[Federal Register Volume 69, Number 120 (Wednesday, June 23, 2004)]
[Proposed Rules]
[Pages 34986-34988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14121]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 73 and 76

[MM Docket No. 98-204; FCC 04-103]
RIN 3060-AH95


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: The Commission solicits comment on its multichannel video 
programming distributor (``MVPD'') equal employment opportunity 
(``EEO'') rules for forms 395-A and 395-B. The Commission seeks comment 
on whether the use of the Confidential Information Protection and 
Statistical Efficiency Act of 2002 (``CIPSEA'') keep broadcaster's 
information confidential and whether the Act is constant.

DATES: Comments are due July 14, 2004; Reply comments are due July 26, 
2004.

FOR FURTHER INFORMATION CONTACT: Lewis Pulley, Policy Division, Media 
Bureau, (202) 418-1450 or [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Media Bureau's 
Fourth Notice of Proposed Rulemaking (``4NPRM'') in MM Docket No. 98-
204; FCC 04-103, adopted April 19, 2004, and released on June 4, 2004. 
The full text of this 4NPRM is available for inspection and copying 
during regular business hours in the FCC Reference Center, 445 Twelfth 
Street, SW., Room CY-A257, Portals II, Washington, DC,

[[Page 34987]]

20554, and may also be purchased from the Commission's copy contractor, 
Best Copy and Printing, Inc., Room CY-B402, telephone (800) 378-3160, 
e-mail http://www.BCPIWEB.com. To request materials in accessible 
formats for people with disabilities (electronic files, large print, 
audio format and Braille), send an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0531 (voice), 418-
7365 (tty).

Synopsis of Fourth Notice of Proposed Rulemaking

    1. Broadcasters have filed FCC Form 395-B, the Broadcast station 
Annual Employment Report, with the Commission for more than thirty 
years. Throughout the form's long history, the Commission has made it 
available to the public for inspection, primarily to accommodate 
Freedom of Information Act requirements. MVPDs have for years filed an 
Annual Employment Report on FCC Form 395-A, which unlike its broadcast 
equivalent, is required by statute to be made available for public 
inspection at the MVPD's central office and at every office where five 
or more full time employees are regularly assigned to work. The 
recently enacted CIPSEA allows agencies to collect information for 
statistical purposes under a pledge of confidentiality. If an agency 
adopts this procedure, the information collected pursuant to CIPSEA is 
exempt from release under the Freedom of Information Act and may not be 
disclosed in an identifiable form for any non-statistical purpose 
without the informed consent of a respondent.
    2. We seek comment on whether a broadcaster's Form 395-B is the 
type of material to which CIPSEA could pertain. As noted, the data 
collected in the employment reports will be used to compile industry 
employment trend reports and reports to Congress, and will not be used 
to determine compliance with our EEO rules. This purpose appears to 
fall within the statutory definition of ``statistical purpose.'' We 
seek comment on what public policy goals might be advanced by making 
this information publicly available even if CIPSEA allows the 
Commission to keep it confidential. We seek comment on whether altering 
our approach would be consistent with Section 334 of the Communications 
Act. We also seek comment on whether altering our approach would be 
appropriate given the efforts of the Advisory Committee on Diversity 
for Communications in the Digital Age.
    3. We seek comment as to whether Congress's clear directive that 
MVPD operators must make Form 395-A available for public inspection at 
their own facilities should be read to suggest an intent that the 
Commission, itself, also make Form 395-A publicly available. In light 
of the directive in Section 554(d)(3)(B) of the Communications Act for 
filers to make 395-A publicly available, we seek comment on whether 
CIPSEA even allows the Commission to keep MVPDs' Form 395-A 
confidential. In addition, does the Congressional directive that MVPDs 
make Form 395-A publicly available have any bearing on whether the Form 
395-B should be made available to the public, as the Commission has 
done for more than thirty years?
    4. Were the Commission to collect such information under a pledge 
of confidentiality, and CIPSEA were to apply, we seek comment on 
whether CIPSEA allows us to keep the identity of the Form 395-B filer 
(i.e., name, address and station) confidential while making the 
station's employment data public. Finally, we seek comment on the 
``tear off'' option proposed by NAB and NASBA under which only the 
station's identifying information would be withheld from public 
inspection, and what such information would be identifying. We seek 
comment as to what policy objectives such an approach would further. We 
also seek comment as to whether use of this option would be consistent 
with CIPSEA or would violate the Federal Records Act.

Procedural Matters

    3. Ex Parte Rules. With respect to the 4NPRM, 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 generally 47 CFR 
1.1202, 1.1203, and 1.1206(a).
    4. Comments and Reply Comments. Pursuant to 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 (1998).
    5. Comments filed through ECFS can be sent as an electronic file 
via the Internet to 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, 
however, 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 get 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. 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 appears in 
the caption of this proceeding, commenters must submit two additional 
copies for each additional docket or rulemaking number. All filings 
must be sent to the Commission's Secretary, Marlene H. Dortch, Office 
of the Secretary, Federal Communications Commission, 445 Twelfth 
Street, SW., TW-A325, Washington, DC 20554.
    6. Parties who choose to file by paper should also submit their 
comments on diskette. These diskettes should be submitted to: Wanda 
Hardy, 445 Twelfth Street, SW., Room 3-A669, Washington DC 20554. Such 
a submission should be on a 3.5 inch diskette formatted in an IBM 
compatible format using Word 97 or compatible software. The diskette 
should be accompanied by a cover letter and should be submitted in 
``read only'' mode. The diskette should be clearly labeled with the 
commenter's name, proceeding (including the docket number in this case, 
MM Docket No. 98-204), type of pleading (comment or reply comment), 
date of submission, and the name of the electronic file on the 
diskette. The label should also include the following phrase, ``Disk 
Copy--Not an Original.'' Each diskette should contain only one party's 
pleadings, preferably in a single electronic file. In addition, 
commenters must send diskette copies to the Commission's copy 
contractor, Best Company and Printing, Inc., Portals II, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554.
    7. Comments and reply comments will be available for public 
inspection during regular hours in the FCC Reference Center, Federal 
Communications Commission, 445 Twelfth Street, SW., CY-A257, 
Washington, DC 20554, or at http://www.fcc.gov/searchtools.html. 
Persons with disabilities who need assistance in the FCC Reference 
Center may contact Bill Cline at (202) 418-2555 TTY, or 
[email protected].

[[Page 34988]]

    8. Initial Regulatory Flexibility Certification. The Regulatory 
Flexibility Act of 1980, as amended (``RFA''), requires that an initial 
regulatory flexibility analysis be prepared for notice-and-comment rule 
making proceedings, unless the agency certifies that ``the rule will 
not, if promulgated, have a significant economic impact on a 
substantial number of small entities.'' The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A ``small business concern'' is one which (1) is independently 
owned and operated; (2) is not dominant in the field of operation; and 
(3) satisfies any additional criteria established by the Small Business 
Administration (SBA).
    9. Initial Paperwork Reduction Act of 1995 Analysis. This document 
seeks comments on the Commission's policies regarding public access to 
data contained in FCC Forms 395-A and 395-B. The policy changes 
proposed relate exclusively to the issue of whether the Commission 
should make the data in these forms available for public inspection. 
Any changes made as a result of the comments received in response to 
this notice will not have a significant economic impact on a 
substantial number of small entities. Therefore, we certify that the 
proposals in this Notice, if adopted, will not have a significant 
economic impact on a substantial number of small entities.
    10. Authority. This 4NPRM 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.

Ordering Clauses

    11. Pursuant to the authority contained in Sections 1, 4(i), 4(k), 
303(r), 334, 403, and 634 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 154(i), 154(k), 303(r), 334, 403, and 554, this 
4NPRM is adopted and part 73 and part 76 of the Commission's Rules are 
amended as set forth.
    12. Comments are due July 14, 2004; Reply comments are due July 26, 
2004.
    13. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of this 4NPRM including 
the Final Regulatory Flexibility Analysis and the Initial Regulatory 
Flexibility Certification, to the Chief Counsel for Advocacy of the 
Small Business Administration.

List of Subjects in 47 CFR Parts 73 and 76

    Cable television, Equal employment opportunity.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 04-14121 Filed 6-22-04; 8:45 am]
BILLING CODE 6712-01-P