licensee. We would
credit individual employment units with cohosting the job fair only to
the extent that personnel from the unit were involved in planning and
implementing the job fair. Employment units of the licensee could be
credited with attendance at the job fair, but only if personnel from
the employment unit with substantial responsibility in making hiring
decisions at the unit in fact participated in the job fair. Although
the corporate headquarters can assist in the implementation of menu
options, personnel from the respective employment units must also be
involved in implementation should they seek credit for participation.
70. The EEO rules adopted by the R&O under Option A required
broadcasters and MVPDs to engage in activities selected from a broad
menu of options, such as job fairs, community events relating to
broadcast employment, internship programs, scholarships, and similar
activities. These Prong 3 activities are designed to go beyond the
normal recruitment activities directed at filling particular vacancies
in order to encourage outreach to persons who may not be aware of the
opportunities available in broadcasting or the MVPD industry or have
not yet acquired the experience to compete for current vacancies.
Interested members of the community will not only have access to
information concerning specific job vacancies, but also will be
encouraged to develop the knowledge and skills to pursue them. Prong 3
activities are intended as a method to reach segments of the community
who might otherwise be omitted, possibly inadvertently, from vacancy-
specific recruitment efforts.
71. Outreach Requirements of Religious Broadcasters. In the NPRM,
we proposed to adopt a policy under which religious broadcasters that
elected to apply a religious qualification to all of their employees
were not required to comply with the broad outreach recruitment
requirement or the menu options, but they must make reasonable, good
faith efforts to recruit applicants, without regard to race, color,
national origin or gender, among those who are qualified based on their
religious belief or affiliation. We adopt that policy. This approach
reflects our judgment that the more specific recruitment requirements
described above may not be suited to recruitment that is limited to
members of a certain religious faith. This requirement will also apply
to religious broadcasters that elect to establish a religious
qualification for some, but not all, of their positions, with respect
to those positions that are subject to the religious qualification.
Such religious broadcasters, with respect to other positions not
subject to a religious qualification, must comply with prongs one and
two. A religious broadcaster that treats five or more its full-time
positions as non-religious are required to comply with the prong three
menu options because, in regard to those positions, the station is in a
comparable position to stations that have five or more full-time
employees and none subject to a religious qualification. A religious
broadcaster electing to treat none of its positions as subject to a
religious qualification would be required to comply with all three
prongs. Once an entity establishes its qualifications as a religious
broadcaster, it has the discretion to define the religious
qualification it seeks to establish. Thus, it may define the
qualification generally as encompassing an entire denomination; more
specifically as encompassing only persons who share a particular
doctrinal belief; or even more specifically as encompassing only
persons who are members of a particular church or religious
organization. We do not intend to inquire into a religious
broadcaster's definition of its religious qualification. All we require
is that some effort be made to notify persons who meet the definition
established by the religious broadcaster itself as to the availability
of employment at the religious broadcaster's station.
72. Outreach Requirements for International Stations. In the Recon,
we indicated that international broadcast stations licensed pursuant to
section 73, Subpart F, Sec. 73.701, et seq., would be subject to our
EEO requirements, except for the public file requirement, given that
such stations are not required to have a public file. We are continuing
this requirement in the new rules.
73. Recordkeeping. We will require broadcasters to retain
documentation concerning their compliance with the three recruitment
prongs, as proposed in the 2NPRM. This documentation must be retained
by the station, but will not be routinely submitted to the Commission.
The data must be provided to the Commission upon request in the event
of an investigation or audit. The documentation includes: (1) Listings
of all full-time job vacancies filled by the station employment unit,
identified by job title; (2) for each such vacancy, the recruitment
sources used to fill the vacancy (including, if applicable,
organizations entitled to notification, which should be separately
identified), identified by name, address, contact person and telephone
number; (3) dated copies of all advertisements, bulletins, letters,
faxes, e-mails, or other communications announcing vacancies; and (4)
documentation necessary to demonstrate performance of the Prong 3 menu
options, including sufficient information to disclose fully the nature
of the initiative and the scope of the station's participation,
including the station personnel involved. This documentation will allow
us to verify compliance with our rules; we find no reason to believe
that this minimal record retention requirement imposes an unreasonable
burden on broadcasters or MVPDs.
74. We also sought comments in the 2NPRM as to whether we should
require the retention of documentation concerning the recruitment
sources that referred hires and interviewees.
[[Page 680]]
75. Our rule focuses on the process of recruitment, not the results
thereof. It is nonetheless necessary to have some means of assessing
whether the process has been conducted in good faith and whether the
process is working as intended. We expect that broadcasters and MVPDs
will analyze the results of their recruitment efforts to ensure that
they actually achieve broad outreach. This requires knowledge of what
recruitment sources have been productive in generating qualified
applicants. Records of the recruitment sources of the most qualified
applicants--those interviewed or hired--will be helpful in this regard.
We will accordingly require that broadcasters and MVPDs maintain
records reflecting the referral sources of interviewees and hires.
76. We will not require the retention of records of the recruitment
sources of applicants. Data concerning the recruitment sources of
interviewees and hires is sufficient for the limited purpose of
determining whether the program is being conducted in good faith and
working as intended. Further, although it is minimally burdensome to
ascertain the recruitment sources of interviewees and hires because
they are readily available to provide this information if it is not
reflected in the jobseeker's application, tracking the recruitment
source of all applicants may require additional efforts to collect this
information. This may place an inordinate burden on broadcasters and
MVPDs, particularly in light of the fact that information concerning
applicants in the aggregate does not necessarily reflect sources of
qualified applicants.
77. We will require that all records documenting outreach efforts
be retained until the grant of the renewal application covering the
license term during which the hire or activity occurs, except that, if
a licensee acquired a station pursuant to an assignment or transfer
that required Commission approval of FCC Form 314 or 315 during the
license term, it need not retain records pertaining to the outreach
efforts of a prior licensee. In order to minimize any burden associated
with this requirement, records may be maintained in an electronic
format, e.g., by scanning pertinent documents into a computer format.
Absent a showing of extraordinary circumstances, we will not credit
claimed activities that cannot be supported by records.
78. In the case of religious broadcasters that apply a religious
qualification to some or all of their hires, they need only retain, in
the case of hires subject to the qualification, documentation as to the
full-time vacancies filled, the recruitment sources used, the date each
vacancy was filled, and the recruitment sources of the hires. This
information is pertinent to monitoring whether the broadcaster made
reasonable, good faith efforts to recruit among persons who meet the
applicable religious qualification.
79. Public File. We will adopt the requirement that broadcasters
place in their public file annually, on the anniversary of the date
they are due to file their renewal applications, an EEO public file
report containing the following information: (1) A list of all full-
time vacancies filled by the station employment unit during the
preceding year, identified by job title; (2) for each such vacancy, the
recruitment source(s) used to fill the specific vacancy (including
organizations entitled to notification of vacancies pursuant to Prong
2, which should be separately identified), including the address,
contact person, and telephone number of each source; (3) a list of the
recruitment sources that referred the people hired for each full-time
vacancy; data reflecting the total number of persons interviewed for
full-time vacancies during the preceding year and, for each recruitment
source used in connection with any such vacancies, the total number of
interviewees referred by that source; and (4) a list and brief
description of Prong 3 menu options implemented during the preceding
year. Religious broadcasters with hires subject to a religious
qualification need include, for full-time vacancies subject to the
qualification, only the information called for in (1) and (2) above,
along with information concerning the recruitment sources that referred
the persons hired.
80. Some broadcasters object that documentation concerning a
station's EEO efforts should not be made available to the public. To
the contrary, as we indicated in the R&O, the public has an important
role in monitoring broadcaster compliance with our EEO rule. The EEO
public file report is designed to facilitate meaningful public input.
We recognize broadcaster concerns that the availability of this
information could trigger unwarranted, even frivolous, filings. The
possibility of abuses by some does not warrant depriving the public of
its right to participate in the process of monitoring and enforcing our
EEO rule, which directly impacts them.
81. We will also require that broadcasters post the EEO public file
report on their web site, if they have one. (Although the reports must
be retained in the public file until final action has been taken on the
station's next renewal application, all reports need not be maintained
on the station's Web site. The requirement to post a station's EEO
public file report on its Web site extends only to the current report.
Also, we require only that the information contained in the EEO public
file report be placed on the Web site. A scanned copy of the actual
paper report contained in the public file need not be placed on the Web
site; any legible format may be used.) The purpose of this requirement
is to facilitate access by persons within the service area. We do not
believe that our requirement to place EEO public file report
information on a station's Web site is unreasonable or overly
burdensome.
82. Broadcasters are free to use any format in their public file
report to avoid unnecessary duplication as long as the report clearly
provides the information requested. For instance, if a broadcaster used
the same recruitment sources for all its vacancies, it may maintain a
single list of those sources, indicating that they were used for all
vacancies. If a broadcaster used different sources for different
vacancies, it may maintain a master list of all its sources and use a
cross-reference system to show which sources were used for which
vacancies.
83. The EEO public file report need not be routinely submitted to
the Commission, except in two instances. The EEO public file reports
covering the two-year period preceding the filing of a renewal
application must be submitted with that application as an attachment to
Form 396, and will be one basis for our review of the broadcaster's
compliance at renewal time. Also, for stations subject to mid-term
reviews, the EEO public file reports for the two-year period preceding
the mid-term review must be filed with the Commission and will be one
basis for mid-term reviews. Renewal and mid-term review procedures are
discussed in greater detail.
84. Because the filing dates for the EEO public file reports are
tied to the date of filing of renewal applications, the due dates will
apply to a given station regardless of when the licensee acquired the
station. Consequently, if there is a substantial change of ownership
requiring approval pursuant to FCC Form 314 or FCC Form 315 during the
one-year period covered by an EEO public file report, the new licensee
must place the report in the public file by the due date. The
information contained in the report would encompass only EEO efforts
undertaken by the new licensee.
[[Page 681]]
85. The EEO public file report will be filed for station employment
units, rather than only for individual stations. A ``station employment
unit'' will be defined, as it was under our former rule, as including a
station or group of commonly owned stations in the same market that
shared at least one employee. We will leave the definition of the
``market'' to each licensee's good faith discretion. In making this
determination a licensee should assess the technical coverage of its
station(s); its marketing, promotional, and advertising practices; the
pertinent market definitions adopted by public agencies or commercial
services, such as Nielsen and Arbitron; and requests for notices of job
vacancies from locally-based community groups. We expect a licensee to
be able to provide a reasonable explanation for its determination
should it become an issue. Finally, stations in the same market should
be considered part of the same employment unit even if the licenses are
held by different business entities that are commonly owned or
controlled. We would view licensees as commonly owned for the purpose
of the EEO rule if 50 percent or more of the voting control of the
licensees is held by the same persons or entities.
86. If a station is subject to a time brokerage agreement, the
licensee's EEO public file report should include data concerning only
its own recruitment efforts for full-time positions and not the efforts
of the broker. If a licensee is a broker of another station or stations
in the same market as an employment unit including a station or
stations of which it is the licensee, the licensee's EEO public file
report should include data concerning its EEO efforts at both the owned
and brokered stations. If a licensee-broker does not own a station in
the same market as the brokered station, then it shall include
information concerning its EEO efforts at the brokered station in the
EEO public file report for its own station that is geographically
closest to the brokered station. The same policy will apply to EEO
forms filed at mid-term (where applicable) (Form 397) and at renewal
(Form 396), discussed. Non-licensee brokers are not required to file
EEO public file reports because they are not licensees. If a broker is
controlled directly or indirectly by a licensee or licensees, it should
be considered a licensee-broker.
87. We recognize that there may be some employment units that are
located in markets that include stations licensed to communities in
more than one state that are in different renewal groups. As a result,
the date of the last renewal application filing differs for some
stations in the same employment unit, so that there could arguably be
two dates governing the placing of the EEO public file report in the
public file because that date is based on the anniversary of the filing
of the last renewal application. The same problem arises with respect
to the filing of mid-term reports (FCC Form 397), discussed. It is not
our intent that employment units comply with these requirements more
than once merely because they include stations in more than one renewal
group. We will generally expect employment units in this situation to
proceed in accordance with the schedule for only one of the renewal
groups included in their unit. There may be rare instances involving
television stations when it will be necessary for us to request a
supplemental filing in order to comply with the statutory requirement
that we conduct mid-term reviews of television licensees' EEO
compliance.
88. An employment unit consisting of stations in more than one
renewal group may select the renewal group that it will use for the
purpose of determining the filing dates for its annual public file
reports and its mid-term report, where applicable, in accordance with
the following criteria. If the employment unit includes a television
station, the dates for the television station should ordinarily govern,
in order to accommodate the statutory requirement for mid-term review
of television licensees' EEO compliance. Apart from this situation, the
renewal group that will determine the employment unit's EEO filing
schedule should be selected so as to minimize the time between the date
for placing the EEO public file report in the public file and the date
for the filing of renewal applications for stations located in renewal
groups that have different renewal filing dates than the renewal group
used to determine the employment unit's EEO filing schedule.
89. There may also be circumstances in which an employment unit
consists of television and radio stations that are part of the same
renewal group, except that the renewal schedule for radio is one year
earlier than the schedule for television. In these circumstances, the
filing schedule for television stations should be used for purposes of
filing the mid-term report (FCC Form 397) for the employment unit, if
it is subject to the requirement to file a mid-term report. This report
would cover all stations in the employment unit. Thus, there would be
no need to file a separate mid-term report for the radio station(s).
Because the date for placing the annual public file report in the
public file is the same for both radio and television, the most recent
public file report should be submitted with the renewal applications
for both television and radio stations in the employment unit.
90. Renewal applications must still be filed separately for each
station in accordance with the regular schedule for the station's
renewal group. FCC Form 396, the EEO form submitted with the renewal
application, discussed below, requires that the licensee attach the EEO
public file report that is ordinarily placed in the public file
simultaneously with the filing of the renewal application, as well as
the report for the prior year. When a station is part of an employment
unit that is using the EEO filing schedule for another renewal group,
the station should submit with its FCC Form 396 the most recent EEO
public file report prepared for the employment unit. If the licensee
feels that the most recent EEO public file report does not accurately
reflect the employment unit's EEO program as of the date of the filing
of the renewal application, it should disclose any pertinent facts as
part of the narrative statement also required by the FCC Form 396.
91. Low power television (LPTV) stations are subject to the
broadcast EEO rule by virtue of a cross-reference contained in Sec.
74.780 of the Commission's Rules. (Licensees of low power FM (LPFM)
stations are subject to the Commission's prohibition against employment
discrimination. See 47 CFR 73.881. LPFM licensees are not required to
comply with any EEO program requirements. As we stated in the LPFM R&O,
``[b]ecause we anticipate that the vast majority of this class of
licensees will employ very few (if any) full-time, paid employees, we
do not intend to require LPFM licensees to comply with any EEO program
requirements we adopt in our rulemaking proceeding.'') LPTV stations
are not required to maintain a public file. As indicated in the Recon,
we will not expect them to prepare an EEO public file report, although
LPTV stations with five or more full-time employees must comply with
the recordkeeping requirements. Class A television stations are subject
to the requirement to maintain a public file and are fully subject to
the EEO rule, including the requirement to prepare an EEO public file
report.
92. Enforcement. We will adopt the enforcement process proposed in
the 2NPRM, which is similar to that adopted in the R&O, except that we
are eliminating the requirement that broadcasters certify compliance
with the EEO rule in the second and sixth years of their license term.
We will conduct
[[Page 682]]
mid-term review of television stations with five or more full-time
employees and radio stations with more than ten full-time employees,
using FCC Form 397. We treat television stations differently from radio
stations because of the requirements of section 334 of the
Communications Act which does not permit us to exempt television
stations with five to ten full-time employees from the mid-term
requirement.
93. We will also monitor EEO compliance through random audits and
targeted investigations resulting from information received as to
possible violations. Each year we will select for audit approximately
five percent of all licensees in the radio and television services,
ensuring that, even though the number of radio licensees is
significantly larger than television licensees, both services are
represented in the audit process. Initially, the inquiry may request
the contents of the station's public file. Further inquiry or inquiries
may be conducted requesting additional documentation of recruitment
efforts that is not in the public file. Based on the circumstances of
the case, the inquiry could potentially include, but not be limited to,
(1) A request for data covering any period of the license term; and (2)
interviews of witnesses, including any complainant and present or
former station employees.
94. Licensees will be subject to a variety of sanctions and
remedies for EEO rule violations or deficiencies. Some examples of
violations or deficiencies might include: engaging in employment
discrimination in hiring or promotions; failure to file a mid-term
review when due; failure to file an EEO public file report when due;
failure to file Form 396 when due; misrepresentation of outreach
efforts or other information; non-responsiveness or evasion in
responding to a written Commission inquiry; failure to recruit for all
vacancies absent exigent circumstances; failure to widely disseminate
information concerning vacancies for full-time positions; failure to
analyze routinely the adequacy of the various program elements in
achieving broad outreach to all segments of the community; failure to
undertake the required Prong 3 menu options; and failure to notify
organizations that request vacancy notices. Also, it may constitute a
violation of the EEO rule if, based on all of the evidence, we
determine that a licensee has attempted to evade our requirements
through token or sham efforts.
95. We take the EEO rules and obligations we establish here very
seriously, and fully expect broadcasters and MVPDs to do the same. We
remind licensees that it is as true today as it was 20 years ago that a
``documented pattern of intentional discrimination would put seriously
into question a licensee's character qualification to remain a
licensee.'' We intend to carefully monitor compliance with our EEO
rules. Sanctions and remedies that may be issued by the Commission for
deficiencies in licensees' EEO compliance include admonishments,
reporting conditions, forfeitures, short term renewal of license, or
designation for hearing for possible revocation of license or denial of
renewal. The appropriate sanction or remedy will be determined on a
case-by-case basis. Sanctions will be greater in cases involving
recidivism, continuous EEO non-compliance, or intentional
discrimination. In particular, if sufficiently egregious violations are
found, we will not hesitate to designate for hearing.
96. We will also be taking steps to ensure that broadcasters,
MVPDs, and the public are aware of and able to comply with the EEO
rules and policies. First, we will continue to maintain an EEO page on
the Commission's Web site. In addition, our Consumer & Governmental
Affairs Bureau (CGB) will provide information to the public on the new
rules adopted by the Commission. CGB will make a factsheet on the rules
available to the public through our consumer centers and our Web site.
Commission staff will continue to participate in conferences held
throughout the country that deal with broadcast and MVPD EEO issues.
Finally, as always, our EEO staff is available to answer more specific
questions and provide informal guidance regarding the rules. We
encourage the industry and the public to take advantage of these
resources.
97. Forms Relating to EEO Compliance. We readopt the forms adopted
in the R&O, incorporating the changes discussed above. Primarily, we
eliminate the portion of the forms that provided for an election
between Option A and Option B because our present rule does not provide
for an election. We also will not reissue the Initial Election
Statement, which required a licensee to choose between Option A and
Option B. We are addressing here only forms relating to our EEO
outreach requirements. As indicated, FCC Form 395-B, the Annual
Employment Report, which is being deferred, is unrelated to the
implementation and enforcement of our EEO program.
98. We readopt, with modifications, FCC Form 396, which is filed by
broadcasters as part of their renewal applications. We will delete the
Option A/Option B election. The form as adopted by the R&O also
required the broadcaster to certify that it complied with the EEO rule
during the two-year period preceding the filing of the report; to
attach a copy of its EEO public file for the preceding year; and to
provide a narrative statement demonstrating how the station achieved
broad outreach during the preceding two years. The licensee must still
certify to the accuracy of the forms it submits to the Commission; it
just need not draw a legal conclusion as to whether the facts it
submits demonstrate compliance with our rules. We will modify the form
to eliminate the certification requirement. We will require the
submission of the EEO public file report due at the time of the filing
of the Form 396 along with the form filed one year before that. This is
because we allow two years for the performance of the Prong 3 menu
options. We recognize that in some instances a station may have been
sold during the prior two years. In that case, the licensee at the time
of renewal need only submit EEO public file reports relating to its own
operation of the station.
99. The version of Form 396 adopted by the R&O included the
following question: ``Have any complaints been filed before any body
having competent jurisdiction under federal, state, territorial or
local law, alleging unlawful discrimination in the employment practices
of the station(s)?'' In the 2NPRM, we stated that the form required the
reporting of ``pending'' discrimination complaints. We did not clarify
the period of time to which the word ``pending'' referred, e.g.,
pending at any time during the most recent license term or pending at
the time a renewal application is filed. We will require the reporting
of all complaints filed during the most recent license term, consistent
with our past practice. This will avoid unnecessary litigation and
involves little additional burden. Form 396 requests information
concerning the disposition or current status of the complaint, and the
Commission will consider complaints only to the extent they are deemed
relevant.
100. FCC Form 396-A is to be used for applications for the
construction of a new broadcast station or for the sale of an existing
broadcast station. We will readopt this form but delete references to
the Option A/Option B election.
101. We adopted in the R&O FCC Form 397, ``Broadcast Statement of
Compliance,'' which was to be submitted in the second, fourth, and
sixth years of the license term for the
[[Page 683]]
purpose of certifying whether the licensee's station employment unit
complied with the EEO rule during the preceding two years. In the
2NPRM, we proposed to use the Form 397 only for the purpose of filing
mid-term reviews, renaming it the ``Broadcast Mid-term Report.'' We
will adopt this proposal. Form 397 will be filed by licensees subject
to mid-term review. We will modify Form 397 to eliminate the reference
to an election. In addition, consistent with our discussion concerning
Form 396, we will eliminate the compliance certification requirement
and instead require submission of EEO public file reports for the two
years preceding the filing (unless the earlier report does not pertain
to the current licensee because of a sale). Two groups of television
stations would be required by our new rules to file mid-term reports in
2003: New Jersey and New York filings would be due by February 1, 2003,
and Delaware and Pennsylvania filings would be due by April 1, 2003.
Because of the extremely short time between the anticipated effective
date of the rules and the filing dates, we will not require stations in
these groups to file mid-term reports in 2003.
102. Provisions for Small Stations and Small Markets. The rule
adopted by the R&O exempted from the outreach provisions (but not the
nondiscrimination provisions) station employment units that had fewer
than five full-time (30 hours per week or more) employees. As noted, a
``station employment unit'' referred to a station or group of commonly
owned stations in the same market that shared at least one employee. We
will include this exemption in our new rule. We also provided in the
R&O that station employment units with five to ten full-time employees
would be required to perform only two, rather than four, Prong 3 menu
options every two years. We will incorporate this requirement in our
new rule. In addition, we will extend it to certain small market
stations. We further provided in the R&O that radio station employment
units with five to ten full-time employees would be exempt from the
mid-term review requirement. We did not extend this relief to
television stations because of the requirements of section 334 of the
Communications Act. We will include this exemption for radio in our new
rule.
103. In the 2NPRM, we asked whether we should expand the exemption
for small stations to include employment units with ten or fewer
employees. We also asked whether we should modify the requirement that
stations with more than 10 full-time employees complete four menu
options every two years. Smaller stations with five to 10 or fewer
full-time employees are required to complete two menu options every two
years. We further asked whether we should treat all stations with five
or more full-time employees that are located in smaller markets like
smaller stations. Having reviewed the record, we find no basis for
increasing the pertinent exemptions, except that we find some
modification warranted with respect to the menu option requirements
applicable to stations in smaller markets.
104. With one exception, we find no basis in the record to provide
additional exemptions from our rule beyond those referenced. First, we
reject as unsupported in the record any suggestion that the rule we
adopt today imposes unreasonable burdens on small broadcasters. As a
general matter, the rule imposes minimal burdens. In addition, small
broadcasters are permitted to perform fewer menu options, and most
likely will have fewer hires, resulting in fewer records to keep and
fewer job vacancies requiring recruitment under the rule. Further, as
we found in the R&O, small stations provide entry-level opportunities
in the broadcast industries and make up approximately \1/3\ of the
broadcast industry. If we were to exempt such a large number of
stations from the EEO rule--stations that may provide entry level
opportunities for people new to broadcasting--we would undermine the
central purpose of our EEO rule. We decline to do so.
105. We find that it would be appropriate, to modify our Prong 3
menu option requirement for stations in smaller markets. We recognize
that smaller markets may not have the resources in the community to
support some of the activities contemplated in Prong 3. We did not
address this problem in the R&O because small market stations that
found the menu option requirement burdensome could elect to proceed
under Option B. That alternative will not be available under our new
rule. We will accordingly provide that small market stations will be
required to perform only two, rather than four, menu options during a
two year period.
106. We will define the scope of this exemption as extending to any
station employment unit consisting solely of a station or stations
licensed to a community that is located in a county that is outside of
all metropolitan areas, as defined by OMB, or is located in a
metropolitan area that has a population of fewer than 250,000 persons.
This will operate to reduce requirements for stations in most markets
below the 100 largest markets using definitional criteria that are
readily ascertainable from government sources. (The most recent OMB
definition of metropolitan areas is contained in OMB Bulletin No. 99-04
(June 30, 1999). See http://www.whitehouse.gov/omb/inforeg/msa-bull99-04.html.
Metropolitan areas with a population of fewer than 250,000 are
defined as Level C and D MSAs or primary MSAs (PMSAs). OMB Bulletin No.
99-04 may be used initially to define areas subject to this provision.
OMB has adopted new metropolitan area standards and will announce
definitions of areas based on the new standards and Census 2000 data in
2003. Standards for Defining Metropolitan and Micropolitan Statistical
Areas, (65 FR 82228, December 27, 2000).)
107. In the Recon, we adopted a policy pursuant to which an owner
who has a controlling interest (50 percent or greater voting control)
in a licensee would not be considered a station employee for purposes
of the EEO rule, even if he or she worked at the station. We concluded
that such an owner's employment at the station would be more an
incident of ownership rather than a normal employment relationship
because the owner could not be in any normal sense hired or fired. We
declined to extend this policy to lesser ownership interests because
the circumstances pertaining to their employment might vary widely and
we could not assume that the employment was primarily an incident of
ownership. Fletcher, Heald & Hildreth, P.L.C. (``FHH''), on behalf of
its clients, filed a petition for reconsideration, urging that owners
with 20 percent or greater interests should not be treated as
``employees'' for purposes of the EEO rule. We will not consider owners
holding a 20 percent or greater voting interest in a licensee as
station ``employees'' for EEO purposes. This will be subject to the
proviso, however, that no single owner has positive control (greater
than 50 percent voting control) of the licensee. In that circumstance,
the principal enjoying positive control would be in a position to
determine whether other stockholders could be employed at the station,
and only he or she could properly claim employment as an incident of
ownership. Absent that circumstance, it is reasonable to believe that a
20 percent or greater owner's employment position is an incident of
ownership. Someone who owns a 20 percent interest in a licensee company
is not truly an
[[Page 684]]
employee of the licensee, holding a position that would be subject to
recruitment, and thus should be permitted to work at the station
without first requiring outside recruitment. FHH suggests that we
should, as a safeguard, require that the owners have made a capital
contribution. We do not find this necessary. Legitimate ownership
interests may exist that do not involve a capital contribution. In the
event of alleged abuse of this exception, we will consider all relevant
factors, including the extent of an asserted owner's capital
contribution to determine the legitimacy of a claimed ownership
interest.
3. MVPD EEO Program Requirements
a. Rules and Policies
108. We will adopt substantially the same outreach program,
recordkeeping and reporting requirements for MVPDs, as we have for
broadcasters. The only distinctions will arise in light of the specific
requirements imposed by section 634 of the Communications Act. We
monitor the EEO programs pursuant to annual reports which have
contained employment and program data, as required by statute. We will
be creating a new form that will contain only program data. As
mentioned, we are deferring consideration of a new form for MVPDs that
requires employment data. Because our review of MVPD EEO compliance is
an annual review pursuant to section 634, we define the Prong 3 menu
options requirement for MVPDs in terms of performing two initiatives
annually for those with more than ten full-time employees or one
initiative annually for those with six to ten full-time employees. With
respect to the definition of ``community'' for the purpose of
determining broad outreach, we are leaving the definition of
``community'' for this purpose to the reasonable good faith discretion
of the entity concerned. We will apply the same policy to MVPDs. MVPDs
should use pertinent criteria, including the location of the system,
pertinent market definitions adopted by public agencies or commercial
services, and requests for notices of job vacancies from locally-based
community groups. They should also consider what areas actually produce
job applicants. MVPDs should engage in broad outreach throughout the
entire local community from which they can reasonably expect to elicit
applicants, whether or not that community is defined by its franchise
area.
109. MVPD compliance with the EEO requirements is monitored
pursuant to annual reports filed by MVPDs: FCC Form 395-A (for cable
operators) and FCC Form 395-M (for other MVPDs). The only substantive
modification required by the new rules adopted today is the elimination
of the Option A/Option B election. In addition, we will combine these
forms. The two forms are virtually identical except for a section in
the Form 395-A requiring cable operators to list the communities in
which they operate. In view of the similarity of the two forms, we do
not find any necessity for having separate forms for cable operators
and other MVPDs. Both forms request information concerning the entity's
EEO outreach program. In addition, both forms request information as to
the gender and racial/ethnic composition of the entity's workforce,
analogous to the broadcast Form 395-B. As in the broadcast context, the
data concerning the entity's workforce is no longer pertinent to the
administration of our EEO outreach requirements. We will adopt at this
time a single form, FCC Form 396-C, which will include the portions of
Forms 395-A and 395-M relating to EEO outreach, but not the portion
eliciting data concerning the entity's workforce, for use by all MVPDs.
We will consider the adoption of a new form for eliciting workforce
data from MVPDs as part of the future R&O in which we will also address
the broadcast Form 395-B.
C. Constitutional Issues
110. The court in Association upheld Option A of the EEO rule as
constitutional because it found that broadcasters were not pressured to
recruit minorities and women under Option A. The recruitment outreach
provisions we are adopting in this 2R&O and 3rd NPRM are the same in
all material respects as the basic requirements of Option A. In
enforcing the EEO rule, the Commission will not pressure employers to
favor anyone on the basis of race, ethnicity, or gender. As a race and
gender neutral regulation, the EEO rule we are adopting today raises no
equal protection concerns.
V. Conclusion
111. In this 2R&O, we adopt a new broadcast EEO rule and set of
policies, and we amend our MVPD EEO rules and policies. We remain
committed both to prohibiting discrimination in employment and
requiring broad and inclusive outreach in recruitment by broadcasters
and cable entities.
VI. Procedural Matters
112. Final Regulatory Flexibility Analysis. As required by the
Regulatory Flexibility Act (``RFA''), 5 U.S.C. 603, an Initial
Regulatory Flexibility Analysis (``IRFA'') was incorporated in the
2NPRM. The Commission sought written public comments on the possible
significant economic impact of the proposed policies and rules on small
entities in the NPRM, including comments on the IRFA. Pursuant to the
Regulatory Flexibility Act, 5 U.S.C. 604, a Final Regulatory
Flexibility Analysis (``FRFA'') is contained in Appendix B.
113. Paperwork Reduction Act of 1995 Analysis. The actions herein
have been analyzed with respect to the Paperwork Reduction Act of 1995
and found to impose new or modified reporting and recordkeeping
requirements or burdens on the public. Implementation of these new or
modified reporting and recordkeeping requirements will be subject to,
and become effective upon, approval by the Office of Management and
Budget as prescribed by the Act.
VII. Final Regulatory Flexibility Analysis
114. As required by the RFA, an IRFA was incorporated into the
2NPRM in this proceeding. The Commission sought written public comments
on the possible significant economic impact of the proposed policies
and rules on small entities in the 2NPRM, including comments on the
IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the
RFA.
A. Need for, and Objectives of, the Proposed Rule Changes
115. This 2R&O adopts new equal employment opportunity (EEO) rules
and policies for broadcasters and multi-channel video program
distributors (MVPDs) consistent with the decision of the U.S. Court of
Appeals for the District of Columbia Circuit in MD/DC/DE Broadcasters
Association v. FCC, 236 F.3d 13, rehearing den. 253 F.3d 732 (D.C. Cir.
2001), cert. denied, 122 S.Ct. 920 (2002) (Association). The Court
therein found unconstitutional one of two options for achieving broad
outreach provided by the broadcast EEO outreach requirements adopted in
the R&O, and codified as Sec. 73.2080 of the Commission's rules, 47
CFR 73.2080. The Court found the option invalid because it found that
nonminority job applicants were less likely to receive notification of
job openings under that recruitment option. The Court further found
that the other option provided by the rule, although not invalid, could
not be severed from the one unconstitutional option and therefore it
vacated the entire rule.
[[Page 685]]
B. Summary of Significant Issues Raised by the Public Comments in
Response to the IRFA
116. One comment was filed specifically in response to the IRFA.
The American Cable Association (ACA) proposes the following relief for
smaller MVPDs serving fewer than 15,000 subscribers or, in the
alternative, employing ten or fewer employees: an exemption from the
EEO outreach requirements, streamlined recordkeeping and reporting
requirements, and a streamlined FCC Form 395-A (Cable Television Annual
Employment Report). ACA states that for many smaller companies,
compliance with EEO outreach, recordkeeping, and reporting requirements
imposes substantial administrative burdens and costs. ACA also filed
these same comments regarding small MVPDs in response to the 2NPRM. We
note that the 2R&O considers ACA's concerns and provides relief to
small MVPD employment units.
C. Recording, Recordkeeping, and Other Compliance Requirements
117. The purpose of this rulemaking is to replace our prior EEO
rule that was found in part to be unconstitutional. Hence, the
recording, recordkeeping, and compliance requirements of the new rule
will not exceed those under the former rule. We note that the Small
Business Administration (SBA) approved our approach for small broadcast
stations and small MVPDs under our former rule. Generally, no special
skills will be necessary to comply with the requirements.
118. The 2R&O requires that broadcasters and MVPDs recruit for all
full-time job vacancies except in exigent circumstances, that some EEO
materials be kept in the public inspection file, and that all
broadcasters and MVPDs adhere to the EEO rules' general anti-
discrimination provisions.
119. In addition, broadcasters and MVPDs must undertake two
additional recruitment measures. The first recruitment measure requires
broadcasters and MVPDs to provide notification of full-time job
vacancies to any requesting organization if the organization is
involved in assisting job seekers. Depending on the size or location of
a station's staff, the second recruitment measure requires broadcasters
to engage in at least four (for station employment units with more than
ten full-time employees in larger markets) or two (for station
employment units with five to ten full-time employees or if they are
located in a small market) of the following menu options every two
years: participation in at least four job fairs by station personnel
who have substantial responsibility in the making of hiring decisions;
hosting of at least one job fair; co-sponsoring at least one job fair
with organizations in the business and professional community whose
membership includes substantial participation of women and minorities;
participation in at least four events sponsored by organizations
representing groups present in the community interested in broadcast
employment issues (including conventions, career days, workshops, and
similar activities); establishment of an internship program designed to
assist members of the community to acquire skills needed for broadcast
employment; participation in job banks, Internet programs, and other
programs designed to promote outreach generally; participation in
scholarship programs designed to assist students interested in pursuing
a career in broadcasting; establishment of training and mentoring
programs designed to enable station personnel to acquire skills that
could qualify them for higher level positions; participation in at
least four events or programs sponsored by educational institutions
relating to career opportunities in broadcasting; sponsorship of at
least two events in the community designed to inform members of the
public as to employment opportunities in broadcasting; listing of each
upper-level category opening in a job bank or newsletter of media trade
groups whose membership includes substantial participation of women and
minorities; providing assistance to outside non-profit entities in the
maintenance of web sites that provide counseling on the process of
searching for broadcast employment and/or other career development
assistance pertinent to broadcasting; providing training to management
level personnel as to methods of ensuring equal employment opportunity
and preventing discrimination; providing training to personnel of
outside organizations interested in broadcast employment opportunities
that would enable them to better refer job candidates for broadcast
positions; and participation in other activities designed by the
station employment unit to further the goal of disseminating
information about employment opportunities in broadcasting to job
candidates who might otherwise be unaware of such opportunities. MVPD
units in larger markets with more than ten full-time employees engage
in at least two options from the recruitment measures menu every year
and MVPD units with six to ten full-time employees or those located in
small markets engage in at least one option every year.
120. Also, broadcasters and MVPDs must retain records to
demonstrate that they have recruited for all full-time permanent
positions. Such recordkeeping includes: listings of all full-time
vacancies filled, listings of recruitment sources, the address/contact
person/telephone number of each recruitment source, dated copies of
advertisements and other documentation announcing vacancies, listings
of those organizations which requested notification of vacancies, the
total number of interviewees for each vacancy, the date and recruitment
source of each hire, the number of interviewees referred by each
recruitment source, and documentation showing proof of participation in
menu options. Broadcasters' records must be maintained until grant of
the renewal application for the term during which the hiring activity
occurred. MVPDs would retain their records for a minimum of seven
years. In order to lessen any burdens, records may be maintained in an
electronic format, e.g., by scanning pertinent documents into a
computer format.
121. Stations and MVPDs must place annually the following EEO
records in their local public inspection file: listings of full-time
vacancies filled during the preceding year, recruitment sources used
for each vacancy, the address/contact person/telephone number of each
recruitment source, an indication of the organizations requesting
notification, the total number of persons interviewed for full-time
vacancies during the preceding year, the total number of interviewees
referred by each recruitment source, a list of the recruitment source
that referred each full-time hiree, and a brief description of the menu
option items undertaken during the preceding year. Station units retain
the materials in their file until final action has been taken on the
station's next license renewal application, and cable entities retain
their materials for a period of five years.
122. Most broadcasters must submit the contents of their station's
EEO public inspection file to the FCC as part of their renewal
application and midway through the license term for the Commission's
mid-term review (for those subject to mid-term review), and MVPDs with
six or more full-time employees submit copies of their EEO public
inspection file to the Commission every five years. Broadcasters'
submissions cover only the last two years of EEO activity. MVPDs'
submissions cover only the last
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year of EEO activity. Broadcasters must post their current EEO public
file report on their web site, if they have one.
123. Also, broadcasters subject to mid-term review must file Form
397 (Broadcast Mid-Term Report) and place a copy of the Report in the
public inspection file. Broadcasters must also place a copy of Form 396
(Broadcast EEO Program Report) and Form 396-A (Broadcast Model EEO
Program Report for the construction or sale of a station) in the public
inspection file.
124. We also note that we have provided relief to broadcast and
MVPD entities located in small markets. While this is not specifically
a small entity relief, this action also lessens compliance burdens.
D. Description and Estimate of the Number of Small Entities to Which
the Rules Would Apply
1. Definition of a ``Small Business''
125. The new rules would apply to broadcast stations and MVPDs. The
RFA directs the Commission to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted herein. Under the RFA, small entities may
include small organizations, small businesses, and small governmental
jurisdictions. The RFA, 5 U.S.C. 601(3), generally defines the term
``small business'' as having the same meaning as the term ``small
business concern'' under the Small Business Act, 15 U.S.C. 632. A small
business concern is one which: (1) Is independently owned and operated;
(2) is not dominant in its field of operation; and (3) satisfies any
additional criteria established by the SBA. Pursuant to 5 U.S.C.
601(3), the statutory definition of a small business applies ``unless
an agency, after consultation with the Office of Advocacy of the [SBA]
and after opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities of the
agency and publishes such definition(s) in the Federal Register.''
126. A small organization is generally ``any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.'' Nationwide, as of 1992, there were
approximately 275,801 small organizations. Finally, ``small
governmental jurisdiction'' generally means ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than 50,000.'' As of 1992, there
were approximately 85,006 such jurisdictions in the United States. This
number includes 38,978 counties, cities, and towns; of these, 37,566,
or 96 percent, have populations of fewer than 50,000. The United States
Bureau of the Census (Census Bureau) estimates that this ratio is
approximately accurate for all governmental entities. Thus, of the
85,006 governmental entities, we estimate that 81,600 (91 percent) are
small entities.
2. Issues in Applying the Definition of a ``Small Business''
127. We could not precisely apply the foregoing definition of
``small business'' in developing our estimates of the number of small
entities to which the rules will apply. Our estimates reflect our best
judgments based on the data available to us.
128. An element of the definition of ``small business'' is that the
entity not be dominant in its field of operation. We are unable at this
time to define or quantify the criteria that would establish whether a
specific radio or television station is dominant in its field of
operation. Accordingly, the following estimates of small businesses to
which the new rules will apply do not exclude any radio or television
station from the definition of a small business on this basis and are
therefore overinclusive to that extent. An additional element of the
definition of ``small business'' is that the entity must be
independently owned and operated. The SBA's general size standards are
developed taking into account these two statutory criteria. This does
not preclude us from taking these factors into account in making our
estimates of the numbers of small entities.
129. With respect to applying the revenue cap, the SBA has defined
``annual receipts'' specifically in 13 CFR 121.104, and its
calculations include an averaging process. We do not currently require
submission of financial data from licensees that we could use in
applying the SBA's definition of a small business. Thus, for purposes
of estimating the number of small entities to which the rules apply, we
are limited to considering the revenue data that are publicly
available, and the revenue data on which we rely may not correspond
completely with the SBA definition of annual receipts.
130. Under SBA criteria for determining annual receipts, if a
concern has acquired an affiliate or been acquired as an affiliate
during the applicable averaging period for determining annual receipts,
the annual receipts in determining size status include the receipts of
both firms. The SBA defines affiliation in 13 CFR 121.103. In this
context, the SBA's definition of affiliate is analogous to our
attribution rules. Generally, under the SBA's definition, concerns are
affiliates of each other when one concern controls or has the power to
control the other, or a third party or parties controls or has the
power to control both. The SBA considers factors such as ownership,
management, previous relationships with or ties to another concern, and
contractual relationships, in determining whether affiliation exists.
Instead of making an independent determination of whether television
stations were affiliated based on SBA's definitions, we relied on the
databases available to us to provide us with that information.
3. Estimates Based on Census Data
131. The rules to be adopted pursuant to this 2R&O will apply to
broadcast television and radio stations. The SBA defines a television
broadcasting station that has no more than $12.0 million in annual
receipts as a small business. Television broadcasting stations consist
of establishments primarily engaged in broadcasting visual programs by
television to the public, except cable and other pay television
services. Included in this industry are commercial, religious,
educational, and other television stations. Also included are
establishments primarily engaged in television broadcasting and which
produce taped television program materials. Separate establishments
primarily engaged in producing taped television program materials are
classified under other North American Industry Classification (NAICS)
numbers.
132. There were 1,695 full-service television stations operating as
of December 2001. According to Census Bureau data for 1997, there were
906 Television Broadcasting firms, total, that operated for the entire
year. Of this total, 734 firms had annual receipts of $9,999,999.00 or
less and an additional 71 had receipts of $10 million to
$24,999,999.00. Thus, under this standard, the majority of firms can be
considered small.
133. The SBA defines a radio broadcasting station that has no more
than $6 million in annual receipts as a small business. A radio
broadcasting station is an establishment primarily engaged in
broadcasting aural programs by radio to the public. Included in this
industry are commercial, religious, educational, and other radio
stations. Radio broadcasting stations which primarily are engaged in
radio broadcasting and which produce radio program materials are
similarly included. Radio stations which are
[[Page 687]]
separate establishments and are primarily engaged in producing radio
program material are classified under another NAICS number. According
to Census Bureau data for 1997, there were 4,476 Radio Stations
(firms), total, that operated for the entire year. Of this total 4,265
had annual receipts of $4,999,999.00 or less, and an additional 103
firms had receipts of $5 million to $9,999,999.00. Under this standard,
the great majority of firms can be considered small.
134. The 2R&O also amends EEO rules applicable to MVPDs. SBA has
developed a definition of a small entity for cable and other program
distribution, which includes all such companies generating $12.5
million or less in annual receipts. This definition includes direct
broadcast satellite services (DBS), multipoint distribution systems
(MDS), and local multipoint distribution service (LMDS). According to
Census Bureau data for 1997, there were 1,311 firms within the industry
category Cable and Other Program Distribution, total, that operated for
the entire year. Of this total, 1,180 firms had annual receipts of
$9,999,999.00 or less, and an additional 52 firms had receipts of $10
million to $24,999,999.00. Under this standard, the majority of firms
can be considered small.
135. Cable Systems: The Commission has developed, with SBA's
approval, its own definition of small cable system operators. Under the
Commission's rules, a ``small cable company'' is one serving fewer than
400,000 subscribers nationwide. Based on our most recent information,
we estimate that there were 1,439 cable operators that qualified as
small cable companies at the end of 1995. Since then, some of those
companies may have grown to serve more than 400,000 subscribers, and
others may have been involved in transactions that caused them to be
combined with other cable operators. Consequently, we estimate that
there are fewer than 1,439 small entity cable system operators that may
be affected by the rules proposed herein.
136. The Communications Act also contains a definition of a small
cable system operator, which is ``a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than 1% of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenue in the aggregate exceeds
$250,000,000.'' The Commission has determined that there are 67,700,000
subscribers in the United States. We found that an operator serving
fewer than 677,000 subscribers shall be deemed a small operator, if its
annual revenues, when combined with the total annual revenues of all of
its affiliates, do not exceed $250 million in the aggregate. Based on
available data, we find that the number of cable operators serving
677,000 subscribers or less totals approximately 1,450. Since we do not
request nor collect information on whether cable system operators are
affiliated with entities whose gross annual revenues exceed
$250,000,000, we are unable at this time to estimate with greater
precision the number of cable system operators that would qualify as
small cable operators under the definition in the Communications Act.
137. MDS: MDS involves a variety of transmitters, which are used to
relay programming to the home or office. The Commission has defined
``small entity'' for purposes of the 1996 auction of MDS as an entity
that, together with its affiliates, has average gross annual revenues
that are not more than $40 million for the preceding three calendar
years. This definition of a small entity in the context of MDS auctions
has been approved by the SBA. These stations were licensed prior to
implementation of section 309(j) of the Communications Act of 1934, as
amended. Licenses for new MDS facilities are now awarded to auction
winners in Basic Trading Areas (BTAs) and BTA-like areas. The MDS
auctions resulted in 67 successful bidders obtaining licensing
opportunities for 493 BTAs. Of the 67 auction winners, 61 met the
definition of a small business.
138. LMDS: The auction of the 1,030 LMDS licenses began on February
18, 1998, and closed on March 25, 1998. The Commission defined ``small
entity'' for LMDS licenses as an entity that has average gross revenues
of less than $40 million in the three previous calendar years. An
additional classification for ``very small business'' was added and is
defined as an entity that, together with its affiliates, has average
gross revenues of not more than $15 million for the preceding three
calendar years. These regulations defining ``small entity'' in the
context of LMDS auctions have been approved by the SBA. There were 93
winning bidders that qualified as small entities in the LMDS auctions.
A total of 93 small and very small business bidders won approximately
277 A Block licenses and 387 B Block licenses. On March 27, 1999, the
Commission reauctioned 161 licenses; there were 40 winning bidders.
Based on this information, we conclude that the number of small LMDS
licenses will include the 93 winning bidders in the first auction and
the 40 winning bidders in the reauction, for a total of 133 small
entity LMDS providers as defined by the SBA and the Commission's
auction rules.
139. DBS: Because DBS provides subscription services, it falls
within the SBA-recognized definition of ``Cable and Other Program
Distribution.'' This definition provides that a small entity is one
with $12.5 million or less in annual receipts. Currently, there are
nine DBS authorizations, though there are only two DBS companies in
operation at this time. We neither request nor collect annual revenue
information for DBS services, and are unable to determine the number of
DBS operators that would be considered a small business under the SBA
definition.
140. An alternative way to classify small entities is by the number
of employees. Based on available data, we estimate that in 1997 the
total number of full-service broadcast stations with four or fewer
employees was 5186, of which 340 were television stations. Similarly,
we estimate that in 1997, 1900 cable employment units employed fewer
than six full-time employees. Also, in 1997, 296 ``MVPD'' employment
units employed fewer than six full-time employees. We also estimate
that in 1997, the total number of full-service broadcast stations with
five to ten employees was 2145, of which 200 were television stations.
Similarly, we estimate that in 1997, 322 cable employment units
employed six to ten full-time employees. Also, in 1997, approximately
65 MVPD employment units employed six to ten full-time employees.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
141. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.
142. This 2R&O sets forth the Commission's new EEO rules and
procedures, and considers the significant alternatives presented in the
comments. We have determined that our finalized rules fulfill our
public interest goals while maintaining minimal
[[Page 688]]
regulatory burdens and ease and clarity of administration.
143. The 2NPRM proposed to exempt small staff stations from
specific EEO recordkeeping and reporting requirements as had been the
case under our previous EEO rule. Under our former EEO rule, station
employment units with fewer than five full-time employees were exempt
from the rule's outreach provisions; station employment units with five
to ten full-time employees performed only two, rather than four, menu
options every two years; and radio station employment units with five
to ten full-time employees were exempt from the mid-term review
requirement. In addition, MVPD employment units employing six to ten
full-time employees performed only one menu option each year as opposed
to the two options required otherwise. MVPDs with fewer than six full-
time employees were not required to demonstrate compliance with the EEO
program requirements. The 2R&O adopts this same relief. Thus, the EEO
rule does not impose unreasonable burdens on small broadcasters or
MVPDs.
144. We provide this relief because entities with small staffs have
limited personnel and financial resources to carry out EEO
requirements. The exception for small businesses provides them with
some relief of any recordkeeping and reporting costs. We believe that
the relief to small broadcasters and MVPDs balances the importance of
deterring discrimination and achieving broad outreach in broadcast and
MVPD employment practices against the need to maintain minimal
regulatory burdens.
145. The 2NPRM asked whether the Commission should increase the
number of employees below which broadcasters would be exempt from the
EEO outreach requirements to include employment units with ten or fewer
employees. We also asked whether to increase the threshold for the
lesser number of menu options, or permit the lesser number for stations
in smaller markets. As noted, we received one comment directly in
response to the IRFA. In addition, we received a few general comments
that are pertinent. As discussed in the 2R&O, the National Association
of Broadcasters (NAB) supports exempting stations with fewer than ten
full-time employees. NAB explains that such stations face unique
obstacles in complying with our rule because of a lack of personnel and
resources, difficulties in competing with larger stations, and a lack
of access to resources necessary to implement menu options. NAB also
contends that stations in smaller markets face difficulties similar to
those facing stations with fewer that ten full-time employees. The
Association of Public Television Stations supports an exemption from
the EEO rule for stations with ten or fewer employees because of the
funding problems of small public television stations, especially those
outside of top 100 markets, and difficulties experienced in attracting
and retaining minority employees. The Local Television Group (LTVG)
asks the Commission to exempt stations with fewer than 100 employees,
in order to parallel Equal Employment Opportunity Commission rules.
Minority Media and Telecommunications Council (MMTC), the National
Organization for Women (NOW), American Women in Radio and Television
(AWRT), the National Association for the Advancement of Colored People
(NAACP), and the Lawyers' Committee for Civil Rights Under Law oppose
an increase in the exemptions, citing primarily the opportunity for
entry into the industry provided by small stations.
146. The ACA asks for an exemption from the EEO outreach
requirements, streamlined recordkeeping and reporting requirements, and
a streamlined FCC Form 395-A (Cable Television Annual Employment
Report) for cable systems with fewer than 15,000 subscribers or, in the
alternative, employing ten or fewer employees. ACA explains that the
Commission previously provided relief to systems with fewer than 15,000
subscribers in the context of rate regulation, and that compliance with
EEO outreach and recordkeeping imposes substantial administrative
burdens for smaller cable companies.
147. Fletcher Heald & Hildreth, P.L.C. (FH&H) requests that the
Commission adopt a policy that when an owner has a controlling interest
(20% or greater voting control) in a licensee, he or she would not be
considered a station employee for purposes of the EEO rule, even if he
or she in fact worked at the station.
148. We recognize that smaller markets may not have the resources
in the community to support many of the required menu options.
Accordingly, the EEO rule adopted in the 2R&O provides that small
market systems will be permitted to perform only two, rather than four,
menu options during a two-year period.
149. The EEO rule also will not consider owners holding a 20% or
greater voting interest in a licensee as station employees for EEO
purposes. This policy could assist small operators by reducing the
number of full-time employees an entity would have when assessing its
eligibility for a small entity exemption or other small business
relief.
150. We find no basis in the record to provide any additional
exemptions from our rule. Generalized claims as to the alleged burdens
by commenters are unsupported by evidence. The rule we are adopting
today does not impose unreasonable burdens on small entities. Nor does
the rule impose hardships comparable to those involved in rate
regulation. Further, as we found in the R&O, small entities provide
much needed entry-level employment opportunities in the industry.
151. With respect to streamlining reporting/recordkeeping
requirements, we will replace Form 395-A with a new form, the FCC Form
396-C. MVPD compliance with the EEO rule's requirements is monitored
pursuant to annual reports filed by MVPDs which must be placed in an
entity's public file. The Form 396-C requires information concerning
the entity's EEO outreach program and not its workforce. We will
consider the adoption of a new form eliciting workforce data in a
future R&O.
152. In order to lessen any burdens, the 2R&O does not require the
retention of records of the recruitment sources of applicants as this
may require additional efforts to contact applicants who did not
provide the information in the application. Also, records may be
conveniently maintained in an electronic format, e.g., by scanning
pertinent documents into a computer format.
Report to Congress
153. The Commission will send a copy of the 2R&O, including this
FRFA, in a report to be sent to Congress pursuant to the Congressional
Review Act, 5 U.S.C. 801(a)(1)(A). In addition, the Commission's
Consumer and Governmental Affairs Bureau, Reference Information Center,
will send a copy of this 2R&O, including this FRFA, to the Chief
Counsel for Advocacy of the Small Business Administration. A copy of
the 2R&O and FRFA (or summaries thereof) will also be published in the
Federal Register. See 5 U.S.C. 604(b).
Ordering Clause
154. Pursuant to the authority contained in sections 1, 4(i), 4(k),
257, 301, 303(r), 307, 308(b), 309, 334, 403, and 634 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(k),
257, 301, 303(r), 307, 308(b), 309, 334, 403, and 554, 2R&O is adopted,
and part 73 and part 76 of the Commission's rules are amended. It is
our intention in adopting these rule
[[Page 689]]
changes that, if any provision of the rules, or the application thereof
to any person or circumstance, is held to be unlawful, the remaining
portions of the rules not deemed unlawful and the application of such
rules to other persons or circumstances shall remain in effect to the
fullest extent permitted by law.
155. The late-filed comments and reply comments in this proceeding
are considered as part of the record in this proceeding.
156. Pursuant to the Congressional Review Act, the new rules and
amendments will become effective either March 10, 2003, or upon receipt
by Congress of a report in compliance with the Congressional Review
Act, 5 U.S.C. 801, whichever is later, and the information collection
contained in these rules will become effective March 10, 2003,
following OMB approval, unless a notice is published in the Federal
Register stating otherwise. We will not require television broadcast
licensees to file EEO mid-term reports in 2003.
157. FCC Forms 395A, 395B and 395M, and Sec. Sec. 73.3612 of the
Commission's rules, 47 CFR 73.3612 (Annual Employment Report) and Sec.
76.1802 of the Commission's rules, 47 CFR 76.1802 (Equal Employment
Opportunity) will remain suspended pending further action on workforce
data collection issues.
158. The Commission's Consumer and Governmental Affairs Bureau,
Reference Information Center, shall send a copy of this 2R&O, including
the Final Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.
159. MM Docket No. 98-204 will remain open for the limited purpose
of considering the issues raised in the 3rd NPRM, and to facilitate any
additional proceedings upon further order of the Commission.
List of Subjects in 47 CFR Parts 73 and 76
Cable television, Equal employment opportunity.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Rule Changes
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 73 and 76 as follows:
PART 73--RADIO BROADCAST SERVICES
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334 and 336.
2. Section 73.2080 is revised to read as follows:
Sec. 73.2080 Equal employment opportunities (EEO).
(a) General EEO policy. Equal opportunity in employment shall be
afforded by all licensees or permittees of commercially or
noncommercially operated AM, FM, TV, Class A TV or international
broadcast stations (as defined in this part) to all qualified persons,
and no person shall be discriminated against in employment by such
stations because of race, color, religion, national origin, or sex.
Religious radio broadcasters may establish religious belief or
affiliation as a job qualification for all station employees. However,
they cannot discriminate on the basis of race, color, national origin
or gender from among those who share their religious affiliation or
belief. For purposes of this rule, a religious broadcaster is a
licensee which is, or is closely affiliated with, a church, synagogue,
or other religious entity, including a subsidiary of such an entity.
(b) General EEO program requirements. Each broadcast station shall
establish, maintain, and carry out a positive continuing program of
specific practices designed to ensure equal opportunity and
nondiscrimination in every aspect of station employment policy and
practice. Under the terms of its program, a station shall:
(1) Define the responsibility of each level of management to ensure
vigorous enforcement of its policy of equal opportunity, and establish
a procedure to review and control managerial and supervisory
performance;
(2) Inform its employees and recognized employee organizations of
the equal employment opportunity policy and program and enlist their
cooperation;
(3) Communicate its equal employment opportunity policy and program
and its employment needs to sources of qualified applicants without
regard to race, color, religion, national origin, or sex, and solicit
their recruitment assistance on a continuing basis;
(4) Conduct a continuing program to exclude all unlawful forms of
prejudice or discrimination based upon race, color, religion, national
origin, or sex from its personnel policies and practices and working
conditions; and
(5) Conduct a continuing review of job structure and employment
practices and adopt positive recruitment, job design, and other
measures needed to ensure genuine equality of opportunity to
participate fully in all organizational units, occupations, and levels
of responsibility.
(c) Specific EEO program requirements. Under the terms of its
program, a station employment unit must:
(1) Recruit for every full-time job vacancy in its operation. A job
filled by an internal promotion is not considered a vacancy for which
recruitment is necessary. Religious radio broadcasters who establish
religious affiliation as a qualification for a job position are not
required to comply with these recruitment requirements with respect to
that job position or positions, but will be expected to make
reasonable, good faith efforts to recruit applicants who are qualified
based on their religious affiliation. Nothing in this section shall be
interpreted to require a broadcaster to grant preferential treatment to
any individual or group based on race, color, national origin,
religion, or gender.
(i) A station employment unit shall use recruitment sources for
each vacancy sufficient in its reasonable, good faith judgment to
widely disseminate information concerning the vacancy.
(ii) In addition to such recruitment sources, a station employment
unit shall provide notification of each full-time vacancy to any
organization that distributes information about employment
opportunities to job seekers or refers job seekers to employers, upon
request by such organization. To be entitled to notice of vacancies,
the requesting organization must provide the station employment unit
with its name, mailing address, e-mail address (if applicable),
telephone number, and contact person, and identify the category or
categories of vacancies of which it requests notice. (An organization
may request notice of all vacancies).
(2) Engage in at least four (if the station employment unit has
more than ten full-time employees and is not located in a smaller
market) or two (if it has five to ten full-time employees and/or is
located entirely in a smaller market) of the following initiatives
during each two-year period beginning with the date stations in the
station employment unit are required to file renewal applications, or
the second, fourth or sixth anniversaries of that date.
[[Page 690]]
(i) Participation in at least four job fairs by station personnel
who have substantial responsibility in the making of hiring decisions;
(ii) Hosting of at least one job fair;
(iii) Co-sponsoring at least one job fair with organizations in the
business and professional community whose membership includes
substantial participation of women and minorities;
(iv) Participation in at least four events sponsored by
organizations representing groups present in the community interested
in broadcast employment issues, including conventions, career days,
workshops, and similar activities;
(v) Establishment of an internship program designed to assist
members of the community to acquire skills needed for broadcast
employment;
(vi) Participation in job banks, Internet programs, and other
programs designed to promote outreach generally (i.e., that are not
primarily directed to providing notification of specific job
vacancies);
(vii) Participation in scholarship programs designed to assist
students interested in pursuing a career in broadcasting;
(viii) Establishment of training programs designed to enable
station personnel to acquire skills that could qualify them for higher
level positions;
(ix) Establishment of a mentoring program for station personnel;
(x) Participation in at least four events or programs sponsored by
educational institutions relating to career opportunities in
broadcasting;
(xi) Sponsorship of at least two events in the community designed
to inform and educate members of the public as to employment
opportunities in broadcasting;
(xii) Listing of each upper-level category opening in a job bank or
newsletter of media trade groups whose membership includes substantial
participation of women and minorities;
(xiii) Provision of assistance to unaffiliated non-profit entities
in the maintenance of web sites that provide counseling on the process
of searching for broadcast employment and/or other career development
assistance pertinent to broadcasting;
(xiv) Provision of training to management level personnel as to
methods of ensuring equal employment opportunity and preventing
discrimination;
(xv) Provision of training to personnel of unaffiliated non-profit
organizations interested in broadcast employment opportunities that
would enable them to better refer job candidates for broadcast
positions;
(xvi) Participation in other activities designed by the station
employment unit reasonably calculated to further the goal of
disseminating information as to employment opportunities in
broadcasting to job candidates who might otherwise be unaware of such
opportunities.
(3) Analyze its recruitment program on an ongoing basis to ensure
that it is effective in achieving broad outreach to potential
applicants, and address any problems found as a result of its analysis.
(4) Periodically analyze measures taken to:
(i) Disseminate the station's equal employment opportunity program
to job applicants and employees;
(ii) Review seniority practices to ensure that such practices are
nondiscriminatory;
(iii) Examine rates of pay and fringe benefits for employees having
the same duties, and eliminate any inequities based upon race, national
origin, color, religion, or sex discrimination;
(iv) Utilize media for recruitment purposes in a manner that will
contain no indication, either explicit or implicit, of a preference for
one race, national origin, color, religion or sex over another;
(v) Ensure that promotions to positions of greater responsibility
are made in a nondiscriminatory manner;
(vi) Where union agreements exist, cooperate with the union or
unions in the development of programs to ensure all persons of equal
opportunity for employment, irrespective of race, national origin,
color, religion, or sex, and include an effective nondiscrimination
clause in new or renegotiated union agreements; and
(vii) Avoid the use of selection techniques or tests that have the
effect of discriminating against any person based on race, national
origin, color, religion, or sex.
(5) Retain records to document that it has satisfied the
requirements of paragraphs (c)(1) and (2) of this section. Such
records, which may be maintained in an electronic format, shall be
retained until after grant of the renewal application for the term
during which the vacancy was filled or the initiative occurred. Such
records need not be submitted to the FCC unless specifically requested.
The following records shall be maintained:
(i) Listings of all full-time job vacancies filled by the station
employment unit, identified by job title;
(ii) For each such vacancy, the recruitment sources utilized to
fill the vacancy (including, if applicable, organizations entitled to
notification pursuant to paragraph (c)(1)(ii) of this section, which
should be separately identified), identified by name, address, contact
person and telephone number;
(iii) Dated copies of all advertisements, bulletins, letters,
faxes, e-mails, or other communications announcing vacancies;
(iv) Documentation necessary to demonstrate performance of the
initiatives required by paragraph (c)(2) of this section, including
sufficient information to fully disclose the nature of the initiative
and the scope of the station's participation, including the station
personnel involved;
(v) The total number of interviewees for each vacancy and the
referral source for each interviewee; and
(vi) The date each vacancy was filled and the recruitment source
that referred the hiree.
(6) Annually, on the anniversary of the date a station is due to
file its renewal application, the station shall place in its public
file, maintained pursuant to Sec. 73.3526 or Sec. 73.3527, and on its
web site, if it has one, an EEO public file report containing the
following information (although if any broadcast licensee acquires a
station pursuant to FCC Form 314 or FCC Form 315 during the twelve
months covered by the EEO public file report, its EEO public file
report shall cover the period starting with the date it acquired the
station):
(i) A list of all full-time vacancies filled by the station's
employment unit during the preceding year, identified by job title;
(ii) For each such vacancy, the recruitment source(s) utilized to
fill the vacancy (including, if applicable, organizations entitled to
notification pursuant to paragraph (c)(1)(ii) of this section, which
should be separately identified), identified by name, address, contact
person and telephone number;
(iii) The recruitment source that referred the hiree for each full-
time vacancy during the preceding year;
(iv) Data reflecting the total number of persons interviewed for
full-time vacancies during the preceding year and the total number of
interviewees referred by each recruitment source utilized in connection
with such vacancies; and
(v) A list and brief description of initiatives undertaken pursuant
to paragraph (c)(2) of this section during the preceding year.
(d) Small Station Exemption. The provisions of paragraphs (b) and
(c) of this section shall not apply to station employment units that
have fewer than five full-time employees.
[[Page 691]]
(e) Definitions. For the purposes of this rule:
(1) A full-time employee is a permanent employee whose regular work
schedule is 30 hours per week or more.
(2) A station employment unit is a station or a group of commonly
owned stations in the same market that share at least one employee.
(3) A smaller market includes metropolitan areas as defined by the
Office of Management and Budget with a population of fewer than 250,000
persons and areas outside of all metropolitan areas as defined by the
Office of Management and Budget.
(f) Enforcement. The following provisions apply to employment
activity concerning full-time positions at each broadcast station
employment unit (defined in this part) employing five or more persons
in full-time positions, except where noted.
(1) All broadcast stations, including those that are part of an
employment unit with fewer than five full-time employees, shall file a
Broadcast Equal Employment Opportunity Program Report (Form 396) with
their renewal application. Form 396 is filed on the date the station is
due to file its application for renewal of license. If a broadcast
licensee acquires a station pursuant to FCC Form 314 or FCC Form 315
during the period that is to form the basis for the Form 396,
information provided on its Form 396 should cover the licensee's EEO
recruitment activity during the period starting with the date it
acquired the station. Stations are required to maintain a copy of their
Form 396 in the station's public file in accordance with the provisions
of Sec. Sec. 73.3526 and 73.3527.
(2) 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 Sec. 73.1020. Each such licensee is required to file
with the Commission the Broadcast Mid-Term Report (FCC Form 397) four
months prior to that date. If a broadcast licensee acquires a station
pursuant to FCC Form 314 or FCC Form 315 during the period that is to
form the basis for the Form 397, its Report should cover the licensee's
EEO recruitment activity during the period starting with the date it
acquired the station.
(3) If a station is subject to a time brokerage agreement, the
licensee shall file Forms 396, Forms 397, and EEO public file reports
concerning only its own recruitment activity. If a licensee is a broker
of another station or stations, the licensee-broker shall include its
recruitment activity for the brokered station(s) in determining the
bases of Forms 396, Forms 397 and the EEO public file reports for its
own station. If a licensee-broker owns more than one station, it shall
include its recruitment activity for the brokered station in the Forms
396, Forms 397, and EEO public file reports filed for its own station
that is most closely affiliated with, and in the same market as, the
brokered station. If a licensee-broker does not own a station in the
same market as the brokered station, then it shall include its
recruitment activity for the brokered station in the Forms 396, Forms
397, and EEO public file reports filed for its own station that is
geographically closest to the brokered station.
(4) Broadcast stations subject to this section shall maintain
records of their recruitment activity necessary to demonstrate that
they are in compliance with the EEO rule. Stations shall ensure that
they maintain records sufficient to verify the accuracy of information
provided in Forms 396, Forms 397, and EEO public file reports. To
determine compliance with the EEO rule, the Commission may conduct
inquiries of licensees at random or if it has evidence of a possible
violation of the EEO rule. In addition, the Commission will conduct
random audits. Specifically, each year approximately five percent of
all licensees in the television and radio services will be randomly
selected for audit, ensuring that, even though the number of radio
licensees is significantly larger than television licensees, both
services are represented in the audit process. Upon request, stations
shall make records available to the Commission for its review.
(5) The public may file complaints throughout the license term
based on a station's Form 397 or the contents of a station's public
file. Provisions concerning filing, withdrawing, or non-filing of
informal objections or petitions to deny license renewal, assignment,
or transfer applications are delineated in Sec. Sec. 73.3584 and
73.3587-3589 of the Commission's rules.
(g) Sanctions and Remedies. The Commission may issue appropriate
sanctions and remedies for any violation of this rule.
PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
3. The authority citation for part 76 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a,
307, 308, 309, 312, 317, 325, 503, 521, 522, 531, 532, 533, 534,
535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 560,
561, 571, 572, 573.
4. Section 76.75 is amending by revising the section heading and
paragraphs (b), (f), (g), (h), (i), and (j); and removing paragraph
(k), to read as follows:
Sec. 76.75 Specific EEO program requirements.
* * * * *
(b) Establish, maintain and carry out a positive continuing program
of outreach activities designed to ensure equal opportunity and
nondiscrimination in employment. The following activities shall be
undertaken by each employment unit:
(1) Recruit for every full-time job vacancy in its operation. A job
filled by an internal promotion is not considered a vacancy for which
recruitment is necessary. Nothing in this section shall be interpreted
to require a multichannel video programming distributor to grant
preferential treatment to any individual or group based on race,
national origin, color, religion, age, or gender.
(i) An employment unit shall use recruitment sources for each
vacancy sufficient in its reasonable, good faith judgment to widely
disseminate information concerning the vacancy.
(ii) In addition to using such recruitment sources, a multichannel
video programming distributor employment unit shall provide
notification of each full-time vacancy to any organization that
distributes information about employment opportunities to job seekers
or refers job seekers to employers, upon request by such organization.
To be entitled to notice of vacancies, the requesting organization must
provide the multichannel video programming distributor employment unit
with its name, mailing address, e-mail address (if applicable),
telephone number, and contact person, and identify the category or
categories of vacancies of which it requests notice. (An organization
may request notice of all vacancies).
(2) Engage in at least two (if the unit has more than ten full-time
employees and is not located in a smaller market) or one (if the unit
has six to ten full-time employees and/or is located, in whole or in
part, in a smaller market) of the following initiatives during each
twelve-month period preceding the filing of an EEO program annual
report:
(i) Participation in at least two job fairs by unit personnel who
have substantial responsibility in the making of hiring decisions;
(ii) Hosting of at least one job fair;
[[Page 692]]
(iii) Co-sponsoring at least one job fair with organizations in the
business and professional community whose membership includes
substantial participation of women and minorities;
(iv) Participation in at least two events sponsored by
organizations representing groups present in the community interested
in multichannel video programming distributor employment issues,
including conventions, career days, workshops, and similar activities;
(v) Establishment of an internship program designed to assist
members of the community in acquiring skills needed for multichannel
video programming distributor employment;
(vi) Participation in job banks, Internet programs, and other
programs designed to promote outreach generally (i.e., that are not
primarily directed to providing notification of specific job
vacancies);
(vii) Participation in a scholarship program designed to assist
students interested in pursuing a career in multichannel video
programming communications;
(viii) Establishment of training programs designed to enable unit
personnel to acquire skills that could qualify them for higher level
positions;
(ix) Establishment of a mentoring program for unit personnel;
(x) Participation in at least two events or programs sponsored by
educational institutions relating to career opportunities in
multichannel video programming communications;
(xi) Sponsorship of at least one event in the community designed to
inform and educate members of the public as to employment opportunities
in multichannel video programming communications;
(xii) Listing of each upper-level category opening in a job bank or
newsletter of media trade groups whose membership includes substantial
participation of women and minorities;
(xiii) Provision of assistance to unaffiliated non-profit entities
in the maintenance of web sites that provide counseling on the process
of searching for multichannel video programming employment and/or other
career development assistance pertinent to multichannel video
programming communications;
(xiv) Provision of training to management level personnel as to
methods of ensuring equal employment opportunity and preventing
discrimination;
(xv) Provision of training to personnel of unaffiliated non-profit
organizations interested in multichannel video programming employment
opportunities that would enable them to better refer job candidates for
multichannel video programming positions;
(xvi) Participation in other activities reasonably calculated by
the unit to further the goal of disseminating information as to
employment opportunities in multichannel video programming to job
candidates who might otherwise be unaware of such opportunities.
* * * * *
(f) A multichannel video programming distributor shall analyze its
recruitment program on an ongoing basis to ensure that it is effective
in achieving broad outreach, and address any problems found as a result
of its analysis.
(g) Analyze on an ongoing basis its efforts to recruit, hire,
promote and use services without discrimination on the basis of race,
national origin, color, religion, age, or sex and explain any
difficulties encountered in implementing its equal employment
opportunity program. For example, this requirement may be met by:
(1) Where union agreements exist, cooperating with the union or
unions in the development of programs to ensure all persons equal
opportunity for employment, and including an effective
nondiscrimination clause in new or renegotiated union agreements;
(2) Reviewing seniority practices to ensure that such practices are
nondiscriminatory;
(3) Examining rates of pay and fringe benefits for employees having
the same duties, and eliminating any inequities based upon race,
national origin, color, religion, age, or sex discrimination;
(4) Evaluating the recruitment program to ensure that it is
effective in achieving a broad outreach to potential applicants.
(5) Utilizing media for recruitment purposes in a manner that will
contain no indication, either explicit or implicit, of a preference for
one race, national origin, color, religion, age, or sex over another;
and
(6) Avoiding the use of selection techniques or tests that have the
effect of discriminating against qualified minority groups or women.
(h) A full-time employee is a permanent employee whose regular work
schedule is 30 hours per week or more.
(i) The provisions of paragraphs (b)(1)(ii), (b)(2), (c), and (f)
of this section shall not apply to multichannel video programming
distributor employment units that have fewer than six full-time
employees.
(j) For the purposes of this rule, a smaller market includes
metropolitan areas as defined by the Office of Management and Budget
with a population of fewer than 250,000 persons and areas outside of
all metropolitan areas as defined by the Office of Management and
Budget.
5. Section 76.77 is revised to read as follows:
Sec. 76.77 Reporting requirements and enforcement.
(a) EEO program annual reports. Information concerning a unit's
compliance with the EEO recruitment requirements shall be filed by each
employment unit with six or more full-time employees on FCC Form 396-C
on or before September 30 of each year. If a multichannel video
programming distributor acquires a unit during the twelve months
covered by the EEO program annual report, the recruitment activity in
the report shall cover the period starting with the date the entity
acquired the unit.
(b) Certification of Compliance. The Commission will use the
recruitment information submitted on a unit's EEO program annual report
to determine whether the unit is in compliance with the provisions of
this subpart. Units found to be in compliance with these rules will
receive a Certificate of Compliance. Units found not to be in
compliance will receive notice that they are not certified for a given
year.
(c) Investigations. The Commission will investigate each unit at
least once every five years. Employment units are required to submit
supplemental investigation information with their regular EEO program
annual reports in the years they are investigated. If an entity
acquires a unit during the period covered by the supplemental
investigation, the information submitted by the unit as part of the
investigation shall cover the period starting with the date the
operator acquired the unit. The supplemental investigation information
shall include a copy of the unit's EEO public file report for the
preceding year.
(d) Records and inquiries. Employment units subject to this subpart
shall maintain records of their recruitment activity in accordance with
Sec. 76.75 to demonstrate whether they are in compliance with the EEO
rules. Units shall ensure that they maintain records sufficient to
verify the accuracy of information provided in their EEO program annual
reports and the supplemental investigation responses required by Sec.
76.1702 to be kept in a unit's public file. To determine compliance
with the EEO rules, the Commission may conduct inquiries of
[[Page 693]]
employment units at random or if the Commission has evidence of a
possible violation of the EEO rules. Upon request, employment units
shall make records available to the Commission for its review.
(e) Public complaints. The public may file complaints based on EEO
program annual reports, supplemental investigation information, or the
contents of a unit's public file.
(f) Sanctions and remedies. The Commission may issue appropriate
sanctions and remedies for any violation of the EEO rules.
6. Section 76.1702 is revised to read as follows:
Sec. 76.1702 Equal employment opportunity.
(a) Every employment unit with six or more full-time employees
shall maintain for public inspection a file containing copies of all
EEO program annual reports filed with the Commission pursuant to Sec.
76.77 and the equal employment opportunity program information
described in paragraph (b) of this section. These materials shall be
placed in the unit's public inspection file annually by the date that
the unit's EEO program annual report is due to be filed and shall be
retained for a period of five years. The file shall be maintained at
the central office and at every location with six or more full-time
employees. A headquarters employment unit file and a file containing a
consolidated set of all documents pertaining to the other employment
units of a multichannel video programming distributor that operates
multiple units shall be maintained at the central office of the
headquarters employment unit. The multichannel video programming
distributor shall provide reasonable accommodation at these locations
for undisturbed inspection of its equal employment opportunity records
by members of the public during regular business hours.
(b) The following equal employment opportunity program information
shall be included annually in the unit's public file, and on the unit's
web site, if it has one, at the time of the filing of its FCC Form 396-
C:
(1) A list of all full-time vacancies filled by the multichannel
video programming distributor employment unit during the preceding
year, identified by job title;
(2) For each such vacancy, the recruitment source(s) utilized to
fill the vacancy (including, if applicable, organizations entitled to
notification pursuant to Sec. 76.75(b)(1)(ii) of this section, which
should be separately identified), identified by name, address, contact
person and telephone number;
(3) The recruitment source that referred the hiree for each full-
time vacancy during the preceding year;
(4) Data reflecting the total number of persons interviewed for
full-time vacancies during the preceding year and the total number of
interviewees referred by each recruitment source utilized in connection
with such vacancies; and
(5) A list and brief description of the initiatives undertaken
pursuant to Sec. 76.75(b)(2) during the preceding year, if applicable.
BILLING CODE 6712-01-P
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Appendix--Forms
Note: The following appendix will not appear in the Code of
Federal Regulations.
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[FR Doc. 03-171 Filed 1-2-03; 11:55 am]
BILLING CODE 6712-01-C