Broadcast Station Update: EEO Reports due June 1
- Radio: Michigan and Ohio
- TV: Arizona, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia and Wyoming, as well as the District of Columbia
By June 1, 2008, radio and television Station Employment Units in the listed states must place in their Public Inspection File and post on their website, if they have one, their FCC Annual EEO Public File Report. A Station Employment Unit (SEU) is a group of stations, under common control, serving a common area and sharing at least one employee. If an SEU includes stations in different states with different filing deadlines, the SEU can select which filing deadline it will use. Once selected, the Annual Report filing deadline should be consistently applied for all future EEO Annual Reports. The states with the June 1 filing deadline are: Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia and Wyoming, as well as the District of Columbia.
Special Note: Mid-Term EEO Report on FCC Form 397 Required June 1 for Television Stations in the District of Columbia, Maryland, Virginia, and West Virginia, and for Certain Radio Stations in Michigan and Ohio
In addition to preparing the Annual EEO Public File Report by June 1, television stations in the District of Columbia, Maryland, Virginia, and West Virginia, as well as larger radio stations in Michigan and Ohio must also prepare and file electronically with the Commission an FCC Form 397 Mid-Term EEO Report. Please note, with respect to radio stations, only those radio Station Employment Units located in Michigan or Ohio with 11 or more full-time employees are required to file an FCC Form 397 by June 1, 2008. The Form 397 provides the FCC with copies of the Station Employment Unit's two most recent Annual EEO Public File Reports (the reports from this year and last year), and is an important part of both the station's compliance with the EEO rules and the Commission's monitoring procedures.
While normally the Annual EEO Public File Report is simply prepared and placed in the station's public file and on its website, if it has one, at the mid-term of the license term and again at the time the station's license renewal application is filed, stations must actually provide the FCC with its two most recent Public File Reports. This allows the FCC and the public to review the station's compliance with the EEO rules. June 1, 2008, marks the mid-point in the license term for radio stations in Michigan and Ohio, as well as the mid-point for television stations in DC, Maryland, Virginia, and West Virginia.
Background on EEO requirements
The FCC's EEO rule requires all radio and television SEUs, regardless of staff size, to afford equal employment opportunity to all qualified persons and to practice nondiscrimination in employment. The Annual EEO Public File Report summarizes the activities of SEUs with five or more full-time employees ("Nonexempt SEUs") that demonstrate compliance with the FCC's three-pronged outreach requirements.
All Nonexempt SEUs must comply with the following “prongs” of the EEO outreach requirements: (1) broadly and inclusively disseminate information about every full-time job opening except in exigent circumstances (commonly referred to as the requirement for “ Wide Dissemination”); (2) send notifications of full-time job vacancies to recruitment organizations that have requested notice; and (3) participate in a specified number of outreach initiatives (so-called “Supplemental Efforts”) from the FCC's menu of such options during each of the four two-year segments that comprise a station's eight-year license term.
The Supplemental Efforts must be conducted even if a station has had no job openings in the prior year in an effort to educate the community as to the types of jobs available at broadcast stations, the training and qualifications required for such jobs, and the way in which people can find out about and apply for broadcast openings.
The specifics of these rules are complex, and the requirements must be carefully observed, as the FCC has recently fined stations who have overlooked their obligations.
Annual EEO Public File Report deadline, contents
By June 1, 2008, all Nonexempt SEUs of radio and television stations, including Class A television stations and LPTV stations, licensed to communities in the states listed above, must: (1) place their Annual EEO Public File Report in the public inspection files of all stations comprising the SEU; and (2) post the Report on the websites, if any station in the SEU has a website.
The Annual EEO Public File Report summarizes the Nonexempt SEU's EEO activities during the previous 12 months, and it must include the following:
- A list of all full-time vacancies filled during the preceding year, identified by job title.
- A list of the recruitment source(s) used to fill each of those vacancies (including organizations that specifically requested notification of all job vacancies pursuant to Prong 2 of the EEO outreach rules), including the address, contact person and telephone number for each source. Prong 2 sources should be specifically identified.
- An identification of the recruitment source that referred the person hired for each full-time vacancy.
- Data reflecting the total number of persons interviewed for full-time vacancies during the preceding year, and the total number of interviewees referred by each recruitment source during the year (be careful to insure that the number of interviewees broken down by recruitment source equals the number you give for the total number of interviewees during the preceding year).
- A list and brief description of Prong 3 menu options implemented during the preceding year. The list should be sufficiently detailed so as to demonstrate that each activity involved a substantial and meaningful commitment of staff time to the particular activity by SEU employees.
According to the FCC rules, the Annual EEO Public File Report covers activities during the period from June 1, 2007, through May 31, 2008. However, the FCC has issued a public notice allowing nonexempt SEUs to opt to "cut off" the reporting period up to 10 days before May 31. This gives the SEU a period of time in which to prepare the report and place it in the public file, and upload it to the website, before the June 1 deadline. If you elect to use this 10-day grace period, be sure that the next reporting period begins the day after the cut-off date that you select. For example, if the Nonexempt SEU has cut off the reporting as of May 25, 2008, for this year's report, next year the Nonexempt SEU must use the period beginning on May 26, 2008, for the 2009 report.
FCC Form 395-B
In the past, FCC Form 395-B, the Broadcast Station Annual Employment Report, was due by Sept. 30. In 2004, the FCC readopted the requirement that Form 395-B be filed with the FCC by that date each year. However, the FCC has put the filing requirement on hold until it determines if the information gathered by the Form 395-B will be available for public review, or if it will be kept confidential and used only by the FCC for compiling overall industry statistics. While the issue of confidentiality is being considered, no filing deadline has been established. Thus, the FCC never gave notice of a date for the filing of the 2004 or 2005 reports, and has not yet said anything about a deadline for any 2008 Form 395-B. Unless such a date is announced, no Form 395-B filing is due in 2008.
If outreach is not documented, it did not happen
Records documenting performance under the EEO Rule are critical because the Commission will not allow credits for Menu Option Initiatives that are not reported in an SEU's Annual EEO Public File Report nor adequately documented. We recommend that stations have communications counsel review their draft report, including supporting material, prior to placing it in the public file. The Commission enforces the EEO rules through review at the time of license renewal, at mid-term for larger broadcasters, and through random audits and targeted investigations resulting from information received as to possible violations.The Commission selects for audit approximately 5 percent of all licensees in the radio and television services each year. The random audits check for compliance with the requirements outlined in this update, and are planned to continue indefinitely. The FCC's Public Notices listing audited stations are available at: www.fcc.gov/mb/policy/eeo.
This update can only briefly summarize the detailed requirements of the EEO Public Inspection File Report. For more information on your obligations, and practical compliance advice, please contact any of the lawyers in the Davis Wright Tremaine LLP Broadcast group.