David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

The FCC this week released its second EEO audit notice for 2023.  The FCC’s Public Notice, audit letter, and the list of stations selected for audit is available here.  Those stations, and the station employment units (commonly owned or controlled stations serving the same area sharing at least one employee) 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.  The response to this audit is due to be uploaded to the public file of affected stations by December 14, 2023. The audit notice says that stations audited in 2021 or 2022, or whose license renewals were filed after October 1, 2021, can ask the FCC for further instructions, possibly exempting them from the audit because of the recent FCC review of their performance.  Perhaps for this reason, no stations in New England or the Mid-Atlantic (NY, NJ, PA, and DE) states, are included in the list of audited stations, as stations in these states were the last to file their license renewals.

With the release of this audit, and the recent $25,000 fine proposed for some Kansas radio stations that had not fully met their EEO obligations (see our article here), it is important to review your EEO compliance even if your stations are not subject to this audit.  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 proposed fine, a fine imposed on Cumulus Media for a late upload of a single EEO Annual Public File Report last year (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.

According to the audit notice, 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.  As with the last FCC audit, the FCC staff will review the audit responses and ask for additional information if they find the public file documentation to be incomplete, but they will not inform audited stations that their EEO performance was found satisfactory.

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 are 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 representative of different groups within the station’s employment area.  If online recruiting does not bring in a diversity of applicants and interviewees for job openings, stations should consider expanding their recruitment sources.  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 as in the recent cases 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.  More general information about the FCC’s EEO requirements are found in this article, answering 5 questions about EEO posed by the Indiana Broadcasters Association.

The FCC itself, when it abolished the requirement for the filing of 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, suggesting various 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 continue to 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.