In a unanimous decision, the U.S. Court of Appeals for the District of Columbia Circuit vacated the EEO rules that became effective in April 2000. The Commission suspended the new rules effective Jan. 31.
While the Commission could appeal the court's decision, it is unlikely given Chairman William Kennard's departure and replacement by Chairman Michael Powell, a republican. However, it is expected some public interest groups that participated in the case will appeal even if the Commission does not. This could delay the final demise of the rules. In the meantime, broadcasters are not required to file Forms 396 (EEO Program Report filed with renewals), Form 396-A (Model EEO program filed with assignments, transfers and new applications), Form 397 (Statement of Compliance) or 395-B (Annual EEO Report). Annual Public File Reports are no longer required either.
The legal basis for the court's suspension was it found the EEO rules unconstitutional because they were not narrowly tailored to further a compelling governmental interest in preventing discrimination. Focusing on Option B of the Commission's rules, the court concluded the FCC's requirements pressured broadcasters to focus recruiting efforts on minorities and women to induce more applicants from those groups. In this connection, the court noted that the FCC had clearly indicated it would investigate any licensee that reported few or no employment applications from minorities or women. The court said the requirement in Option B that licensees report the race of each applicant would be relevant to the prevention of discrimination only if the FCC assumed minority groups would respond to non-discriminatory recruitment efforts in some predetermined ratio, such as in proportion to their percentage of representation in the local work force. It was found any such assumption stood in direct opposition to the guarantee of equal protection under the Constitution.
Efforts to promote minority participation in the media are now being made in Congress, where various groups are seeking the reinstitution of the tax certificate program. Under the previous tax certificate program, companies that sold their stations to minority-controlled titles were eligible to defer payment of capital gain taxes. Also, in a statement released just before his departure, outgoing Chairman Kennard urged Congress to increase funding for the Telecommunications Development Fund, which provides capital for small minority- and female-owned businesses.
The Commission extended the deadline for eligible Class A LPTV stations to file license applications to 90 days after issuance of an order on reconsideration of the agency's LPTV Class A licensing rules. This could extend the deadline into late 2001.
Pursuant to an April 4, 2000 Report and Order that implemented the Community Broadcasters Protection Act of 1999 (CBPA), LPTV stations became eligible to convert from secondary status to the new Class A protected class created in the statute if the following was met during the 90 days preceding the date of enactment of the statute:
(1) The station broadcast a minimum of 18 hours per day; (2) the station broadcast an average of at least three hours per week of programming produced within the market area served by the station, or the market area served by a group of commonly-controlled, low-power stations that carry common local programming produced within the market area served by such group; and (3) the station was in compliance with the Commission's requirements for LPTV stations.
In addition, the station must be in compliance with the Commission's operating rules for full-power television stations from its application date for the Class A license.
Licensees intending to seek the Class A designation were to file a certification of eligibility with the Commission no later than Jan. 28, 2000. Those licensees that filed timely certifications were to be allowed to file Class A applications up to six months after the rules adopted in the order were effective. This was on June 9, 2000, making the original application deadline Dec. 11, 2000. At the time, the Commission felt the six-month time frame was reasonable and provided ample time for eligible stations to prepare and file their Class A license applications. However, the Commission received several petitions for reconsideration that raised issues regarding everything from eligibility requirements to interference and other engineering issues.
In order to give eligible LPTV licensees adequate time to prepare and file their Class A license applications consistent with any clarification or rule changes that may be adopted on reconsideration, the Commission has extended the filing deadline until the issues raised by the petitioners have been resolved.
Harry C. Martin is an attorney with Fletcher, Heald & Hildreth PLC, Arlington, VA.
Send questions and comments to: harry_martin@intertec.com
On or before April 1, 2001, stations in the following states must file their biennial ownership reports with the FCC: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee and Texas.
April 10, 2001 is the deadline for all stations to place in their public files their problems/programs lists and quarterly Forms 398 (Children's Programming Report) for Jan. 1-March 30.