On Friday, the FCC released another of its regular EEO audit notices (notice and list of affected stations available here), asking approximately 200 radio and TV stations, and the station employment units with which they are associated (i.e., commonly owned stations serving the same area), to respond to the audit notices by September 20, 2021. Audited stations must upload their response to their online public inspection file. The response should include copies of the employment unit’s EEO Annual Public File reports for the last two years, as well as backup data showing that the station in fact did everything that was required under the FCC rules. This is the second audit of 2021 (see our article here on the first audit commenced earlier this year). It appears that this audit targets stations in states who have recently had license renewals reviewed, as stations in states with recent license renewals would already have their EEO record under review as part of the renewal process.
Audited stations must provide representative copies of notices sent to employment outreach sources about each full-time vacancy 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, which are outlined as “menu options” in the FCC’s rules, are designed to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide information about how they self-assessed the performance of their EEO program. Answers to certain other questions are also required.
The FCC has promised to randomly audit 5% of all broadcast stations each year. Since each station’s response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC but by anyone else with an Internet connection anywhere, at any time. The license renewal cycle which began last year adds to the importance of this audit, as a broadcaster does not want a recent compliance issue to headline the record the FCC will be reviewing with its license renewal (see our article here about the license renewal cycle). 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.
The summer before last, 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 and encourage broadcasters to recruit from outside the traditional broadcast networks 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 potential candidates about the availability of open employment positions. While the FCC in the past 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 a representative sample of the population from a station’s employment area.
Stations need to keep the required documentation to demonstrate their hiring efforts, as the failure to have those documents can still lead to fines (see our article here). The documents should show not only the stations’ 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. The FCC has provided a menu of options to achieve these required supplemental efforts. See our article here for some ideas from the menu for ways that stations can receive credit for these supplemental efforts even during this time of social distancing. Stations should review their policies to make sure that they have the documentation to meet an FCC audit and ensure that their EEO programs are regularly bringing in recruits from diverse sources and that they have done the required non-vacancy specific educational efforts on broadcast employment.
When the FCC abolished the FCC Form 397 EEO Mid-Term Report, it promised to review the effectiveness of its EEO rules. A Notice of Proposed Rulemaking examining how to make the program more effective was released last year, leading to some interesting proposals (see our article here). Those proposals are likely going to require further public comment before they can be adopted. Thus, for now, the current rules remain in effect.
Broadcast EEO enforcement was transferred three years ago to the FCC’s Enforcement Bureau (see our article here). From what we have seen recently, review of EEO programs has become more detailed, so stations should pay attention to their paperwork.
Consult with your attorneys to obtain 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 maintaining 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.
Courtesy Broadcast Law Blog