The broadcast EEO rule adopted in the FCC's Second Report and Order and Third Notice of Proposed Rulemaking is comprised of two primary components: First, a requirement that broadcasters not engage in unlawful employment discrimination; and second, that each broadcast station engage in a mandatory outreach program. The mandatory outreach component, in turn, has three-prongs. The Second Report and Order adopts the following requirements for broadcasters:

Nondiscrimination Component

Broadcasters are prohibited from engaging in unlawful employment discrimination on the basis of race, color, religion, national origin or sex. This requirements not new, and has always been part of prior Commission EEO rules. Religious broadcasters who elect to apply a religious qualification to all of their employees will not be required to comply with the mandatory outreach requirement or the menu options, "but they must make reasonable, good faith efforts to recruit applicants, without regard to race, color, national origin or gender, among those who are qualified based on their religious belief or affiliation." Religious broadcasters who elect to apply a religious qualification to some but not all positions will be required to comply with Prong 1 and Prong 2, as described below, with respect to those openings.

Mandatory Outreach Component

The mandatory outreach component of the new broadcast EEO rule has the following three prongs:
Prong 1: Broadcasters are required to "widely disseminate" throughout the community information concerning each full-time (30 hours or more per week) job vacancy, except for job vacancies filled in exigent circumstances (where, for example, an employee departs without notice, and the duties cannot be fulfilled by another station employee). While the Commission leave the definition of "community" to licensees' good faith discretion, it said that "in making this determination, a broadcaster should assess the technical coverage of its station(s); its marketing, promotional, and advertising practices; the pertinent market definitions adopted by public agencies or commercial services, such as Nielsen and Arbitron; and requests for notices of job vacancies from locally-based community groups." The Commission is not requiring broadcasters to target recruitment efforts to a specific segment of the community. It is important that every broadcaster carefully review the text of the Commission's decision particularly as it relates to this prong since the Commission did not establish a minimum standard for how to "widely disseminate" (i.e., Internet posting, over-the-air announcement, print media publications, etc.) and apparently what a broadcaster must do to achieve "wide dissemination" may vary depending upon the type of job opening involved. This ambiguity in the Commission's decision will undoubtedly make a broadcaster's efforts to fully comply with this prong more difficult and risky.
Prong 2: Broadcasters are required to provide notice of each full-time job vacancy to recruitment organizations that have requested such notice. Once an organization asks to receive notices, the organization is "permanently" on the "mailing list" unless and until the organization notifies the broadcaster that it no longer wishes to receive the notices or the organization ceases to exist. A broadcasters association or other entity, to send such notices so long as the broadcaster understands that it remains legally responsible for compliance. According to the FCC, "This requirement provides a 'safety valve' to ensure that no segment of the community is inadvertently omitted from recruitment efforts. Organizations or other entities with ties to specific segments of the labor force, such as persons with disabilities, college students, or members of different racial, ethnic or religious groups could help broaden the reach of recruitment efforts. Organizations that come forward to request vacancy notification may prove to be very productive referral sources. Further, this approach will enable interested groups to more closely monitor and, if necessary, seek to improve, broadcasters' recruitment efforts."
Prong 3: Broadcasters are required to complete two (for broadcast employment units with five to 10 full-time employees or that are located in small markets) or four (for broadcast employment units with more than 10 full-time employees) longer-term recruitment initiatives during each two-year period. Such initiatives include job fairs, scholarship and internship programs, and other community events designed to inform the public about employment opportunities in broadcasting. Following are the options as found in new Section 73.2080(c)(2) of the FCC Rules: (i) participation in at least four job fairs by station personnel who have substantial responsibility in the making of hiring decisions; (ii) hosting of at least one job fair; (iii) co-sponsoring at least one job fair with organizations in the business and professional community who membership includes substantial participation of women and minorities; (iv) participation in at least four events sponsored by organizations representing groups present in the community interested in broadcast employment issues, including conventions, career days, workshops, and similar activities; (v) establishment of an internship program designed to assist members of the community to acquire skills needed for broadcast employment; (vi) participation in job banks, Internet programs, and other program designed to promote outreach generally (i.e., that are not primarily directed to providing notification of specific job vacancies); (vii) participation in scholarship programs designed to assist students interested in pursuing a career in broadcasting; (viii) establishment of training programs designed to enable station personnel to acquire skills that could qualify them for higher level positions; (ix) establishment of a mentoring program for station personnel; (x) participation in at least four events or programs sponsored by educational institutions relating to career opportunities in broadcasting; (xi) sponsorship of at least two events in the community designed to inform and educate members of the public as to employment opportunities in broadcasting; (xii) listing of each upper-level category opening in a job bank or newsletter of media trade groups whose membership includes substantial participation of women and minorities; (xiii) provision of assistance to unaffiliated nonprofit entities in the maintenance of websites that provide counseling on the process of searching for broadcast employment and/or other career development assistance pertinent to broadcasting; (xiv) provision of training to management level personnel as to methods of ensuring equal employment opportunity and preventing discrimination; (xv) provision of training to personnel of unaffiliated nonprofit organizations interested in broadcast employment opportunities that would enable them to better refer job candidates for broadcast positions; and (xvi) participation in other activities designed by the station employment unit reasonably calculated to further the goal of disseminating information as to employment opportunities in broadcasting to job candidates who might otherwise be unaware of such opportunities.

Station Employment Units

As with the Commission's previous broadcast EEO rule, the new rule is based on "station employment units" rather than on individual stations. The Second Report and Order states that a station employment unit "will be defined, as it was under our former Rule, as including a station or group of commonly owned stations in the same market that shared at least one employee. We will leave the definition of the 'market' to each licensee's good faith discretion." The Second Report and Order goes on to caution licensees to be prepared to provide "a reasonable explanation" for their determination of a station employment unit. In addition, the Commission states that stat8ions in the same market should be considered as part of a station employment unit even if licenses are held by different business entities that are commonly owned or controlled. "We would view licenses as commonly owned for the purpose of the EEO Rule if 50 percent or more of the voting control of the licensees is held by the same persons or entities."

Exceptions to Mandatory Outreach

The mandatory broadcast outreach requirement does not apply to station employment units with less than five full-time employees. Furthermore, station employment units with small staffs or in small markets will be require to implement fewer Prong 3 activities than stations with larger staffs, since the FCC believes that smaller market stations might not be able to support some of the activities contemplated by Prong 3.

Recordkeeping and Reporting

The new broadcast EEO rule also includes the following recordkeeping and reporting requirements:
Broadcasters will be required to collect, but not routinely submit to the FCC: (a) listings of all full-time job vacancies filled by a station employment unit, identified by job title; (b) for each such vacancy, the recruitment sources contacted to fill the vacancy (including, if applicable, organizations entitled to notification), identified by name, address, contact person and telephone number; (c) dated copies of all advertisements, bulletins, letters, faxes, emails or other communications announcing job vacancies; (d) documentation demonstrating performance of the Prong 3 menu choices; (e) the total number of interviewees for each vacancy and the referral source for each interviewee; and (f) the date each job vacancy was filled and the recruitment source that referred the hiree.
Broadcasters will also be required to place in the station's public inspection file annually a report including the following information: (a) a list of all full-time job vacancies filled during the preceding year, identified by job title; (b) recruitment sources used to fill each of those job vacancies (including organizations entitled to notification of job vacancies pursuant to Prong 2, including the address, contact person, and telephone number of each recruitment source; (c) a list of the recruitment sources that referred the individuals hired for each full-time job vacancy that was filled; (d) data reflecting the total number of persons interviewed for full-time job vacancies during the preceding year and the total number of interviewees referred by each recruitment source; and (e) a list and brief description of Prong 3 menu choices that the station implemented during the preceding year. Broadcasters will also be required to post the most current EEO public inspection file report on the station website, if one exists.
Broadcasters will also be required to submit the station's EEO public inspection file reports for the preceding two years to the FCC as part of the license renewal application and at the middle of the license term for the FCC's review for those stations that are subject to mid-term review (television stations with five or more full-time employees and radio stations with more than 10 full-time employees). EEO public inspection file reports for the preceding two-year period will be required because broadcasters have two years in which to complete the Prong 3 menu choices.

While the new broadcast EEO rule only provides for a mid-term and license renewal review of the station's outreach efforts (in contrast to the prior rules, which provided for review at the second, fourth and sixth years of the license term, as well as at license renewal in the eighth year), they still require reports on outreach efforts and employment information, as well as the placement of that information in the public inspection file.

New FCC Forms

Part of the new broadcast EEO rule will be the debut of four new FCC Forms, three for broadcasters and one for multi-channel video programming distributors: (a) Form 396-A, "Broadcast Equal Employment Opportunity Model Program Report," filed with applications for the construction of new broadcast stations and applications for the assignment or transfer of existing broadcast stations; (b) Form 396, "Broadcast Equal Employment Opportunity Program Report," filed with station license renewal applications; (c) Form 397, "Broadcast Mid-Term Report," filed at the midpoint of the license term by television stations with five or more full-time employees and by radio stations with more than 10 full-time employees; and (d) Form 396-C, which will be filed by multi-channel video programming distributors with the FCC by September 30 of each year.

Use of Form 395-B, the broadcast annual employment report previously required to be filed with the Commission by September 30 of each year, will be considered in a separate order at a future date: "We are not acting at this time on issues raised in the Second NPRM concerning the broadcast annual employment report (FCC Form 395-B), which has in the past been used to collect data concerning the workforces of broadcast employment units, including data concerning the race/ethnicity and gender of those workforces... Because the employment reports are filed on September 30 of each year, the next reports would not be due earlier than September 30, 2003. We expect the forms to be completed by this deadline."

Enforcement

Enforcement of the new broadcast EEO rule will be accomplished through a variety of means, including random audits by FCC staff, mid-term reviews, complaints and petitions received from the public, at any time including license renewal time, admonitions, forfeitures, hearings, short-term renewals and loss of license.

Third Notice of Proposed Rulemaking

The Third Notice of Proposed Rulemaking seeks comments on whether, and if so, how, the new rules should apply to part-time positions. The new broadcast EEO rule applies to all full-time employees, defined by the Commission "as those who regular work schedule is 30 hours or more a week." Previously, the Commission had applied an ambiguous "substantial compliance" policy to those positions involving less than 30 hours per week, but did not required reporting on part-time employees, nor did it review part-time hiring in reviewing EEO programs. "In particular, we seek comment on how many and what types of positions in the broadcast and MVPD industries fall into this category, what is the significance of these positions in terms of entry into broadcasting, how burdensome compliance with the recruitment, recordkeeping, and reporting requirements for all or some part-time positions would be for broadcasters and MVPDs, and whether the requirements applicable to part-time positions should be the same as or different from those applicable to full-time positions. We also seek comment on whether we should set a minimum number of hours for a part-time position to be covered by the rules, and, if so, what that minimum number should be." Comments in response to the Third Notice of Proposed Rulemaking are currently due by December 20, 2002, and reply comments are due by January 6, 2003.

Effective Date

The new EEO rule will take effect 60 days after the test of the Second Report and Order and Third Notice of Proposed Rulemaking is published in the Federal Register (probably making them effective around late January or early February 2003). It is not presently known whether any interested party will seek reconsideration or clarification, move for a stay, and/or file an appeal of the new regulations. As mentioned above, it is very important that every broadcaster carefully review and fully understand the details, scope and purposes of these new requirements by studying the Commission's decision which can be viewed or downloaded (in the form of a Word document) at http://hraunfoss.fcc.gov/edocs public/attachmatch/FCC-02-303A1.doc.