EEO Form 397 Slated For Elimination

At its February meeting, the FCC is expected to adopt a Report & Order eliminating the requirement for radio stations with at least 11 full-time employees, and TV stations with 5 or more full-timers, to prepare and file the FCC Form 397 – EEO Mid-Term Report. The logic behind this proposal is that the information submitted in the Form 397 is already available in a station’s online public file, and therefore the filing of the form to facilitate the submission of the information or a mid-term EEO compliance review is no longer necessary.

This won’t mean that the FCC will stop carrying out its statutory obligation to review station EEO compliance at the mid-point of the license term. They will still do so, but instead of using a form, they’ll merely access the station’s online public file and review the EEO public file reports there. If the FCC has a question or concern about an EEO public file report, it will make an inquiry of the station then.

The draft Report & Order released January 3, 2019 does add a wrinkle for radio stations. Under the FCC’s current EEO rules, both radio and television stations with five or more full-time employees have to annually prepare and upload an EEO public file report to the station online public file and website. But when it comes to the mid-term review, radio stations must have at least 11 full-time employees before a review is triggered (for TV stations, only five employees are necessary).

So, by merely looking at a TV station’s public file, FCC staff can automatically know if the station is subject to a mid-term review because the TV station will have uploaded the required annual EEO public file report. For radio stations though, an uploaded annual EEO public file report means that the radio station had at least five full- timers, but leaves unknown whether the station has at least 11 full-time employees and is therefore subject to a mid-term review.

To fix this, the draft Report & Order would implement an OPIF feature that asks radio stations – every time they upload an EEO public file report — to respond yes/no as to whether they have 11 or more full-time employees. That way, the FCC will be able to easily determine which radio stations are subject to a mid-term review. Our only comment here is that we hope this is easier to implement than it was to explain.

The deadline for most stations to file Form 397 in the current renewal cycle has passed, except for TV stations in New York and New Jersey that must file Form 397 by February 1, and TV stations in Delaware and Pennsylvania that must file the form by April 1. After that, the new mid-term “review by public file” procedure would begin in 2023, which would mark the first license term mid-point for radio stations whose licenses are renewed in 2019.