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Broadcast Station EEO Advisory

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    • July 2009
    This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: California, Illinois, North Carolina, South Carolina and Wisconsin, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

    Introduction
    August 1, 2009 is the deadline for certain broadcast stations licensed to communities in the States/Territories referenced above to place their Annual EEO Public File Report in their public inspection files and post the report on their website, if applicable.

    Under the FCC’s rule that became effective as of March 10, 2003, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal employment opportunity to all qualified persons and practice nondiscrimination in employment.


    In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, all Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of credits, based on participation in various non-vacancy specific outreach initiatives suggested by the FCC, during each of the four, two-year segments that comprise a station’s eight-year license term. These “menu option initiatives” include, for example, sponsoring job fairs, attending rather than sponsoring or co-sponsoring job fairs, and having an internship program. In addition, a Nonexempt SEU must prepare and place its Annual EEO Public File Report in its public inspection file and post it on the website of all stations comprising the SEU, if they have websites, on the anniversary date of the filing of its license renewal application with the FCC. The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months. In all cases, adequate records must be maintained. Stations must also submit the most recent two such Annual EEO Public File Reports with their license renewal applications, and again at the midpoint of their license terms.

    For a detailed description of the EEO rule and practical assistance in preparing a compliance plan, broadcasters should consult “EEO in 2009 and Forward: A Legal Guide to the FCC’s EEO Rule and Policies for Broadcasters,” published by the Communications Practice Group. This publication is available on the firm’s website, www.pillsburylaw.com.

    Deadline for the Annual EEO Public File Report for All Nonexempt Radio and Television SEUs Whose Stations Are Licensed to Communities in the States and Territories Identified Above
    August 1, 2009 is the date on which Nonexempt SEUs of radio and television stations, including Class A television stations, licensed to communities in the States/Territories identified above, must (i) place their Annual EEO Public File Report in the public inspection files of all stations comprising the SEU and (ii) post the Report on the websites, if any, of those stations. LPTV stations are also subject to the broadcast EEO rules even though LPTV stations are not required to maintain a public inspection file. Therefore, if an LPTV station has five or more full-time employees, or is part of a Nonexempt SEU, it must prepare and maintain an internal copy of its Annual EEO Public File Report. It is contemplated that the Report will cover the period from August 1, 2008 through July 31, 2009. However, Nonexempt SEUs may “cut off” the reporting period up to 10 days before August 1 so long as they begin the next annual reporting period as of the day right after the cut-off day used in the immediately prior Report. For example, if the Nonexempt SEU uses the period July 31, 2008 through July 22, 2009 for this year’s report (up to 10 days prior to August 1, 2009), then next year the Nonexempt SEU must use the period beginning July 22, 2009 through July 31, 2010 for its 2010 report.

    Deadlines for Performing Menu Option Initiatives
    The Annual EEO Public File Report must contain a discussion of the menu option initiatives undertaken during the preceding year. Depending upon the full-time staff size and the location of their stations, Nonexempt radio and television SEUs are required to engage in enough menu option initiatives during each two-year segment to have earned at least two or four menu option initiative-related credits. Nonexempt SEUs with between five and 10 full-time employees and larger SEUs which are located in “smaller markets” must earn at least two menu option initiative-related credits over each two-year segment. Nonexempt SEUs with 11 or more full-time employees that are not located in “smaller markets” must earn at least four menu option initiative-related credits over each two-year segment. If the communities of license of the stations comprising the SEU are in a county outside of all metropolitan areas or in a county which is itself in a metropolitan area with a population of less than 250,000 persons, the SEU is deemed to be located in a “smaller market” for these EEO credit purposes.

    Because the filing date for license renewal applications varies depending on the state in which a station is licensed, the time period in which the menu option initiatives must be completed also varies. Radio and television stations licensed to communities in the states identified above should review the following to determine what current two-year segment applies to them:

    • Nonexempt radio station SEUs licensed to communities in California, North Carolina and South Carolina, must have earned at least the requisite minimum number of menu option initiative-related credits during the two-year “segment” between August 1, 2007 to July 31, 2009.
    • For Nonexempt radio station SEUs licensed to communities in Illinois and Wisconsin, the applicable period is August 1, 2008 and July 31, 2010.
    • For Nonexempt television station SEUs licensed to communities in Illinois and Wisconsin, the applicable period is August 1, 2007 to July 31, 2009.
    • For Nonexempt television station SEUs licensed to communities in California, North Carolina and South Carolina, the applicable period is August 1, 2008 and July 31, 2010.

    Deadline for EEO Mid-Term Report (FCC Form 397) Filing for Radio Stations Licensed to Communities in California and Television Stations Licensed to Communities in Illinois and Wisconsin
    August 1, 2009 is also the mid-point in the license renewal term of radio stations licensed to communities in California and television stations licensed to communities in Illinois and Wisconsin. Nonexempt radio station SEUs with eleven or more full-time employees in those States/Territories must electronically file the FCC Form 397 Broadcast Mid-Term Report (“397 Report”) by August 1, 2009. Nonexempt radio station SEUs that are subject to this reporting requirement must attach copies of the SEU’s two most recent Annual EEO Public File Reports to their 397 Report. All television station SEUs in those States/Territories must electronically file the 397 Report by August 1, 2009. Television SEUs with five or more full-time employees are required to attach copies of the SEU’s two most recent Annual EEO Public File Reports to their 397 Report. SEUs that have been the subject of a prior FCC EEO audit must still file FCC Form 397 by the deadline. Electronic filing of Form 397 is mandatory. A paper version will not be accepted for filing unless accompanied by an appropriate request for waiver of the electronic filing requirement.

    Recommendations
    It is critical that every SEU maintain adequate records of its performance under the EEO Rule and that it practice overachievement when it comes to earning the requisite number of menu option initiative-related credits. The Commission will not allow credits for menu option initiatives that are not duly reported in an SEU’s Annual EEO Public File Report and that are not adequately documented. Accordingly, it is recommended that, before an Annual EEO Public File Report is finalized and placed in the public domain by posting it on a station’s website and placing it in the station’s public inspection file, the draft document, including supporting material, be reviewed by communications counsel. Finally, we note that the Commission is continuing its program of EEO audits. These random audits check for compliance under the FCC’s EEO Rule, and are expected to continue indefinitely. In short, any station may become the subject of an FCC audit at any time. For more information on the FCC’s EEO Rule and its requirements, as well as practical advice for compliance, please contact any of the lawyers in the Communications Practice Section.

    A PDF version of this article can be found at Broadcast Station EEO Advisory