By David Oxenford, IBA’s FCC Attorney
Beyond the general requirement that all broadcasters (and all other businesses) avoid discrimination in hiring, promotion, and all other employment practices, the FCC imposes additional obligations on radio and TV stations that are part of “employment units” with 5 or more full-time employees. An employment unit is defined as a station or commonly controlled cluster of stations serving the same general geographic area that share at least one employee. Full-time employees, for FCC purposes, are employees who work at least 30 hours per week.
The Indiana Broadcasters Association asked me five questions about the FCC EEO rules. My answers are below.
1. Generally, what are the basics of the FCC’s Equal Employment Opportunity requirements?
For broadcasters, the FCC rules set out a three-prong EEO outreach program designed to facilitate the hiring of those not already in the broadcast industry. The program encourages hiring outreach to alert all members of a community about job openings at a broadcast station, and to educate and inform the community about broadcast employment.
The first prong requires broadcasters to “widely disseminate” information about virtually all full-time job openings at a station. The wide dissemination requirement obligates the broadcaster to provide information about all openings for full-time jobs at its stations in such a way so as to reach members of all groups within its community.
In the past, broadcasters were required to use more traditional recruitment sources for dissemination of information about job openings, sending notices of vacancies to local community groups, employment agencies, educational institutions, and newspapers to solicit candidates for virtually all open positions at any station. Under an FCC ruling about 5 years ago, while the FCC encourages the use of multiple recruitment sources, a broadcaster can use online recruitment sources as their sole means of meeting their obligation to widely disseminate information about job openings as long as the broadcaster reasonably believes that the online source or sources that it uses are sufficient to reach members of the diverse groups represented in its community. The broadcaster must self-assess the success of its dissemination and, if they are not getting diverse candidates from the recruitment sources that they use for each job vacancy, they need to consider expanding the scope of their outreach efforts in order to reach diverse candidates.
The second prong of the FCC’s EEO rules requires that broadcasters notify any community group about job openings at the station if the community group specifically asks to be notified of such openings. Stations need to provide such notifications to community groups that ask, and to publicize through on-air announcements or through other means reasonably designed to reach the groups within the station’s community, the fact that community groups can request that they be included on the list of groups getting notifications.
The third prong of the EEO program for broadcasters is the obligation to do “non-vacancy specific outreach.” The FCC has provided a menu of options for efforts that stations can undertake to educate their community about the jobs available at broadcast stations and the training necessary to fill those jobs, as well as the training of employees and others to assume new responsibilities at broadcast stations. These menu options include activities such as internship and mentorship programs, speaking before community groups about job openings, providing scholarships for those interested in broadcasting, working with educational institutions to educate their students about broadcast jobs, setting up training programs to prepare existing employees to assume new responsibilities, EEO training for management, and similar programs. Depending on market size and the nature of the activity, stations need to have their employees meaningfully participate in numerous menu options in every two-year period, even if they have no job openings in these periods.
2. Does the FCC require wide dissemination of information about openings for part-time employees?
While the FCC does not require wide dissemination of information about openings for part-time employees, there are advantages to broadcasters who do go through the outreach process for such openings. If a broadcaster widely disseminates information about part-time job openings before filling such a position, if the person hired proves to be a capable employee that the broadcaster wants to hire on a permanent, full-time basis, they can do so without any further recruiting efforts. If the broadcaster did not widely disseminate information about the job opening before hiring the part-timer, before promoting them to a full-time position, they must widely disseminate information about the full-time position to see if anyone with better qualifications applies.
3. Should a station participate in State Association-sponsored Career Fairs to bolster EEO outreach credit?
Yes. As noted above, stations need to do non-vacancy specific outreach efforts to inform members of their communities about broadcast jobs, whether or not they have specific jobs to fill. One of the menu options available to meet that obligation is attendance at job fairs by management-level employees who are involved in the hiring process. If station employees attend 4 job fairs in a two-year period, they get one credit toward meeting their obligations (smaller stations need 2 credits in each two-year period measured from their license renewal filing date to meet their non-vacancy specific outreach requirements, larger stations in larger markets need 4 credits in a two-year period). Register for the 2023 Spring Career Fair here and contribute to the IBA Scholarship here.
4. When does the FCC review station EEO practices?
The FCC reviews the EEO practices of broadcast stations on a regular basis. Each year, employment units with 5 or more full-time employees must upload to the FCC-hosted online public file of each station within their unit an Annual EEO Public Inspection File Report. This report details each full-time job opening filled in the prior year, with information about the recruitment sources used to fill the positions, and which sources resulted in candidates who were interviewed for the open positions, as well as the recruitment source of the person who was hired. The annual report also must summarize the non-vacancy specific menu options in which employees of the station participated during the year. This report must be uploaded by the anniversary date of a station’s renewal – April 1 for Indiana stations.
The FCC can ask for further information about employment practices at a station if they receive any complaints about the station’s EEO performance. For television stations and larger radio groups, they routinely review the Annual Public File Reports of all stations in a state at the mid-point of the license renewal cycle (April 2024 for Indiana radio, and April 2025 for Indiana TV). The FCC also conducts annual audits of 5% of all broadcast stations, reviewing not only the public file information, but also asking for documentation that supports the EEO efforts specified in the annual reports. Finally, the FCC reviews EEO performance of stations when it reviews the station’s license renewal application.
5. Do you see any additional EEO-related changes on the horizon?
The FCC began a proceeding about 5 years ago to review its EEO rules to determine if there should be changes to make them more effective. The FCC did not propose any specific changes in its rules, instead asking for general comments on what could be done to make the rules more effective. The comments ranged from those urging fewer specific obligations on broadcasters with more emphasis on those who violate general employment discrimination principles applicable to all businesses, to those seeking more specific goals for station recruiting efforts. Likely, further public comments will be required before the FCC adopts any specific proposal advanced in that proceeding.
The FCC is also contemplating the return of the FCC Form 395-B, an annual employment report detailing the gender and the race or ethnicity of all station employees and classifying these employees by the job function that they fulfill at the station (e.g., management, on-air, sales, engineering, or clerical). The filing of this report was suspended over 20 years ago when a court found its use was discriminatory, as the FCC was penalizing stations that did not meet specific racial or gender quotas in their workforce. The FCC wants to bring back the form to track employment practices in the broadcast industry but is struggling with privacy concerns and with how to collect the employment data without violating the court’s mandate against using the information for enforcement purposes.
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This is just an outline of the FCC’s EEO rules. For each of the obligations described above, there are many details and nuances impossible to cover in this limited format. Interpretations of these rules also change over time. More information is available in the slides of a presentation that I did recently for the Pennsylvania Association of Broadcasters, available here. But even those slides are just a summary of the obligations. Broadcasters should always consult with their own attorneys and advisors for the latest information on EEO rules from the FCC, and on the requirements that are applicable to all businesses through state and federal law.