FCC Proposes Elimination of EEO Mid-Term Report for Broadcasters

On January 3, 2019, the Federal Communications Commission ("FCC" or the "Commission") released a proposed Report and Order which would eliminate the requirement that certain broadcast television and radio stations file a Broadcast Mid-Term EEO Report (Form 397). The Commission released the proposed Report and Order for adoption at its public meeting scheduled for January 30, notifying the public of how it would potentially conclude the proceeding begun in March 2018.

Section 334(b) of the Communications Act of 1934, as amended (the "Act"), requires the Commission to conduct a mid-term review of broadcast stations' employment practices. Under Section 73.2080(f)(2) of the Commission's rules, at the midpoint of a broadcaster's eight-year license term, the FCC's staff reviews the Equal Employment Opportunity ("EEO") practices of television station employment units with 5 or more full-time employees and radio station employment units with 11 or more full-time employees. A station employment unit is a station or group of commonly-owned stations in the same market sharing at least one employee. To facilitate this review, the FCC requires licensees of AM, FM, TV, and Class A television station employment units with sufficient employees to file a Form 397 on the four-year anniversary of the station's most recent license renewal filing. Among other things, the Form 397 identifies whether or not the employment unit has enough full-time employees to trigger a mid-term EEO review.

In the proposed Report and Order, the Commission found that elimination of the Form 397 filing requirement would "reduce the burden on licensees and the unnecessary waste of administrative and material resources" - without undermining Section 334(b)'s EEO compliance review mandate. Specifically, the FCC found that, since the transition of broadcasters to the Online Public Inspection File ("OPIF") system is now complete, "nearly all of the information in Form 397 is easily accessible online" to the public - e.g., EEO contact information and copies of EEO public file reports which are required to be uploaded to a station's OPIF.

The Commission noted, however, that the only information currently missing from a station's OPIF necessary for the FCC staff to conduct its mid-term review was the number of full-time employees working at the station. Accordingly, in connection with the elimination of Form 397, the Commission will require radio stations to answer a question about staffing size when they upload an EEO public file report to the station's OPIF (this question will be implemented by the FCC as part of the OPIF). The FCC explained that such a question was unnecessary for television stations because the very act of filing and uploading an EEO public file report to such a station's OPIF is sufficient to identify which stations are subject to the mid-term EEO review. While all television station employment units filing EEO public file reports are subject to mid-term review, some radio station employment units (those with 5-10 full-time employees) must file annual public file reports, but are not subject to a mid-term review.

In the proposed Report and Order, the FCC slated the Form 397 elimination to be effective after the completion of the current mid-term review cycle on April 1, 2019 - assuming that the Federal government shutdown ends in sufficient time to allow adoption and Federal Register publication of the Report and Order by the beginning of March. After April 1, Form 397 would not be due for filing until 2023 in any event and we certainly assume the Report and Order will become effective well before then.