[Federal Register Volume 65, Number 31 (Tuesday, February 15, 2000)]
[Rules and Regulations]
[Pages 7448-7459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3067]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR PARTS 0, 73 AND 76

[MM Docket Nos. 98-204 and 96-16, FCC 00-20]


Revision of Broadcast and Cable EEO Rules and Policies

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document adopts new broadcast Equal Employment 
Opportunity (EEO) rules and policies and amends its cable EEO rules and 
policies. The document retains the existing ban on discrimination and 
promulgates recruitment-oriented outreach rules. The EEO rules make 
clear that broadcasting and cable entities are not required to employ a 
staff that reflects the racial or other composition of the community or 
to use racial preferences in hiring. The intended effect is to adopt 
effective EEO rules for the broadcasting and cable industries.

DATES: Effective April 17, 2000, except for the amendments to 
Secs. 73.2080; 73.3526; 73.3527; 76.75; 76.77; 76.79; 76.1702; and 
76.1802, which contain information collection requirements that have 
not been approved by the Office of Management and Budget (OMB). The FCC 
will publish a document in the Federal Register announcing the 
effective date of those amendments.

FOR FURTHER INFORMATION CONTACT: Roy Boyce or Hope Cooper, Mass Media 
Bureau, EEO Staff. (202) 418-1450. For additional information 
concerning the information collections, contact Judy Boley, Federal 
Communications Commission, Room 1-C804, 445 12th Street, SW, 
Washington, DC 20554, or via the Internet to [email protected].

SUPPLEMENTARY INFORMATION:  This is a synopsis of the Commission's 
Report and Order in MM Docket Nos. 98-204 and 96-16, adopted January 
20, 2000, and released February 2, 2000. The complete text of this 
Report and Order is available for inspection and copying during normal 
business hours in the FCC Reference Information, Courtyard Level, 445 
12th Street, SW, Washington, DC, and also may be purchased from the 
Commission's copy contractor, International Transcription Services, 
Inc., at 202-857-3800, CY-B400, 445 12th St., SW, Washington, DC.

Synopsis of Report and Order

    As proposed in the Notice of Proposed Rule Making (NPRM) in this

[[Page 7449]]

proceeding, 63 FR 66104, December 2, 1998, the Report and Order adopts 
new broadcast and cable EEO rules and policies consistent with the D.C. 
Circuit's decision in Lutheran Church--Missouri Synod v. FCC, 141 F.3d 
344 (D.C. Cir. 1998) (Lutheran Church), rehearing denied, September 15, 
1998. In Lutheran Church, the D.C. Circuit held that the Commission's 
broadcast EEO program requirements were unconstitutional because the 
court concluded that they pressured stations to maintain a workforce 
reflecting the racial composition of their communities. The court also 
remanded the case back to the Commission to determine whether it had 
the authority to continue its ban on employment discrimination.
    As described in the Report and Order, the Commission adopts new 
broadcast and cable EEO rules that require non-discrimination and 
outreach in employment. None of the rules creates an incentive to hire 
on the basis of race or gender. In fact, the proposed rules remove all 
references to any comparison to minority and female labor force 
statistics, including sections concerning evaluation of employment 
profile and job turnover.
    In order to ensure fundamental fairness, the EEO rules include 
broad and inclusive outreach requirements designed to ensure that all 
qualified applicants have the opportunity to compete for jobs in the 
broadcast and cable industries on an equal basis. Accordingly, the 
rules require that a broadcaster or cable entity recruit for its 
vacancies using recruitment sources sufficient in its judgment to reach 
all segments of its community. However, to enhance the success of their 
outreach, broadcasters and cable entities are also required to 
implement two supplemental recruitment measures: (1) notification of 
job vacancies to any recruitment organization that requests such 
notification; and (2) outreach efforts such as job fairs, internship 
programs, training programs, scholarship programs, mentoring programs, 
and participation in educational and community activities relating to 
broadcast employment. Broadcasters and cable entities may choose not to 
engage in the supplemental recruitment measures as long as they 
maintain records on the recruitment sources, race, ethnicity and gender 
of applicants in order to monitor the success of their outreach 
efforts. However, entities choosing this alternative recruitment option 
remain subject to the core requirement that information about job 
vacancies be widely disseminated.
    In order to provide guidance to entities, the rules also clearly 
describe what records of EEO efforts must be kept by broadcasters and 
cable entities, including the records to be placed in the public file. 
The Report and Order requires broadcasters and cable entities to file 
annually an EEO report in their public file, detailing their outreach 
efforts during the preceding year and the results of those efforts. 
Broadcasters must also file a Statement of Compliance every second, 
fourth and sixth year of the license term certifying compliance with 
the EEO Rule. Television stations and every radio station that is part 
of an employment unit with more than ten full-time employees will be 
required to file a copy of their EEO public file report midway through 
the license term. Stations will also be required to file their EEO 
public file report with their renewal application and cable entities 
will be required to file their EEO public report as part of the 
supplemental information required by statute to be filed every five 
years.
    Along with reinstating other broadcast EEO Forms, the Report and 
Order reinstates the preexisting EEO requirement that broadcast station 
employment units with five or more full-time employees file an Annual 
Employment Report, but with the understanding that the Report's data 
will only be used to monitor industry employment trends and furnish 
reports to Congress.
    The Report and Order retains the Commission's prohibition against 
employment discrimination and details the Commission's statutory 
authority to promulgate an employment non-discrimination rule as well 
as EEO program requirements. Specifically, the Report and Order 
outlines the Commission's conclusion that Congress has ratified the 
Commission's authority to adopt broadcast EEO rules; that equal 
employment of minorities and women furthers the Commission's public 
interest goal of diversity of programming; and that the statutory goal 
of fostering minority and female ownership in the provision of 
commercial spectrum-based services, as directed by section 309(j) of 
the Communications Act, is furthered by EEO requirements. With respect 
to broadcasters, the Report and Order clarifies the anti-discrimination 
prohibition so that religious radio and television broadcasters may 
establish religious belief or affiliation as a qualification for all 
station employees.
    The Report and Order notes the Commission's intent to limit undue 
administrative burdens on broadcasters and cable entities generally, 
and particularly on those licensees of smaller stations and similarly 
situated cable entities, consistent with maintaining an effective EEO 
program. Specifically, the Report and Order exempts broadcast station 
employment units with fewer than five full-time employees from the 
FCC's specific EEO requirements, as well as providing additional relief 
for employment units that have between five and ten full-time 
employees. Cable employment units with six to ten full-time employees 
are also provided some relief from the Report and Order's specific EEO 
program requirements, and cable employment units with fewer than six 
full-time employees are not required to demonstrate compliance with the 
EEO program requirements.
    The Report and Order also terminates the Commission's EEO 
streamlining proceeding in MM Docket No. 96-16, 63 FR 11376, March 9, 
1998.

Paperwork Reduction Act of 1995 Analysis

    The actions contained in this Report and Order have been duly 
analyzed with respect to the Paperwork Reduction Act of 1995 and found 
to impose a new reporting requirement or burden on the public. 
Implementation of this new reporting requirement will be subject to 
approval by the Office of Management and Budget, as prescribed by the 
Act. The new paperwork requirement contained in the Report and Order is 
effective April 17, 2000, upon OMB approval.

Final Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act (RFA), 5 U.S.C. 603, 
an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into 
the Notice of Proposed Rule Making (NPRM) in this proceeding. The 
Commission sought written public comments on the possible significant 
economic impact of the proposed policies and rules on small entities in 
the NPRM, including comments on the IRFA. This Final Regulatory 
Flexibility Analysis (FRFA) conforms to the RFA, as amended by the 
Contract with America Advancement Act of 1996 (CWAAA), Public Law 104-
121, 110 Stat. 847 (1996). (Title II of the CWAAA is the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA)).

A. Need for and Objectives of the Rules

    The D.C. Circuit court in Lutheran Church held that the EEO program 
requirements of the Commission's EEO Rule for broadcasters were 
unconstitutional and remanded to the

[[Page 7450]]

Commission to determine whether we have authority to enforce an 
employment nondiscrimination requirement. The Report and Order adopts 
new EEO rules and policies for broadcasters and cable entities, 
including multichannel video programming distributors (MVPDs), 
consistent with the Lutheran Church decision. The new EEO rules retain 
the FCC's anti-discrimination provisions and prohibit broadcasters and 
cable entities from engaging in discriminatory practices. In addition, 
the rules require broadcasters and cable entities to establish and 
maintain an EEO program designed to provide equal opportunity for 
everyone, including minorities and women. The new rules emphasize 
inclusive recruitment outreach and prohibit entities from preferring 
members of any racial, national origin, or gender group in hiring. We 
note that SBA has approved our approach for small stations and small 
cable entities in this Report and Order. Letter from Aida Alvarez, 
Administrator, U.S. Small Business Administration, to Roy Stewart, 
Chief, Mass Media Bureau, Federal Communications Commission (January 
19, 2000).

B. Summary of Significant Issues Raised by the Public Comments in 
Response to the IRFA

    Three comments were filed specifically in response to the IRFA. See 
Comments of Small Cable Business Association (SCBA), U.S. Small 
Business Administration (SBA), and Congressmen Michael G. Oxley and 
Ralph M. Hall (Oxley/Hall). SCBA states that EEO recruiting, 
recordkeeping and reporting requirements substantially impact small 
cable systems since they have limited financial and administrative 
resources. It urges the Commission to consider its comments regarding 
small cable entities filed in response to the NPRM. For the purpose of 
providing EEO relief to small cable operators, SCBA believes that a 
small cable company should be defined by its number of employees, and 
not its amount of gross revenues, as currently defined by the SBA. It 
states that a cable system's gross revenues or number of subscribers 
does not correspond well to EEO rules. We note that the Report and 
Order considers SCBA's concerns and provides relief to small cable 
employment units on the basis of unit staff size, and by streamlining 
reporting and recordkeeping requirements for all cable entities.
    The SBA urges the FCC to look at the economic impact of its 
proposed EEO requirements on small stations consistent with the RFA, 
and if necessary, to maintain its EEO exemptions for small stations 
defined as those with fewer than five employees. We note that this FRFA 
conforms to the RFA, and that the Report and Order continues to exempt 
broadcast station employment units with fewer than five full-time 
employees from the FCC's specific EEO requirements, as well as 
providing additional relief for employment units that have between five 
and ten full-time employees.

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

    The RFA directs the Commission to provide a description of and, 
where feasible, an estimate of the number of small entities that may be 
affected by the proposed rules. 5 U.S.C. 604(a)(3). Under the RFA, 
small entities may include small organizations, small businesses, and 
small governmental jurisdictions. 5 U.S.C. 601(6). The RFA, 5 U.S.C. 
601(3), generally defines the term ``small business'' as having the 
same meaning as the term ``small business concern'' under the Small 
Business Act, 15 U.S.C. 632. 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. Pursuant to 4 U.S.C. 601(3), the statutory definition of a 
small business applies ``unless an agency after consultation with the 
Office of Advocacy of the SBA and after opportunity for public comment, 
establishes one or more definitions of such term which are appropriate 
to the activities of the agency and publishes such definition(s) in the 
Federal Register.'' (While we stated in the NPRM that we tentatively 
believe that the SBA's definition of ``small business'' in this context 
greatly overstates the number of radio and television broadcast 
stations that are small businesses and is not suitable for purposes of 
determining the impact of the proposals on small television and radio 
stations, for purposes of this FRFA, we include the SBA's definition in 
determining the number of small businesses to which the rules would 
apply.) The rules we adopt in this Report and Order will affect 
broadcast stations and cable entities, including MVPDs.
    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 following estimates of small businesses to 
which the new rules will apply do not exclude any radio or television 
station from the definition of a small business on this basis and are 
therefore overinclusive to that extent. An additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. We could not fully apply this 
criterion, and our estimates of small businesses to which the rules may 
apply may be overinclusive to this extent. Last, with respect to 
applying SBA size standards revenue caps, the SBA has defined ``annual 
receipts'' specifically in 13 CFR 121.104, and its calculations include 
an averaging process. We do not currently require submission of 
financial data from licensees that we could use in applying the SBA's 
definition of a small business. Thus, for purposes of estimating the 
number of small entities to which the rules apply, we are limited to 
considering the revenue data that are publicly available, and those 
data may not correspond completely with the SBA definition of annual 
receipts.
    Television and Radio Stations: The rules in this Report and Order 
will apply to television and radio stations. The Small Business 
Administration defines a television broadcasting station that has no 
more than $10.5 million in annual receipts as a small business. 13 CFR 
121.201, Standard Industrial Code (SIC) 4833. Television broadcasting 
stations consist of establishments primarily engaged in broadcasting 
visual programs by television to the public, except cable and other pay 
television services. Economics and Statistics Administration, Bureau of 
Census, U.S. Department of Commerce, 1992 Census of Transportation, 
Communications and Utilities, Establishment and Firm Size, Series UC92-
S-1, Appendix A-9 (1995). Included in this industry are commercial, 
religious, educational, and other television stations. Also included 
are establishments primarily engaged in television broadcasting and 
which produce taped television program materials. Id.
    There were 1,509 full-service television stations operating in the 
nation in 1992. FCC News Release No. 31327, Jan. 13, 1993; Economics 
and Statistics Administration, Bureau of Census, U.S. Department of 
Commerce, Appendix A-9. That number has remained fairly constant as 
indicated by the approximately 1,616 operating full-service television 
broadcasting stations in the nation as of September 1999. FCC News 
Release, Broadcast Station Totals as of September 30, 1999 (released 
November 22, 1999). For 1992, the

[[Page 7451]]

number of television stations that produced less than $10.0 million in 
revenue was 1,155 establishments. (Census for Communications' 
establishments are performed every five years ending with a ``2'' or 
``7''. See Economics and Statistics Administration, Bureau of Census, 
U.S. Department of Commerce, note 53, III. The amount of $10 million 
was used to estimate the number of small business establishments 
because the relevant Census categories stopped at $9,999,999 and began 
at $10,000,000. No category for $10.5 million existed. Thus, the number 
is as accurate as it is possible to calculate with the available 
information.) Thus, the rules will affect approximately 1,616 
television stations; approximately 77%, or 1,244 of those stations are 
considered small businesses. We use the 77 percent figure of TV 
stations operating at less than $10 million for 1992 and apply it to 
the 1999 total of 1,616 TV stations to arrive at stations categorized 
as small businesses. These estimates may overstate the number of small 
entities since the revenue figures on which they are based do not 
include or aggregate revenues from non-television affiliated companies.
    The rule changes would also affect radio stations. The SBA defines 
a radio broadcasting station that has no more than $5 million in annual 
receipts as a small business. 13 CFR 121.201, SIC 4832. A radio 
broadcasting station is an establishment primarily engaged in 
broadcasting aural programs by radio to the public. Economics and 
Statistics Administration, Bureau of Census, U.S. Department of 
Commerce, Appendix A-9. Included in this industry are commercial, 
religious, educational, and other radio stations. Id. Radio 
broadcasting stations which primarily are engaged in radio broadcasting 
and which produce radio program materials are similarly included. Id. 
The 1992 Census indicates that 96 percent (5,881 of 6,127) of radio 
station establishments produced less than $5 million in revenue in 
1992. (The Census Bureau counts multiple radio stations located at the 
same facility as one establishment. Therefore, each co-located AM/FM 
combination counts as one establishment.) Official Commission records 
indicate that 11,334 individual radio stations were operating in 1992. 
FCC News Release No. 31327, Jan. 13, 1993. As of September 1999, 
official Commission records indicate that 12,615 radio stations were 
operating. FCC News Release, Broadcast Station Totals as of September 
30, 1999 (released November 22, 1999).
    Small cable entities, including MVPDs: The rule changes would also 
affect small cable entities, including MVPDs. SBA has developed a 
definition of a small entity for cable and other pay television 
services, which includes all such companies generating $11 million or 
less in annual receipts. 13 CFR 121.201, SIC 4841. This definition 
includes cable system operators, closed circuit television services, 
direct broadcast satellite services (DBS), multipoint distribution 
systems (MDS), satellite master antenna systems (SMATV), and 
subscription television services. According to the Bureau of the 
Census, there were 1,423 such cable and other pay television services 
generating less than $11 million in revenue that were in operation for 
at least one year at the end of 1992. 1992 Economic Census Industry and 
Enterprise Receipts Size Report, Table 2D, SIC 4841 (U.S. Bureau of the 
Census data under contract to the Office of Advocacy of the U.S. Small 
Business Administration). We discuss these services to provide a more 
succinct estimate of small entities.
    Cable Systems: The Commission has developed, with SBA's approval, 
its own definition of small cable system operators. Under the 
Commission's rules, a ``small cable company'' is one serving fewer than 
400,000 subscribers nationwide. 47 CFR 76.901(e). The Commission 
developed this definition based on its determination that a small cable 
system operator is one with annual revenues of $100 million or less. 
Implementation of Sections of the 1992 Cable Act: Rate Regulation, 
Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC 
Rcd 6393 (1995). Based on our most recent information, we estimate that 
there were 1,439 cable operators that qualified as small cable 
companies at the end of 1995. Paul Kagan Associates, Inc., Cable TV 
Investor, Feb. 29, 1996 (based on figures for Dec. 30, 1995). Since 
then, some of those companies may have grown to serve over 400,000 
subscribers, and others may have been involved in transactions that 
caused them to be combined with other cable operators. Consequently, we 
estimate that there are fewer than 1,439 small entity cable system 
operators that may be affected by the rules proposed herein.
    The Communications Act also contains a definition of a small cable 
system operator, which is ``a cable operator that, directly or through 
an affiliate, serves in the aggregate fewer than 1% of all subscribers 
in the United States and is not affiliated with any entity or entities 
whose gross annual revenue in the aggregate exceeds $250,000,000.'' 47 
U.S.C. 543(m)(2). The Commission has determined that there are 
61,700,000 subscribers in the United States. Therefore, we found that 
an operator serving fewer than 617,000 subscribers shall be deemed a 
small operator, if its annual revenues, when combined with the total 
annual revenues of all of its affiliates, do not exceed $520 million in 
the aggregate. 47 CFR 76.1403(b) (SIC 4833). Based on available data, 
we find that the number of cable operators serving 617,000 subscribers 
or fewer totals 1,450. Paul Kagan Associates, Inc., Cable TV Investor, 
Feb. 29, 1996 (based on figures for Dec. 30, 1995). Although it seems 
certain that some of these cable system operators are affiliated with 
entities whose gross annual revenues exceed $250,000,000, we are unable 
at this time to estimate with greater precision the number of cable 
system operators that would qualify as small cable operators under the 
definition in the Communications Act.
    MDS: The Commission has defined ``small entity'' for purposes of 
the auction of MDS as an entity that, together with its affiliates, has 
average gross annual revenues that are not more than $40 million for 
the preceding three calendar years. 47 CFR 21.961(b)(1). This 
definition of a small entity in the context of MDS auctions has been 
approved by the SBA. See Amendment of Parts 21 and 74 of the 
Commission's Rules With Regard to Filing Procedures in the Multipoint 
Distribution Service and in the Instructional Television Fixed Service 
and Implementation of Section 309(j) of the Communications Act--
Competitive Bidding, MM Docket No. 94-131 and PP Docket No. 93-253, 
Report and Order, 10 FCC Rcd 9589 (1995). The Commission completed its 
MDS auction in March 1996 for authorizations in 493 basic trading areas 
(BTAs). Of 67 winning bidders, 61 qualified as small entities. One of 
these small entities, O'ahu Wireless Cable, Inc., was subsequently 
acquired by GTE Media Ventures, Inc., which did not qualify as a small 
entity for purposes of the MDS auction.
    MDS also includes licensees of stations authorized prior to the 
auction. As noted, the SBA has developed a definition of small entities 
for pay television services, which includes all such companies 
generating $11 million or less in annual receipts. 13 CFR 121.201. This 
definition includes multipoint distribution systems, and thus applies 
to MDS licensees and wireless cable operators that did not participate 
in the MDS auction. Information available to us indicates that there 
are 832 of these licensees and operators that do not generate revenue

[[Page 7452]]

in excess of $11 million annually. Therefore, for purposes of this 
FRFA, we find there are approximately 892 small MDS providers as 
defined by the SBA and the Commission's auction rules, and some of 
these providers may be subject to our EEO rules.
    DBS: As of November 1999, there are four DBS licensees, one of 
which is not in operation. Providing DBS service requires a great 
investment of capital to build, launch, and operate satellite systems. 
Typically, small businesses do not have the financial ability to become 
DBS licensees because of the high implementation costs associated with 
launching satellites. Most recent industry statistics suggest that the 
revenue attributed to DBS subscribers for EchoStar was $682.8 million 
for the year of 1998 and $1.55 billion for DIRECTV. We do not have 
similar revenue information for the third operating licensee, Dominion 
Video Satellite, Inc. However, we do not believe that any DBS licensees 
could be categorized as small businesses.
    Estimates Based on Staff Size: As described, for purposes of 
providing relief from our EEO rules for entities with fewer staff 
resources, the Report and Order classifies such entities by number of 
employees. We estimate that, in 1997, the total number of full-service 
broadcast stations with fewer than five employees was 5,186, of which 
340 were television stations. We base this estimate on a compilation of 
1997 Broadcast Station Annual Employment Reports (FCC Form 395-B), 
performed by staff of the Equal Employment Opportunity Branch, Mass 
Media Bureau, FCC. Similarly, we estimate that, in 1997, 2,750 cable 
system or SMATV employment units employed fewer than six full-time 
employees. Also, in 1997, 725 MVPD employment units employed fewer than 
six full-time employees.
    We also estimate that, in 1997, the total number of full-service 
broadcast stations with five to ten employees was 2,145, of which 200 
were television stations. We base this estimate on a compilation of 
1997 Broadcast Station Annual Employment Reports (FCC Form 395-B), 
performed by staff of the Equal Employment Opportunity Branch, Mass 
Media Bureau, FCC. Similarly, we estimate that, in 1997, 322 cable 
system or SMATV employment units employed six to ten full-time 
employees. Also, in 1997, 65 MVPD employment units employed six to ten 
full-time employees.

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

    The Report and Order adopts changes to existing EEO recordkeeping 
and reporting requirements. It also specifies which EEO materials are 
required to be kept in the public inspection file. All broadcasters and 
cable entities must adhere to the EEO rules' general anti-
discrimination provisions. Broadcasters with station employment units 
of five to ten full-time employees are provided some relief from EEO 
requirements, and station employment units of fewer than five full-time 
employees are exempt altogether, with the exception that all 
broadcasters are subject to the nondiscrimination requirement and must 
report any employment discrimination complaints filed against them. 
Cable employment units, including MVPD employment units, employing six 
to ten full-time employees are also provided some relief from the 
Report and Order's specific EEO program requirements, and cable 
employment units with fewer than six full-time employees are not 
required to demonstrate compliance with the EEO program requirements. 
Generally, no special skills will be necessary to comply with the 
requirements.
    Specifically, the Report and Order requires broadcasters and cable 
entities to widely disseminate information concerning job vacancies. 
Additionally, broadcasters and cable entities must undertake two 
supplemental recruitment measures described herein. The first 
supplemental recruitment measure requires broadcasters and cable 
entities to provide notification of full-time job vacancies to any 
requesting organization if the organization regularly distributes 
information about employment opportunities or refers job seekers to 
employers. Depending on the size of a station's staff, the second 
supplemental recruitment measure requires broadcasters to engage in at 
least four (for station employment units with more than ten full-time 
employees) or two (for station employment units with five to ten full-
time employees) of the following menu options every two years: job 
fairs, job banks and other general outreach efforts, scholarship 
programs, in-house training programs, mentoring programs, community 
events related to employment opportunities in the industry, industry 
career events/programs by educational institutions, internship 
programs, the listing of upper-level vacancies in a job bank or 
newsletter of media trade groups whose membership includes substantial 
participation of women and minorities, and other activities to 
disseminate information regarding industry employment opportunities, as 
designed by the broadcaster. Cable employment units with more than ten 
full-time employees must engage in at least two options from the 
supplemental recruitment measures menu every year and cable employment 
units with six to ten full-time employees must engage in at least one 
option every year. Broadcasters and cable entities that desire more 
flexibility in their recruitment procedures may dispense with the 
supplemental recruitment measures as long as they are able to 
demonstrate success in achieving broad outreach to all segments of the 
community, as based upon an analysis of the recruitment source, race, 
national origin, and gender of the applicants attracted by their 
outreach efforts.
    In addition, the Report and Order requires broadcasters and cable 
entities to retain records to demonstrate that they have recruited for 
all full-time permanent positions. To alleviate recordkeeping burdens, 
records may be kept in an electronic format. Such recordkeeping shall 
include: listings of all full-time vacancies filled, listings of 
recruitment sources, the address/contact person/telephone number of 
each recruitment source, and dated copies of advertisements and other 
documentation announcing vacancies. Broadcasters and cable entities 
engaging in supplemental recruitment measures must show organizations 
which requested notification and must also maintain: records and proof 
of participation in menu options, the total number and referral source 
of all interviewees, and dates of hire along with the name of the 
recruitment source which referred the hiree. These revised 
recordkeeping requirements significantly reduce the cost of compliance 
because broadcasters and cable entities that use this approach no 
longer have to keep extensive records on the race and gender of all 
applicants and interviewees, as was the case under our former EEO 
rules. For those broadcasters and cable entities that opt out of the 
supplemental recruitment measures, we will require that they maintain 
records of the recruitment source, race, national origin, and gender of 
qualified applicants in order to demonstrate that they widely 
disseminated information about job openings. Some broadcasters and 
cable entities, especially the ones with fewer employees, may have only 
a few vacancies generally available so that this option may be less 
burdensome to them. Broadcasters' records must be

[[Page 7453]]

maintained until grant of the renewal application for the term during 
which the hiring activity occurred. Cable entities must retain their 
records for a minimum of seven years. To determine compliance with the 
EEO rules, the Commission may conduct inquiries requesting the records 
of a broadcaster or cable entity.
    The Report and Order also requires stations and cable employment 
units to place annually the following EEO records in their local public 
inspection file: listings of full-time vacancies filled and recruitment 
sources used for each vacancy during the preceding year and the 
address/contact person/telephone number of each recruitment source. 
Broadcasters and cable entities engaging in supplemental recruitment 
measures must also include in their public file: an indication of the 
organizations requesting notification, the recruitment source of all 
full-time hirees during the preceding year, the total number of persons 
interviewed for full-time vacancies during the preceding year as well 
as the total number of interviewees referred by each recruitment source 
for that vacancy, and a brief description of the menu option items 
undertaken during the preceding year. Those broadcasters and cable 
entities that opt out of the supplemental recruitment measures must 
include in their public file: the total number of applicants generated 
by each recruitment source utilized for any full-time vacancy during 
the preceding year, and the number of those applicants who were female 
and the number who were minority, identified by the applicable racial 
and/or national origin group with which each applicant is associated. 
Station units must retain the materials in their file until final 
action has been taken on the station's next license renewal 
application, and cable entities must retain their materials for a 
period of five years.
    In addition, broadcasters must file a Statement of Compliance (Form 
397) every second, fourth and sixth year of the license term, on the 
anniversary of the date the station is due to file its renewal, stating 
whether the station has complied with the EEO Rule. Broadcasters must 
place a copy of the latest Statement in the public inspection file. 
Broadcasters must also continue to place a copy of Form 396 (Broadcast 
EEO Program Report) in the public inspection file. However, 
broadcasters are no longer required to place a copy of their station's 
Form 395-B (Broadcast Station Annual Employment Report) in the public 
file. Cable employment units must continue to place a copy of Forms 
395-A (Cable Television Annual Employment Report) or 395-M (Multi-
Channel Video Program Distributor Annual Employment Report) in their 
public file. Also, most broadcasters must submit the contents of their 
station's EEO public inspection file to the FCC at renewal time and 
midway through the license term for the Commission's mid-term review 
and cable entities with six or more full-time employees must submit 
copies of their EEO public inspection file to the Commission every five 
years. However, broadcasters may limit their submissions to cover only 
the last 12 months of EEO activity. These changes reduce burdens on all 
station and cable employment units, both by more clearly defining what 
must be retained and by specifying the period of retention.
    The Report and Order eliminates sections concerning specific 
categories of recruitment sources from Form 396-A (Model EEO Program 
Report). The Report and Order also eliminates many sections from Form 
396, including sections requesting information on local labor force 
statistics, and the number of minority and female hires and promotions. 
The Report and Order provides further relief to broadcasters by 
enabling them to file only one Form 395-B for all commonly owned 
stations in the same market sharing at least one employee. Form 396 
will include a new section for broadcasters to provide a narrative 
statement demonstrating how the station achieved broad and inclusive 
outreach. With respect to cable entities, the Report and Order 
eliminates all sections on Forms 395-A and 395-M concerning available 
labor force and occupational data, employee promotions and job hires.

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

    This Report and Order sets forth the Commission's new EEO rules and 
procedures, and considers all of the significant alternatives presented 
in the comments. We have determined that our finalized rules fulfill 
our public interest goals while maintaining minimal regulatory burdens 
and ease and clarity of administration. The new EEO rules and 
procedures are designed to keep essential filing and recordkeeping 
burdens at a minimum, and increase the efficiency of application 
processing for all broadcasters and cable entities, including small 
entities.
    The NPRM requested comment on the Commission's proposal to exempt 
small staff stations or stations located in small markets from specific 
EEO recordkeeping and reporting requirements. The NPRM proposed to 
increase the current staff exemption threshold of fewer than five full-
time employees to ten or fewer full-time employees. There was no 
specific proposal regarding the market threshold for exempting 
stations. Although we received a few comments regarding small market 
exemptions, the majority of comments addressed our proposal to increase 
the staff exemption threshold. Commenters argue that an increase is 
warranted since stations with small staffs have limited personnel and 
financial resources to carry out EEO requirements. Other commenters 
argue against a total exemption from the broadcast EEO Rule for 
stations with ten or fewer employees since such stations play a pivotal 
role in providing essential entry-level opportunities into the 
broadcast industry. As discussed in the Report and Order, we believe 
that a total exemption is unnecessary since the new EEO Rule 
streamlines and clarifies recordkeeping requirements, thereby 
benefiting all broadcasters, including stations with fewer employees. 
For this same reason, we also believe that additional EEO relief is not 
warranted for small market stations. Such relief is already built into 
the new Rule, as further evidenced by the flexibility it affords 
broadcasters to tailor their EEO programs to their station's particular 
circumstances, including market size. However, because fewer staff 
resources are available to them, we believe that station employment 
units with five to ten full-time employees, which are the smallest 
staff stations subject to our EEO program requirements, warrant 
additional relief from EEO program requirements. Therefore, for those 
broadcasters employing supplemental recruitment measures, we will 
require station employment units with five to ten full-time employees 
to engage in only two of the menu options listed in the EEO Rule during 
each two-year period. Station employment units with more than ten full-
time employees are required to engage in four menu options during each 
two-year period. While not providing a total exemption from our EEO 
Rule, this approach does provide additional EEO relief to station 
employment units with five to ten employees. Further, we will exempt 
radio station employment units with six to ten employees from new mid-
term review procedures. Currently, mid-term reviews for all television 
stations with five or more full-time employees are required by statute. 
However, only about 200 television stations (or 13%) had between five 
and ten employees in 1997. We base this estimate on a compilation of 
1997 Broadcast Station

[[Page 7454]]

Annual Employment Reports (FCC Form 395-B), performed by staff of the 
Equal Employment Opportunity Branch, Mass Media Bureau, FCC. Also, a 
station will not qualify for relief if it shares one or more employees 
with one or more commonly owned stations in the same market and their 
combined staffs total more than ten full-time employees since such 
stations are considered one employment unit for EEO purposes.
    We also received comments arguing that cable systems with small 
staffs should be provided EEO relief since they, too, have limited 
personnel and financial resources. Upon consideration, we will require 
cable employment units with six to ten full-time employees that use the 
supplemental recruitment measures to engage in only one option from the 
supplemental recruitment measures menu each year, as opposed to the two 
options required otherwise.
    We will continue to exempt broadcast station employment units with 
fewer than five full-time employees from our specific EEO program 
requirements. In addition, cable employment units with fewer than six 
full-time employees will still not be required to demonstrate 
compliance with the EEO program requirements.

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

    Oxley/Hall maintain that the FCC's proposed EEO program 
substantially replicates the work of the Equal Employment Opportunity 
Commission (EEOC). Oxley/Hall Comments at 3. As we stated in the Report 
and Order, while the EEOC and FCC share as a common goal the 
elimination of discriminatory employment practices, the primary 
functions of the two agencies differ greatly. Whereas the EEOC reviews 
discrimination complaints in order to provide relief to victims of 
discrimination, the FCC's principal concern with respect to 
discrimination allegations is to determine the fitness of broadcasters 
and cable entities to fulfill their obligations under the 
Communications Act. Moreover, the Memorandum of Understanding Between 
the Federal Communications Commission and the Equal Employment 
Opportunity Commission, 51 FR 21798 (1986), coordinates and minimizes 
overlap of the enforcement efforts of the two agencies.
    Report to Congress: The Commission will send a copy of the Report 
and Order, including this FRFA, in a report to be sent to Congress 
pursuant to the Small Business Regulatory Enforcement Fairness Act of 
1996, 5 U.S.C. 801(a)(1)(A). In addition, the Commission's Consumer 
Information Bureau, Reference Information Center, will send a copy of 
this Report and Order, including this FRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration. A copy of the Report and 
Order and FRFA (or summaries thereof) will also be published in the 
Federal Register.

List of Subjects

47 CFR Part 0

    Organization and functions (Government agencies).

47 CFR Part 73

    Radio, Equal employment opportunity, Reporting and recordkeeping 
requirements, Television.

47 CFR Part 76

    Cable television, Equal employment opportunity, Reporting and 
recordkeeping requirements.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 0, 73 and 76 as follows:

PART 0--COMMISSION ORGANIZATION

    1. The authority citation for part 0 continues to read as follows:

    Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 
225, unless otherwise noted.

    2. Section 0.283 is amended by revising paragraph (b)(1)(iii) to 
read as follows:


Sec. 0.283  Authority delegated.

* * * * *
    (b) * * *
    (1) * * *
    (iii) Present documented allegations of failure to comply with the 
Commission's Equal Employment Opportunity rules and policies.
* * * * *

PART 73--RADIO BROADCAST SERVICES

    3. The authority citation for part 73 continues to read as follows:

    Authority: 47 U.S.C. 154, 303, 334 and 336.

    4. Section 73.2080 is revised as follows:


Sec. 73.2080  Equal employment opportunities (EEO rule).

    (a) General EEO policy. Equal opportunity in employment shall be 
afforded by all licensees or permittees of commercially or 
noncommercially operated AM, FM, TV or international broadcast stations 
(as defined in this part) to all qualified persons, and no person shall 
be discriminated against in employment by such stations because of 
race, color, religion, national origin, or sex. Religious radio 
broadcasters may establish religious belief or affiliation as a job 
qualification for all station employees. However, they cannot 
discriminate on the basis of race, color, national origin or gender 
from among those who share their religious affiliation or belief. For 
purposes of this rule, a religious broadcaster is a licensee which is, 
or is closely affiliated with, a church, synagogue, or other religious 
entity, including a subsidiary of such an entity.
    (b) General EEO program requirements. Each broadcast station shall 
establish, maintain, and carry out a positive continuing program of 
specific practices designed to ensure equal opportunity and 
nondiscrimination in every aspect of station employment policy and 
practice. Under the terms of its program, a station shall:
    (1) Define the responsibility of each level of management to ensure 
vigorous enforcement of its policy of equal opportunity, and establish 
a procedure to review and control managerial and supervisory 
performance;
    (2) Inform its employees and recognized employee organizations of 
the equal employment opportunity policy and program and enlist their 
cooperation;
    (3) Communicate its equal employment opportunity policy and program 
and its employment needs to sources of qualified applicants without 
regard to race, color, religion, national origin, or sex, and solicit 
their recruitment assistance on a continuing basis;
    (4) Conduct a continuing program to exclude all unlawful forms of 
prejudice or discrimination based upon race, color, religion, national 
origin, or sex from its personnel policies and practices and working 
conditions; and
    (5) Conduct a continuing review of job structure and employment 
practices and adopt positive recruitment, job design, and other 
measures needed to ensure genuine equality of opportunity to 
participate fully in all organizational units, occupations, and levels 
of responsibility.
    (c) Specific EEO program requirements. Under the terms of its 
program, a station employment unit must:

[[Page 7455]]

    (1) Recruit for every job vacancy in its operation. A job filled by 
an internal promotion is not considered a vacancy for which recruitment 
is necessary. Religious radio broadcasters who establish religious 
affiliation as a qualification for a job position are not required to 
comply with these recruitment requirements with respect to that job 
position or positions, but will be expected to make reasonable, good 
faith efforts to recruit applicants who are qualified based on their 
religious affiliation. Nothing in this section shall be interpreted to 
require a broadcaster to grant preferential treatment to any individual 
or group based on race, color, national origin, religion, or gender.
    (i) A station employment unit shall use recruitment sources for 
each vacancy sufficient in its reasonable, good faith judgment to 
widely disseminate information concerning the vacancy.
    (ii) In addition to such recruitment sources, a station employment 
unit shall provide notification of each vacancy to any organization 
that distributes information about employment opportunities to job 
seekers or refers job seekers to employers, upon request by such 
organization. To be entitled to notice of vacancies, the requesting 
organization must provide the station employment unit with its name, 
mailing address, e-mail address (if applicable), telephone number, and 
contact person, and identify the category or categories of vacancies of 
which it requests notice. (An organization may request notice of all 
vacancies).
    (2) Engage in at least four (if the station employment unit has 
more than ten full-time employees) or two (if it has five to ten full-
time employees) of the following initiatives during each two-year 
period preceding the filing of a Statement of Compliance pursuant to 
subsection (g) hereof:
    (i) Participation in at least four job fairs by station personnel 
who have substantial responsibility in the making of hiring decisions;
    (ii) Hosting of at least one job fair;
    (iii) Co-sponsoring at least one job fair with organizations in the 
business and professional community whose membership includes 
substantial participation of women and minorities;
    (iv) Participation in at least four events sponsored by 
organizations representing groups present in the community interested 
in broadcast employment issues, including conventions, career days, 
workshops, and similar activities;
    (v) Establishment of an internship program designed to assist 
members of the community to acquire skills needed for broadcast 
employment;
    (vi) Participation in job banks, internet programs, and other 
programs designed to promote outreach generally (i.e., that are not 
primarily directed to providing notification of specific job 
vacancies);
    (vii) Participation in scholarship programs designed to assist 
students interested in pursuing a career in broadcasting;
    (viii) Establishment of training programs designed to enable 
station personnel to acquire skills that could qualify them for higher 
level positions;
    (ix) Establishment of a mentoring program for station personnel;
    (x) Participation in at least four events or programs sponsored by 
educational institutions relating to career opportunities in 
broadcasting;
    (xi) Sponsorship of at least two events in the community designed 
to inform and educate members of the public as to employment 
opportunities in broadcasting;
    (xii) Listing of each upper-level category opening in a job bank or 
newsletter of media trade groups whose membership includes substantial 
participation of women and minorities;
    (xiii) Participation in other activities designed by the station 
employment unit reasonably calculated to further the goal of 
disseminating information as to employment opportunities in 
broadcasting to job candidates who might otherwise be unaware of such 
opportunities.
    (3) Analyze its recruitment program on an ongoing basis to ensure 
that it is effective in achieving broad outreach to potential 
applicants, and address any problems found as a result of its analysis.
    (4) Periodically analyze measures taken to:
    (i) Disseminate the station's equal employment opportunity program 
to job applicants and employees;
    (ii) Review seniority practices to ensure that such practices are 
nondiscriminatory;
    (iii) Examine rates of pay and fringe benefits for employees having 
the same duties, and eliminate any inequities based upon race, national 
origin, color, religion, or sex discrimination;
    (iv) Utilize media for recruitment purposes in a manner that will 
contain no indication, either explicit or implicit, of a preference for 
one race, national origin, color, religion or sex over another;
    (v) Ensure that promotions to positions of greater responsibility 
are made in a nondiscriminatory manner;
    (vi) Where union agreements exist, cooperate with the union or 
unions in the development of programs to assure all persons equal 
opportunity for employment, irrespective of race, national origin, 
color, religion, or sex, and include an effective nondiscrimination 
clause in new or renegotiated union agreements; and
    (vii) Avoid the use of selection techniques or tests that have the 
effect of discriminating against any person based on race, national 
origin, color, religion, or sex.
    (5) Retain records to document that it has satisfied the 
requirements of paragraphs (c) (1) and (2) of this section. Such 
records, which may be maintained in an electronic format, shall be 
retained until after grant of the renewal application for the term 
during which the vacancy was filled or the initiative occurred. Such 
records need not be submitted to the FCC unless specifically requested. 
The following records shall be maintained:
    (i) Listings of all full-time job vacancies filled by the station 
employment unit, identified by job title;
    (ii) For each such vacancy, the recruitment sources utilized to 
fill the vacancy (including, if applicable, organizations entitled to 
notification pursuant to paragraph (c)(1)(ii) of this section, which 
should be separately identified), identified by name, address, contact 
person and telephone number;
    (iii) Dated copies of all advertisements, bulletins, letters, 
faxes, e-mails, or other communications announcing vacancies;
    (iv) Documentation necessary to demonstrate performance of the 
initiatives required by paragraph (c)(2) of this section, if 
applicable, including sufficient information to fully disclose the 
nature of the initiative and the scope of the station's participation, 
including the station personnel involved;
    (v) The total number of interviewees for each vacancy and the 
referral source for each interviewee; and
    (vi) The date each vacancy was filled and the recruitment source 
that referred the hiree.
    (6) Annually, on the anniversary of the date a station is due to 
file its renewal application, the station shall place in its public 
file, maintained pursuant to Sec. 73.3526 or Sec. 73.3527, and on its 
web site, if it has one, an EEO public file report containing the 
following information:
    (i) A list of all full-time vacancies filled by the station's 
employment unit during the preceding year, identified by job title;
    (ii) For each such vacancy, the recruitment source(s) utilized to 
fill the vacancy (including, if applicable, organizations entitled to 
notification

[[Page 7456]]

pursuant to paragraph (c)(1)(ii) of this section, which should be 
separately identified), identified by name, address, contact person and 
telephone number;
    (iii) The recruitment source that referred the hiree for each full-
time vacancy during the preceding year;
    (iv) Data reflecting the total number of persons interviewed for 
full-time vacancies during the preceding year and the total number of 
interviewees referred by each recruitment source utilized in connection 
with such vacancies; and
    (v) A list and brief description of initiatives undertaken pursuant 
to paragraph (c)(2) of this section during the preceding year, if 
applicable.
    (7) Stations shall substantially comply with paragraph (c)(1)(i) of 
this section in connection with hires for part-time positions. The 
provisions of paragraph (c) are not otherwise applicable to hires for 
part-time positions.
    (d) Alternative recruitment requirements. A station employment unit 
may elect not to utilize the provisions of paragraph (c)(1)(ii) 
(notification to community groups) and (c)(2) (menu options) of this 
section, provided that it complies with the following requirements:
    (1) The station employment unit shall maintain records as required 
by paragraph (c)(5)(i) through (iii) of this section and shall 
maintain, in lieu of the records required by paragraph (c)(5)(iv) 
through (vi) of this section, data reflecting the recruitment source, 
gender, and racial and/or ethnic status of applicants for each full-
time job vacancy filled by the station employment unit;
    (2) The station employment unit shall include in the annual EEO 
public file report required by paragraph (c)(6) of this section the 
information specified in paragraph (c)(6)(i) and (ii) and, in lieu of 
the information required by paragraph (c)(6)(iii) through (v), data 
reflecting, for each recruitment source utilized for any full-time 
vacancy during the preceding year, the total number of applicants 
generated by that source, the number of applicants who were female, and 
the number of applicants who were minority, identified by the 
applicable racial and/or ethnic group with which each applicant is 
associated.
    (3) Station employment units electing to proceed under this 
paragraph shall otherwise comply with the requirements specified in 
paragraph (c) of this section.
    (e) Election procedures. Within forty-five days of the effective 
date of this section, each station employment unit shall elect whether 
it wishes to utilize the recruitment procedures specified in paragraph 
(c) of this section or the alternate recruitment procedures specified 
in paragraph (d) of this section and shall file with the Commission a 
statement indicating the election which shall also be placed in the 
station(s) public inspection file maintained pursuant to Sec. 73.3526 
or Sec. 73.3527. An applicant for a new station or for the transfer or 
assignment of an existing license filed on FCC Form 314 or 315 shall 
state its election on FCC Form 396-A submitted with the application. A 
station employment unit may change its election every two years at the 
time of the filing of the Statement of Compliance referenced in 
paragraph (i)(1) of this section, or at the time of the filing of its 
renewal application. If the station employment unit wishes to change 
its election, it shall so state in its Statement of Compliance or FCC 
Form 396 accompanying the renewal application.
    (f) Mid-term review for broadcast stations. The Commission will 
conduct a mid-term review of the employment practices of each broadcast 
television station and each radio station that is part of an employment 
unit of more than ten full-time employees four years following the 
station's most recent license expiration date as specified in 
Sec. 73.1020. Each such licensee is required to file with the 
Commission the station's EEO public file report, as described in 
paragraphs (c)(6) or (d)(2) of this section, along with the relevant 
Statement of Compliance (Form 397), as described in paragraph (i)(1) of 
this section, four months before the date specified in the previous 
sentence. The EEO public file report should cover the station's 
activities during the 12-month period prior to its submission.
    (g) Small station exemption. The provisions of paragraphs (b), (c), 
(d), (e), and (f) of this section shall not apply to station employment 
units that have fewer than five full-time employees.
    (h) Definitions. For the purposes of this section:
    (1) A full-time employee is a permanent employee whose regular work 
schedule is 30 hours per week or more. A part-time employee is a 
permanent employee whose regular work schedule is less than 30 hours 
per week.
    (2) A station employment unit is a station or a group of commonly 
owned stations in the same market that share at least one employee.
    (i) Enforcement. The following provisions apply to employment 
activity concerning full-time positions at each broadcast station 
employment unit (defined in this part) employing five or more persons 
in full-time positions, except where noted.
    (1) Each broadcast station shall file with the Commission a 
Statement of Compliance (FCC Form 397) stating whether the station has 
complied with the outreach provisions of this section during the two-
year period prior to the date the station files the Statement. Before 
filing the Statement, stations shall review their recruitment activity 
during the two-year period along with requirements of this section and 
determine whether they have been in compliance with of this section 
during the relevant period. The Statement of Compliance shall also 
report any change in the station's recruitment election pursuant to 
paragraph (e) of this section. All broadcast stations, including those 
that are part of an employment unit with fewer than five full-time 
employees, shall file a Broadcast Equal Employment Opportunity Program 
Report (Form 396) with their renewal application. As with Form 397, 
stations shall indicate on Form 396 whether they have complied with of 
this section. In addition, stations shall provide a narrative statement 
demonstrating how their recruitment efforts achieved broad and 
inclusive outreach during the two years prior to filing the Form 396. 
Stations should also include in Form 396 any change in recruitment 
election pursuant to paragraph (e) of this section. If the station 
believes it was not or may not have been in compliance, it shall submit 
an appropriate explanation on Form 396 or 397, as applicable. The 
Statement of Compliance (Form 397) is filed every second, fourth and 
sixth year of the license term, on the anniversary of the date the 
station is due to file its application for renewal of license. Form 396 
is filed on the date the station is due to file its application for 
renewal of license. If a broadcast licensee acquires a station pursuant 
to FCC Form 314 or FCC Form 315 during the period that is to form the 
basis for the Statement of Compliance or Form 396, its Statement should 
be based on the licensee's EEO recruitment activity during the period 
starting with the date it acquired the station. Stations are required 
to maintain a copy of their Statement of Compliance and Form 396 in the 
station's public file in accordance with the provisions of 
Secs. 73.3526 and 73.3527.
    (2) On the date a station is due to file for renewal of license, as 
part of Form 396, it shall file with the Commission an EEO public file 
report concerning recruitment activity during the 12-month period 
preceding the filing date. The required contents of the public file 
report are described in paragraphs (c)(6)

[[Page 7457]]

or (d)(2) of this section. On the date each television station or radio 
station which is part of an employment unit with more than ten full-
time employees files its Statement of Compliance (Form 397) at the mid-
term point of its license term, the station shall file, together with 
Form 397, an EEO public file report concerning recruitment activity 
during the 12-month period prior to filing the EEO public file report. 
If any broadcast licensee acquires a station pursuant to FCC Form 314 
or FCC Form 315 during the twelve months covered by the EEO public file 
report, its EEO public file report shall cover the period starting with 
the date it acquired the station.
    (3) If a station is subject to a time brokerage agreement, the 
licensee shall file Statements of Compliance, Forms 396, and EEO public 
file reports concerning only its own recruitment activity. If a 
licensee is a broker of another station or stations, the licensee-
broker shall include its recruitment activity for the brokered 
station(s) in determining the bases of the Statements of Compliance, 
Forms 396 and the EEO public file reports for its own station. If a 
licensee-broker owns more than one station, it shall include its 
recruitment activity for the brokered station in the Statements of 
Compliance, Forms 396, and EEO public file reports filed for its own 
station that is most closely affiliated with, and in the same market 
as, the brokered station. If a licensee-broker does not own a station 
in the same market as the brokered station, then it shall include its 
recruitment activity for the brokered station in the Statements of 
Compliance, Forms 396, and EEO public file reports filed for its own 
station that is geographically closest to the brokered station.
    (4) Broadcast stations subject to this section shall maintain 
records of their recruitment activity necessary to demonstrate that 
they are in compliance with this section. Stations shall ensure that 
they maintain records sufficient to verify the accuracy of information 
provided in Statements of Compliance, Forms 396, and EEO public file 
reports. To determine compliance with this section, the Commission may 
conduct inquiries of licensees at random or if it has evidence of a 
possible violation of this section. In addition, the Commission will 
conduct random audits. Specifically, each year approximately five 
percent of all licensees in the television and radio services will be 
randomly selected for audit, ensuring that, even though the number of 
radio licensees is significantly larger than television licensees, both 
services are represented in the audit process. Upon request, stations 
shall make records available to the Commission for its review.
    (5) The public may file complaints throughout the license term 
based on a station's Statement of Compliance or the contents of a 
station's public file. Provisions concerning filing, withdrawing, or 
non-filing of informal objections or petitions to deny license renewal, 
assignment, or transfer applications are delineated in Secs. 73.3584 
and 73.3587-73.3589.
    (j) Sanctions and remedies. The Commission may issue appropriate 
sanctions and remedies for any violation of this section.

    5. Section 73.3526 is amended by revising paragraph (e)(7) to read 
as follows:


Sec. 73.3526  Local public inspection file of commercial stations.

* * * * *
    (e) * * *
    (7) Equal Employment Opportunity file. Such information as is 
required by Sec. 73.2080 to be kept in the public inspection file. 
These materials shall be retained until final action has been taken on 
the station's next license renewal application.
* * * * *
    6. Section 73.3527 is amended by revising paragraph (e)(6) to read 
as follows:


Sec. 73.3527  Local public inspection file of noncommercial educational 
stations.

* * * * *
    (e) * * *
    (6) Equal Employment Opportunity file. Such information as is 
required by Sec. 73.2080 to be kept in the public inspection file. 
These materials shall be retained until final action has been taken on 
the station's next license renewal application.
* * * * *

PART 76--CABLE TELEVISION SERVICE

    7. The authority citation for part 76 continues to read as follows:

    Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 
307, 308, 309, 312, 315, 317, 325, 503, 521, 522, 531, 532, 533, 
534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 
558, 560, 561, 571, 572, 573.

    8. Section 76.75 is amended by revising the undesignated 
introductory text, paragraphs (b), (c) and (f) and adding paragraphs 
(g), (h), (i), (j) and (k) to read as follows:


Sec. 76.75  Specific EEO program requirements.

    Under the terms of its program, an employment unit must:
* * * * *
    (b) Establish, maintain and carry out a positive continuing program 
of outreach activities designed to ensure equal opportunity and 
nondiscrimination in employment. The following activities shall be 
undertaken by each employment unit:
    (1) Recruit for every job vacancy in its operation. A job filled by 
an internal promotion is not considered a vacancy for which recruitment 
is necessary. Nothing in this section shall be interpreted to require a 
cable entity to grant preferential treatment to any individual or group 
based on race, national origin, color, religion, age, or gender.
    (i) An employment unit shall use recruitment sources for each 
vacancy sufficient in its reasonable, good faith judgment to widely 
disseminate information concerning the vacancy.
    (ii) In addition to using such recruitment sources, a cable 
employment unit shall provide notification of each vacancy to any 
organization that distributes information about employment 
opportunities to job seekers or refers job seekers to employers, upon 
request by such organization. To be entitled to notice of vacancies, 
the requesting organization must provide the cable employment unit with 
its name, mailing address, e-mail address (if applicable), telephone 
number, and contact person, and identify the category or categories of 
vacancies of which it requests notice. (An organization may request 
notice of all vacancies).
    (2) Engage in at least two (if the unit has more than ten full-time 
employees) or one (if the unit has six to ten full-time employees) of 
the following initiatives during each twelve-month period preceding the 
filing of an annual employment report:
    (i) Participation in at least two job fairs by unit personnel who 
have substantial responsibility in the making of hiring decisions;
    (ii) Hosting of at least one job fair;
    (iii) Co-sponsoring at least one job fair with organizations in the 
business and professional community whose membership includes 
substantial participation of women and minorities;
    (iv) Participation in at least two events sponsored by 
organizations representing groups present in the community interested 
in cable employment issues, including conventions, career days, 
workshops, and similar activities;

[[Page 7458]]

    (v) Establishment of an internship program designed to assist 
members of the community in acquiring skills needed for cable 
employment;
    (vi) Participation in job banks, internet programs, and other 
programs designed to promote outreach generally (i.e., that are not 
primarily directed to providing notification of specific job 
vacancies);
    (vii) Participation in a scholarship program designed to assist 
students interested in pursuing a career in cable communications;
    (viii) Establishment of training programs designed to enable unit 
personnel to acquire skills that could qualify them for higher level 
positions;
    (ix) Establishment of a mentoring program for unit personnel;
    (x) Participation in at least two events or programs sponsored by 
educational institutions relating to career opportunities in cable 
communications;
    (xi) Sponsorship of at least one event in the community designed to 
inform and educate members of the public as to employment opportunities 
in cable communications;
    (xii) Listing of each upper-level category opening in a job bank or 
newsletter of media trade groups whose membership includes substantial 
participation of women and minorities; and
    (xiii) Participation in other activities reasonably calculated by 
the unit to further the goal of disseminating information as to 
employment opportunities in cable communications to job candidates who 
might otherwise be unaware of such opportunities.
    (c) Retain records sufficient to document that it has satisfied the 
requirements of paragraphs (b)(1) and (b)(2) of this section. Such 
records, which may be maintained in an electronic format, shall be 
retained for a period of seven years. Such records need not be 
submitted to the Commission unless specifically requested. The 
following records shall be maintained:
    (1) Listings of all full-time job vacancies filled by the cable 
employment unit, identified by job title;
    (2) For each such vacancy, the recruitment sources utilized to fill 
the vacancy (including, if applicable, organizations entitled to 
notification pursuant to paragraph (b)(1)(ii) of this section, which 
should be separately identified), identified by name, address, contact 
person, and telephone number;
    (3) Dated copies of all advertisements, bulletins, letters, faxes, 
e-mails, or other communications announcing job vacancies;
    (4) Documentation necessary to demonstrate performance of the 
initiatives required by paragraph (b)(2) of this section, if 
applicable, including information sufficient to fully disclose the 
nature of the initiative and the scope of the unit's participation, 
including the unit personnel involved;
    (5) The total number of interviewees for each vacancy and the 
referral sources for each interviewee; and
    (6) The date each vacancy was filled and the recruitment source 
that referred the hiree.
* * * * *
    (f) A cable entity may elect not to utilize the provisions of 
paragraphs (b)(1)(ii) (notification to requesting community groups) and 
(b)(2) (menu options) hereof, provided that it complies with the 
following alternative recruitment requirements:
    (1) The employment unit shall maintain records as required by 
paragraph (c)(1) through (c)(3) of this section, and shall maintain, in 
lieu of the records required by paragraph (c)(4) through (c)(6) of this 
section, data reflecting the recruitment source, gender, and racial 
and/or ethnic status of applicants for each full-time job vacancy 
filled by the employment unit;
    (2) The employment unit shall place annually in its public file 
maintained pursuant to Sec. 76.1702 the information specified in 
Sec. 76.1702(b)(1) and (2) and, in lieu of the information required by 
Sec. 76.1702(b)(3) through (5), data reflecting, for each recruitment 
source utilized for any full-time vacancy during the preceding year, 
the total number of applicants generated by that source, the number of 
applicants who were female, and the number of applicants who were 
minority, identified by the applicable racial and/or ethnic group with 
which each applicant is associated.
    (3) Cable employment units electing to proceed under this paragraph 
shall otherwise comply with the requirements specified in paragraph (b) 
of this section.
    (g) A cable entity shall analyze its recruitment program on an 
ongoing basis to ensure that it is effective in achieving broad 
outreach, and address any problems found as a result of its analysis.
    (h) Within forty-five days of the effective date of this paragraph 
(h) each cable employment unit with six or more fulltime employees 
shall elect whether it wishes to utilize the recruitment procedures 
specified in paragraph (b) of this section or the alternate recruitment 
procedures specified in paragraph (f) of this section and shall file 
with the Commission a statement indicating the election which shall 
also be placed in the public inspection file maintained pursuant to 
Sec. 76.1702. An employment unit may change its election annually at 
the time of the filing of the FCC Form 395-A or FCC Form 395-M. If the 
employment unit wishes to change its election, it shall so state in its 
FCC Form 395-A or FCC Form 395-M. A cable employment unit may also 
change its election at the time of a substantial change in its 
ownership by placing a statement of its new election in the public 
inspection file.
    (i) Analyze on an ongoing basis its efforts to recruit, hire, 
promote and use services without discrimination on the basis of race, 
national origin, color, religion, age, or sex and explain any 
difficulties encountered in implementing its equal employment 
opportunity program. For example, this requirement may be met by:
    (1) Where union agreements exist, cooperating with the union or 
unions in the development of programs to assure all persons equal 
opportunity for employment, and including an effective 
nondiscrimination clause in new or renegotiated union agreements;
    (2) Reviewing seniority practices to ensure that such practices are 
nondiscriminatory;
    (3) Examining rates of pay and fringe benefits for employees having 
the same duties, and eliminating any inequities based upon race, 
national origin, color, religion, age, or sex discrimination;
    (4) Evaluating the recruitment program to ensure that it is 
effective in achieving a broad outreach to potential applicants.
    (5) Utilizing media for recruitment purposes in a manner that will 
contain no indication, either explicit or implicit, of a preference for 
one race, national origin, color, religion, age, or sex over another; 
and
    (6) Avoiding the use of selection techniques or tests that have the 
effect of discriminating against qualified minority groups or women.
    (j) Cable entities shall substantially comply with paragraph 
(b)(1)(i) of this section in connection with hires for part-time 
positions. The remaining provisions of this section are not otherwise 
applicable to hires for part-time positions but are applicable only to 
full-time positions, defined as requiring a regular work schedule of 30 
or more hours per week.
    (k) The provisions of paragraphs (b)(1)(ii), (b)(2), (c), (f) and 
(g) of this section shall not apply to cable employment units that have 
fewer than six full-time employees.

    9. Section 76.77 is amended by revising paragraphs (a), (b), and 
(c), and

[[Page 7459]]

adding paragraphs (e), (f), and (g) to read as follows:


Sec. 76.77  Reporting requirements and enforcement.

    (a) Annual employment reports. Employment data on the annual 
employment report required by Sec. 76.1802 shall reflect the figures 
from any one payroll period in July, August, or September of the year 
during which the report is filed. Unless instructed otherwise by the 
Commission, the same payroll period shall be used for each successive 
annual employment report. Employment units shall also provide EEO 
recruitment information covering a 12-month period, as requested and 
explained on the form. If a cable entity acquires a unit during the 
twelve months covered by the annual employment report, the recruitment 
activity in the report shall cover the period starting with the date 
the entity acquired the unit.
    (b) Certification of Compliance. The Commission will use the 
recruitment information submitted on a unit's annual employment report 
to determine whether the unit is in compliance with the provisions of 
this subpart. Employment profile statistics provided about race, 
ethnicity, and gender of employees will not be used to determine 
compliance with the EEO rules. Units found to be in compliance with 
these rules will receive a Certificate of Compliance. Units found not 
to be in compliance will receive notice that they are not certified for 
a given year.
    (c) Investigations. The Commission will investigate each unit at 
least once every five years. Employment units are required to submit 
supplemental investigation information with their regular annual 
employment reports in the years they are investigated. If an entity 
acquires a unit during the period covered by the supplemental 
investigation, the information submitted by the unit as part of the 
investigation shall cover the period starting with the date the 
operator acquired the unit. The supplemental investigation information 
shall include a copy of the unit's EEO public file report for the 
preceding year.
* * * * *
    (e) Records and inquiries. Employment units subject to this subpart 
shall maintain records of their recruitment activity in accordance with 
Sec. 76.75 to demonstrate whether they are in compliance with the EEO 
rules. Units shall ensure that they maintain records sufficient to 
verify the accuracy of information provided in their annual employment 
reports, supplemental investigation responses, and in the EEO program 
information required by Sec. 76.1702 to be kept in a unit's public 
file. To determine compliance with the EEO rules, the Commission may 
conduct inquiries of employment units at random or if the Commission 
has evidence of a possible violation of the EEO rules. Upon request, 
employment units shall make records available to the Commission for its 
review.
    (f) Public complaints. The public may file complaints based on 
annual employment reports, supplemental investigation information, or 
the contents of a unit's public file.
    (g) Sanctions and remedies. The Commission may issue appropriate 
sanctions and remedies for any violation of the EEO rules.
    10. Section 76.79 is revised to read as follows:


Sec. 76.79  Records available for public inspection.

    A copy of every annual employment report, and any other employment 
report filed with the Commission, and complaint report that has been 
filed with the Commission, and copies of all exhibits, letters, and 
other documents filed as part thereof, all amendments thereto, all 
correspondence between the cable entity and the Commission pertaining 
to the reports after they have been filed in all documents incorporated 
therein by reference, unless specifically exempted from the 
requirement, are open for public inspection at the offices of the 
Commission in Washington, D.C.

    Note to Sec. 76.59: Cable operators must also comply with the 
public file requirements Sec. 76.1702.


    11. Section 76.1702 is added to read as follows:


Sec. 76.1702  Equal employment opportunity.

    (a) Every employment unit with six or more full-time employees 
shall maintain for public inspection a file containing copies of all 
annual employment reports filed with the Commission pursuant to 
Sec. 76.77 and the equal employment opportunity program information 
described in paragraph (b) or (c) of this section. These materials 
shall be placed in the unit's public inspection file annually by the 
date that the unit's annual employment report is due to be filed and 
shall be retained for a period of five years. The public inspection 
file should also contain the election information required by 
Sec. 76.75 (h), insofar as it is not included in the entity's annual 
employment report. The file shall be maintained at the central office 
and at every location with six or more full-time employees. A 
headquarters employment unit file and a file containing a consolidated 
set of all documents pertaining to the other employment units of a 
multiple cable operator shall be maintained at the central office of 
the headquarters employment unit. The cable entity shall provide 
reasonable accommodation at these locations for undisturbed inspection 
of its equal employment opportunity records by members of the public 
during regular business hours.
    (b) The following equal employment opportunity program information 
shall be included annually in the unit's public file, and on the unit's 
web site, if it has one, at the time of the filing of its FCC Form 395-
A or FCC Form 395-M, except as indicated in paragraph (c) of this 
section:
    (1) A list of all full-time vacancies filled by the cable 
employment unit during the preceding year, identified by job title;
    (2) For each such vacancy, the recruitment source(s) utilized to 
fill the vacancy (including, if applicable, organizations entitled to 
notification pursuant to Sec. 76.75(b)(1)(ii), which should be 
separately identified), identified by name, address, contact person and 
telephone number;
    (3) The recruitment source that referred the hiree for each full-
time vacancy during the preceding year;
    (4) Data reflecting the total number of persons interviewed for 
full-time vacancies during the preceding year and the total number of 
interviewees referred by each recruitment source utilized in connection 
with such vacancies; and
    (5) A list and brief description of the initiatives undertaken 
pursuant to Sec. 76.75(b)(2) during the preceding year, if applicable.
    (c) An entity that elects to utilize the alternative recruitment 
procedure pursuant to Sec. 76.75(f) shall annually include in the 
public inspection file the information required therein.
    12. Section 76.1802 is added to read as follows:


Sec. 76.1802  Equal employment opportunity.

    Each employment unit with six or more full-time employees shall 
file an annual employment report on FCC Form 395-A (if cable operator 
or SMATV) or Form 395-M (if MVPD) with the Commission on or before 
September 30 of each year, in accordance with Sec. 76.77.

[FR Doc. 00-3067 Filed 2-14-00; 8:45 am]
BILLING CODE 6712-01-U