FCC'S NEW EEO RULES LEAVE MOST ENFORCEMENT TO EEOC, COURTS

After 2 previous failed attempts at instituting EEO rules for broadcasters, cable and satellite companies, FCC adopted new set of rules Thurs. that it believes will hold up in court this time. That’s because new rules are basically carbon copy of part of its previous rules that U.S. Appeals Court, D.C., found acceptable last time around. Commission left out part of its old rules that court overturned on constitutional grounds.

Decision came in unanimous vote at Commission meeting. Rules prohibit discrimination by broadcasters and multichannel video program distributors (MVPDs) and require those entities to provide notice of job vacancies and to do additional outreach, such as job fairs and scholarship programs. “Sometimes, lost in the complexities of the kind of work we do, we lose sight of the fact that some things are just right,” FCC Chmn. Powell said. He said he believed rules would be “ultimately judicially sustainable if challenged.”

Comr. Copps supported new rules but said he wished they could have done more: “I would hope that, once these rules are fully implemented, the Commission would consider pushing its equal opportunity program further.” But he also acknowledged that courts had limited what FCC could do, saying last court decision was “daunting and discouraging of the kind of pro-activity that many of us would like to see.” Copps said he would be “surprised” and “immensely disappointed if anyone challenged this modest proposal.” He also said he would look for “very strong and very serious” sanctions, including revocation of licenses, if companies didn’t comply with new rules.

Powell, in written statement, said new rules focused on increasing possibility that more minorities and women get opportunity to compete fairly for employment: “No one is entitled to rewards they did not earn. No one is entitled to jobs for which they are not qualified. But everyone is entitled to an equal opportunity to vie for those rewards and compete for those jobs.” Comr. Abernathy said she believed rules would hold up because they were consistent with court decisions in both MD/DC/DE Broadcasters Assn. v. FCC and Lutheran Church-Missouri Synod v. FCC.

Latest set of rules eliminated what was known as Option B, which allowed companies that because of financial constraints couldn’t do job fairs and such, instead to report voluntarily race and gender of its job applicants. Court reversed that part of rules as being unconstitutional intrusion that essentially forced companies to hire women and minorities. Media Bureau Chief Kenneth Ferree explained in news conference afterward that while compliance with rules would be examined as each station’s license came up for renewal, companies would be evaluated for their efforts at outreach, not whether they actually hired women and minorities. Brunt of enforcement task will fall on EEOC and courts, he said.

Even with Option B material gone, NAB Pres. Edward Fritts was cautious, saying “NAB has long been concerned with overregulatory EEO rules that create undue paperwork burdens, particularly on small-market broadcasters. It appears today’s new rules have done little to reduce these burdens. NAB will closely study the text of the item before commenting further.”

NCTA spokesman said cable operators had complied voluntarily with earlier EEO guidelines and saw nothing changing on that score: “We will continue working with the Commission to bring about the worthy goal of workplace diversity,” he said. New rules came just one day after Women in Cable & Telecom (WICT) unveiled its new “PAR” initiative, which seeks gender equality in cable industry. Annual advocacy program will measure progress of women in specific companies and throughout industry. Program will seek pay equity for women at all levels, advancement opportunities so that women may be represented in equal numbers to men, and provide resources for family support, so that women may advance further in their careers.

Recognizing Commission’s hands were largely tied by courts, Minority Media & Telecom Council congratulated FCC on its decision. “Today’s decision is an encouraging example of responsible governmental regulation. The FCC’s straightforward new rules will contribute substantially to the diversity and competitiveness of our electronic mass media industries,” said MMTC Treas. Everett Parker, who in 1967 filed petition for rulemaking that led to FCC’s original 1969 EEO rules. National Organization for Women (NOW), which also lobbied for rules at FCC, didn’t comment.

Specifically, FCC adopted 3-pronged outreach recruitment requirements that broadcasters: (1) Disseminate widely information on each full-time job vacancy, except for vacancies filled in exigent circumstances. (2) Provide notice on each full-time vacancy to recruitment organizations that have requested such notices. (3) Complete longer-term recruitment initiatives, such as job fairs, scholarship or internship programs within 2-year period. Broadcasters with 5-10 full-time employees or that are located in smaller markets must complete 2 of those initiatives and those with more than 10 employees in larger markets must complete all.

Commission also adopted record-keeping and reporting requirements. Companies must collect but not routinely submit to FCC listings of all full-time job vacancies filled, identified by job title, recruitment sources used to fill vacancy identified by name, address, contact person and telephone number, dated copies of all ads, bulletins, letters, faxes, e-mails or other communications announcing vacancies, and documentation necessary to demonstrate performance of Prong 3 menu options. Records also must include total number of interviewees for each vacancy and referral source for each interviewee, as well as date each job was filled and recruitment source that referred hiree.

Companies must place in station public file annual report including list of all full-time vacancies filled during preceding year identified by job title, recruitment sources used to fill those vacancies including address, contact person and telephone number of each source, list of recruitment sources that referred people hired for each full- time vacancy, data reflecting total number of people interviewed for full-time vacancies during year and total number of interviewees referred by each recruitment source, list and brief description of Prong 3 menu options implemented during that year.

Companies must submit station’s EEO public file report to Commission as part of their renewal applications and midway through license term for agency’s midterm review of stations subject to such review, which include TV stations with 5 or more full-time employees and radio stations with more than 10 full-timers. EEO public file reports for preceding 2-year period will be required because broadcasters have 2 years in which to complete Prong 3 menu options. Broadcasters also must post current EEO public file report on their Web sites, if they have them. Although Commission declined to change small business size exemption, new rules provide limited relief for companies in smaller markets. They will be required to implement fewer Prong 3 menu options than stations in larger markets.

EEO rules will be enforced through review at renewal time, at midterm for larger broadcasters and through random audits and targeted investigations resulting from information received as to possible violations.

Same outreach requirements will apply to MVPDs, except as necessary to comply with laws exclusive to them. For example, they're required to submit reports annually, so Commission will certify that MVPD employment units are in compliance with EEO requirements on annual basis. To comply with Prong 3 requirements, MVPDs with 6-10 full-time employees or employment units in smaller markets will be required to undertake one recruitment initiative each year and larger employment units in larger markets 2 initiatives per year. MVPD employment units aren’t subject to renewal process at Commission. Agency is required to conduct more thorough review of each MVPD employment unit’s EEO compliance every 5 years. Under new rules, MVPDs with 6 or more full- time employees must submit copies of their EEO public inspection file to Commission every 5 years.

In adopting new rules, Commission severed Form 395-B from rules, which caused tremendous controversy. That form asks for specific information on race and gender. Media Bureau’s Ferree said bureau was revising that form and it would be dealt with separately. Commission said it expected to act on those forms before next filing deadline, Sept. 30, 2003. Commission also said such data in those forms wouldn’t be used to determine compliance with EEO rules.

Commission will examine application of rules to part- time employees in 3rd Notice of Proposed Rulemaking. New rules adopted Thurs. will take effect 60 days after they're published in Federal Register.