FCC tackles EEO for a third time

The FCC has adopted new EEO rules which closely resemble “Option A” of the FCC's prior EEO rules. The new rules will become effective 60 days after their publication in the Federal Register, unless there are postponements under Congressional or OMB review procedures. The projected effective date is mid-February.

The new rules again require broadcasters to disseminate notice of full-time job vacancies and to participate in a specified number of recruitment activities. Stations must maintain records of vacancies filled, the recruitment sources used for the vacancies, and the number of referrals received from the sources, with the information placed in station public files and on station Web sites.

Recruitment

The new recruitment rules require licensees to:

• widely disseminate notices of all full-time (30 hours or more) job vacancies, except for rare emergency hiring situations;

• provide notices of all full-time job vacancies to organizations that have requested to receive vacancy notices; and

• participate in a specified number of recruitment activities every two years, such as fairs, and scholarship and internship programs. Station employment units with five to 10 full-time employees, or ones that are located in smaller markets, must participate in two such activities, while station employment units with more than 10 full-time employees located in larger markets must participate in four activities. (A station “employment unit” is one or more stations operated by the same staff.)

Recordkeeping

In addition, under the new rules detailed records must be kept of:

• all full-time job vacancies filled, identified by job title;

• the recruitment sources used for each vacancy, identified by name, address, contact person and telephone number, with a separate list of the sources required to be notified because they requested vacancy notices;

• all advertisements, bulletins, letters, faxes and e-mails announcing vacancies, all with dates;

• documentation necessary to demonstrate participation in the required recruitment activities;

• the total number of persons interviewed for each vacancy and the referral source of each person interviewed; and

• the date each job was filled and the referral source of the person hired.

Reporting

Licensees must place in the station's public file and on the station's Web site reports containing lists of:

• all full-time vacancies filled during the proceeding year, identified by job title;

• all recruitment sources used for the vacancies, identified by name, address, contact person and telephone number;

• the recruitment sources that referred the people hired for each vacancy;

• the total number of persons interviewed for each vacancy and the total number of interviewees referred by each referral source; and

• the required recruitment activities in which the station participated, with a brief description of each activity.

Additionally, all licensees must:

• at renewal time, and midway through the license term, file with the FCC the reports (described above) placed in the station's public file for the past two years, and

• beginning in September 2003, file annually with the FCC a report on the gender and race/ethnicity of the station's employees. (The FCC says this information will be used only for statistical purposes and not to evaluate a station's compliance with the EEO rules).

Commentary

By effectively adopting the former Option A, which had been approved by the D.C. Circuit, the FCC is hoping to avoid any further losses in court on the EEO front. Whether that hope will be realized remains to be seen. The fact that the Commission still plans to collect gender and race information will doubtless raise concerns about the constitutionality of the new rules. Critics of the EEO rules already are concerned that such gender and race data will give rise to petitions charging discrimination, which in turn will give rise to gender- and race-based decisionmaking of the type the courts have rejected.

Harry C. Martin is an attorney with Fletcher, Heald & Hildreth PLC, Arlington, VA.

Dateline

The deadline for noncommercial TV stations to complete the buildout of their DTV facilities is May 1, 2003. Biennial ownership reports are due Feb. 1 for stations in the following states: Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York and Oklahoma.