Articles Posted in Employment/EEO

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A trend we see in FCC enforcement actions is the FCC attributing multiple rule violations to a single act or omission, and then peppering stations with multiple fines. This trend is confirmed in two EEO enforcement actions released in the waning hours of 2010. These cases demonstrate, among other things, why it is a good time for broadcasters to undertake the EEO self-assessment activities required by the FCC’s Rules.

The first of these recent cases resulted from a 2008 random audit of a six-station radio group in Joplin, Missouri. The second case arose from the 2005 license renewal applications of a four-station radio group located in and around Medford and Grant’s Pass, Oregon. Since the license renewal applications remain pending due to an unrelated complaint, the FCC was able to examine these stations’ EEO data from 2003 until 2009.

In each case, the stations relied solely on walk-ins, word-of-mouth, and employee and business referrals as the sources of interviewees for about 25% of their job openings. Based on this, the FCC found that the stations had failed to conduct any recruitment at all for these positions, as they had only used non-public recruitment sources which do not further the FCC’s goal of assuring that stations achieve broad outreach in recruiting. The Joplin stations had also aired generic on-air announcements about broadcast employment and working for the licensee company, but the FCC did not give them any credit for these announcements because they were not specific to a particular job opening. The FCC also found that the Oregon stations did not recruit broadly enough for nearly all of their remaining hires because they relied exclusively on either Internet-based referral sources or on advertisements on their own stations.

Each group of stations also had EEO paperwork and reporting problems. The Joplin stations listed the job title for seven hires as “Other” in an annual EEO public file report. The FCC said that since the EEO public file report was missing the required job title information, the stations’ public inspection files (where the reports are placed) were missing it as well.

Similarly, the FCC found the Oregon stations failed to retain records on the number and referral sources of interviewees for their job openings. As a result of this recordkeeping violation, the FCC said that the stations’ EEO public file report, and by extension, their public inspection files, were incomplete.

To top it all off, the FCC found that “[t]hese failures reveal a continuing lack of self-assessment” of the stations’ recruitment programs, creating yet another rule violation. In all, the Joplin stations were fined $8,000.00, of which $5,000.00 was for the failure to recruit for 25% of their openings, and three fines of $1,000 each were for the stations’ incomplete annual EEO public file report, their incomplete public files, and their failure to self-assess their EEO program. The Oregon stations were fined a total of $20,000, of which $16,000.00 was attributable to their failure to recruit for 25% of their vacancies and their failure to recruit broadly enough for nearly all other vacancies, and four fines of $1,000.00 each were for the stations’ failure to retain required records, failure to have a complete annual EEO public file report, failure to have complete public inspection files, and failure to self-assess their EEO program. All of the stations must, for the next three years, submit to the FCC for scrutiny copies of their annual EEO reports and copies of all job vacancies announcements, advertisements and other evidence of recruitment outreach for the year.

While the stations in these two cases were fined for not undertaking the required self-assessment of the recruitment portion of their EEO programs, broadcasters should remember that the FCC’s Rules also require licensees to regularly examine all of their employment policies to assure that they are not discriminatory. This means examining the processes by which stations recruit, hire, promote, fire, and compensate employees to be sure that they do not have a discriminatory impact.

So while you have the employment files out, and other employment issues like raises and promotions are fresh in your mind, take some extra time to review how you are making those decisions and their impact on your staff. While you’re at it, check the public file and station website to be sure your annual EEO public file reports are up to snuff as well.

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Below is the text of our 2011 Broadcasters’ Calendar, which lists deadlines that broadcasters should be aware of for 2011. If you would prefer to read the PDF version of the calendar, it can be found here.

Items of Note in 2011

1. Applications for Renewal of License: June 1, 2011 is the first filing date of the three-year period during which the licensees of all commercial and noncommercial AM, FM and FM Translator stations throughout the United States and its territories will be required to file their applications for renewal of broadcast station license. Licensees in the television services will commence this process in 2012. The date on which a station’s application is due depends on the state or territory of its community of license. All licensees should familiarize themselves now with the dates associated with this important filing, including the dates on which public notice announcements must air in advance of the renewal filing; the filing date itself, which is approximately four months before the date of license expiration; and the dates on which post-filing announcements must air.
2. Biennial Ownership Report Filing Requirements for Commercial Radio and Television Stations: Licensees of commercial, full-power radio and television stations as well as Class A television and low power television stations should be ready to file their biennial ownership reports on FCC Form 323 by the new, uniform filing date of November 1, 2011. While these licensees may have filed a biennial report as recently as the summer of 2010, that report fulfilled the reporting obligation for the period that ended on November 1, 2009. Only because of difficulties with the FCC’s electronic filing system was the November 1, 2009 deadline ultimately extended to July 8, 2010.

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Posted in: Children & Media
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Along with all of the other activities of the coming holidays, December 1 represents a busy filing deadline for digital television stations and many commercial and non-commercial radio stations, depending upon their location. For those affected, below is a brief summary of the applicable deadlines, as well as links to our recent client alerts and advisories describing the requirements in more detail.

December 1 Noncommercial Ownership Reports

Noncommercial educational radio stations licensed to communities in Colorado, Minnesota, Montana, North Dakota and South Dakota, and noncommercial educational television stations licensed to communities in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont must file their Biennial Ownership Reports by December 1, 2010. For a detailed discussion of the filing requirements, please see our Client Alert here.

December 1 EEO Deadlines

Radio and television stations licensed to communities in: Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont have a number of December 1, 2010 deadlines for compliance with the FCC’s EEO Rule. For a detailed discussion of the requirements, please see our Client Advisory here.

December 1 DTV Ancillary/Supplementary Services Report

All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 by December 1, 2010. For a detailed discussion of this requirement, please see our Client Advisory here.

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Posted in: Employment/EEO
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9/22/2010

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Mariana Islands, Missouri, Oregon, Puerto Rico, Virgin Islands and Washington, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Introduction

October 1, 2010 is the deadline for 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 they have one. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by October 1, 2010.

Under the FCC’s EEO rule, 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 EEO credits, based on participation in various non-vacancy specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, attending job fairs, and having an internship program.

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Like many other FCC license holders, broadcast stations constantly navigate numerous laws and regulations while filing a multitude of reports and applications by required deadlines. Many of these are required quarterly, but some are annual, biennial, quadrennial, or octennial (once every eight years, and the only time I’ll get to use that word this year). While stations are usually very good about completing their quarterly reports, the less frequent reports require a special level of attention or they can be forgotten in the rush of business.

In the past few months, I have noticed a surge in calls from stations wanting to talk to a lawyer because they have belatedly discovered that they failed to create multiple reports over the past few years. I’ve received these types of calls regularly for more than two decades, but the accelerated pace of these calls definitely caught my attention. When a station calls the lawyer in a panic after making this discovery, the lawyer’s first job is to talk them down off the ledge. In the case of small station groups, you are often talking directly to the owner, who is rightly concerned about the direct financial impact of fines and license renewal challenges. With larger groups, it is often a GM worried about his or her future employment if the problem spins out of control. Fortunately, if addressed promptly, the damage can be greatly limited or avoided.

What is interesting, however, is that the common thread in nearly every one of these calls was the downsizing of the station employee “who did all that” before the problem commenced. While the recent “mega-recession” resulted in downsizing in nearly every industry, the precipitous drop in advertising revenues caused tremendous downsizing in the media industry. As downsizing usually requires that one person do the work formerly handled by multiple people, it is not surprising that a report that is required to be filed once a year, or only during odd-numbered years, gets lost in the mix. Of course, the loss of institutional memory is always a problem when an employee departs. However, the problem is intensified in a downsizing, where the departing employee is not too happy with the soon-to-be-former employer, and is probably not feeling very enthusiastic about training their successor.

As a result, while it is always wise to vigilantly monitor regulatory due dates and keep them on a multi-year calendar, it is equally important to ensure after a downsizing that there remains one employee who is clearly charged with ensuring that the required reports/filings are timely completed. You also need to ensure that employee has not just the responsibility of getting the job done, but the training and resources to make it happen. A top-notch conscientious employee who has no idea what an EEO Midterm Report is, and when that particular station’s report is due, is of little use.

Focusing a little bit of attention on that issue now will save you loads of distraction later when you try to undo the damage. Keep in mind that where a missed report may result in a fine, a missed license renewal application (the “once in eight years” filing for broadcasters) has caused the FCC to delete the station from its database and charge the licensee with illegal operation for the time it operated the station after its license expired. It’s best not to find that out firsthand.

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March 2010
This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee and Texas, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Introduction
April 1, 2010 is the deadline for 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 they have one. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by April 1, 2010.

Under the FCC’s EEO rule, 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.

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January 2010

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York and Oklahoma, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Introduction
February 1, 2010 is the deadline for 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 they have one. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by February 1, 2010.

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November 2009
This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Introduction
December 1, 2009 is the deadline for 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 they have one.

Under the FCC’s EEO rule, 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.

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September 2009
This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Iowa, Missouri, Alaska, Hawaii, Oregon, Washington, Guam, American Samoa, Marianas Islands, Florida, Puerto Rico and the Virgin Islands, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Introduction
October 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.

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