EEO Form Elimination, New Rumblings, and a New Round of Audits

As anticipated, the FCC adopted a Report & Order at its February meeting that eliminated 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 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.

Despite the elimination of the form, the FCC will still conduct reviews of station EEO compliance at the license term mid-point by accessing a station’s online public file and reviewing the EEO public file reports there. How will they know which stations to review? For TV stations, any completing EEO public file reports that have the 5 or more full-timers necessary to trigger a mid-term review. For radio, only those stations with at least 11 full-timers are subject to mid-term review, and the FCC staff will use a new online public file feature to determine which stations are reviewed. The new feature will ask 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.

The Report & Order included an interesting addition that was not part of the previously released draft, namely that the FCC will, within 90 days of adoption of the order, seek comment in a further notice on the FCC’s EEO enforcement track record and how the agency can make improvements to EEO compliance and enforcement. In a related footnote (48), the FCC notes that calls for collection and publication of broadcast licensee employment data are part of a separate proceeding. A lengthy statement released by newly seated Democrat Commissioner Starks suggest that a long dormant decision suspending EEO Form 395-B, which would collect certain employment data, needs to be resurrected. These rumblings suggest that more scrutiny is coming to broadcast EEO efforts and compliance, right as we begin the license renewal cycle. Broadcasters should stay vigilant in their ongoing efforts to comply with the FCC’s EEO broad outreach requirements.

Finally, the FCC issued a mid-February public notice announcing the first round of random broadcast station EEO audits. Double check to be certain whether your station is on the list included with the public notice. While you’re there, peruse the audit letter to get a feel for the scope of these audits and spot check your station’s EEO procedures. Audit responses for the listed stations are due no later than April 1, 2019. Like the last audits, the response will be completed by uploading it to the station online public file by the deadline. The FCC staff will review it there and either issue “all clear” letters to audited stations, or request additional information.