[Federal Register Volume 63, Number 45 (Monday, March 9, 1998)]
[Rules and Regulations]
[Pages 11376-11378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5939]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR PART 73

[MM Docket No. 96-16, FCC 98-19]


Revision of Broadcast EEO Rule Enforcement

AGENCY: Federal Communications Commission.

ACTION: Final rule; policy statement.

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SUMMARY: This Order and Policy Statement adopts a change in the 
Commission's enforcement of the Equal Employment Opportunity (EEO) Rule 
for religious broadcasters. The announced change is similar to 
suggestions made by some commenters in response to the Commission's 
Order and Notice of Proposed Rule Making (NPRM), MM Docket No. 96-16, 
which requested comment on ways to improve the Commission's EEO Rule 
and policies to offer relief to distinctly situated broadcasters 
without undermining the effectiveness of its EEO program. The 
Commission will now permit religious broadcasters, as

[[Page 11377]]

defined in the Order and Policy Statement, to establish religious 
belief or affiliation as a job qualification for all station employees. 
The Commission believes that this action will eliminate the potential 
danger of impermissible governmental interference with a religious 
broadcaster's judgment in the conduct and definition of its religious 
affairs.

DATES: Effective April 8, 1998.

FOR FURTHER INFORMATION CONTACT: Renee Licht, Deputy Chief, Mass Media 
Bureau. (202) 418-2600.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Order 
and Policy Statement, FCC 98-19, adopted February 5, 1998, and released 
February 25, 1998.
    The complete text of this Order and Policy Statement is available 
for inspection and copying during normal business hours in the FCC 
Reference Center (Room 239), 1919 M Street, NW., Washington, DC, and 
also may be purchased from the Commission's copy contractor, 
International Transcription Services, Inc., at (202) 857-3800, 1231 
20th Street, NW, Washington, DC 20036.

Synopsis of Order and Policy Statement

    1. In the Order and Policy Statement, the Commission modifies 
enforcement of its broadcast Equal Employment Opportunity (EEO) Rule 
with respect to religious broadcasters. Responding to the Commission's 
request in Order and Notice of Proposed Rule Making (NPRM), MM Docket 
No. 96-16, 11 FCC Rcd 5154 (1996), 61 FR 9964, March 12, 1996, for ways 
to improve its EEO Rule and policies to afford relief to distinctly 
situated broadcasters, some commenters requested that the Commission 
permit religious licensees to establish religious affiliation or belief 
as a bona fide occupational qualification for all positions at their 
stations. The Commission's prior policy was to allow religious 
broadcasters a limited exemption from the Commission's prohibition of 
religious employment discrimination only for employees hired to espouse 
religious views over the air. Upon review of this matter, the 
Commission concludes that its policy should be expanded to permit 
religious broadcasters to use religious belief or affiliation as a job 
qualification for all station employees. The Commission believes that 
this action will eliminate the potential danger of impermissible 
governmental interference with a religious broadcaster's judgment in 
the conduct and definition of its religious affairs.
    2. This action should be considered binding as to radio licensees 
and permittees. It should be considered a non-binding policy statement 
for television licensees and permittees because section 334 of the 
Communications Act of 1934, as amended, 47 U.S.C. 334, prohibits 
revisions of EEO regulations concerning television licensees and 
permittees.
    3. For these purposes, a ``religious broadcaster'' is defined as a 
licensee which is, or is closely affiliated with, a church, synagogue, 
or other religious entity, including a subsidiary of such an entity. 
Commission determination as to whether a licensee is a ``religious 
broadcaster'' will be made on a case-by-case basis, based upon the 
evaluation of certain characteristics of the religious entity.
    4. Some commenters to the NPRM are concerned that expanding the 
Commission's current policy concerning religious broadcasters would 
lead to racial and ethnic discrimination and have a negative impact on 
equal opportunity in the industry. However, in the Order and Policy 
Statement, the Commission emphasizes that religious broadcasters are 
still required to operate their stations in the public interest, as 
defined in the Commission's rules and policies. Therefore, religious 
broadcasters are not permitted to engage in employment discrimination 
against women and minorities and are still required to comply with 
sections 73.2080(b) and (c) of the Commission's Rules, 47 CFR 
73.2080(b) and (c), requiring broadcasters to maintain a positive, 
continuing program of specific practices designed to ensure equal 
employment opportunity, for persons who share their faith, in every 
aspect of station employment and practice. Religious broadcasters are 
also still required to file EEO Forms 396-A, 396, and 395-B and their 
EEO programs will continue to be subject to examination by the 
Commission at renewal time, as well as other relevant periods, to 
determine compliance with the EEO Rule.

Initial Paperwork Reduction Act of 1995 Analysis

    The decision herein has been analyzed with respect to the Paperwork 
Reduction Act of 1995, Public Law No. 104-13, and found to impose or 
propose no modified information collection requirement on the public.

Final Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act (``RFA''), 
1 see 5 U.S.C. 603, an Initial Regulatory Flexibility 
Analysis (``IRFA'') was incorporated in the NPRM. 2 The 
Commission sought written public comments on the proposals in the NPRM, 
including the IRFA.
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    \1\ The RFA, see 5 U.S.C. 601 et. seq., has been amended by the 
Contract With America Advancement Act of 1996, Public Law No. 104-
121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the 
Small Business Regulatory Enforcement Fairness Act of 1996.
    \2\ 11 FCC Rcd at 5183.
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    Joint Commenters 3 criticize the IRFA for not stating 
that the proposals in the Notice could adversely affect some non-
licensee entities including Black colleges, community groups which 
refer job candidates, discrimination victims, individual job 
applicants, petitioners to deny, and members of the listening and 
viewing audience. Joint Commenters maintain that the IRFA failed ``to 
mention the limited resources available to each of these parties in 
meeting significant burdens which would be imposed on them by cutbacks 
in EEO enforcement.'' 4 Joint Commenters' arguments are 
without merit. In the IRFA, the Commission did not indicate the 
economic impact of a rule change on any entity, stating that it ``was 
unable to assess at this time what, if any, economic impact the 
proposed rule change would have on small business entities'' and that a 
full assessment of the potential impact would be made, if applicable, 
at the final rulemaking stage. 5 Furthermore, the entities 
described by Joint Commenters would not be discussed in the Regulatory 
Flexibility Analysis at any stage in this proceeding because such 
analysis is reserved for entities directly regulated and affected by 
the subject rule of a proceeding and the entities discussed by Joint 
Commenters are not so regulated and affected. See Mid-Tex Electric 
Cooperative, Inc. v. Federal Energy Regulatory Commission, 773 F.2d 327 
(D.C. Cir. 1985).
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    \3\ Joint Commenters consist of the following organizations that 
filed their comments together: Minority Media Telecommunications 
Council, Office of Communication of the United Church of Christ, 
National Council of Churches, American Civil Liberties Union, 
American Hispanic Owned Radio Association, Association of Black 
Owned Television Stations, Black Citizens for a Fair Media, Black 
College Communications Association, Chinese for Affirmative Action, 
Cultural Environment Movement, Fairness and Accuracy in Reporting, 
Hispanic Association on Corporate Responsibility, League of United 
Latin American Citizens, Minority Business Enterprise Legal Defense 
and Education Fund, Inc., National Association for the Advancement 
of Colored People, National Association of Black Owned Broadcasters, 
National Bar Association, National Hispanic Media Coalition, 
National Rainbow Coalition, National Urban League, Operation PUSH, 
and Women's Institute for Freedom of the Press.
    \4\ Comments of Joint Commenters at 119.
    \5\ 11 FCC Rcd at 5183-84.
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    We now believe that, pursuant to the RFA, see 5 U.S.C. 605(b), we 
can certify

[[Page 11378]]

that the action taken in this Order and Policy Statement, as 
distinguished from the broader proposals contained in the entire NPRM, 
will not have a significant economic impact on a substantial number of 
small entities. Other issues and proposals will be addressed in a 
Report and Order to be issued at a later date. This action simply 
allows religious broadcasters to establish religious affiliation or 
belief as a bona fide occupational qualification for all station 
positions, an action which will not have a significant economic impact. 
Religious broadcasters are still required to ensure equal employment 
opportunity in every aspect of station employment policy and practice 
for persons who share their faith. The Commission will publish this 
certification in the Federal Register, and will provide a copy of the 
certification to the Chief Counsel for Advocacy of the Small Business 
Administration. The Commission will also include the certification in 
the report to Congress pursuant to the RFA, see 5 U.S.C. 801.

List of Subjects in 47 CFR Part 73

    Radio broadcasting, Television broadcasting.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-5939 Filed 3-6-98; 8:45 am]
BILLING CODE 6712-01-P