The Small Station Exception to the FCC Equal Employment Opportunity Program Rules

Gregg Skall
Womble Carlyle Sandridge & Rice, LLP

I recently presented an EEO webinar to a group of broadcasters. We covered the usual topics that comprise the three-prong approach to the FCC's Equal Employment Opportunity Program:

• Outreach Prong 1 - Recruit for All Full-Time Vacancies
• Outreach Prong 2 - Notifications to Community Groups
• Outreach Prong 3 - Supplemental Outreach Activities, Menu Options

I made sure to cover the additional duties of conducting periodic self-analysis of each station employment unit's EEO program and its effectiveness, as well as the need to review station job structure and employment practices.

Importantly, I noted that under the "small station exception," Station Employment Units ("SEUs") with fewer than five employees are exempt from the formal EEO program requirements, and that SEUs with five to 10 full-time employees and small-market stations need engage in only two, rather than four, of the "menu" activities every two years. Additionally, a mid-term report is not required of radio stations with 10 or fewer full-time employees, TVs with fewer than five, and small-market SEUs.

Following the webinar, one astute broadcaster commented that was all well and good, but that the size of the staff at small stations often will fluctuate and he needed to know when the time was to make the employee count -- at the anniversary of the renewal, any time during the year when the full-time employee count might reach five, or when?

For example, consider the following scenario: An SEU starts its "EEO Year" (the 12-month period following the anniversary of its license renewal filing date) with four full-time employees. A month later it adds a fifth full-time employee (not counting the owners). The new, fifth employee resigns three months later, returning the SEU to four full-time employees.

Thus, the SEU employed less than five full-time employees on the anniversary date at the time when the prior-year EEO Public File Report was filed and will employ fewer than five full-time employees on the date when the next year's EEO public file report is to be prepared and filed. At all times, except for about 10 weeks, the SEU had fewer than five full-time employees.

So, how do you analyze this situation under §73.2080 (d), the small-station exemption, which provides that its other provisions do not apply to station employment units that have fewer than five full-time employees?

Boiled down, the questions are:

1. Does this station qualify as a small-station exemption?
2. When do you count the number of employees?
3. Suppose the 10 weeks when the station had five full-time employees had included the anniversary of its license renewal filing date, and therefore it would have had five when the EEO Public File report was required to be filed? Would that require a different result?

There is nothing to provide guidance in the FCC's EEO Report & Order on this issue and there have not been any cases or policy statements on this issue. However, upon inquiry, the FCC EEO staff advised that they will generally use the annual public file filing due date for determination of an employment unit's five or more full-time staff status under the small-station exemption.

Thus, if a unit has four employees on April 1st, when it is supposed to file its EEO public file report, no report would be due and it would not have to have an EEO program. If a month later, it hires another full-time staff member, it would have five full-time staffers and from then on, as long as it has five or more, it has to have a program and keep records, file reports and comply with all elements of the program. If it loses a staff member and goes to four again, then it does not have to have a program or keep records or file reports required of those who have programs. When stations go back and forth like this, the FCC staff reports that under the regulations, the SEU can turn its program on and off over and over, if that is what it chooses to do. Or it could just keep its program in place. But when something has to be filed, like a renewal or public file report, its status will be determined as of the due date.

If an SEU has five or more full-time employees as of a filing due date, then it needs to make the required program filings. However, if it has gone through a period or periods of having fewer than five full-time employees and it has not had a program at all times, then it should nevertheless reflect that fact in its report. It should explain that it had fewer than five full-time staff during certain periods and had no program then, and so its report reflects only periods when it had a program in place. If, therefore, you were to have five or more as of a due date and had been in this status for only 10 weeks, then the report would cover the previous 10 weeks instead of the previous 12 months.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.