FCC’s EEO Policies Subject of Re-examination and Update

The FCC's policies with regard to diversity generally have taken center stage over the past few days. First up, on Friday, April 21, the Commission released a Declaratory Ruling which updated its policy as to whether the use by broadcasters and multichannel video programming distributors (MVPD's) of only Internet-based recruitment sources provides sufficiently wide dissemination of news about full-time job openings. In a ruling some might describe as an overdue recognition of reality, the Commission determined that use of non-Internet sources is no longer necessary. Then, on Monday, April 24, FCC Chairman Pai announced that he intends to establish a new Advisory Committee on Diversity and Digital Empowerment. The stated mission of the Advisory Committee is to provide recommendations to the FCC with regard to providing opportunities for all Americans to participate in the communications marketplace, without regard to race, creed, gender, ethnicity, or sexual orientation. Both moves were generally praised in the industry.

The Declaratory Ruling represents a significant change in the policy established when the Commission adopted its current EEO rules in 2002. At that time, the Commission considered the possibility of recruiting applicants for full-time openings through use of the Internet. It stated that the purpose of the EEO rules is to ensure that all applicants are afforded equal opportunity and non-discrimination, and not just to bring about the proportional representation of certain groups. In order to achieve that goal, it would be necessary to make sure that all segments of the population heard about job openings, and none were inadvertently excluded just because they did not know to apply. Accordingly, the FCC's EEO rules and policies emphasize wide dissemination of recruitment information.

When the rules were adopted, the Commission did not believe that use of the Internet was sufficiently widespread to ensure by itself that news of job openings would be likely to reach the entire community. Of particular concern was the gap in access to the Internet between non-minority and minority job-seekers. Therefore, while the Commission recognized that the Internet could be one good method of recruiting job applicants, it explicitly stated that reliance upon only Internet-based sources would be insufficient. Other, more traditional, means also would need to be used. The Commission applied this policy when it reviewed the EEO programs of broadcast licensees or MVPD's in EEO audits or at license renewal time. Indeed, over the years, the FCC fined a number of licensees, and one as recently as last year, for the failure to use any non-Internet sources for job recruitment.

Now, fast forward about a decade and a half from the adoption of the current EEO rules. Two broadcasters (Sun Valley Radio, Inc. and Canyon Media Corporation) filed a petition seeking a modification of the FCC's polices. After receiving comments overwhelmingly in favor of granting the relief requested by the petition, the Commission looked around and saw that Internet use has grown exponentially among all demographic groups, including minorities. Job seekers now routinely use the Internet to search for job openings. In fact, some employers, including the Commission itself, require that job applications be submitted online, absent extraordinary circumstances. At the same time, traditional go-to sources, such as newspapers, have declined in popularity and reach fewer people. In this climate, the Commission decided to reverse course and allow broadcast licensees and MVPD's to rely exclusively on Internet sources for recruitment.

The Commission emphasized, however, that it is still concerned about how widely the word of openings is spread. The question of whether one or more Internet job postings, either with or without other non-Internet contacts, could reasonably be expected to disseminate widely word of a job vacancy will remain the central question in evaluating recruitment efforts. MMTC proposed that the policy be changed so as to include three requirements: (1) that any online job posting be easy to find; (2) that it be posted for a sufficient period of time, with records kept of interviewees referred; and (3) that broadcasters continue to cultivate relationships with groups that might refer diverse candidates. The Commission declined to adopt these ideas as requirements but encouraged broadcasters to keep them in mind in their recruitment efforts. Doubtless, these factors will be considered when the FCC evaluates EEO programs.

Of course, none of the other aspects of the EEO rules has changed. The Commission will continue to evaluate EEO programs on the basis of employment units. Record-keeping and generalized outreach efforts, not related to a particular job opening, but calculated to make community residents aware of employment opportunities in broadcasting or with MVPD's, remain key.

The new Advisory Committee on Diversity and Digital Empowerment seeks to move beyond both the employment context and mass media to promote diversity in the communications industry generally. For example, some of the ideas it might promote include the establishment of an incubator program to promote ownership of communications businesses or the identification of ways to combat digital redlining. According to the news release announcing the establishment of this Advisory Committee, the Commission will soon be seeking applications for membership on the Advisory Committee. While its establishment was generally lauded, and the Advisory Committee seems to have high goals, a few, including former FCC Chairman Michael J. Copps, complained that the Commission had already had a Diversity Advisory Committee, rechartered during his chairmanship, and felt that setting up a new committee, which would have to seek new members and establish itself, was a step backward. Whether the two committees will have common outlooks, as well as their relative measures of success, are matters that remain to be seen. In the meantime, keep on following those EEO rules, and if you have questions, let us know.