[Federal Register Volume 59, Number 116 (Friday, June 17, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-14771] [[Page Unknown]] [Federal Register: June 17, 1994] ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION [DA 94-553] Interpretive Ruling on Broadcast Annual Employment Report AGENCY: Federal Communications Commission. ACTION: Interpretive Ruling; extension of deadline for filing FCC Form 395-B for 1994. ----------------------------------------------------------------------- SUMMARY: This Interpretive Ruling explains how the Federal Communications Commission requires radio stations involved in time brokerage or multiple ownership circumstances to report employees on Annual Employment Reports, FCC Form 395-B. For licensees affected by the Interpretive Ruling, the Ruling extends the deadline for filing 1994 Form 395-B's. The former deadline of May 31, 1994, is extended to July 18, 1994. The FCC requires radio stations to file a Form 395-B each year listing station employees for Equal Employment Opportunity purposes. The Interpretive Ruling provides greater guidance about how employees should be reported by stations involved in a time brokerage or by multiple stations owned by the same licensee in the same market. EFFECTIVE DATE: June 17, 1994. SUPPLEMENTARY INFORMATION: In the Matter of: Petition for Issuance of Interpretive Ruling Concerning FCC Form 395-B, Broadcast Annual Employment Report. Interpretive Ruling Issued: May 27, 1994. Released: May 27, 1994. By the Chief, Mass Media Bureau. I. Introduction 1. The Mass Media Bureau has before it a petition for an interpretive ruling regarding how the employees of radio station time brokers should be reported on the FCC Form 395-B, Annual Employment Report for broadcast stations.\1\ The request was filed on May 2, 1994, by the law firms of Arent, Fox, Kintner, Plotkin & Kahn; Hardy & Carey; and attorney David Tillotson (the Firms).\2\ The Firms allege that there are a variety of different factual situations involving time brokerage and different ways in which employees engaged in providing brokered services could be reported. They request that the Commission issue an interpretive ruling to clarify how employees in various situations should be reported. --------------------------------------------------------------------------- \1\Time brokerage is defined in 47 CFR 73.3555(a)(3)(iv) of the Commission's rules as ``the sale by a licensee of discrete blocks of time to a `broker' that supplies the programming to fill that time and sells the commercial spot announcements in it.'' A cognizable time brokerage agreement (often referred to as a ``Local Marketing Agreement'' or ``LMA'') is a time brokerage agreement between two broadcast licensees of stations whose principal community contours overlap and under which more than 15% of broadcast time per week of one station is brokered by the other station. If a brokerage agreement is entered into by (1) a licensee and a non-licensee broker or (2) between two licensees in separate markets, the agreement is not cognizable under Commission rules. See 47 CFR 73.3555(a)(2)(i). \2\In addition, the National Association of Broadcasters filed a Statement on May 5, 1994, in support of the Firms' petition. --------------------------------------------------------------------------- II. Pleadings 2. The Firms describe several specific situations and ask how reports should be filed for each. In the first example, a broker is a licensee of another station in the same market as the brokered station to which the broker provides programming services. In this case, all employees are employed by the licensee-broker, but some employees' duties relate exclusively to the broker's station, some to the brokered station, and some to both stations. The Firms then analyze the merits of various reporting methods. In the second example, a broker is not a licensee of a station in the same market as the brokered station. Moreover, the broker may or may not be a Commission licensee. Again, while all employees are employed by the broker, their duties relate variably to the broker's station (in the case of licensee-brokers), the brokered station, or both. The Firms, as before, offer their analyses of various reporting methods. Finally, in a third example, the Firms ask how shared employees should be reported where stations in the same radio service are under common ownership or control in the same market, such as occurs where a licensee owns two FM stations in the same market. III. Discussion 3. In response to petitioners' request, this Interpretive Ruling sets forth general Commission policy on how to report employees on Form 395-B for broadcast stations involved in time brokerage arrangements. As a general matter, we believe that, consistent with the EEO Rule which measures licensee performance, employees hired in concert with time brokerages and LMAs should be reported on the Form 395-B submitted by the licensee that employs them. Thus, in the first example above, all employees hired and employed by the licensee-broker and whose duties include providing program services or other duties in support of the LMA should, as a general matter, be reported on the 395-B filed by the licensee-broker's station. This is because all such employees are either employed by, or under the control of, the licensee-broker. The licensee of the brokered station should file a Form 395-B for any employees it may retain or hire after commencement of the brokerage agreement. 4. In the second example above, whether the broker is a licensee or not, there is no cognizable brokerage agreement because the broker does not hold an interest in a station in the same market as the brokered station. See 47 CFR 73.3555(a)(2)(i). However, where the broker is a licensee, the reporting requirements are, as a general matter, no different from the first example above. The licensee of the brokered station should file a Form 395-B for any employees it may retain or hire after commencement of the brokerage agreement. Similarly, the licensee-broker should file a Form 395-B for its employees. If personnel employed by the licensee-broker perform duties for both stations, the licensee-broker should report them on its Form 395-B. If the licensee-broker employes personnel to work at the brokered station, they should also be reported on the Form 395-B for the licensee- broker's station. 5. These policies are not inconsistent with prior Commission statements in Policy Statement on Part-time Programming, 82 FCC 2d 107, 115 (1980) (Policy Statement). The Policy Statement only considered whether employees of a non-licensee time broker should be reported by licensees selling blocks of their airtime to brokers. The Commission declined to require licensees of brokered stations to report employees of a non-licensee broker as part of the EEO employment profile. Our ruling here merely indicates that, as a general matter, time brokers who are themselves licensees should report individuals under their employ, whether they work at the licensee-broker's station or a station operated by the broker under an LMA. The two rulings are, therefore, fully consistent. In addition, the Policy Statement was directed at the typical time brokerage existing in 1980, which involved the brokerage by non-licensees of short, discrete periods of broadcast time. The more common practice today is for large blocks of time or the entire programming schedule of a station to be brokered. When that practice is engaged in by a licensee-broker, we believe it generally appropriate that the licensee-broker comply with the EEO Rule and its attendant reporting obligations. 6. In accordance with the reasoning set forth in Policy Statement, if the broker is not a licensee, as in the second example above, the broker is not required to file a Form 395-B. However, we will closely watch to see that such agreements are not used to circumvent our EEO Rule and policies. 7. Turning to the third example outlined by petitioners involving the reporting of shared employees of commonly owned stations in the same radio service in the same market, current data processing technology available to the Commission does not allow for the employment profile of more than one station to be reported on the same Form 395-B except in cases involving an AM/FM combination. Therefore, if a licensee owns two FM stations or two AM stations in the same market, the licensee should file a separate report for each station, dividing employees between the stations according to their primary duties. If the duties of one or more employees involve work for both stations equally the licensee should file a Form 395-B for one station with all employees from both stations listed. It should then file a separate Form 395-B for the other station explaining that the station's employees are reported on the Form 395-B filed for the licensee's other station in the same market. We expect the licensees of multiple stations in the same market to file the Form 395-B attributing employees to the stations according to the manner in which the stations operate. IV. Conclusion 8. Accordingly, it is ordered that this Interpretive Ruling is issued, to be effective upon publication in the Federal Register.\3\ --------------------------------------------------------------------------- \3\See 5 U.S.C. Section 553(d)(2). --------------------------------------------------------------------------- 9. It is further ordered that the May 31, 1994, due date for the filing of 1994 Form 395-B is extended for those affected by this Interpretive Ruling until 30 days after publication of this Interpretive Ruling in the Federal Register. Licensees who have already filed their 1994 Form 395-B may amend them prior to that date. Federal Communications Commission. Roy J. Stewart, Chief, Mass Media Bureau. [FR Doc. 94-14771 Filed 6-16-94; 8:45 am] BILLING CODE 6712-01-M