[Federal Register Volume 59, Number 52 (Thursday, March 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6228]


[[Page Unknown]]

[Federal Register: March 17, 1994]


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FEDERAL COMMUNICATIONS COMMISSION

[FCC 94-27]

 

EEO Policy Statement

AGENCY: Federal Communications Commission (FCC).

ACTION: Policy statement.

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SUMMARY: This Policy Statement establishes non-binding guidelines for 
assessing forfeitures for violations of the Federal Communications 
Commission's (FCC's) broadcast Equal Employment Opportunity (EEO) rule. 
The EEO rule prohibits discrimination and requires affirmative action 
by broadcast stations in hiring. The new guidelines provide greater 
guidance to stations and the public about what sanction may result from 
different types of EEO violations.

EFFECTIVE DATE: January 31, 1994.

FOR FURTHER INFORMATION CONTACT:
Roderick K. Porter at 202-632-6460.

SUPPLEMENTARY INFORMATION:
    Adopted: January 31, 1994; Released: February 1, 1994.
    By the Commission: Commissioner Quello issuing a statement.

I. Introduction

    1. In this Policy Statement, we establish non-binding guidelines 
for assessing forfeitures for violations of the Commission's broadcast 
Equal Employment Opportunity (EEO) rules.\1\
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    \1\See 47 C.F.R. 73.2080.
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    2. The Commission's broadcast EEO rules and other policies which 
promote participation by minorities and women in the broadcast industry 
are vitally important. They further the Commission's goals of promoting 
diversity of programming on broadcast stations. See NAACP v. FPC, 425 
U.S. 662, 670 n. 7 (1975); Metro Broadcasting, Inc. v. FCC, 497 U.S. 
547 (1990) (Metro). And, as the Supreme Court has noted, 
``[s]afeguarding the public's right to receive a diversity of views and 
information over the airwaves is * * * an integral component of the 
FCC's mission.'' Metro, 497 U.S. at 548. We reaffirm our commitment to 
this bedrock goal underlying our broadcast EEO rules and believe that 
the Policy Statement we adopt here will further achievement of that 
goal.
    3. In addition to promoting program diversity, our broadcast EEO 
rules enhance access by minorities and women to increased employment 
opportunities. Increased employment opportunities are the foundation 
for increasing opportunities for minorities and women in all facets of 
the communications industry, including participation in ownership.\2\ 
Those who have access to employment opportunities are able to develop 
experience and expertise that can be put to beneficial use in a variety 
of communications enterprises, in a variety of ways. Thus, by combating 
discrimination and other arbitrary barriers to employment, we 
contribute to the development of the broadcast industry and ultimately 
promote the further development of the broader communications 
infrastructure.\3\
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    \2\The Commission seeks to promote minority ownership of 
broadcasting facilities. See Commission Policy Regarding the 
Advancement of Minority Ownership in Broadcasting, 92 FCC 2d 849 
(1982); Statement of Policy on Minority Ownership of Broadcasting 
Facilities, 68 FCC 2d 979 (1978).
    \3\We note, in this regard, that Section 309(j)(4)(C) of the 
Communications Act of 1934, as amended, directs the Commission to 
promote economic opportunity in competitive bidding among applicants 
proposing to use the spectrum ``by disseminating licenses among a 
wide variety of applicants * * * including businesses owned by 
members of minority groups and women.''
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II. Background

    4. In 1989, Congress amended the Communications Act of 1934 to 
increase substantially the maximum dollar amounts of forfeitures the 
Commission could impose on broadcasters under Section 503(b) of the 
Act.\4\ The Commission's forfeiture rule has been amended to reflect 
the higher forfeiture amounts. 47 CFR 1.80(b)(1).
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    \4\Pub. L. No. 239, 101st Cong., lst Sess. 103 Stat. 2131 (1989) 
(amending, among other sections, 47 U.S.C. 503(b)). Amended Section 
503(b) provides the Commission with authority to assess forfeitures 
of up to $25,000 for each violation or each day of a continuing 
violation against broadcasters, with a limit on forfeitures for 
continuing violations involving a single act or failure to act of 
$250,000 for broadcasters.
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    5. On August 1, 1991, in order to assist both the Commission and 
licensees in adjusting to the statutory increases, the Commission 
released its Policy Statement, Standards for Assessing Forfeitures 
(1991 Policy Statement).\5\ The 1991 Policy Statement provided general, 
non-binding guidance regarding the assessment of forfeitures. It 
established base forfeiture amounts for a wide range of violations. For 
violations of broadcast EEO rules, the Commission set a base amount of 
$12,500. The 1991 Policy Statement also provided that the base 
forfeiture amount for any violation could be increased or decreased by 
applying adjustments to the base amount as relevant to the facts in any 
particular case. On August 12, 1993, the Commission released its most 
recent forfeiture guidelines.\6\ Among other actions, the 1993 Policy 
Statement deleted the broadcast EEO violation category and indicated 
that the Commission would issue a further policy statement on broadcast 
EEO forfeiture matters at a later date.\7\
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    \5\6 FCC Rcd 4695 (1991), modified in part on recon., 7 FCC Rcd 
5339 (1992), petition for review pending sub nom. USTA v. FCC, No. 
92-1321 (DC Cir. filed July 30, 1992).
    \6\8 FCC Rcd 6215 (1993) petition for review pending sub nom. 
USTA v. FCC, No. 93-1526 (DC Cir. filed August 23, 1993) (1993 
Policy Statement).
    \7\Id. at n.1. The forfeiture amount for violations of the 
Commission's cable EEO rules is set at $500 per day by section 634 
of the Act and is addressed in the 1993 Policy Statement.
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III. Discussion

    6. The Policy Statement we adopt here, as set forth in the 
Appendix, re-establishes the base forfeiture amount for violations of 
the broadcast EEO rules at $12,500. It also provides guidance on what 
situations may generally lead to such a forfeiture. In addition, it 
describes upward and downward adjustment criteria that may be used to 
adjust the forfeiture in particular cases. The adjustment guidelines 
reflect the factors set forth in Section 503(b) of the Act, Sec. 1.80 
of our rules and case precedent. See 47 U.S.C. 503(b)(2)(D); 47 CFR 
1.80(b)(4). All of these factors will not necessarily be relevant in 
each individual case and other adjustments may also be made as 
appropriate in particular cases. The Appendix also provides guidance 
regarding when short-term renewals may be appropriate in particular 
cases. We believe that these guidelines will assist the Commission and 
its staff in determining broadcast EEO forfeitures in a generally 
consistent manner that furthers the public interest while nevertheless 
ensuring that the Commission and the staff retain the discretion to 
decide each case based on the specific facts and circumstances at 
issue. At the same time, we believe these guidelines will give 
licensees and the public greater guidance regarding which types of 
forfeitures may result from particular types of EEO violations.
    7. Finally, we stress that we do not intend this Policy Statement 
to limit our flexibility. In particular cases, forfeitures that are 
higher or lower than those reflected by the guidelines may be imposed. 
In this regard, what we have said in connection with our prior 
forfeiture policy statements applies here as well:

    [T]he Policy Statement simply describes the general approach the 
Commission may take in forfeiture cases and is not binding on any 
licensees or the Commission. The Policy Statement does not impose 
any obligations on [licensees] or require the Commission to issue a 
forfeiture of any particular magnitude--or any forfeiture at all * * 
*.
* * * * *
    [W]e reiterate that while the Policy Statement may guide us and the 
staff in particular cases, we do not intend for the Commission or the 
staff to be bound by it. In addition, both the Commission and the staff 
intend to apply these guidelines flexibly. In particular, we and the 
staff remain committed to deciding every forfeiture case on the basis 
of the specific facts and equities presented in the record of that 
case.
    7 FCC Rcd at 5339 (internal citations omitted).

IV. Conclusion

    8. Accordingly, it is ordered that this Policy Statement is 
adopted, to the effective upon adoption.
    9. The notice and comment and effective date provisions of the 
Administrative Procedure Act do not apply to this Policy Statement. 5 
U.S.C. 553(b)(A), (d)(2).

Federal Communications Commission.
William F. Caton,
Acting Secretary.

Appendix

Failure to recruit so as to attract  $12,500 base forfeiture            
 an adequate pool of minority/        (accompanied by reporting         
 female applicants or hires for at    conditions)                       
 least 66% of all vacancies during                                      
 the license term being reviewed                                        
 (Evidence of this violation will                                       
 include (1) inadequate record-                                         
 keeping and/or (2) inadequate self-                                    
 assessment throughout the license                                      
 term).                                                                 
                                                                        
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                       Upward Adjustment Criteria                       
                                                                        
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I. Egregious Misconduct                                                 
    A. Failure to recruit so as to   $6,250 upward adjustment.          
     attract an adequate pool of                                        
     minority/female applicants or                                      
     hires for at least 33% of all                                      
     vacancies reported for the                                         
     license term being reviewed.                                       
     Efforts are evaluated both for                                     
     the station's staff overall                                        
     and for upper four job                                             
     categories.                                                        
    (EEO programs achieving only                                        
     this level of compliance will                                      
     warrant a short-term renewal,                                      
     irrespective of whether other                                      
     upward adjustments for                                             
     ``egregiousness'' factors are                                      
     present, if the percentage of                                      
     vacancies for which the                                            
     licensee failed to recruit, or                                     
     the percentage of pools                                            
     containing minorities, falls                                       
     below 33% and other factors--                                      
     e.g., use and productivity of                                      
     recruiting sources, use and                                        
     productivity of minority-                                          
     specific sources; evidence of                                      
     self-assessment--are absent or                                     
     particularly inadequate)                                           
    B. Large number of hiring                                           
     opportunities that did not                                         
     translate into an adequate                                         
     pool of minority/female                                            
     applicants or employees hired.                                     
        --``Large number'' means     $6,250 upward adjustment (Base plus
         hiring opportunities equal   50%)                              
         to at least the average                                        
         number of employees on the                                     
         full-time staff, with a                                        
         minimum of 25 hiring                                           
         opportunities                                                  
        --``Substantial number''     Additional upward adjustment of 50-
         means hiring opportunities   90% of base.                      
         equal to three times the                                       
         number of full-time staff,                                     
         with a minimum of 25                                           
         hiring opportunities.                                          
    C. Large pool of minorities/                                        
     women in the relevant labor                                        
     force did not translate into                                       
     an adequate pool of applicants                                     
     minority/women or employees                                        
     hired                                                              
    Analysis will focus on (1) the                                      
     overall percentage of                                              
     minorities in the relevant                                         
     labor force and (2) the                                            
     presence of a single minority                                      
     group constituting a                                               
     significant percentage of that                                     
     labor force.                                                       
        --If a licensee has a        $6,250 to $11,250 upward adjustment
         relevant labor pool of at    (base plus 50-90%)                
         least 20 percent                                               
         minorities or a single                                         
         minority group constitutes                                     
         at least 10 percent of the                                     
         labor force.                                                   
                                                                        
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Short term renewals: Short term renewals will be assessed if (A), (B) or
 (C) are applied in any combination of two or more upward adjustments.  
 In addition, short term renewals also will be warranted where the      
 specific criteria set forth in (A) above are present. The presence of  
 the mitigating factors described in Section II below are grounds for   
 not issuing short term renewals.                                       
                                                                        
------------------------------------------------------------------------
    D. Prior EEO violations that     --If reporting conditions were     
     resulted in previous sanction    previously imposed, the licensee  
     or remedy                        receives reporting conditions and 
                                      the base forfeiture plus a 90%    
                                      upward adjustment in addition to  
                                      any other upward adjustments      
                                      warranted by these guidelines     
                                      (including short-term renewal)    
                                     --If reporting conditions plus a   
                                      forfeiture were previously        
                                      imposed, the licensee receives    
                                      reporting conditions, the base    
                                      forfeiture plus a 90% upward      
                                      adjustment, any other upward      
                                      adjustments warranted by these    
                                      guidelines, and a short-term      
                                      renewal.                          
                                     --If previous sanction and remedies
                                      included a short-term renewal, the
                                      renewal will be designated for    
                                      hearing and possible forfeiture of
                                      $250,000.                         
    E. EEO violations with respect   $11,250 upward adjustment and a    
     to both minorities and women     short-term renewal.               
                                                                        
------------------------------------------------------------------------
                      Downward Adjustment Criteria                      
                                                                        
------------------------------------------------------------------------
II. Actual Hiring Experience                                            
    A. Minority hiring represents    $6,250 downward adjustment.        
     50% of the minority profile of                                     
     the relevant labor force for                                       
     both overall employment and                                        
     upper four employment or                                           
    B. Minority hiring represents    $6,250 downward adjustment and     
     100% of the minority profile     presumptive removal of short-term 
     of the relevant labor force      renewal. Evidence indicating the  
     for both overall employment      substantial absence of an EEO     
     and upper four employment.       program will rebut the presumption
                                      of removal.                       
III. Employment Profile                                                 
    C. Minority employment           $6,250 downward adjustment.        
     represents 50% of the minority                                     
     profile of the relevant labor                                      
     force for both overall                                             
     employment and upper four                                          
     employment or                                                      
    D. Minority employment           $6,250 downward adjustment and     
     represents 100% of the           presumptive non-issuance of short-
     minority profile of the          term renewal. Evidence indicating 
     relevant labor force for both    the complete absence of an EEO    
     overall employment and upper     program will rebut the presumption
     four employment.                 of removal.                       
    III(C) and III(D) apply if the                                      
     employment profile meets the                                       
     guidelines in 4 of 5 years for                                     
     a television renewal and 6 of                                      
     7 years for a radio renewal.                                       
     Where less than a full term                                        
     exists, the employment profile                                     
     must meet the guidelines for a                                     
     majority of the years reported                                     
IV. Employment Profile and Hiring    If II(B) and III(D) apply, a short-
 Experience.                          term renewal would not be imposed.
V. Few Hiring Opportunities                                             
    A. 5 or fewer hiring             $6,250 downward adjustment.        
     opportunities across the                                           
     entire license term.                                               
    B. 10 or fewer hiring            $6,250 downward adjustment (Either 
     opportunities across the         (A) or (B) will apply, but not    
     entire license term if the       both)                             
     average full-time staff during                                     
     the entire term exceeds 50                                         
     employees.                                                         
VI. Low Percentage of Minorities in                                     
 Relevant Population                                                    
    Minorities constitute less than  $6,250 downward adjustment and     
     6% of the relevant labor force.  possible non-issuance of short-   
                                      term renewal depending upon staff 
                                      balancing of factors (number and  
                                      productivity of sources contacted,
                                      number and productivity of        
                                      minority-specific sources, extent 
                                      to which licensee demonstrated    
                                      severe shortfall in recruitment). 
VII. Inability to Pay (if raised     Varies.                            
 and demonstrated by the licensee).                                     
VIII. Stand-alone station in         $6,250 downward adjustment.        
 markets 200 and above as reflected                                     
 in the annual Abitron population                                       
 rankings.                                                              


Separate Statement of Commissioner James H. Quello

In the Matter of Standards for Assessing Forfeitures for Violations 
of the Broadcast EEO Rules

    The Commission today has voted an item that will prove to be a 
turning point in the enforcement of our EEO rules. This Policy 
Statement sets forth guidelines for assessing forfeitures for 
violations of the Commission's EEO rules. 47 CFR 73.2080. As 
reflected in the statement, the base amount for a forfeiture will be 
$12,500, an amount that can be increased or decreased depending on 
the facts of a given case. These higher forfeitures are a direct 
result of the increases in forfeiture amounts imposed by Congress. 
The guidelines are designed to ensure that these new, higher 
forfeitures are assessed in a reasoned, consistent manner. For this 
reason, and because I strongly support vigorous enforcement of our 
EEO rules, I have voted in favor of this item.
    However, at the same time, I am concerned that the Commission 
may be entering the era of the telecommunications superhighway 
wielding a club, rather than offering a hand, to broadcasters making 
their way down the road. At the dawn of this new era, we are 
imposing fines against 22 of 24 radio stations whose EEO records 
were reviewed, in amounts ranging from $18,750 to $37,500. Short 
term renewals are assessed against 21 of the 22 stations receiving 
forfeitures. Radio broadcasters will be ``contributing'' a total of 
$325,000 to the Federal Treasury as a result of our actions today. I 
am troubled by the amount of these forfeitures and the increased use 
of the short term renewal as a sanction. Yet, I recognize that, at 
least with respect to the increased forfeiture amounts, Congress 
increased our forfeiture authority.
    I would have much preferred an approach that would have served 
three compelling goals: (1) Ensuring compliance with our EEO rules 
by imposing meaningful sanctions; (2) imposing these sanctions in 
such a way so as not to cripple broadcasters in their travels along 
the information superhighway; and (3) directly furthering the 
underlying public interest purpose of the EEO rule--the increased 
hiring and promotion of minorities and women in the broadcast 
industry. Specifically, if we had the legal authority to do so, I 
would have voted for a program that would have allowed monies 
received as a result of violations or alleged violations of our EEO 
or other rules to be placed into a fund and not into the Federal 
Treasury. Funds received for EEO violations would be used for 
training, educating, and providing placement services for minorities 
and women interested in a career in broadcast. What better use for 
the $325,000 in forfeitures imposed for violations of the EEO rules 
today than for the very purpose underlying the rule?

[FR Doc. 94-6228 Filed 3-16-94; 8:45 am]
BILLING CODE 6712-01-M