David Oxenford

By: David Oxenford,
Wilkinson Barker Knauer LLP

The FCC last Friday released its second EEO audit notice for 2022 (available here), this time targeting approximately 130 radio and TV stations.  Those stations, and the station employment units (commonly owned stations serving the same area) with which they are associated, must provide to the FCC (by uploading the information to their online public inspection file) their last two years of EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules.

Audited stations must provide sample copies of notices sent to employment outreach sources about each full-time vacancy at the stations, as well as documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed, for example, to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide, in response to the audit, information about how they self-assessed the performance of their EEO program. Information about any pending or resolved proceedings involving discrimination claims must also be reported.  Stations that are listed in the audit notice have until October 7, 2022, to upload this information and other specified information about their EEO program to their online public file.  One new note on this audit – the FCC will not inform audited stations that their EEO performance was found satisfactory, but the Commission’s staff will inquire if they have questions or concerns about the performance of any employment unit.

The FCC has promised to randomly audit approximately 5% of all broadcast stations each year. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time.  The recent fine imposed on Cumulus Media for a late upload of a single EEO Annual Public File Report (see our article here) and the FCC’s pending consideration of the return of the EEO Form 395 reporting on the race and gender of all station employees (see our article here), shows how seriously the FCC takes EEO obligations. So, whether you are on the list or not, this is a good time for broadcasters to review what is required by the FCC’s EEO rules.

A few years ago, at the Wisconsin Association of Broadcasters annual convention, I did a presentation on the FCC requirements for EEO compliance. The slides from that presentation are available here. The FCC rules were designed to bring new people into broadcast employment positions – looking for broadcasters to recruit from outside the traditional informal networks that exist within the broadcast industry when hiring new employees. Not only should broadcasters be reaching out to their consultants and employees for referrals, and using their own airwaves to promote openings, but they need to be using outreach sources that are designed to reach all groups within a community to notify members of these groups about the availability of open employment positions at a station. While the FCC once required that outreach be made to a plethora of community groups, it has now recognized that online recruitment sources alone can reach the entire community (see our summary of that decision here) – but these sources need to be evaluated regularly to assure that they are in fact bringing in applicants for job openings from throughout a station’s employment area.  Many stations find outreach to at least some community groups, in addition to online sources, brings the best mix of potential applicants to stations filling job openings.

Stations need to keep the required documentation to demonstrate their hiring efforts, as failing to do so can still lead to fines (see our article here and the Cumulus decision noted above). The documents should show not only the station’s hiring efforts in connection with job openings, but also the supplemental efforts that they have taken, even where they have not had job vacancies, to educate their community about broadcast employment and to train their employees to assume more responsibilities.  Stations should review their policies to make sure that they have the documentation necessary to satisfy an FCC audit, by making sure that the station’s EEO program is regularly bringing in recruits from diverse sources and that the station has done the required non-vacancy specific educational efforts on broadcast employment.

The FCC itself, when it abolished the FCC Form 397 EEO Mid-Term Report, promised to review the effectiveness of its EEO rules. A Notice of Proposed Rulemaking looking at how to make the program was released in 2019, bringing in varied proposals (see our article here). The proposals made in that proceeding may require further public comment before they can be adopted and, for now, the rules that have been in place for almost two decades remain in effect. As EEO enforcement was transferred to the FCC’s Enforcement Bureau (see our article here), and as we saw many questions about EEO in the FCC’s scrutiny of license renewal applications in the recent renewal cycle, we can expect that enforcement will be vigorous.

Consult with your attorneys to get a thorough understanding of the EEO rules and talk with the employees involved in employment matters at your station to make sure that they understand what they should be doing and are keeping the paperwork necessary to demonstrate your compliance with the rules. The FCC continues to enforce its rules and impose fines on stations that cannot demonstrate compliance, so make sure that you comply with the FCC’s obligations on EEO matters.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.