Review of EEO Compliance and Enforcement in Broadcast and Multichannel Video Programming Industries, 35063-35067 [2019-15505]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 84, Number 140 (Monday, July 22, 2019)]
[Proposed Rules]
[Pages 35063-35067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15505]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 73 and 76

[MB Docket No. 19-177; FCC 19-54]


Review of EEO Compliance and Enforcement in Broadcast and 
Multichannel Video Programming Industries

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This Proposed Rule seeks comment on how the Commission can 
make improvements to equal employment opportunity (EEO) compliance and 
enforcement and responds to issues raised in comments filed in a recent 
proceeding to eliminate the obligation to file the Broadcast Mid-term 
Report (FCC Form 397). In that proceeding, the Commission committed to 
seek comment on these issues.

DATES: Comments Due: August 21, 2019. Replies Due: September 5, 2019.

ADDRESSES: Interested parties may submit comments and replies, 
identified by MB Docket No. 19-177, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Website: https://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     Mail: Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail (although the Commission continues to experience 
delays in receiving U.S. Postal Service mail). All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
    For more detailed filing instructions, see the Procedural Matters 
section below.

FOR FURTHER INFORMATION CONTACT: Radhika Karmarkar, Industry Analysis 
Division, Media Bureau, [email protected], (202) 418-1523.

SUPPLEMENTARY INFORMATION: This Proposed Rule in MB Docket No. 19-177 
was adopted June 12, 2018, and released June 21, 2018. The full text of 
this document is available for public inspection during regular 
business hours in the FCC Reference Center, 445 12th Street SW, Room 
CY-A257, Washington, DC 20554, or online at https://docs.fcc.gov/public/attachments/FCC-18-179A1.pdf. To request this document in 
accessible formats for people with disabilities (e.g., Braille, large 
print, electronic files, audio format, etc.) or to request reasonable 
accommodations (e.g., accessible format documents, sign language 
interpreters, CART, etc.), send an email to [email protected] or call the 
FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Synopsis

    1. Background. The Commission has administered regulations 
governing the EEO responsibilities of broadcast licensees since 1969, 
and of cable television operators since 1972. The Commission's EEO 
rules prohibit discrimination on the basis of race, color, religion, 
national origin or sex (and for Multichannel Video Programming 
Distributors, or MVPDs, also age), and require broadcasters and MVPDs 
to provide equal employment opportunities. In addition to these broad

[[Page 35064]]

dictates applicable to all full-power radio and television 
broadcasters, Low Power TV, Class A TV and MVPDs, employment units of a 
specific size in each industry must also follow an EEO program. 
Specifically, the rules require that each broadcast station (or station 
employment unit) with five or more full-time employees, and each MVPD 
employment unit with six or more full-time employees establish, 
maintain, and carry out a positive continuing program to ensure equal 
opportunity and nondiscrimination in employment policies and practice.
    2. Among other things, EEO recruitment rules require an employment 
unit to use recruitment sources for each full-time vacancy that, in its 
reasonable and good faith judgment, are sufficient to widely 
disseminate information about the job opening. Broadcasters and MVPDs 
must use a three-pronged approach to recruit for full-time vacancies: 
(1) Widely disseminate information concerning each full time (30 hours 
or more) job vacancy, except for a vacancy filled in exigent 
circumstances, (2) provide vacancy notices to recruiting organizations 
that request them, and (3) complete longer-term recruitment initiatives 
within a two-year period. In 2017, in response to a broadcaster 
petition that received wide support from the industry and other 
stakeholders, the Commission updated its EEO policy to allow online job 
postings to be used as a sole recruitment tool to meet the ``widely 
disseminate'' prong of its recruiting rules.
    3. In addition to general EEO efforts, the Commission requires 
broadcasters and MVPDs to undertake specific EEO recruiting initiatives 
and keep records sufficient to show compliance with these initiatives. 
To enforce its EEO rules, the Commission may conduct inquiries of 
broadcasters and MVPDs at random or if it has evidence of a violation. 
In addition, the Commission conducts random audits each year of 
approximately five percent of broadcasters and conducts more intensive 
reviews of MVPD compliance practices once every five years. The 
Commission can issue appropriate sanctions and remedies for violations 
of its EEO rules. The public can also file EEO complaints with the 
Commission based on the contents of broadcaster and MVPD public files 
or allegations of rule violations. The Commission's EEO enforcement and 
associated auditing responsibilities are key priorities.
    4. EEO Enforcement and Compliance. The Commission seeks comment on 
the agency's track record on EEO enforcement and whether it should make 
improvements to EEO compliance and enforcement. While the relevant 
comments in the Form 397 proceeding focused primarily on EEO 
enforcement and compliance in the broadcast industry, today's Proposed 
Rule seeks comment on improvements to EEO compliance and enforcement 
for both broadcasters and MVPDs as well as the Commission's track 
record on EEO enforcement with respect to both categories of regulated 
entities.
    5. With respect to its current EEO enforcement efforts, the 
Commission invites commenters to assess their effectiveness. What 
elements of the Commission's EEO enforcement program are effective? 
What elements of the program are not effective? What elements could be 
improved and how could they be improved? Are there elements that should 
be added to the EEO enforcement program to increase its effectiveness? 
Are there elements that should be removed from the program because they 
are not effective?
    6. In the Form 397 proceeding, a group of 34 organizations (EEO 
Supporters) offered several suggestions for improving the Commission's 
EEO enforcement. The Commission already has implemented one of these 
suggestions, namely the relocation of the Commission's EEO staff from 
the Media Bureau to the Enforcement Bureau.
    7. With respect to enforcement, the EEO Supporters also suggested 
that the Commission evaluate its audit program ``to ensure that 
auditors have sufficient information to verify that hiring decisions 
were made after the job postings were made, not before-hand, and that 
audits are allowed to uncover discrimination at the points of 
recruitment, interviewing, and selection.'' We invite comment on this 
proposal. Is it necessary for us to modify our audit program to verify 
that hiring decisions were made after job openings were posted? If so, 
what modifications would be necessary? Are our current auditing 
procedures sufficient to uncover discrimination at the points of 
recruitment, interviewing, and selection? If not, how could we modify 
those procedures so that they would be sufficient? Any commenters 
should describe proposed modifications to our audit program with 
specificity, supply any data or studies indicating that such proposals 
would further the Commission's goal of nondiscrimination in employment, 
provide suggestions for overcoming any implementation difficulties, and 
compare the relative costs and benefits of such proposals.
    8. Aside from exploring modifications to our audit program, are 
there other types of enforcement and compliance initiatives the 
Commission should explore to ensure that its EEO rules are an effective 
deterrent to discrimination in the broadcast and MVPD industries, 
including other initiatives previously suggested by the EEO Supporters 
in other Commission proceedings? Again, commenters should explain any 
initiatives with specificity, supply any data or studies indicating 
that such proposals would be consistent with the U.S. Constitution and 
further the Commission goal of nondiscrimination in broadcaster and 
MVPD employment, and provide suggestions for overcoming any 
implementation difficulties.

Procedural Matters

    9. Ex Parte Rules--Permit-But-Disclose. The proceeding that this 
Proposed Rule initiates shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. Persons 
making ex parte presentations must file a copy of any written 
presentation or a memorandum summarizing any oral presentation within 
two business days after the presentation (unless a different deadline 
applicable to the Sunshine period applies). Persons making oral ex 
parte presentations are reminded that memoranda summarizing the 
presentation must: (1) List all persons attending or otherwise 
participating in the meeting at which the ex parte presentation was 
made; and (2) summarize all data presented and arguments made during 
the presentation. If the presentation consisted in whole or in part of 
the presentation of data or arguments already reflected in the 
presenter's written comments, memoranda or other filings in the 
proceeding, the presenter may provide citations to such data or 
arguments in his or her prior comments, memoranda, or other filings 
(specifying the relevant page and/or paragraph numbers where such data 
or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with section 1.1206(b) of the Commission's rules. 
In proceedings governed by section 1.49(f) of the Commission's rules, 
or for which the Commission has made available a method of electronic 
filing, written ex parte presentations and memoranda summarizing oral 
ex parte presentations, and all attachments thereto, must be filed 
through the Commission's Electronic Comment Filing System (ECFS) 
available for that proceeding, and must be filed in their

[[Page 35065]]

native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants 
in this proceeding should familiarize themselves with the Commission's 
ex parte rules.
    10. Filing Requirements--Comments and Replies. Pursuant to sections 
1.415 and 1.419 of the Commission's rules, interested parties may file 
comments and reply comments on or before the dates indicated on the 
first page of this document. Comments may be filed using ECFS.
    [ssquf] Commenting parties may file comments in response to this 
Proposed Rule in MB Docket No. 19-177.
    [ssquf] Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: https://apps.fcc.gov/ecfs/.
    [ssquf] Paper Filers: Parties who choose to file by paper must file 
an original and one copy of each filing.
    [ssquf] Filings can be sent by hand or messenger delivery, by 
commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
    [ssquf] All hand-delivered or messenger-delivered paper filings for 
the Commission's Secretary must be delivered to FCC Headquarters at 445 
12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 
8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes and boxes must be disposed of 
before entering the building.
    [ssquf] Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
    [ssquf] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street SW, Washington, DC 20554.
    11. Initial Regulatory Flexibility Act Analysis. The Regulatory 
Flexibility Act of 1980, as amended (RFA), requires that a regulatory 
flexibility analysis be prepared for notice and comment rulemaking 
proceedings, unless the agency certifies that ``the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.'' The RFA generally defines the term ``small 
entity'' as having the same meaning as the terms ``small business,'' 
``small organization,'' and ``small governmental jurisdiction.'' In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act. A ``small 
business concern'' is one which: (1) Is independently owned and 
operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the Small Business 
Administration (SBA).
    12. Written public comments are requested on the IFRA and must be 
filed in accordance with the same filing deadlines as comments on this 
Proposed Rule, with a distinct heading designating them as responses to 
the IRFA. In addition, a copy of this Proposed Rule and the IRFA will 
be sent to the Chief Counsel for Advocacy of the SBA.
    13. Paperwork Reduction Act. This Proposed Rule seeks comment on 
whether the Commission should adopt new or modified information 
collection requirements. The Commission, as part of its continuing 
effort to reduce paperwork burdens and pursuant to the Paperwork 
Reduction Act of 1995, invites the public and the Office of Management 
and Budget (OMB) to comment on these information collection 
requirements. In addition, pursuant to the Small Business Paperwork 
Relief Act of 2002, the Commission seeks specific comment on how it 
might further reduce the information collection burden for small 
business concerns with fewer than 25 employees.
    14. People with Disabilities. To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    15. Additional Information. For additional information on this 
proceeding, please contact Radhika Karmarkar of the Media Bureau, 
Industry Analysis Division, [email protected], (202) 418-1523.

Initial Regulatory Flexibility Analysis

    16. Need for, and Objective of, the Proposed Rules. This Notice 
seeks comment on how the Commission can make improvements to equal 
employment opportunity (EEO) compliance and enforcement.
    17. Legal Basis. The proposed action is authorized under sections 
1, 4(i), 4(j), 334, and 634 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 154(i), 154(j), 334, and 554.
    18. Description and Estimate of the Number of Small Entities to 
Which the Proposed Rules Will Apply. The RFA directs agencies to 
provide a description of, and where feasible, an estimate of the number 
of small entities that may be affected by the proposed rule revisions, 
if adopted. Below, we provide a description of such small entities, as 
well as an estimate of the number of such small entities, where 
feasible.
    19. Television Broadcasting. This U.S. Economic Census category 
comprises establishments primarily engaged in broadcasting images 
together with sound. These establishments operate television broadcast 
studios and facilities for the programming and transmission of programs 
to the public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in turn 
broadcast the programs to the public on a predetermined schedule. 
Programming may originate in the establishment's own studio, from an 
affiliated network, or from external sources. The SBA has created the 
following small business size standard for such businesses: Those 
having $38.5 million or less in annual receipts. The 2012 Economic 
Census reports that 751 firms in this category operated in that year. 
Of that number, 656 had annual receipts of $25 million or less, 25 had 
annual receipts between $25 million and $49,999,999 and 70 had annual 
receipts of $50 million or more. Based on these data, we estimate that 
the majority of commercial television broadcast stations are small 
entities under the applicable size standard.
    20. Additionally, the Commission has estimated the number of 
licensed commercial television stations as of March 31, 2019, to be 
1383. Of this total, 1,282 stations (or 94.2%) had revenues of $38.5 
million or less in 2018, according to Commission staff review of the 
BIA Kelsey Inc. Media Access Pro Television Database (BIA) on April 15, 
2019, and therefore these stations qualify as small entities under the 
SBA definition. In addition, the Commission estimates the number of 
non-commercial educational (NCE) stations to be 378. The Commission 
does not compile and does not have access to information on the revenue 
of NCE stations that would permit it to determine how many such 
stations would qualify as small entities. There are also 387 Class A 
stations. Given the nature of this service, the Commission presumes 
that all of these stations qualify as small entities under the 
applicable SBA size standard.
    21. Radio Broadcasting. This U.S. Economic Census category 
comprises establishments primarily engaged in broadcasting aural 
programs by radio to the public. Programming may originate in the 
establishment's own studio, from an affiliated network, or from 
external sources. The SBA has created the

[[Page 35066]]

following small business size standard for such businesses: Those 
having $38.5 million or less in annual receipts. Economic Census data 
for 2012 show that 2,849 firms in this category operated in that year. 
Of that number, 2,806 operated with annual receipts of less than $25 
million per year, 17 with annual receipts between $25 million and 
$49,999,999 million and 26 with annual receipts of $50 million or more. 
Based on these data, we estimate that the majority of commercial radio 
broadcast stations qualify as small entities under the applicable SBA 
size standard.
    22. As of March 31, 2019, the Commission has estimated the number 
of licensed commercial AM radio stations to be 4,613 and the number of 
commercial FM radio stations to be 6,762 for a total of 11,375 
commercial stations. Of this total, 11,366 stations (or 99.9%) had 
revenues of $38.5 million or less in 2018, according to Commission 
staff review of the BIA Kelsey Inc. Media Access Pro Television 
Database (BIA) on April 15, 2019, and therefore these stations qualify 
as small entities under the SBA definition. In addition, there were 
4,139 NCE FM stations. The Commission does not compile and does not 
have access to information on the revenue of NCE stations that would 
permit it to determine how many such stations would qualify as small 
entities.
    23. In assessing whether a business concern qualifies as small 
under the above definition, business (control) affiliations must be 
included. Our estimate, therefore, likely overstates the number of 
small entities that might be affected by our action because the revenue 
figure on which it is based does not include or aggregate revenues from 
affiliated companies. In addition, an element of the definition of 
``small business'' is that the entity not be dominant in its field of 
operation. We are unable at this time to define or quantify the 
criteria that would establish whether a specific radio or television 
station is dominant in its field of operation. Accordingly, the 
estimate of small businesses to which the proposed rules may apply does 
not exclude any radio or television station from the definition of 
small business on this basis and is therefore possibly over-inclusive.
    24. Cable Companies and Systems (Rate Regulation Standard). The 
Commission has also developed its own small business size standards for 
the purpose of cable rate regulation. Under the Commission's rules, a 
``small cable company'' is one serving 400,000 or fewer subscribers 
nationwide. In addition, under the Commission's rules, a ``small 
system'' is a cable system serving 15,000 or fewer subscribers. 
Industry data indicate that there are currently 4,300 active cable 
systems in the United States. Of this total, 3,550 cable systems have 
fewer than 15,000 subscribers, and 750 systems have 15,000 or more 
subscribers. Thus, we estimate that most cable systems are small 
entities.
    25. Cable System Operators (Telecommunications Act Standard). The 
Communications Act of 1934, as amended, also contains a size standard 
for a small cable system operator, which is a cable operator that, 
directly or through an affiliate, serves in the aggregate fewer than 1 
percent of all subscribers in the United States and is not affiliated 
with any entity or entities whose gross annual revenues in the 
aggregate exceed $250 million. There are approximately 50,504,642 cable 
video subscribers in the United States today. Accordingly, an operator 
serving fewer than 505,046 subscribers shall be deemed a small operator 
if its annual revenues, when combined with the total annual revenues of 
all its affiliates, do not exceed $250 million in the aggregate. Based 
on available data, we find that all but six incumbent cable operators 
are small entities under this size standard. We note that the 
Commission neither requests nor collects information on whether cable 
system operators are affiliated with entities whose gross annual 
revenues exceed $250 million. Although it seems certain that some of 
these cable system operators are affiliated with entities whose gross 
annual revenues exceed $250 million, we are unable at this time to 
estimate with greater precision the number of cable system operators 
that would qualify as small cable operators under the definition in the 
Communications Act.
    26. We also note that there currently are 182 cable antenna relay 
service (CARS) licensees. The Commission, however, neither requests nor 
collects information on whether CARS licensees are affiliated with 
entities whose gross annual revenues exceed $250 million. Although some 
CARS licensees may be affiliated with entities whose gross annual 
revenues exceed $250 million, we are unable at this time to estimate 
with greater precision the number of CARS licensees that would qualify 
as small cable operators under the definition in the Communications 
Act.
    27. Satellite Master Antenna Television (SMATV) Systems, also known 
as Private Cable Operators (PCOs). SMATV systems or PCOs are video 
distribution facilities that use closed transmission paths not using 
any public right-of-way. They acquire video programming and distribute 
it via terrestrial wiring in urban and suburban multiple dwelling units 
such as apartments and condominiums, and commercial multiple tenant 
units such as hotels and office buildings. SMATV systems or PCOs are 
now included in the SBA's broad economic census category, ``Wired 
Telecommunications Carriers,'' which was developed for small wireline 
firms. Under this category, the SBA deems a wireline business to be 
small if it has 1,500 or fewer employees. U.S. Economic Census data for 
2012 indicate that in that year there were 3,117 firms operating 
businesses as wired telecommunications carriers. Of that 3,117, 3,059 
operated with 999 or fewer employees. Based on this data, we estimate 
that a majority of operators of SMATV/PCO companies were small under 
the applicable SBA size standard.
    28. Direct Broadcast Satellite (DBS) Service. DBS Service is a 
nationally distributed subscription service that delivers video and 
audio programming via satellite to a small parabolic dish antenna at 
the subscriber's location. DBS is now included in SBA's economic census 
category ``Wired Telecommunications Carriers.'' The Wired 
Telecommunications Carriers industry comprises establishments primarily 
engaged in operating and/or providing access to transmission facilities 
and infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on a single technology 
or combination of technologies. Establishments in this industry use the 
wired telecommunications network facilities that they operate to 
provide a variety of services, such as wired telephony services, 
including VoIP services, wired (cable) audio and video programming 
distribution, and wired broadband internet services. By exception, 
establishments providing satellite television distribution services 
using facilities and infrastructure that they operate are included in 
this industry. The same SBA and Economic census data criterial apply to 
DBS Service as apply to SMATV/PCO companies described in the preceding 
paragraph. Currently only two entities provide DBS service, which 
requires a great deal of capital for operation: DIRECTV (owned by AT&T) 
and DISH Network. DIRECTV and DISH Network each report annual revenues 
that are in excess of the threshold for a small business. Accordingly, 
we conclude that, in

[[Page 35067]]

general, DBS service is provided only by large firms.
    29. Description of Projected Reporting, Recordkeeping, and other 
Compliance Requirements. The Notice seeks comment on the Commission's 
track record on EEO enforcement and whether the agency should make 
improvements to EEO compliance and enforcement.
    30. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered. The RFA requires an 
agency to describe any significant alternatives that it has considered 
in reaching its proposed approach, which may include the following four 
alternatives (among others): (1) The establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for small entities; (3) the use 
of performance, rather than design, standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for small entities. The 
Proposed Rule seeks comment on the Commission's track record on EEO 
enforcement and whether the agency should make improvements to EEO 
compliance and enforcement. The Commission is open to consideration of 
alternatives that will minimize the burden on small entities.
    Federal Rules that May Duplicate, Overlap or Conflict with the 
Proposed Rule. None.
    31. Ordering Clauses. Accordingly, it is ordered that, pursuant to 
the authority contained in Sections 1, 4(i), 4(j), 334, and 634 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 
334, and 554, this Notice of Proposed Rulemaking is adopted.
    32. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Notice of Proposed Rulemaking, including the Initial 
Regulatory Flexibility Act Analysis, to the Chief Counsel for Advocacy 
of the Small Business Administration.

Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2019-15505 Filed 7-19-19; 8:45 am]
BILLING CODE 6712-01-P