Review of the Commission's Broadcast and Cable Equal Employment Opportunity Rules and Policies, 48610-48617 [2021-18665]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 86, Number 166 (Tuesday, August 31, 2021)]
[Proposed Rules]
[Pages 48610-48617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18665]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 73 and 76

[MB Docket No. 98-204; FCC 21-88; FR ID 42735]


Review of the Commission's Broadcast and Cable Equal Employment 
Opportunity Rules and Policies

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks to update the record in 
MB Docket No. 98-204, regarding how the Commission can recommence the 
collection of data on the FCC Form 395-B, as contemplated by the 
Communications Act of 1934, as amended (Act).

DATES: Comments are due on or before September 30, 2021; reply comments 
are due on or before November 1, 2021.

ADDRESSES: 
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: https://apps.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
     Filings can be sent 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.
     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.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 45 L Street NE, Washington, DC 20554.
     Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
    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 & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).

FOR FURTHER INFORMATION CONTACT: Brendan Holland, Media Bureau, 
Industry Analysis Division, [email protected], (202) 418-2757.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking (FNPRM), FCC 21-88, in MB Docket 
No. 98-204, adopted on July 23, 2021, and

[[Page 48611]]

released on July 26, 2021. The complete text of this document is 
available electronically via the FCC's website at https://docs.fcc.gov/public/attachments/FCC-21-88A1.pdf. To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to [email protected] (mail to: 
[email protected]) or call the FCC's Consumer and Governmental Affairs 
Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Synopsis

    1. Introduction: By this FNPRM, we seek to refresh the existing 
record regarding the statutorily mandated collection of data on the FCC 
Form 395-B (Form 395-B, the broadcast station Annual Employment Report, 
can be found at https://transition.fcc.gov/Forms/Form395B/395b.pdf), as 
contemplated by the Communications Act of 1934, as amended (Act). This 
employment report form is intended to gather workforce composition data 
from broadcasters on an annual basis but the form and data have not 
been collected for many years. The filing of the form was suspended in 
2001 in the wake of a decision by the U.S. Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit) vacating certain aspects of 
the Commission's Equal Employment Opportunity (EEO) requirements. While 
the Commission in 2004 adopted revised regulations regarding the filing 
of Form 395-B and updated the form, the requirement that broadcasters 
once again submit the form to the Commission was suspended until issues 
were resolved regarding confidentiality of the employment data. To 
date, those issues remain unresolved, and the filing of Form 395-B 
remains suspended. Accordingly, by this FNPRM, we seek to refresh the 
record regarding the collection of broadcaster workforce composition 
data and obtain further input on the legal, logistical, and technical 
issues surrounding FCC Form 395-B.
    2. Background. The Commission has administered regulations 
governing the EEO responsibilities of broadcast licensees since 1969, 
and of cable operators since 1972. The Commission's EEO rules prohibit 
employment discrimination on the basis of race, color, religion, 
national origin, age, or sex, and require broadcasters and MVPDs to 
provide equal employment opportunities. In addition to the broad EEO 
protections applicable to all full-power radio and television 
broadcasters, licensees including Low Power and Class A television 
stations and multichannel video programming distributors (MVPDs) of a 
specific size must also adhere to EEO program requirements. (Permittees 
and licensees of Low Power FM are not subject to the EEO program 
requirements of this rule section. See 47 CFR 73.801.) Specifically, 
the Commission's rules require that each broadcast station that is part 
of an employment unit of 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.
    3. The Commission has also historically collected data from 
broadcasters and MVPDs about their workforce composition based on race 
and gender categories. After finding that, among other things, 
``increased numbers of females and minorities in positions of 
management authority in the cable and broadcast television industries 
advances the Nation's policy favoring diversity in the expression of 
views in the electronic media,'' Congress established a statutory 
requirement for the Commission to maintain its existing EEO regulations 
and forms as applied to television stations, which included its 
collection of workforce composition data from television broadcasters. 
(While Congress did not codify the Commission's previously existing EEO 
requirements for radio broadcast licensees, the Commission has found 
that Congress ratified the Commission's authority to promulgate EEO 
rules for radio as well as television licensees.) In addition, Congress 
revised the requirement that cable operators report employment data, 
first established in the 1984 Cable Act, to include additional job 
categories and extended the requirement to include MVPDs.
    4. Section 334(a) of the Communications Act of 1934, as amended 
(the Act), states that ``except as specifically provided in this 
section, the Commission shall not revise (1) the regulations concerning 
equal employment opportunity as in effect on September 1, 1992 (47 CFR 
73.2080) as such regulations apply to television broadcast station 
licensees and permittees; or (2) the forms used by such licensees and 
permittees to report pertinent employment data to the Commission.'' 
Section 334(c) authorizes the Commission to make only ``nonsubstantive 
technical or clerical revisions'' to the regulations described in 
section 334(a) ``as necessary to reflect changes in technology, 
terminology, or Commission organization.'' Thus, the Commission has 
previously concluded that it is directed by statute to require the 
submission of such employee data from television broadcast licensees. 
The Commission regularly collected this data from 1970 until 2001 when 
the Commission suspended filing of Form 395-B in response to two D.C. 
Circuit decisions regarding the unconstitutionality of the Commission's 
use of data collected on the Form 395-B to assess compliance with EEO 
requirements, although the collection of data itself has never been 
held facially invalid on constitutional grounds.
    5. Specifically, in Lutheran Church-Missouri Synod v. FCC (Lutheran 
Church), the D.C. Circuit reversed and remanded a Commission finding--
based on rules that required comparison of the race and sex of each 
applicant and person hired with the overall availability of minorities 
in the relevant labor force--that Lutheran Church had failed to make 
adequate efforts to recruit minorities. Lutheran Church-Missouri Synod 
v. FCC, 141 F.3d 344, 347-48 (D.C. Cir. 1998) (Lutheran Church), pet. 
for reh'g denied, 154 F.3d 487, pet. for reh'g en banc denied, 154 F.3d 
494 (D.C. 1998). The court concluded that use of broadcaster employee 
data to assess EEO compliance in the context of license renewal 
pressured broadcasters to engage in race-conscious hiring in violation 
of the equal protection component of the Due Process Clause of the 
Fifth Amendment of the Constitution. In reaching this conclusion, the 
court applied strict constitutional scrutiny applicable to racial 
classifications imposed by the federal government and determined that 
the Commission's stated purpose of furthering programming diversity was 
not compelling and its broadcast EEO rules were not narrowly tailored 
to further that interest. The court made clear that ``[i]f the 
regulations merely required stations to implement racially neutral 
recruiting and hiring programs, the equal protection guarantee would 
not be implicated.''
    6. On remand, the Commission crafted new EEO rules requiring that 
broadcast licensees undertake an outreach program to foster equal 
employment opportunities in the broadcasting industry. The Commission 
also reinstated the requirement that broadcasters file employee data on 
Form 395-B with the Commission annually. In adopting these revised 
rules and reinstating the collection of workforce data, the Commission 
stated that:
    7. The Commission will no longer use the employment profile data in 
the annual employment reports in screening renewal applications or 
assessing compliance with EEO program

[[Page 48612]]

requirements. The Commission will use this information only to monitor 
industry employment trends and report to Congress.
    8. On reconsideration, the Commission explained that it 
``disagree[d] with [the] contention that the collection of employment 
data might result in raced-based hiring decisions.'' The Commission 
also explained that it ``will summarily dismiss any petition filed by a 
third party based on Form 395-B employment data'' and it ``will not use 
this data as a basis for conducting audits or inquiries.'' The 
Commission also codified the following Note to Sec.  73.3612 of its 
rules (which requires the collection of employment data from 
broadcasters).
    9. Data concerning the gender, race and ethnicity of a broadcast 
station's workforce collected in the annual employment report will be 
used only for purposes of analyzing industry trends and making reports 
to Congress. Such data will not be used for the purpose of assessing 
any aspect of an individual broadcast licensee's compliance with the 
equal employment opportunity requirements of Sec.  73.2080 of the 
Commission's rules.
    10. In MD/DC/DE Broadcasters Association v. FCC, several state 
broadcaster associations challenged the revised EEO outreach rules, 
which had allowed broadcasters the flexibility to choose between two 
options designed to foster employment opportunities in the industry. 
Specifically, the revised EEO outreach rules consisted of Option A, 
which required licensees to undertake four approved recruitment 
initiatives in a two-year period without reporting the race and sex of 
each job applicant, or Option B, which allowed broadcasters to design 
their own outreach programs but required reporting of the race and sex 
of each applicant. MD/DC/DE Broadcasters Association v. FCC, 236 F.3d 
13, 17 (2001) (MD/DC/DE Broadcasters), pet. for reh'g denied., 253 F.3d 
732 (D.C. Cir. 2001), cert. denied, 122 S. Ct. 920 (2002). The D.C. 
Circuit again applied strict judicial scrutiny and found that Option B 
violated the equal protection component of the Due Process Clause of 
the Fifth Amendment because, by examining the number of women and 
minorities in the applicant pool and then investigating any broadcaster 
with ``few or no'' women or minority applicants, the Commission 
``pressured'' broadcasters to focus resources on recruiting women and 
minorities. The court further found that racial data about job 
applicants were not probative on the question of a broadcaster's 
efforts to achieve broad outreach or ``narrowly tailored to further the 
Commission's stated goal of non-discrimination in the broadcast 
industry.'' Because the court found that Option B was not severable 
from the rest of the rules, it vacated them in their entirety. 
Following this decision, on January 31, 2001, the Commission suspended 
the requirement for broadcasters and MVPDs to file employee data on 
Forms 395-B and 395-A, respectively, and thus no workforce composition 
data has been collected in over twenty years.
    11. On November 20, 2002, the Commission released its Second Report 
and Order and Third NPRM, establishing new EEO rules requiring 
broadcast licensees and MVPDs to recruit for all full-time job 
openings, provide notice of job vacancies to recruitment organizations 
that request notification, undertake additional outreach measures, such 
as job fairs and scholarship programs, and refrain from discrimination 
in employment practices. The Commission eliminated the former Option B, 
which had linked the outreach requirement to data regarding the race 
and sex of each applicant. The Commission explained that its new EEO 
rules were ``race and gender neutral'' and ``will not pressure 
employers to favor anyone on the basis of race, ethnicity, or gender.'' 
The Commission deferred action on issues relating to the annual 
employment report forms, in part because it needed to incorporate new 
standards for classifying data on race and ethnicity adopted by the 
Office of Management and Budget (OMB) in 1997. The Commission also 
explained that the annual employment report is ``unrelated to the 
implementation and enforcement of our EEO program'' and ``data 
concerning the entity's workforce is no longer pertinent to the 
administration of our EEO outreach requirements.''
    12. On June 4, 2004, the Commission released its Third Report and 
Order and Fourth Notice of Proposed Rulemaking reinstating the 
requirement for broadcasters and MVPDs to report employee data on Forms 
395-B and 395-A, respectively. The Commission re-adopted the Note to 
Sec.  73.3612 that it previously adopted in 2000 stating that the data 
collected would be used exclusively for the purpose of compiling 
industry employment trends and making reports to Congress, and not to 
assess any aspect of a broadcaster's or MVPD's compliance with the EEO 
rules. Although the Commission stated that it does not ``believe that 
the filing of annual employment reports will unconstitutionally 
pressure entities to adopt racial or gender preferences in hiring,'' it 
acknowledged the concerns raised by broadcasters and sought comment in 
the Fourth NPRM on whether, moving forward, data reported on Form 395-B 
should be kept confidential.
    13. In the Fourth NPRM, the Commission noted that its practice for 
more than thirty years before suspending collection of the Form 395-B 
in 2001 had been to make the Forms 395-B filed by broadcasters 
available for public inspection. The Commission also stated that there 
was no exemption from the disclosure requirements of the Freedom of 
Information Act (FOIA) that would have permitted the Commission to keep 
the Form's data confidential, and therefore it did not specifically 
seek comment on this issue. The Commission noted, however, that the 
then-recently passed Confidential Information Protection and 
Statistical Efficiency Act of 2002 (CIPSEA) allows agencies to collect 
information for statistical purposes under a pledge of confidentiality. 
The Fourth NPRM noted that, if an agency collects information pursuant 
to CIPSEA under a pledge of confidentiality, the information is exempt 
from release under FOIA and may not be disclosed in an identifiable 
form for any non-statistical purpose without the informed consent of 
the respondent. The Fourth NPRM therefore sought comment on whether 
CIPSEA could apply to the Form 395-B and whether changing the 
Commission's approach of making the information public would be 
consistent with section 334 of the Act. These issues remain unresolved, 
and to date, the collection of employee data from broadcast stations or 
MVPDs has not recommenced.
    14. Discussion: As discussed above, this FNPRM seeks to refresh the 
record with respect to the questions raised in the 2004 Fourth NPRM and 
specifically asks for any additional input on the outstanding issue of 
whether employee data reported by broadcast licensees on Forms 395-B 
can or should be kept confidential and/or on a non-station-attributable 
basis. As detailed below, there are a number of statutes, regulations, 
and legal precedent relevant to the issue, as well as technical 
concerns regarding the collection and maintenance of the data. In 
exploring these issues, we seek to balance our statutory obligation 
under section 334(a) of the Act to collect pertinent employment data 
with the guidance provided by the D.C. Circuit's rulings in Lutheran 
Church and MD/DC/DE Broadcasters, which place limits on how data 
regarding the racial, ethnic, and gender make-up of a licensee's 
workforce may be used in the regulatory

[[Page 48613]]

context. We seek comment on these and other relevant issues. We note 
that the Commission has broad authority under the Act to collect 
information to carry out its responsibilities and prepare reports to 
inform Congress and the public.
    15. Importantly, neither Lutheran Church nor MD/DC/DE Broadcasters 
invalidated the Congressionally mandated data collection of employment 
data or making the data available to the public. Rather, the courts 
vacated certain rules based on how the Commission used employment data 
to assess EEO compliance, but neither court ruled that simply 
collecting and making the data public is unconstitutional. Nor did the 
courts address the constitutionality of the Form 395-B itself, or the 
requirement that the Commission collect employee data using the Form 
395-B that would be available to the public. Given the passage of time, 
we seek to update the record to better inform the Commission's 
consideration of these matters as they may bear on the collection and 
permissible use of this required data collection. Specifically, we seek 
to refresh the now sixteen-year-old record by encouraging commenters to 
provide any new, innovative, and different suggestions for collecting 
and handling employment information on Form 395-B.
    16. Broadcasters have expressed concern previously that the 
collection of employment data on a station-attributed basis and its 
access by Commission staff and, in particular, release to the public 
will ``pressure'' stations to adopt race- or gender-based hiring 
policies in contravention of the D.C. Circuit's decisions. Since the 
Commission last sought comment on this issue, have there been any 
relevant developments in the public disclosure of employment data? For 
example, do broadcast licensees, either themselves or through third 
parties, now make station-attributed employment data available to the 
public, despite suspension (but not repeal) of our reporting 
requirements? If so, how prevalent is the practice? And if some, but 
not all, stations are releasing such information to the public, how 
should that impact our consideration of the issue of confidentiality?
    17. To the extent that broadcasters are concerned that the 
Commission or the public might use employment data against stations as 
a basis for audits or to file petitions to deny, should the Commission 
take any additional steps to ensure that the employment data it is 
required to collect will be used only for its stated purposes (i.e., 
analyzing industry trends and making reports to Congress)? Are there 
other appropriate purposes aside from official Commission actions that 
we should consider? What are the public interest benefits of making the 
information publicly available? What impact, if any, should the 
requirement in the Act that MVPDs make their employment reports 
``available for public inspection'' at their facilities have on our 
consideration of whether broadcasters must also make their employment 
data available for public inspection?
    18. Recognizing that these data have historically been made 
publicly available on a station-attributed basis, we seek comment on 
the benefits of continuing to do so. In particular, we ask commenters 
about specific circumstances in which public availability of Form 395-B 
would be beneficial to the public interest or helpful to the 
Commission, Congress, and industry observers. If we decide to collect 
and make this data available publicly on a station-attributed basis, 
how should we go about doing so? Moreover, given that the Act 
explicitly requires MVPDs to make their employment reports ``available 
for public inspection'' at their facilities, would it make sense for 
the Commission to harmonize the treatment of employment data from 
broadcasters with that of MVPDs and require Form 395-B be publicly 
available? If not, what purpose would be served by treating 
broadcasters and MVPDs differently for purposes of EEO data collection? 
To the extent broadcasters can provide appropriate grounds for treating 
Form 395-B data as confidential, we also seek comment on specific 
filing approaches that would enable the Commission to collect and 
maintain Form 395-B employee data confidentially. In particular, if the 
Commission were to collect employment data confidentially, we seek 
input on collection mechanisms that could segregate the employment data 
from any station or employment unit identifying information, thereby 
allowing the data to be filed on a non-station-attributable basis while 
at the same time capturing whether a particular entity or station has 
complied with the annual reporting requirement. For example, could the 
completed Form 395-B be collected in such a way that the employment 
data would be filed separately from the station/employment unit 
identifying information? We note that the Commission previously had 
raised concerns about a similar filing approach almost twenty years 
ago, particularly with regard to FOIA and the Federal Records Act 
(FRA). In that case, however, the Commission was considering an 
approach where it would receive completed paper filings and then ``tear 
off'' the station information from the employment data. We ask 
commenters to consider whether an electronic filing approach would 
raise concerns under either FOIA or the FRA if information were 
collected or maintained in a separated fashion. For example, how could 
the Commission ensure that the separation of station identifying 
information and employment data will not prevent the identification of 
employee data relating to a specific station if the Commission was 
required to produce information pursuant to a FOIA request?
    19. The Commission also previously expressed concerns about the 
public's and its own inability to connect data with the station filing 
the data, were it to adopt a completely anonymous filing methodology. 
Specifically, the Commission noted that an anonymous filing approach 
could impede it from contacting the licensee if there were problems 
with the data. We invite comment on how we might address that concern. 
Further, how would we conduct audits of compliance with the Form 395-B 
annual filing requirement if Form 395-B is not filed on a station-
attributable basis? In such a case, should we require each filer to 
retain a copy of their filings in order to present them to Commission 
staff in case of an audit to verify the submission of the report and 
the accuracy of the data submitted? To the extent data submitted in 
response to an audit can be obtained under FOIA, does that undermine 
the goal of this separation regime? Alternatively, would a 
certification by the licensee, for example on the FCC Form 396-B 
Broadcast Equal Employment Opportunity Program Report or the FCC Form 
303-S License Renewal, attesting to the submission of the required 
annual Form 395-B be sufficient for tracking compliance with the annual 
filing of a Form 395-B for a particular station?
    20. We also seek comment on any implementation issues that might 
arise from either an approach in which the Form 395-B is filed and 
maintained completely anonymously, or where station-specific 
information is available to the Commission but not the public. What 
technical issues, from both the station and the Commission perspective, 
would need to be addressed to ensure that the employment data cannot in 
any way be linked to the individual licensee who filed the data, by 
either Commission staff or others? We also welcome any examples of 
similar filing approaches that have been established,

[[Page 48614]]

either in the private or public sector, and the benefits or drawbacks 
of using such systems.
    21. We further invite comment on whether any potential changes to 
the collection of this information or Form 395-B would be consistent 
with the directive in section 334(a) of the Act, which states that the 
Commission ``shall not revise . . . the regulations concerning equal 
employment opportunity as in effect on September 1, 1992 (47 CFR 
73.2080)'' as they pertain to TV stations or the ``forms used by such 
licensees to report pertinent employment data.'' What impact does this 
statutory language have on potential revisions to Form 395-B, including 
on the ability of the Commission to modify the Form's public filing 
requirements? To the extent commenters believe that the language of 
section 334(a) allows for some changes in the format of the Form 395-B 
or the manner in which the employment data is collected as applied to 
broadcast licensees, please specify.
    22. Additionally, we seek comment on how we should interpret the 
phrase ``pertinent employment data'' as used in section 334(a)(2). 
Should the term ``pertinent employment data'' be read in context as 
data related to administration and enforcement of the EEO regulations, 
considering that section 334(a)(1) codified ``the regulations 
concerning equal employment opportunity as in effect on September 1, 
1992''? The Commission no longer uses station-specific employment data 
to screen licensee renewal applications or assess any aspect of a 
broadcaster's compliance with the Commission's EEO rules as a result of 
the D.C. Circuit's decisions. To what extent is station-specific data 
necessary to carry out our statutory and regulatory obligations, 
including to monitor industry employment trends and report to Congress. 
How can the Commission continue to meet these obligations to collect 
EEO data from broadcast station licensees and permittees without 
requiring station-specific data? Is station-specific data no longer 
``pertinent'' employment data within the meaning of section 334(a)(2) 
because the data are no longer used to screen licensee renewal 
applications or assess EEO compliance, thereby allowing us to revise 
the forms to accommodate the filing of information on a non-station-
specific basis? Does the permission granted to the Commission in 
section 334(c) to make technical revisions to ``the regulations 
described in subsection (a)'' provide sufficient authority to revise 
the Form 395-B or the filing procedures? In particular, section 334(c) 
contemplates that the Commission may make ``nonsubstantive technical or 
clerical revisions in such regulations,'' but says nothing about FCC 
forms. Assuming the authority in subsection (c) extends to Form 395-B, 
would the revisions contemplated constitute ``nonsubstantive technical 
or clerical revisions'' and would they be necessary ``to reflect 
changes in technology, terminology, or Commission organization''? If 
not, what impact would this have on the Commission's ability to make 
changes to the Form 395-B and the collection of the relevant employment 
data? In addition, the Commission previously noted that it could be 
``called upon to provide trend data based on markets, size of stations, 
services, or other criteria'' that could not be reconstructed from data 
submitted on a non-station-attributable basis. Would the collection of 
other types of information from filers lead to a more useful data set 
and enable meaningful tracking of industry trends?
    23. In the Third Report and Order, the Commission noted that it had 
previously sought to track the racial classification standards employed 
by the Equal Employment Opportunity Commission (EEOC), which in turn 
applies the classifications established by the Office of Management and 
Budget (OMB). Given the passage of time, it is possible that the racial 
classifications reflected on the FCC Form 395-B are no longer entirely 
consistent with the classifications employed by the current EEO-1 form. 
Accordingly, we seek comment on the desirability of harmonizing the 
racial classifications employed on the Form 395-B with the EEOC's 
current EEO-1 form, and any related issues. In addition, although we 
note that the Commission has made such changes to the Form 395-B in the 
past, consistent with the discussion above, we seek comment on whether 
the form can be revised to reflect any updated racial classifications 
consistent with section 334 of the Act. We note that although the 
filing of the Form 395-B has been suspended since 2001, OMB has 
approved the information collection through June 2023, subject to the 
Commission's decision resolving the data confidentiality issues. OMB 
Control Number History, OMB Control Number: 3060-0390, https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202004-3060-047 (last 
visited Feb. 16, 2021). Thus, the Commission must consult further with 
OMB prior to re-implementing the data collection.
    24. As part of refreshing the record, we also seek comment on 
whether the Form 395-B data could be collected pursuant to the CIPSEA 
under a pledge of confidentiality. While the Commission previously 
sought comment on the applicability of CIPSEA in 2004, at that time the 
statute was barely two years old. Given the passage of time and our 
desire to obtain as complete a record as possible, we seek comment anew 
on the applicability of CIPSEA. Could the Commission or one of its 
subordinate offices or bureaus qualify as a federal ``statistical 
agency or unit'' as defined in CIPSEA and in accordance with the 
various directives issued by the Office of Management and Budget over 
the years? To the extent the Commission, as a non-statistical agency, 
could avail itself of CIPSEA's provision protecting data from public 
disclosure, we note CIPSEA imposes various limitations and requirements 
on the confidential collection of data by a non-statistical agency that 
could significantly impede the Commission's ability to collect and use 
the data, including the requirement for direct acquisition of data by 
Commission employees without the use of contractors. Because the 
Commission relies on information technology contractors to assist 
filers with questions and to compile reports and other information 
based on data in its forms, we question whether the Commission can 
comply with this requirement. We seek comment on these issues.
    25. Moreover, we note that, in the intervening years since the Form 
395-B was suspended, additional regulations or guidance may have arisen 
that could affect our analysis and the restoration of this data 
collection. In particular, we note that the Foundations for Evidence 
Based Policymaking Act of 2018 (Evidence Act) would appear to require 
that the Commission publish data it collects in an open format if the 
data collection mechanism [is] created on or after January 14, 2019, 
the Act's date of enactment, and absent a statutory exemption 
prohibiting the disclosure of the information. Accordingly, we seek 
comment on whether this recently enacted statute would require the 
publication of employment data collected on Form 395-B. If the 
Commission were to reinstate the Form 395-B data collection, with or 
without modifications to the form or filing system, would this 
constitute a new data collection mechanism subject to the Evidence Act? 
And if so, would any existing FOIA exemptions apply to this data 
collection? We seek comment on the applicability of FOIA exemptions in 
general, including any recent developments in FOIA case law applicable 
to Form 395-B data.
    26. Finally, given the significant passage of time since the FCC 
Form

[[Page 48615]]

395-B filing requirement was suspended, are there any other issues or 
developments that we should consider at this time? We also seek comment 
on the attendant costs and benefits of any proposals advanced in 
response to this item.

Procedural Matters

    27. Ex Parte Rules--Permit-But-Disclose. This proceeding 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 rule 1.1206(b). In proceedings governed by 
rule 1.49(f) 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 electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.
    28. 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).
    29. With respect to this FNPRM, an Initial Regulatory Flexibility 
Analysis (FRFA) under the RFA appears below. Written public comments 
are requested on the IFRA and must be filed in accordance with the same 
filing deadlines as comments on this Notice of Proposed Rulemaking, 
with a distinct heading designating them as responses to the IRFA. In 
addition, a copy of this FNPRM and the IRFA will be sent to the Chief 
Counsel for Advocacy of the SBA and will be published in the Federal 
Register.
    30. Paperwork Reduction Act. This document seeks comment on whether 
the Commission should adopt 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, Public Law 104-13, invites the general 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, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we 
seek specific comment on how we might further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.

Initial Regulatory Flexibility Act Analysis

    31. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on small entities of the policies and rules proposed in this Further 
Notice of Proposed Rulemaking (FNPRM). The Commission requests written 
public comments on this IRFA. Comments must be identified as responses 
to the IRFA and must be filed by the deadlines for comments specified 
in the Further Notice. The Commission will send a copy of the Further 
Notice, including this IRFA, to the Chief Counsel for Advocacy of the 
Small Business Administration (SBA). In addition, the Further Notice 
and IRFA (or summaries thereof) will be published in the Federal 
Register.

A. Need for, and Objectives of, the Proposed Rules

    32. The FNPRM seeks to refresh the record regarding the 
Commission's annual collection of broadcaster workforce composition 
data by race and gender on FCC Form 395-B. (Form 395-B, the broadcast 
station Annual Employment Report, can be found at https://transition.fcc.gov/Forms/Form395B/395b.pdf.) The filing of this Form 
was suspended in 2001 in the wake of a D.C. Circuit decision vacating 
certain aspects of the Commission's Equal Employment Opportunity 
requirements. While the Commission adopted revised regulations 
regarding its data collection to prevent use of the data in assessing 
compliance with its general EEO rules and possibly exerting pressure on 
broadcasters to hire women and minorities, and subsequently obtained 
OMB approval for collecting data on updated Form 395-B, collection of 
the data was delayed until issues regarding confidentiality of the data 
were resolved. To date, those issues remain unresolved. Accordingly, 
the FNPRM seeks to refresh the record regarding the collection of 
broadcaster workforce composition data, and asks for further input on 
the legal, logistical, and technical issues surrounding FCC Form 395-B.
    33. Specifically, the FNPRM seeks to refresh the record with 
additional input on the outstanding issue of whether employee data 
reported by broadcasters can or should be kept confidential and/or on a 
non-attributable basis, or whether there are benefits from disclosure. 
Among other issues, the FNPRM asks whether there have been relevant 
developments in the public disclosure of employment data since the 
Commission last sought comment on collecting these data, including 
whether broadcast licensees now make station-attributed employment data 
available to the public, how prevalent this practice may be, and how 
such practices should impact our consideration of the issue of 
confidentiality.
    34. The FNPRM asks, to the extent that broadcasters are concerned 
that the Commission or the public might use employment data against 
stations as a basis for audits or to file petitions to deny license 
applications, whether it should take any additional steps to ensure 
that the employment data it is required to collect will be used only 
for their stated purposes (i.e., analyzing

[[Page 48616]]

industry trends and making reports to Congress)? The FNPRM asks whether 
there are other appropriate purposes of collecting data aside from 
official Commission actions that it should consider, and what public 
benefits derive from making the information publicly available. The 
FNPRM also asks what impact the Act's requirement that MVPDs make their 
employment reports ``available for public inspection'' at their 
facilities have on its consideration of whether broadcasters must also 
make their employment data available for public inspection.
    35. Recognizing that these data have historically been made 
publicly available on a station-attributed basis, the FNPRM seeks 
comment on the benefits of continuing to do so. The FNPRM asks 
commenters to describe circumstances in which public availability of 
Form 395-B would be beneficial to the public interest or helpful to the 
Commission, Congress, and industry observers. The FNPRM asks how the 
Commission should go about making data publicly available on a station-
attributed basis if it decides to continue doing so. To the extent 
broadcasters can provide appropriate grounds for treating Form 395-B 
data as confidential, the FNPRM seeks comment on specific filing 
approaches that would enable the Commission to collect and maintain 
Form 395-B employee data confidentially. The FNPRM asks commenters to 
consider whether an electronic filing approach would raise concerns 
under either FOIA or the Federal Records Act (FRA) if information were 
collected or maintained in a separated fashion.
    36. The FNPRM invites comment on how the Commission might address 
any concerns that an anonymous filing approach could impede it from 
contacting the licensee if there were problems with the data or from 
conducting compliance audits. The FNPRM also seeks comment on any 
implementation issues that might arise from either an approach in which 
the Form 395-B is filed and maintained completely anonymously, or where 
station-specific information is available to the Commission but not the 
public.
    37. The FNPRM also invites comment on whether any potential changes 
to the collection of this information or Form 395-B would be consistent 
with the directive in section 334(a) of the Act, which states that the 
Commission ``shall not revise . . . the regulations concerning equal 
employment opportunity as in effect on September 1, 1992 (47 CFR 
73.2080)'' as they pertain to TV stations or the ``forms used by such 
licensees to report pertinent employment data.'' As part of refreshing 
the record, the FNPRM asks whether the Commission or one of its 
subordinate offices or bureaus qualify as a federal ``statistical 
agency or unit'' as defined in CIPSEA and in accordance with the 
various directives issued by the Office of Management and Budget since 
passage of CIPSEA in 2002. The FNPRM also seeks comment on whether the 
Foundations for Evidence-Based Policymaking Act would require the 
publication of employment data collected on Form 395-B. Finally, given 
the significant passage of time since the FCC Form 395-B filing 
requirement was suspended, the FNPRM seeks comment on any other issues 
or developments that the Commission should consider and on the 
attendant costs and benefits of any proposals advanced in response to 
the FNPRM.

B. Legal Basis

    38. The proposed action is authorized under sections 1, 2(a), 4(i), 
4(j), 4(k), 303, 334, and 403 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 152(a), 154(i), 154(k) 303, 334, and 403.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    39. 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. 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 (SBA). 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 
SBA. Below, we provide a description of such small entities, as well as 
an estimate of the number of such small entities, where feasible.
    40. 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 their 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 $41.5 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.
    41. Additionally, the Commission has estimated the number of 
licensed commercial television stations to be 1,371. Of this total, 
1,265 stations (or 92%) had revenues of $41.5 million or less in 2020, 
according to Commission staff review of the BIA Kelsey Inc. Media 
Access Pro Television Database (BIA) on February 9, 2021, and therefore 
these stations qualify as small entities under the SBA definition. In 
addition, the Commission estimates the number of noncommercial 
educational stations to be 388. 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 388 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.
    42. Radio Stations. 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 following small business size standard for such 
businesses: Those having $41.5 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 were small under the 
applicable SBA size standard.
    43. The Commission has estimated the number of licensed commercial 
AM radio stations to be 4,551 and the number of commercial FM radio 
stations to be 6699 for a total of 11,250

[[Page 48617]]

commercial stations. Of this total, 11,245 stations (or 99%) had 
revenues of $41.5 million or less in 2020, according to Commission 
staff review of the BIA Kelsey Inc. Media Access Pro Television 
Database (BIA) on February 9, 2021, and therefore these stations 
qualify as small entities under the SBA definition. In addition, there 
were 4195 noncommercial educational FM stations. The Commission does 
not compile and does not have access to information on the revenue of 
NCE radio stations that would permit it to determine how many such 
stations would qualify as small entities.
    44. 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.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    45. In this section, we identify the reporting, recordkeeping and 
other compliance requirements contained in the FNPRM and consider 
whether small entities are affected disproportionately by any such 
requirements. The FNPRM proposes no new reporting, recordkeeping or 
compliance requirements, only seeks to refresh the record on resuming, 
after a suspension, collection of broadcaster workforce composition 
data on FCC Form 395-B. The FNPRM also seeks to refresh the record to 
resolve an issue outstanding since 2004 on whether the Commission can 
or should change its handling of the data to keep it confidential. The 
FNPRM also asks whether and how more recently enacted statutes affect 
its handling of broadcaster employee composition data. If the FNPRM is 
adopted, broadcasters will simply resume filing Form 395-B and the FCC 
may change the way it handles data contained in Form 395-B. Because the 
FNPRM contains no new reporting or recordkeeping obligations and 
proposes only resuming filing of an existing Form, the reporting, 
recordkeeping and other compliance requirements of small entities will 
not change from such requirements under existing rules, and the burden 
imposed by the FNPRM will be no greater than under current rules. 
Additionally, stations with four or less full-time employees are exempt 
from filing the report. Therefore, because no new requirements are 
imposed and small stations are exempt, the Commission concludes that 
small entities will not be disproportionately affected by the FNPRM.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    46. 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.
    47. This FNPRM seeks to refresh the record regarding the 
Commission's annual collection of broadcaster workforce composition 
data by race and gender on FCC Form 395-B. It would lead only to 
resumption of this data collection and would impose no new requirements 
for which the Commission can consider alternatives that would minimize 
the economic burden on small entities. Further, as detailed in the 
FNPRM, section 334(a) of the Act states that the Commission shall not 
revise either the EEO regulations in effect as of September 1992 as 
such regulations apply to television broadcast station licensees or 
permittees or the ``forms used by such licensees to report pertinent 
employment data.''

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
FNPRM

    48. None.

Ordering Clauses

    49. Accordingly, it is ordered that, pursuant to the authority 
found in sections 1, 4(i), 4(j), 4(k), 303, 334, and 403 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 
154(k), 303, 334, and 403, this Further Notice of Proposed Rulemaking 
is adopted.
    50. 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. 2021-18665 Filed 8-30-21; 8:45 am]
BILLING CODE 6712-01-P