[Federal Register Volume 84, Number 94 (Wednesday, May 15, 2019)]
[Rules and Regulations]
[Pages 21718-21723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09626]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 18-23; FCC 19-10]


Elimination of Obligation To File Broadcast Mid-Term Report

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission (FCC 
or Commission) eliminates a requirement of our rules that oblige 
certain broadcast television and radio stations to file the FCC 
Broadcast Mid-Term Report (Form 397). This requirement has become 
redundant now that most of the information that the form requests is 
readily accessible online via the Commission's Online Public Inspection 
File (Public File). The Public File will be modified to allow stations 
to indicate whether they are subject to a mid-term review, as this is 
the only information not otherwise available. It therefore finds that 
eliminating this requirement will serve the public interest.

DATES: Effective May 15, 2019.

FOR FURTHER INFORMATION CONTACT: For additional information, contact 
Jonathan Mark, [email protected], of the Media Bureau, Policy 
Division, (202) 418-3634. Direct press inquiries to Janice Wise at 
(202) 418-8165.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order (Order), FCC 19-10, adopted February 14, 2019 and released on 
February 15, 2019. The full text of this document is available 
electronically via the FCC's Electronic Document Management System 
(EDOCS) website at http://fjallfoss.fcc.gov/edocs_public/ or via the 
FCC's Electronic Comment Filing System (ECFS) website at http://fjallfoss.fcc.gov/ecfs2/. (Documents will be available electronically 
in ASCII, Microsoft Word, and/or Adobe Acrobat.) This document is also 
available for public inspection and copying during regular business 
hours in the FCC Reference Information Center, which is located in Room 
CY-A257 at FCC Headquarters, 445 12th Street SW, Washington, DC 20554. 
The Reference Information Center is open to the public Monday through 
Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 a.m. to 11:30 
a.m. The complete text may be purchased from the Commission's copy 
contractor, 445 12th Street SW, Room CY-B402, Washington, DC 20554. 
Alternative formats are available for people with disabilities 
(Braille, large print, electronic files, audio format), by sending an 
email to [email protected] or calling the Commission's Consumer and 
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 
(TTY).

Synopsis

I. Report and Order

    1. In this Report and Order (Order), we eliminate the requirement 
in Section 73.2080(f)(2) of the Commission's rules that certain 
broadcast television and radio stations file the FCC Broadcast Mid-Term 
Report (Form 397). Earlier this year, we issued a Notice of Proposed 
Rulemaking (NPRM) (83 FR 12313) proposing to eliminate Form 397, which 
requires stations to provide equal employment opportunity (EEO) 
information that is generally also available through other sources, 
including stations' online public inspection files.\1\ No commenter 
opposes elimination of this requirement. As set forth below, we 
conclude that eliminating this largely redundant reporting requirement 
will further our efforts to modernize our media rules and reduce 
unnecessary requirements without hindering the Commission's ability to 
conduct mid-term reviews of broadcasters' EEO practices.
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    \1\ Elimination of Obligation to File Broadcast Mid-Term Report 
(Form 397) Under Sec.  73.2080(f)(2); Modernization of Media 
Regulation Initiative, MB Docket Nos. 18-23 and 17-105, Notice of 
Proposed Rulemaking, 33 FCC Rcd 2570 (2018) (NPRM) (83 FR 12313).
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    2. Section 334(b) of the Communications Act of 1934, as amended 
(the Act), directs the Commission to conduct a mid-term review of 
broadcast stations' employment practices. Commission staff reviews the 
EEO practices of broadcast

[[Page 21719]]

television stations in station employment units with five or more full-
time employees,\2\ and radio stations in employment units with eleven 
or more full-time employees, around the midpoint of broadcasters' 
eight-year license terms. After completing a mid-term review, staff 
informs licensees of any necessary improvements in recruitment 
practices to ensure that they are in compliance with the Commission's 
EEO rules.
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    \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. 47 CFR 73.2080(e)(2). To alleviate the burden on small 
entities, the Commission limited obligations to establish an EEO 
program to station employment units with five or more full-time 
employees.
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    3. To facilitate mid-term reviews, the Commission adopted the 
current Form 397 in 2002.\3\ Licensees subject to mid-term review must 
file Form 397 at least four months prior to the four-year anniversary 
of the station's most recent license expiration date. Form 397 consists 
of three sections and requires stations to provide information that, 
with one exception, also is available in their public inspection 
files.\4\ First, stations must certify whether they have the requisite 
number of full-time employees to be subject to a mid-term review.\5\ As 
discussed below, because this piece of information is not otherwise 
available, we will implement a simple mechanism for stations to provide 
it to the Commission via the Online Public Inspection File (OPIF). 
Second, stations must identify, by name and title, ``a particular 
official with overall responsibility for equal employment opportunity 
at the station.'' This official also must be identified in Form 396, 
Broadcast Equal Employment Opportunity Program Report, which must be 
included in a station's public file. Third, all stations subject to 
mid-term review must attach copies of their two most recent annual EEO 
public file reports to Form 397. Each station must also place these 
reports both in its public file and on its website, if it has one, on 
an annual basis. Each of the reports must be retained in the station's 
public file until its next license renewal is granted. Given the 
availability of this information to both the public and Commission 
staff even in the absence of Form 397, the record overwhelmingly 
supports elimination of the obligation to file the form.\6\
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    \3\ Form 397 is available at https://transition.fcc.gov/Forms/Form397/397.pdf. In 2000, eight years after Congress enacted Section 
334, the Commission adopted Form 397 to assist with the mid-term 
review process, among other changes to the EEO rules. See Review of 
the Commission's Broadcast and Cable Equal Employment Opportunity 
Rules and Policies, Report and Order, 15 FCC Rcd 2329, 2385, para. 
136 (2000) (2000 Report and Order) (adopting Form 397, referred to 
as a ``Statement of Compliance,'' as part of the mid-term review 
process and explaining that the form requires licensees to indicate 
whether they have complied with the Commission's EEO rules during 
the relevant review period). In 2001, the D.C. Circuit vacated in 
its entirety the 2000 rulemaking order for reasons unrelated to Form 
397. See MD/DC/DE Broad. Assoc. v. FCC, 236 F.3d 13 (D.C. Cir. 2001) 
(finding unconstitutional one of the options the Commission adopted 
as part of its broadcast EEO outreach requirements in the 2000 
Report and Order). In 2002, the Commission readopted Form 397, with 
modifications, including renaming the form, ``Broadcast Mid-Term 
Report.'' See Review of the Commission's Broadcast and Cable Equal 
Employment Opportunity Rules and Policies, Second Report and Order, 
17 FCC Rcd 24018, 24064, paras. 153, 164 (2002) (2002 EEO Order) 
(adopting a new broadcast EEO Rule in response to the D.C. Circuit's 
decision in MD/DC/DE Broad. Assoc. v. FCC, and readopting, with 
modifications, Form 397).
    \4\ All broadcast stations subject to the mid-term review 
requirement are also separately required to maintain their public 
inspection files in the Online Public Inspection File, a central, 
Commission-hosted database, which can be accessed at https://publicfiles.fcc.gov/. See Standardized and Enhanced Disclosure 
Requirements for Television Broadcast Licensee Public Interest 
Obligations, Second Report and Order, 27 FCC Rcd 4535 (2012) 
(adopting online public file requirements for commercial and non-
commercial TV and Class A TV stations); Expansion of Online Public 
File Obligations to Cable and Satellite TV Operators and Broadcast 
and Satellite Radio Licensees, Report and Order, 31 FCC Rcd 526, 
558-59, para. 83 (2016) (determining, among other things, that 
online public file requirements would be implemented on a rolling 
basis for AM and FM broadcast radio licensees with a final deadline 
of March 1, 2018).
    \5\ See Form 397, Section I. This information is not currently 
available in the OPIF. But see infra paras. 8-9. Stations that do 
not have the requisite number of full-time employees are not 
required to file Form 397 but may do so if they choose. Form 397, 
Section I (explaining that stations without the requisite number of 
full-time employees ``do not have to file this form with the FCC. 
However, you have the option to complete the certification below, 
return the form to the FCC, and place a copy in your station(s) 
public file.'').
    \6\ No commenter who filed in response to the NPRM opposed 
elimination of the form. One letter filed prior to release of the 
NPRM expresses a concern that eliminating Form 397 ``sends a bad 
message [that] the agency is abandoning its public interest 
responsibilities.'' Letter from Yosef Getachew, Director of Media 
and Democracy Program, Common Cause, to Marlene H. Dortch, 
Secretary, FCC, MB Docket Nos. 18-23 and 17-105, at 1 (filed Feb 16, 
2018). We emphasize, however, that elimination of the requirement to 
file this form has no effect on the statutorily-required mid-term 
review itself. See infra para. 4.
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    4. We adopt the NPRM's proposal to eliminate the requirement for 
broadcast television and radio stations to file Form 397. We agree with 
commenters that ``eliminating this outdated filing requirement will 
reduce the burden on licensees and the unnecessary waste of 
administrative and material. resources'' without undermining our 
ability to conduct the statutorily-required mid-term reviews of 
broadcaster compliance with the EEO rules.\7\ Because the transition to 
the OPIF is now complete,\8\ nearly all the information in Form 397 is 
easily accessible online. As noted above, the number of fulltime 
employees working at a station, which is the trigger for determining 
whether a station is subject to a mid-term review, is the only piece of 
information included in the Form 397 that is not currently available in 
a station's online public file. To address this issue, we will modify 
the OPIF, as described below, to enable broadcasters to provide this 
information to the Commission in a simple way and allow Commission 
staff to quickly identify stations subject to a mid-term review.
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    \7\ Nexstar Comments at 1. See also NAB Comments at 3 (``The 
information needed for the EEO mid-term review is already available 
to the FCC and the public in stations' online public files, and the 
stations that are subject to review can be identified without use of 
the Form. Eliminating the Form 397 filing requirement will have no 
impact whatsoever on the Commission's performance of mid-term 
reviews or broadcasters' compliance with the substantive EEO 
rules.'').
    \8\ As of March 1, 2018, all broadcast stations that are 
currently required to file Form 397 must now maintain their public 
inspection files in the OPIF.
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    5. As an initial matter, we adopt our tentative conclusion that 
eliminating Form 397 is consistent with Section 334 of the Act. NAB and 
Nexstar, the only two commenters to weigh in on our statutory 
interpretation, agree with our tentative conclusion. Specifically, 
Section 334(a) prohibits revisions to EEO rules ``in effect on 
September 1, 1992 (47 CFR 73.2080) as such regulations apply to 
television broadcast station licensees and permittees'' and to the 
forms ``used by such licensees and permittees to report pertinent 
employment data to the Commission.''\9\ Section 334's legislative 
history identifies those forms as FCC Forms 395-B and 396 and, as noted 
above, the Commission did not adopt Form 397 until after the date 
listed in Section 334. Accordingly, based on the statutory language and 
legislative history, we conclude that Form 397 is not subject to the 
statutory limitation on revisions found in Section 334(a). In addition, 
although Section 334(b) directed the Commission to revise its 
regulations to require a mid-term review of television broadcast 
licensees' employment practices, it did not require the Commission to 
adopt Form 397. Thus, we adopt our tentative conclusion that Section 
334(b) does not bar the Commission from eliminating Form 397, and we 
emphasize that the Commission

[[Page 21720]]

will continue to conduct mid-term reviews even in the absence of Form 
397.\10\
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    \9\ 47 U.S.C. 334(a). Section 334 applies expressly to 
``television broadcast station licensees'' and therefore does not 
mandate the Commission's regulation of radio licensees. 47 U.S.C. 
334(b); NPRM, 33 FCC Rcd at 2573, para. 6. However, no commenter in 
the record has suggested modifying our rules to remove radio 
licensees from the broadcast mid-term review.
    \10\ NPRM, 33 FCC Rcd at 2573, para. 7. We similarly conclude 
that Section 334(c) does not preclude the Commission from 
eliminating Form 397. Although subsection (a) prohibits the 
Commission from revising the 1992 EEO rules, subsection (c) permits 
the Commission ``to make nonsubstantive technical or clerical 
revisions'' to those rules as are ``necessary to reflect changes in 
technology, terminology, or Commission organization.'' 47 U.S.C. 
334(c). As noted in the NPRM, subsection (c), when considered in 
context, is most reasonably read as an exception to subsection (a)'s 
limitation prohibiting the Commission from revising the 1992 EEO 
Rules, which do not include the rule requiring submission of Form 
397. See NPRM, 33 FCC Rcd at 2573-74, para. 7. Because the 
limitation in (a) does not apply to Form 397, neither does the 
exception to (a) that Congress carved out with subsection (c).
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    6. We also adopt our tentative conclusion in the NPRM that 
eliminating the Form 397 filing requirement will reduce unnecessary 
regulatory burdens that no longer serve the public interest. Commenters 
recognize, prior to establishing the OPIF in 2012, ``Form 397 was the 
only vehicle available to the [Commission] by which it could readily 
access the requisite documentation to complete its congressionally 
mandated task of review.'' However, now that all broadcast licensees 
subject to a midterm review are also required to have an online public 
file,\11\ the need for the physical submission of the Form 397 no 
longer exists. The information in Form 397 is duplicative of 
documentation and information already available in a station's online 
public inspection file (i.e., the requisite EEO contact information and 
copies of EEO public file reports) or that can easily be made available 
in the OPIF (i.e., whether the station has the requisite number of 
full-time employees). Thus, as commenters contend, the burdens 
associated with filing Form 397, including ``the consumption of 
internal administrative efforts to prepare and file the form in the 
system or pay the fees associated with having outside FCC counsel 
prepare and/or submit the form online on behalf of the licensee,'' far 
outweigh its benefits.
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    \11\ As explained above, the EEO rules apply to TV, Class A TV, 
AM, and FM licensees, and online public file requirements apply to 
these same classes of licensees.
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    7. In the NPRM, we sought comment on whether, if we adopted our 
proposal to eliminate Form 397, we should separately and more 
frequently solicit from broadcast licensees EEO point of contact 
information, the second piece of information collected via Form 397. We 
find persuasive commenters' arguments that ``a separate and singular 
[new] requirement to provide a station specific EEO contact beyond the 
context of the Form 397 is unnecessary.'' Indeed, such a requirement 
already exists. Given that the Commission already solicits EEO point of 
contact information once every eight years through Form 396 and station 
licensee contact information on various FCC forms, we agree that 
soliciting this information elsewhere is unnecessary.
    8. To ensure that Commission staff will still be able to identify 
which licensees are subject to a mid-term review in the absence of Form 
397, we will require radio stations to answer a question about staffing 
size in order to upload an EEO public file report to the OPIF. In the 
NPRM, we identified two possible ways to make this information 
available, as proposed by NAB. The first, NAB's preferred approach, 
would ``require all subject stations to indicate whether they are 
subject to a mid-term review on their annual EEO public file report.'' 
As the NPRM explained, however, ``this proposal would not provide 
information in a format that easily could be aggregated,'' and would 
potentially require Commission staff to manually review thousands of 
EEO public file reports in order to determine which stations are 
subject to a mid-term review. Alternatively, NAB suggested modifying 
the OPIF itself to require stations to indicate whether they are 
subject to a mid-term review as a prerequisite to filing their annual 
EEO public file report. The NPRM proposed that this could be achieved 
by ``adding questions regarding staff size to each station's public 
file that must be answered before the station can upload its EEO public 
file report.'' NAB argues that this approach would require greater 
Commission staff resources than its first proposal, but does not 
explain why it believes this to be the case. No other commenter put 
forth alternative proposals or addressed the concerns raised by the 
Commission about the first proposal suggested by NAB.
    9. We adopt NAB's second proposal and require radio stations 
uploading an EEO public file report to the OPIF, as they are required 
to do annually under our rules, to identify whether their staff size is 
sufficient to trigger a mid-term review.\12\ This information, entered 
into the OPIF itself rather than simply recorded on an uploaded 
document in a way that is not aggregable, will allow Commission staff 
to quickly and easily identify stations subject to mid-term review. As 
acknowledged in the NPRM, this approach will impose a one-time 
information technology resource cost on the Commission, but will also 
minimize the annual administrative burden of conducting the 
statutorily-required mid-term review. It also has the attribute of 
imposing only a de minimis burden on subject stations to answer an 
additional question at the time they upload their annual EEO report. We 
note that we anticipate that the necessary information technology work 
to effectuate this change will be completed well before the next radio 
midterm review cycle.\13\
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    \12\ Specifically, radio licensees will be prompted to answer 
``Yes'' or ``No'' regarding whether they have eleven or more full-
time employees. All television stations required to upload an EEO 
public file report to the OPIF necessarily have sufficient staff 
sizes to trigger a mid-term review, as the requisite staff size for 
both obligations with respect to television employment units is five 
full-time employees. Thus, the very act of filing the report will be 
sufficient to identify these television stations. See 47 CFR 
73.2080(d); infra note 5.
    \13\ The next radio renewal cycle begins later this year, and 
therefore the next mid-term cycle will begin in 2023. See https://www.fcc.gov/media/radio/broadcast-radio-license-renewal. We note 
that the deadline for filing Form 397 under the current renewal 
cycle has already passed for all television stations except those in 
Delaware and Pennsylvania, which have an April 1, 2019 deadline. 
These reports should continue to be filed. See infra note 50.
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    10. In addition to the proposed elimination of Form 397, the NPRM 
also sought comment on ``the FCC's track record on EEO enforcement and 
how the agency can make improvements to EEO compliance and 
enforcement.'' We received responsive comments from a group of 33 
organizations (collectively the ``EEO Supporters''). While these 
commenters did not address the NPRM's proposal to eliminate Form 397, 
in response to the NPRM the EEO Supporters expressed concern over the 
degree to which the Commission has addressed ``the core issue'' of 
word-of-mouth recruiting ``conducted by a homogenous, non-diverse 
staff,'' or ``cronyism,'' within the broadcast industry.\14\ They also 
recommended that the Commission engage in audit reform and locate EEO 
staff in the Enforcement

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Bureau.\15\ Within 90 days of adoption of this Order, the Commission 
will seek comment in a Further Notice on the FCC's track record on EEO 
enforcement and how the agency can make improvements to EEO compliance 
and enforcement.\16\
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    \14\ EEO Supporters Comments, MB Docket Nos. 18-23 and 17-105 at 
2; Letter from David Honig, President Emeritus and Senior Advisor, 
Multicultural Media, Telecom and internet Council, to Marlene H. 
Dortch, Secretary, FCC, MB Docket Nos. 14-50, 09-182, 07-294, 04-
256, 17-289, 98-204, 16-410, 18-23, and 17-105, at 2 (filed June 1, 
2018) (EEO Supporters Ex Parte). The EEO Supporters assert that this 
practice perpetuates a ``lack of diversity in the industry across 
generations,'' and urge the Commission to use ``certain racial and 
gender data'' to identify stations who recruit primarily by word of 
mouth and require them to submit a Form 395. EEO Supporters 
Comments, MB Docket Nos. 18-23 and 17-105 at 3-4. The EEO Supporters 
also propose three additional EEO reforms, including reevaluating 
the Commission's audit program, publication of an anonymized summary 
of EEO data, and relocating the EEO staff to the Commission's 
Enforcement Bureau. Id. at 5-6.
    \15\ We note that the Commission recently has demonstrated its 
commitment to EEO enforcement by evaluating our audit program and 
consequently approving the relocation of Commission EEO enforcement 
staff and responsibilities to the Enforcement Bureau, as the EEO 
Supporters suggested. Press Release, FCC, Chairman Pai Statement on 
Proposal to Improve the FCC's Enforcement of Equal Employment 
Opportunity Rules (Jul. 3, 2018), https://www.fcc.gov/document/chairman-pai-statement-proposal-improve-enforcement-eeo-rules; FCC 
Equal Employment Opportunity Audit and Enforcement Team Deployment, 
Order, 33 FCC Rcd 7504 (FCC July 24, 2018). The reassignment will 
become effective when the appropriate clearance has been obtained 
and the Commission publishes the Order in the Federal Register. Id. 
at para. 10. See EEO Supporters Comments, MB Docket Nos. 18-23 and 
17-105 at 5-6 (suggesting that ``the Commission should determine 
whether EEO enforcement would more effectively and efficiently be 
performed by the Enforcement Bureau''); see also Diversity and 
Competition Supporters Supplemental NPRM Comments at 80-81 (Proposal 
40, Create a New Civil Rights Branch of the Enforcement Bureau), 
filed in MB Docket No. 09-182 (April 3, 2012) (proposing to create a 
Civil Rights Branch of the Enforcement Bureau that would contain EEO 
enforcement).
    \16\  We note that the EEO Supporters' request for the 
Commission to collect and publish an annual anonymized summary of 
aggregate broadcast licensee employment data is an issue closely 
related to issues raised in a separate pending proceeding. Likewise, 
the EEO Supporters' request for the Commission to impose particular 
requirements on stations that recruit primarily by word of mouth 
also relies on publishing this data, a matter that remains 
unresolved and pending in a separate proceeding. See Review of the 
Commission's Broadcast and Cable Equal Employment Opportunity Rules 
and Policies, Third Report and Order and Fourth Notice of Proposed 
Rulemaking, 19 FCC Rcd 9973 (2004) (adopting revised FCC Form 395 
(Annual Employment Report) for broadcast stations and MVPDs and 
seeking comment on the Commission's policies regarding public access 
to obtain data contained in the forms)); see also EEO Supporters 
Comments, at 3-4 (suggesting that stations that recruit primarily by 
word of mouth should be required to submit in camera a Form 395). We 
also note that we received comments from the Leadership Conference 
on Civil and Human Rights (Leadership Conference) that echoed the 
EEO Supporters' concerns in this docket. The Leadership Conference 
further argues that, before eliminating Form 397, the Commission 
should collect aggregate industry employment data on Form 395-B and 
improve the usability of all EEO data in our online databases. 
Leadership Conference on Civil and Human Rights Comments, MB Docket 
No. 17-105, at 1-3 (June 2, 2018). Given our conclusion above that 
Form 397 has become unnecessary and no longer serves a useful 
purpose, we do not agree with this contention.
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    11. For the reasons discussed above, we find that Sec.  
73.2080(f)(2)'s requirement that certain broadcast television and radio 
stations file Form 397 is unduly burdensome and no longer necessary. We 
amend our rules to eliminate Form 397 after the completion of the 
current mid-term review cycle which ends on April 1, 2019.\17\
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    \17\ This rule change will not become effective until after the 
completion of the current mid-term review periods for television 
stations in Delaware and Pennsylvania. See 47 CFR 73.1020(a)(18)(ii) 
(setting license renewal periods for Delaware and Pennsylvania at 
August 1, 2015). Accordingly, all television licensees in Delaware 
and Pennsylvania must file Form 397 in connection with the April 1, 
2019 mid-term review deadline (four months prior to the four year 
anniversary of the license). We also note that we are amending the 
first sentence of 73.2080(f), as proposed in the NPRM, to alleviate 
any confusion or ambiguity that may have resulted from the 
construction of the prior rule. Our amendments serve to clarify that 
the Commission will conduct mid-term reviews of each broadcast 
television station that is part of an employment unit of five or 
more full-time employees and each radio station that is part of an 
employment unit of 11 or more full-time employees. See infra 
Appendix A (emphasis added). We note that these clarifying 
amendments are consistent with those proposed in Appendix A of the 
NPRM and that no commenter has opposed them. NPRM, 33 FCC Rcd at 
2578. These modifications serve only to direct readers to 
requirements already present in the rule. See 47 CFR 73.2080(f) 
(``The following provisions apply to employment activity concerning 
full-time positions at each broadcast station employment unit . . . 
employing five or more persons in full-time positions, except where 
noted'') (emphasis added); see also FCC Form 397, Filing 
Instructions, at 2; Section I.
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II. PROCEDURAL MATTERS

A. Final Regulatory Flexibility Act Analysis

    12. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA),\18\ an Initial Regulatory Flexibility Analysis (IRFA) 
was incorporated in the Notice of Proposed Rulemaking (NPRM) in MB 
Docket 18-23.\19\ The Commission sought written public comments on 
proposals in the NPRM, including comment on the IRFA. The Commission 
received no comments on the IRFA. The present Final Regulatory 
Flexibility Analysis (FRFA) conforms to the RFA.
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    \18\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), Pub. L. 104-121, Title II, 110 Stat. 857 (1996). The 
SBREFA was enacted as Title II of the Contract With America 
Advancement Act of 1996 (CWAAA).
    \19\ Elimination of Obligation to File Broadcast Mid-Term Report 
(Form 397) Under Sec.  73.2080(f)(2); Modernization of Media 
Regulation Initiative, MB Docket Nos. 18-23 and 17-105, Notice of 
Proposed Rulemaking, 33 FCC Rcd 2570, para. 1 (2018) (NPRM).
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    13. Need for, and Objectives of, the Report and Order. The Report 
and Order (Order) stems from a Public Notice issued by the Commission 
in May 2017, launching an initiative to modernize the Commission's 
media regulations.\20\ Numerous parties in that proceeding argued for 
elimination of the recordkeeping requirement at issue as redundant and 
unnecessary. The Order adopts the NPRM's proposal to eliminate a 
provision of the Commission's rules that obligates certain broadcasters 
to file a Broadcast Mid-Term Report documenting their compliance with 
the Commission's EEO requirements, without eliminating the mid-term 
review of employment practices.
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    \20\ Commission Launches Modernization of Media Regulation 
Initiative, MB Docket No. 17-105, Public Notice, FCC 17-58 (MB May 
18, 2017) (initiating a review of rules applicable to media entities 
to eliminate or modify regulations that are outdated, unnecessary or 
unduly burdensome).
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    14. Specifically, the Order eliminates the requirement that 
broadcast television stations in station employment units (SEUs) with 
five or more full-time employees, and radio stations in SEUs with 11 or 
more full-time employees, file Form 397 four months prior to the date 
four years after their most recent license expiration date.\21\ This 
Order reduces an outdated regulation and unnecessary regulatory burdens 
that can impede competition and innovation in media markets. It also 
announces changes to the Commission's Online Public Inspection File 
database (OPIF) in order for Commission staff to determine which 
stations are subject to the statutory mid-term review of employment 
practices.\22\
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    \21\ 47 CFR 73.2080(f)(2).
    \22\ See Order at para. 9, n. 12.
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    15. Summary of Significant Issues Raised by Public Comments in 
Response to the IRFA. No comments were filed in response to the IRFA.
    16. Response to Comments by the Chief Counsel for Advocacy of the 
Small Business Administration. Pursuant to the Small Business Jobs Act 
of 2010, which amended the RFA, the Commission is required to respond 
to any comments filed by the Chief Counsel for Advocacy of the SBA and 
to provide a detailed statement of any change made to the proposed 
rules as a result of those comments.\23\ The Chief Counsel did not file 
any comments in response to this proceeding.
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    \23\ 5 U.S.C. 604(a)(3).
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    17. Description and Estimate of the Number of Small Entities to 
Which Rules Will Apply. The RFA directs agencies to provide a 
description of and, where feasible, an estimate of the number of small 
entities that will be affected by the rules adopted.\24\ The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction'' \25\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern''

[[Page 21722]]

under the Small Business Act.\26\ 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.\27\ The final rules adopted herein affect small 
television and radio broadcast stations. A description of these small 
entities, as well as an estimate of the number of such small entities, 
is provided below.
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    \24\ Id.
    \25\ 5 U.S.C. 601(6).
    \26\ 5 U.S.C. 601(3) (incorporating by reference the definition 
of ``small-business concern'' in the Small Business Act, 15 U.S.C. 
632). 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 Small Business Administration 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.''
    \27\ 15 U.S.C. 632.
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    18. Television Broadcasting. This Economic Census category 
``comprises establishments primarily engaged in broadcasting images 
together with sound.'' \28\ These establishments operate television 
broadcast studios and facilities for the programming and transmission 
of programs to the public.\29\ These establishments also produce or 
transmit visual programming to affiliated broadcast television 
stations, which in turn broadcast the programs to the public on a 
predetermined schedule. Programming may originate in their own studio, 
from an affiliated network, or from external sources. The SBA has 
created the following small business size standard for such businesses: 
Those having $38.5 million or less in annual receipts.\30\ The 2012 
Economic Census reports that 751 firms in this category operated in 
that year. Of that number, 656 had annual receipts of less than 
$25,000,000, and 95 had annual receipts of $25,000,000 or more.\31\ 
Based on this data, we estimate that the majority of commercial 
television broadcasters are small entities under the applicable SBA 
size standard.
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    \28\ U.S. Census Bureau, 2012 North American Industry 
Classification System (NAICS) Definitions, ``515120 Television 
Broadcasting,'' http://www.census.gov./cgi-bin/sssd/naics/naicsrch.
    \29\ Id.
    \30\ 13 CFR 121.201; 2012 NAICS Code 515120.
    \31\ U.S. Census Bureau, Table No. EC1251SSSZ4, Information: 
Subject Series--Establishment and Firm Size: Receipts Size of Firms 
for the United States: 2012 (515120 Television Broadcasting), 
https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ4&prodType=table.
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    19. In addition, the Commission has estimated the number of 
licensed commercial television stations to be 1,349.\32\ Of this total, 
1,277 stations had revenues of $38.5 million or less, according to 
Commission staff review of the BIA Kelsey Inc. Media Access Pro 
Television Database (BIA) on October 1, 2018. Such entities, therefore, 
qualify as small entities under the SBA definition. The Commission has 
estimated the number of licensed noncommercial educational (NCE) 
television stations to be 412.\33\ The Commission, however, does not 
compile and does not have access to information on the revenue of NCE 
stations that would permit it to determine how many such stations would 
qualify as small entities.
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    \32\ FCC News Release, Broadcast Station Totals as of September 
30, 2018 (rel. Oct. 3, 2018) (Broadcast Station Totals), https://www.fcc.gov/document/broadcast-station-totals-september-30-2018.
    \33\ Id.
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    20. We note, however, that in assessing whether a business concern 
qualifies as ``small'' under the above definition, business (control) 
affiliations \34\ must be included. Our estimate, therefore likely 
overstates the number of small entities that might be affected by our 
action, because the revenue figure on which it is based does not 
include or aggregate revenues from affiliated companies. In addition, 
another element of the definition of ``small business'' requires that 
an 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 television broadcast station is dominant in its 
field of operation. Accordingly, the estimate of small businesses to 
which the proposed rules would apply does not exclude any television 
station from the definition of a small business on this basis and 
therefore could be over-inclusive.
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    \34\ ``[Business 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.'' 13 CFR 
21.103(a)(1).
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    21. There are also 1,911 LPTV stations and 389 Class A 
stations.\35\ Given the nature of these services, we will presume that 
all of these entities qualify as small entities under the above SBA 
small business size standard.
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    \35\ Broadcast Station Totals supra note 14.
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    22. Radio Stations. This economic Census category ``comprises 
establishments primarily engaged in broadcasting aural programs by 
radio to the public.'' \36\ The SBA has created the following small 
business size standard for this category: Those having $38.5 million or 
less in annual receipts.\37\ Census data for 2012 shows that 2,849 
firms in this category operated in that year.\38\ Of this number, 2,806 
firms had annual receipts of less than $25,000,000, and 43 firms had 
annual receipts of $25,000,000 or more.\39\ Therefore, based on the 
SBA's size standard, the majority of such entities are small entities.
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    \36\ U.S. Census Bureau, 2012 NAICS Definitions, ``515112 Radio 
Stations,'' at http://www.census.gov/cgi-bin/sssd/naics/naicsrch. 
This category description continues, ``Programming may originate in 
their own studio, from an affiliated network, or from external 
sources.''
    \37\ 13 CFR 121.201; NAICS code 515112.
    \38\ U.S. Census Bureau, Table No. EC0751SSSZ4, Information: 
Subject Series--Establishment and Firm Size: Receipts Size of Firms 
for the United States: 2012 (515112), http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_51SSSZ4&prodType=table.
    \39\ Id.
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    23. Apart from the U.S. Census, the Commission has estimated the 
number of licensed commercial AM radio stations to be 4,626 stations 
\40\ and the number of commercial FM radio stations to be 6,737, for a 
total number of 11,363.\41\ Of this total, 11,362 stations had revenues 
of $38.5 million or less, according to Commission staff review of the 
BIA Kelsey Inc. Media Access Pro Television Database (BIA) on October 
1, 2018. In addition, the Commission has estimated the number of 
noncommercial educational FM radio stations to be 4,130.\42\ NCE 
stations are non-profit, and therefore considered to be small 
entities.\43\ Therefore, we estimate that the majority of radio 
broadcast stations are small entities.
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    \40\ Broadcast Station Totals supra note 14.
    \41\ Id.
    \42\ Id.
    \43\ 5 U.S.C. 601(4), (6).
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    24. Description of Reporting, Record Keeping, and Other Compliance 
Requirements for Small Entities. In this section, we identify the 
reporting, recordkeeping, and other compliance requirements in the 
Order and consider whether small entities are affected 
disproportionately by any such requirements.
    25. Reporting Requirements. The Order does adopt new reporting 
requirements.\44\ It requires radio stations to indicate whether they 
have the requisite number of full-time employees to be subject to a 
mid-term review.
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    \44\ See Order at para. 9, n. 12.
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    26. Recordkeeping Requirements. The Order does not adopt new 
recordkeeping requirements.
    27. Other Compliance Requirements. The Order does not adopt new 
compliance requirements.
    28. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered. The RFA requires an 
agency to describe any significant alternatives that it has considered 
in reaching its approach, which may include the following four 
alternatives (among others): (1) The establishment of

[[Page 21723]]

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.\45\
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    \45\ 5 U.S.C. 603(c)(1)-(4).
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    29. The Order eliminates the obligation imposed on certain 
broadcasters to file a Broadcast Mid-Term Report on employment 
practices. Eliminating this requirement is intended to modernize the 
Commission's regulations and reduce costs and recordkeeping burdens for 
affected entities, including small entities. Under the prior rule, 
affected entities were required to expend time and resources gathering 
and filing consolidated information that is largely already otherwise 
supplied to the Commission. The Order will require radio stations 
uploading an EEO public file report to answer one ``either/or'' 
question about staffing in order to determine their eligibility for the 
statutorily mandated mid-term review of broadcast equal employment 
practices. In the aggregate, replacing Form 397 with this requirement 
to provide additional information in the OPIF constitutes a reduction 
in burdens, and is as minimal a burden as possible for all entities, 
including small entities. Thus, we anticipate that affected small 
entities only stand to benefit from these revisions.

B. Paperwork Reduction Analysis

    30. This document contains proposed new or revised information 
collection requirements subject to the Paperwork Reduction Act of 1995, 
Public Law 104-13 (44 U.S.C. 3501-3520). The requirements will be 
submitted to the Office of Management and Budget (OMB) for review under 
Section 3507(d) of the PRA. OMB, the general public, and other Federal 
agencies will be invited to comment on the information collection 
requirements contained in this proceeding. The Commission will publish 
a separate document in the Federal Register at a later date seeking 
these comments. In addition, we note that, pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4), the Commission previously sought specific comment on 
how it might further reduce the information collection burden for small 
business concerns with fewer than 25 employees. We have described 
impacts that might affect small businesses, which includes most 
businesses with fewer than 25 employees, in the FRFA.

C. Congressional Review Act

    31. The Commission will send a copy of this Report and Order in a 
report to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

III. Ordering Clauses

    32. Accordingly, It is ordered that, pursuant to the authority 
found in sections 1, 4(i), 4(j) and 334 of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 334 this Report 
and Order IS HEREBY ADOPTED.
    33. It is further ordered that this Report and Order SHALL BECOME 
EFFECTIVE on May 1, 2019, except for those provisions which contain 
non-substantive modifications to existing information collection 
requirements that require approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act. The non-substantive 
modifications WILL BECOME EFFECTIVE upon the effective date announced 
when the Commission publishes a notice in the Federal Register 
announcing such OMB approval and the effective date.
    34. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, SHALL SEND a 
copy of this Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.
    35. It is further ordered that the Commission SHALL SEND a copy of 
the Report and Order in a report to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act (CRA), 
see 5 U.S.C. 801(a)(1)(A).
    36. It is further ordered that, should no petitions for 
reconsideration or petitions for judicial review be timely filed, MB 
Docket No. 18-23 shall be TERMINATED, and its docket closed.

List of Subjects in 47 CFR Part 73

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

Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 73 as follows:

PART 73--RADIO BROADCAST SERVICES

0
1. The authority citation for part 73 continues to read as follows:

    Authority:  47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 
336, and 339.


0
2. Amend Sec.  73.2080 by revising paragraph (f)(2) to read as follows:


Sec.  73.2080   Equal Employment Opportunities (EEO).

* * * * *
    (f) * * *
    (2) The Commission will conduct a mid-term review of the employment 
practices of each broadcast television station that is part of an 
employment unit of five or more full-time employees and each radio 
station that is part of an employment unit of eleven or more full-time 
employees, four years following the station's most recent license 
expiration date as specified in Sec.  73.1020. 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 mid-term review, that review 
will cover the licensee's EEO recruitment activity during the period 
starting with the date it acquired the station.
* * * * *
[FR Doc. 2019-09626 Filed 5-14-19; 8:45 am]
 BILLING CODE 6712-01-P