[Federal Register Volume 67, Number 242 (Tuesday, December 17, 2002)]
[Proposed Rules]
[Pages 77374-77398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31762]



[[Page 77373]]

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Part VI





Federal Communications Commission





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47 CFR Parts 73 and 76



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

  Federal Register / Vol. 67, No. 242 / Tuesday, December 17, 2002 / 
Proposed Rules  

[[Page 77374]]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR PartS 73 and 76

[MM Docket No. 98-204; FCC 02-303]
RIN 4223


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

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document the Commission solicits comment on how to 
apply Equal Employment Opportunity (``EEO'') rules to part-time 
employees. The Commission also seeks comment on how many and what types 
of positions in the broadcast and multichannel video programming 
distributors (MVPD) industry would fall into the part-time 
classification. The intended effect is to invite comments on all 
aspects of the Commission's proposal.

DATES: Comments are due on or before December 20, 2002; reply comments 
are due on or before January 6, 2003.

FOR FURTHER INFORMATION CONTACT: Estella Salvatierra, Media Bureau, 
(202) 418-1789 or via e-mail at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Media Bureau's 
Third Notice of Proposed Rulemaking (``3rd NPRM'') MM 98-204; FCC 02-
303, adopted November 7, 2002, and released November 20, 2002. The 
complete text of this 3rd NPRM is available for inspection and copying 
during normal business hours in the FCC Reference Center, Room CY-A257, 
445 12th Street, SW., Washington, DC and may also be purchased from the 
Commission's copy contractor, Qualex International, Portals II, 445 
12th Street, SW., Room CY-B-402, Washington, DC 20554, telephone (202) 
863-2893, facsimile (202) 863-2898, or via email [email protected]. 
Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 47 
CFR 1.415 and 1.419 comments may be filed using the Commission's 
Electronic Comment Filing System (ECFS) or by filing paper copies. See 
Electronic Filing of Documents in Rulemaking Proceedings (63 FR 24121, 
May 1, 1998). This document is available in alternative formats 
(computer diskette, large print, audio record, and Braille). Persons 
with disabilities who need documents in these formats may contact Brian 
Millin at (202) 418-7426 (voice), (202) 418-7365 (TTY), or via e mail 
at [email protected]. Parties may submit their comments using the 
Commission's Electronic Comment Filing System (``ECFS'') or by filing 
paper copies. Comments may be filed as an electronic file via the 
Internet at http://www.fcc.gov/e-file/ecfs.html. Generally, only one 
copy of an electronic submission must be filed. If multiple docket or 
rulemaking numbers appear in the caption of this proceeding commenters 
must transmit one electronic copy of the comments to each docket or 
rulemaking number referenced in the caption. In completing the 
transmittal screen, commenters should include their full name, Postal 
Service mailing address, and the applicable docket or rulemaking 
number. Parties may also submit an electronic comment by Internet e-
mail. To obtain filing instructions for e-mail comments, commenters 
should send an e-mail to [email protected], and should include the following 
words in the body of the message: ``get form .'' A sample form and directions will be sent in 
reply. Additional information on ECFS is available at http://www.fcc.gov/e-file/ecfs.html.
    Filings may also be sent by hand or messenger delivery, by 
commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail (although we continue to experience delays in 
receiving U.S. Postal Service mail). Parties who choose to file by 
paper must file an original and four copies of each filing. If more 
than one docket or rulemaking number appear in the caption of this 
proceeding, commenters must submit two additional copies for each 
additional docket or rulemaking number. The Commission's contractor, 
Vistronix, Inc., will receive hand-delivered or messenger-delivered 
paper filings for the Commission's Secretary at 236 Massachusetts 
Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this 
location are 8 a.m. to 7 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes must be disposed of 
before entering the building. Commercial overnight mail (other than 
U.S. Postal Service Express Mail and Priority Mail) must be sent to 
9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service 
first-class mail, Express Mail, and Priority Mail should be addressed 
to 445 12th Street, SW., Washington, DC 20554. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.

Synopsis of Third Notice of Proposed Rulemaking

    1. The EEO rules apply to all ``full-time employees,'' defined as 
those whose regular work schedule is 30 hours or more a week. We have 
previously applied a ``substantial compliance'' policy to positions 
involving less than 30 hours a week, although we did not require 
reporting of this effort and did not focus on part-time hires in our 
review of EEO programs. As discussed, we do not have sufficient 
evidence in the current record to make an informed decision about 
whether and how to apply the new EEO rules and policies to part-time 
positions, defined as less than 30 hours per week. We are thus seeking 
comment on this issue. In particular, we seek comment on how many and 
what types of positions in the broadcast and MVPD industries fall into 
this category, what is the significance of these positions in terms of 
entry into broadcasting, how burdensome compliance with the 
recruitment, record-keeping, and reporting requirements for all or some 
part-time positions would be for broadcasters and MVPDs, and whether 
the requirements applicable to part-time positions should be the same 
as or different from those applicable to full-time positions. We also 
seek comment on whether we should set a minimum number of hours for a 
part-time position to be covered by the rules and, if so, what that 
minimum should be.

Procedural Matters

    2. Ex Parte Rules. With respect to the 3rd NPRM, this is a permit-
but-disclose notice and comment proceeding. Ex parte presentations are 
permitted except during the Sunshine Agenda period, provided they are 
disclosed as provided in the Commission's Rules. See: 47 CFR 1.1202, 
1.1203, and 1.1206(a).
    7. Initial Regulatory Flexibility Analysis. With respect to the 3rd 
NPRM, an IRFA is contained. As required by section 603 of the 
Regulatory Flexibility Act, the Commission has prepared an IRFA of the 
possible significant economic impact on small entities of the proposals 
contained in this 3rd NPRM. Written public comments are requested on 
the IRFA. Comments on the IRFA must be filed in accordance with the 
same filing deadlines as comments on the 3rd NPRM, but they must have a 
distinct heading designating them as responses to the IRFA.

Paperwork Reduction Act

    3. Initial Paperwork Reduction Act of 1995 Analysis. This 3rd NPRM 
contains either a proposed or modified

[[Page 77375]]

information collection in that part-time hires could potentially be 
subject to information collection requirements. As part of our 
continuing effort to reduce paperwork burdens, we invite the general 
public and the Office of Management and Budget (OMB) to take this 
opportunity to comment on the information collections contained in this 
3rd NPRM, as required by the Paperwork Reduction Act of 1995, Public 
Law 104-13. Public and agency comments are due at the same time as 
other comments on this 3rd NPRM; OMB comments are due 60 days from the 
date of publication of this 3rd NPRM in the Federal Register. Comments 
should address: (a) Whether the potential collection of information is 
necessary for the proper performance of the functions of the 
Commission, including whether the information shall have practical 
utility; (b) the accuracy of the Commission's burden estimates; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; and (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology. In 
addition to filing comments with the Secretary, a copy of any comments 
on the information collections contained herein should be submitted to 
Judy Boley, Federal Communications Commission, Room 1-C804, 445 Twelfth 
Street, SW., Washington, DC 20554, or via the Internet to 
[email protected] and to Edward Springer, OMB Desk Officer, 10236 NEOB, 
725 17th Street, NW., Washington, DC 20503, or via the Internet to 
[email protected].

Initial Regulatory Flexibility Analysis

    4. As required by the RFA, the Commission has prepared this present 
IRFA of the possible significant economic impact on small entities by 
the policies and rules proposed in this 3rd NPRM. Written public 
comments are requested on this IRFA. Comments must be identified as 
responses to the IRFA and must be filed by the deadlines for comments 
on the 3rd NPRM provided. The Commission will send a copy of the 3rd 
NPRM, including this IRFA, to the Chief Counsel for Advocacy of the 
Small Business Administration. In addition, the 3rd NPRM and IRFA (or 
summaries thereof) will be published in the Federal Register.

A. Need for, and Objectives of, the Proposed Rule Changes

    5. This 3rd NPRM requests comments concerning the applicability of 
new equal employment opportunity (``EEO'') rules and policies with 
respect to part-time employees of broadcast and multichannel video 
programming distributors (``MVPDs''). The EEO rules apply to full-time 
employees, defined as those whose regular work schedule is 30 hours or 
more a week. The current record is insufficient to allow the Commission 
to determine whether and how to apply the rules to part-time positions, 
defined as fewer than 30 hours per week. The 3rd NPRM seeks comment on 
this issue. In particular, the 3rd NPRM seeks comment on how many and 
what types of positions in the broadcast and MVPD industries fall into 
this category; the significance of these positions in terms of entry 
into broadcasting; how burdensome compliance with the recruitment, 
record-keeping, and reporting requirements for all or some part-time 
positions would be for broadcasters and MVPDs; and whether the 
requirements applicable to part-time positions should be the same as or 
different from those applicable to full-time positions. We also seek 
comment on whether we should set a minimum number of hours for a part-
time position to be covered by the rules and, if so, what that minimum 
should be.

B. Legal Basis

    6. Authority for the actions proposed in this 3rd NPRM may be found 
in sections 1, 4(i), 4(k), 257, 301, 303(r), 307, 308(b), 309, 334, 
403, and 634 of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 154(i), 154(k), 257, 301, 303(r), 307, 308(b), 309, 334, 403, and 
554.

C. Recording, Recordkeeping, and Other Compliance Requirements

    7. As noted, the purpose of this rulemaking is to determine whether 
and how to apply the Commission's EEO rules to employment positions 
involving fewer than 30 hours per week. Hence, this 3rd NPRM 
anticipates that any recording, recordkeeping and compliance 
requirements proposed for part-time employees will not exceed those 
already provided for full-time employees.

D. Description and Estimate of the Number of Small Entities to Which 
the Rule Would Apply

1. Definition of a ``Small Business''
    8. The proposed rules would apply to broadcast stations and MVPDs. 
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 rules adopted herein. Under the RFA, small entities may 
include small organizations, small businesses, and small governmental 
jurisdictions. 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 5 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.''
    9. A small organization is generally ``any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.'' Nationwide, as of 1992, there were 
approximately 275,801 small organizations. Finally, ``small 
governmental jurisdiction'' generally means ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than 50,000.'' As of 1992, there 
were approximately 85,006 such jurisdictions in the United States. This 
number includes 38,978 counties, cities, and towns; of these, 37,566, 
or 96 percent, have populations of fewer than 50,000. The United States 
Bureau of the Census (Census Bureau) estimates that this ratio is 
approximately accurate for all governmental entities. Thus, of the 
85,006 governmental entities, we estimate that 81,600 (91 percent) are 
small entities.
2. Issues in Applying the Definition of a ``Small Business''
    10. As discussed, we could not precisely apply the foregoing 
definition of ``small business'' in developing our estimates of the 
number of small entities to which the rules will apply. Our estimates 
reflect our best judgments based on the data available to us. 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

[[Page 77376]]

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. As discussed further below, 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. The SBA's general size standards are developed taking into 
account these two statutory criteria. This does not preclude us from 
taking these factors into account in making our estimates of the 
numbers of small entities.
    11. With respect to applying the revenue cap, 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 the revenue data on which we rely may not correspond 
completely with the SBA definition of annual receipts.
    12. Under SBA criteria for determining annual receipts, if a 
concern has acquired an affiliate or been acquired as an affiliate 
during the applicable averaging period for determining annual receipts, 
the annual receipts in determining size status include the receipts of 
both firms. The SBA defines affiliation in 13 CFR 121.103. In this 
context, the SBA's definition of affiliate is analogous to our 
attribution rules. Generally, under the SBA's definition, concerns are 
affiliates of each other when one concern controls or has the power to 
control the other, or a third party or parties controls or has the 
power to control both. The SBA considers factors such as ownership, 
management, previous relationships with or ties to another concern, and 
contractual relationships, in determining whether affiliation exists. 
Instead of making an independent determination of whether television 
stations were affiliated based on SBA's definitions, we relied on the 
databases available to us to provide us with that information.
3. Estimates Based on Census Data
    13. The proposed rules will apply to broadcast television and radio 
stations. The SBA defines a television broadcasting station that has no 
more than $12.0 million in annual receipts as a small business. 
Television broadcasting stations consist of establishments primarily 
engaged in broadcasting visual programs by television to the public, 
except cable and other pay television services. 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. Separate establishments primarily engaged in producing taped 
television program materials are classified under other North American 
Industry Classification (NAICS) numbers.
    14. There were 1,695 full-service television stations operating in 
the as of December 2001. According to Census Bureau data for 1997, 
there were 906 Television Broadcasting firms, total, that operated for 
the entire year. Of this total, 734 firms had annual receipts of 
$9,999,999.00 or less and an additional 71 had receipts of $10 million 
to $24,999,999.00. Under this standard, the majority of firms can be 
considered small.
    15. The SBA defines a radio broadcasting station that has no more 
than $6 million in annual receipts as a small business. A radio 
broadcasting station is an establishment primarily engaged in 
broadcasting aural programs by radio to the public. Included in this 
industry are commercial, religious, educational, and other radio 
stations. Radio broadcasting stations which primarily are engaged in 
radio broadcasting and which produce radio program materials are 
similarly included. Radio stations which are separate establishments 
and are primarily engaged in producing radio program material are 
classified under another NAICS number. According to Census Bureau data 
for 1997, there were 4,476 Radio Stations (firms), total, that operated 
for the entire year. Of this total 4,265 had annual receipts of 
$4,999,999.00 or less, and an additional 103 firms had receipts of $5 
million to $9,999,999.00. Under this standard, the great majority of 
firms can be considered small.
    16. The proposed rules would also apply to MVPDs. SBA has developed 
a definition of a small entity for cable and other program 
distribution, which includes all such companies generating $12.5 
million or less in annual receipts. This definition includes direct 
broadcast satellite services (DBS), multipoint distribution systems 
(MDS), and local multipoint distribution service (LMDS). According to 
Census Bureau data for 1997, there were 1,311 firms within the industry 
category Cable and Other Program Distribution, total, that operated for 
the entire year. Of this total, 1,180 firms had annual receipts of 
$9,999,999.00 or less, and an additional 52 firms had receipts of $10 
million to $24,999,999.00. Under this standard, the majority of firms 
can be considered small.
    17. 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. 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. Since then, some of those 
companies may have grown to serve more than 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.
    18. 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 less 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.'' The Commission has determined that there are 67,700,000 
subscribers in the United States. We found that an operator serving 
fewer than 677,000 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 $250 million in the aggregate. Based on 
available data, we find that the number of cable operators serving 
677,000 subscribers or less totals approximately 1,450. Since we do not 
request nor collect information on whether 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.
    19. MDS: MDS involves a variety of transmitters, which are used to 
relay programming to the home or office. The Commission has defined 
``small entity'' for purposes of the 1996 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. This definition of a small entity

[[Page 77377]]

in the context of MDS auctions has been approved by the SBA. These 
stations were licensed prior to implementation of section 309(j) of the 
Communications Act of 1934, as amended. Licenses for new MDS facilities 
are now awarded to auction winners in Basic Trading Areas (BTAs) and 
BTA-like areas. The MDS auctions resulted in 67 successful bidders 
obtaining licensing opportunities for 493 BTAs. Of the 67 auction 
winners, 61 met the definition of a small business.
    20. LMDS: The auction of the 1,030 LMDS licenses began on February 
18, 1998, and closed on March 25, 1998. The Commission defined ``small 
entity'' for LMDS licenses as an entity that has average gross revenues 
of less than $40 million in the three previous calendar years. An 
additional classification for ``very small business'' was added and is 
defined as an entity that, together with its affiliates, has average 
gross revenues of not more than $15 million for the preceding three 
calendar years. These regulations defining ``small entity'' in the 
context of LMDS auctions have been approved by the SBA. There were 93 
winning bidders that qualified as small entities in the LMDS auctions. 
A total of 93 small and very small business bidders won approximately 
277 A Block licenses and 387 B Block licenses. On March 27, 1999, the 
Commission reauctioned 161 licenses; there were 40 winning bidders. 
Based on this information, we conclude that the number of small LMDS 
licenses will include the 93 winning bidders in the first auction and 
the 40 winning bidders in the reauction, for a total of 133 small 
entity LMDS providers as defined by the SBA and the Commission's 
auction rules.
    21. DBS: Because DBS provides subscription services, it falls 
within the SBA-recognized definition of ``Cable and Other Program 
Distribution.'' This definition provides that a small entity is one 
with $12.5 million or less in annual receipts. Currently, there are 
nine DBS authorizations, though there are only two DBS companies in 
operation at this time. We neither request nor collect annual revenue 
information for DBS services, and are unable to determine the number of 
DBS operators that would be considered a small business under the SBA 
definition.
    22. An alternative way to classify small entities is by the number 
of employees. Based on available data, we estimate that in 1997 the 
total number of full-service broadcast stations with four or fewer 
employees was 5186, of which 340 were television stations. Similarly, 
we estimate that in 1997, 1900 cable employment units employed fewer 
than six full-time employees. Also, in 1997, 296 ``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 2145, of which 200 were television stations. 
Similarly, we estimate that in 1997, 322 cable employment units 
employed six to ten full-time employees. Also, in 1997, approximately 
65 MVPD employment units employed six to ten full-time employees.

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

    23. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    24. This 3rd NPRM seeks comments on the applicability of the EEO 
rules to part-time employees, and would not change the status of small 
broadcasters or MVPDs.
    25. We note that the issue at hand affects the compliance burdens 
of entities that, by definition, are not within our EEO small business 
size standards. We have nonetheless created this present initial 
analysis to encourage comments by small entities and create a fuller 
record.
    26. Currently, broadcasters with station employment units of five 
to ten full-time employees are provided some relief from EEO program 
requirements, and station employment units of fewer than five full-time 
employees are not required to demonstrate compliance with the EEO 
program requirements. In addition, MVPD employment units employing six 
to ten full-time employees are provided some relief from the EEO 
program requirements, and MVPD employment units with fewer than six 
full-time employees are not required to demonstrate compliance with the 
EEO program requirements.

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

    27. We note that certain commenters have indicated that federal, 
state and local EEO requirements serve much the same purpose as our EEO 
Rule. We have addressed these arguments in 3rd NPRM.

Ordering Clause

    28. Authority. This 3 NPRM is issued pursuant to authority 
contained in sections 1, 4(i), 4(k), 257, 301, 303(r), 307, 308(b), 
309, 334, 403, and 634 of the Communications Act of 1934, as amended, 
47 U.S.C. 151, 154(i), 154(k), 257, 301, 303(r), 307, 308(b), 309, 334, 
403, and 554.
    29. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this 3rd NPRM 
including the Initial Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.
    30. MM Docket No. 98-204 will remain open for the limited purpose 
of considering the issues raised in this 3rd NPRM, and to facilitate 
any additional proceedings upon further order of the Commission.

List of Subjects in 47 CFR Parts 73 and 76

    Cable television, Equal employment opportunity.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR parts 73 and 76 as 
follows:

PART 73--RADIO BROADCAST SERVICES

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

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

    2. Section 73.2080 is revised to read as follows:


Sec.  73.2080  Equal employment opportunities (EEO).

    (a) General EEO policy. Equal opportunity in employment shall be 
afforded by all licensees or permittees of commercially or 
noncommercially operated AM, FM, TV, Class A 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,

[[Page 77378]]

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:
    (1) Recruit for every full-time 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 full-time 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 and is not located in a smaller 
market) or two (if it has five to ten full-time employees and/or is 
located entirely in a smaller market) of the following initiatives 
during each two-year period beginning with the date stations in the 
station employment unit are required to file renewal applications, or 
the second, fourth or sixth anniversaries of that date.
    (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) Provision of assistance to unaffiliated non-profit entities 
in the maintenance of web sites that provide counseling on the process 
of searching for broadcast employment and/or other career development 
assistance pertinent to broadcasting;
    (xiv) Provision of training to management level personnel as to 
methods of ensuring equal employment opportunity and preventing 
discrimination;
    (xv) Provision of training to personnel of unaffiliated non-profit 
organizations interested in broadcast employment opportunities that 
would enable them to better refer job candidates for broadcast 
positions;
    (xvi) 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;

[[Page 77379]]

    (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 ensure all persons of 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, 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 (although 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):
    (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 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.
    (d) Small Station Exemption. The provisions of paragraphs (b) and 
(c) of this section shall not apply to station employment units that 
have fewer than five full-time employees.
    (e) Definitions. For the purposes of this rule:
    (1) A full-time employee is a permanent employee whose regular work 
schedule is 30 hours per week or more.
    (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.
    (3) A smaller market includes metropolitan areas as defined by the 
Office of Management and Budget with a population of fewer than 250,000 
persons and areas outside of all metropolitan areas as defined by the 
Office of Management and Budget.
    (f) 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) 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. 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 Form 396, 
information provided on its Form 396 should cover 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 
Form 396 in the station's public file in accordance with the provisions 
of Sec. Sec.  73.3526 and 73.3527.
    (2) 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 Broadcast Mid-Term Report (FCC Form 397) four 
months prior to that date. 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 Form 397, its Report should cover the licensee's 
EEO recruitment activity during 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 Forms 396, Forms 397, 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 Forms 396, Forms 397 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 Forms 
396, Forms 397, 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 Forms 396, Forms 
397, and EEO public file reports filed for its

[[Page 77380]]

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 the EEO rule. Stations shall ensure that 
they maintain records sufficient to verify the accuracy of information 
provided in Forms 396, Forms 397, and EEO public file reports. To 
determine compliance with the EEO Rule, the Commission may conduct 
inquiries of licensees at random or if it has evidence of a possible 
violation of the EEO Rule. 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 Form 397 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 Sec. Sec.  73.3584 and 
73.3587-3589 of the Commission's rules.
    (g) Sanctions and Remedies. The Commission may issue appropriate 
sanctions and remedies for any violation of this rule.

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

    3. 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, 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.

    4. Section 76.75 is amended by revising paragraphs (b), (f), (g), 
(h), (i), and (j); and removing paragraph (k), to read as follows:


Sec.  76.75  Specific EEO program requirements.

* * * * *
    (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 full-time 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 multichannel video programming distributor 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 multichannel 
video programming distributor employment unit shall provide 
notification of each full-time 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 multichannel video programming distributor 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 and is not located in a smaller market) or one (if the unit 
has six to ten full-time employees and/or is located, in whole or in 
part, in a smaller market) of the following initiatives during each 
twelve-month period preceding the filing of an EEO program annual 
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 multichannel video programming distributor employment issues, 
including conventions, career days, workshops, and similar activities;
    (v) Establishment of an internship program designed to assist 
members of the community in acquiring skills needed for multichannel 
video programming distributor 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 multichannel video 
programming 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 
multichannel video programming 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 multichannel video programming 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;
    (xiii) Provision of assistance to unaffiliated non-profit entities 
in the maintenance of web sites that provide counseling on the process 
of searching for multichannel video programming employment and/or other 
career development assistance pertinent to multichannel video 
programming communications;
    (xiv) Provision of training to management level personnel as to 
methods of ensuring equal employment opportunity and preventing 
discrimination;
    (xv) Provision of training to personnel of unaffiliated non-profit 
organizations interested in multichannel video programming employment 
opportunities that would enable them to better refer job candidates for 
multichannel video programming positions;
    (xvi) Participation in other activities reasonably calculated by 
the unit to further the goal of disseminating information as to 
employment opportunities in multichannel video programming to job 
candidates who might otherwise be unaware of such opportunities.
* * * * *
    (f) A multichannel video programming distributor 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.

[[Page 77381]]

    (g) 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 ensure 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.
    (h) A full-time employee is a permanent employee whose regular work 
schedule is 30 hours per week or more.
    (i) The provisions of paragraphs (b)(1)(ii), (b)(2), (c), and (f) 
of this section shall not apply to multichannel video programming 
distributor employment units that have fewer than six full-time 
employees.
    (j) For the purposes of this rule, a smaller market includes 
metropolitan areas as defined by the Office of Management and Budget 
with a population of fewer than 250,000 persons and areas outside of 
all metropolitan areas as defined by the Office of Management and 
Budget.
    5. Section 76.77 is revised to read as follows:


Sec.  76.77  Reporting requirements and enforcement.

    (a) EEO program annual reports. Information concerning a unit's 
compliance with the EEO recruitment requirements shall be filed by each 
employment unit with six or more full-time employees on FCC Form 396-C 
on or before September 30 of each year. If a multichannel video 
programming distributor acquires a unit during the twelve months 
covered by the EEO program annual 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 EEO program annual report 
to determine whether the unit is in compliance with the provisions of 
this subpart. 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 EEO program 
annual 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.
    (d) 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 EEO program annual 
reports and the supplemental investigation responses 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.
    (e) Public complaints. The public may file complaints based on EEO 
program annual reports, supplemental investigation information, or the 
contents of a unit's public file.
    (f) Sanctions and remedies. The Commission may issue appropriate 
sanctions and remedies for any violation of the EEO rules.
    6. Section 76.1702 is revised 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 
EEO program annual reports filed with the Commission pursuant to Sec.  
76.77 and the equal employment opportunity program information 
described in paragraph (b) of this section. These materials shall be 
placed in the unit's public inspection file annually by the date that 
the unit's EEO program annual report is due to be filed and shall be 
retained for a period of five years. 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 multichannel video programming distributor that operates 
multiple units shall be maintained at the central office of the 
headquarters employment unit. The multichannel video programming 
distributor 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 396-
C:
    (1) A list of all full-time vacancies filled by the multichannel 
video programming distributor 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) of this section, 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.

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

BILLING CODE 6712-01-P

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Appendix--FCC Forms
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[FR Doc. 02-31762 Filed 12-16-02; 8:45 am]
BILLING CODE 6712-01-C