License Renewal And EEO

Gregg Skall
Womble Carlyle Sandridge & Rice, LLP

We are now just about at the halfway mark in the radio license renewal cycle. As I work on renewal applications and review EEO activities and public file reports, I have made some observations regarding broadcasters' understanding of their EEO obligations recordkeeping requirement for the annual Local Public File report.

Let's start with a quick one-minute review of the rules. I have been teaching the current EEO requirements to broadcasters for a little over a decade, beginning with adoption of the new EEO outreach rules. In all that interaction with broadcasters, I have found that nearly all licensees have a basic grasp of the rules and how the requirements apply to their business management activities. It is only a few, sometimes those new to broadcasting, who do not quite have the basic concepts down.

The rules apply to all Station Employment Units (SEUs) with five or more full-time employees. An SEU is composed of Commonly-owned stations in the same market that share even a single employee. The FCC described its program as containing three "Prongs," reflecting three essential requirements. "Prong One" requires that each covered SEU engage in broad outreach to obtain a broad and diverse pool of candidates to interview for each full-time (30 hours or more) job vacancy. Only a few exceptions are permitted, the most notable of which is for truly exigent circumstances, and exigent circumstances may only arise on rare occasions.

"Prong Two" requires that each covered SEU notify community organizations that they have a right to be notified whenever a vacancy occurs so that they can refer qualified candidates to the licensee. Under Prong Two, whenever a station has a full-time hiring opportunity, all Prong Two organizations must be notified.

Finally, "Prong Three" obliges every covered SEU to engage in specific "supplemental outreach initiatives" designed to educate the community about employment and career opportunities in the broadcasting industry, whether or not they have a hiring opportunity vacancy at the station.

The tricky part comes in the recordkeeping. On numerous occasions, the FCC has emphasized the importance of accurate and sufficient recordkeeping, stating that without adequate and sufficient documentation, it will not credit the outreach or activity. In stark terms, without the documentation, it did not occur! So, it's important to know what documentation is required, particularly for the Local Public File, since that is the record upon which the public can base a complaint or petition to deny a license renewal.

While the licensee has more extensive recordkeeping requirements should it receive a request from the FCC itself, be included in a "random audit" or be required to respond to a specific complaint, the data required for the public file is a bit less daunting. On the anniversary date for filing its license renewal application, each year the station must place in its Local Public File, and on its website if it maintains one, the following information for the prior 12-month period:

1. A listing of all full-time jobs filled during the previous year, by job title.
2. Recruitment sources used to fill each specific vacancy, including;
   1. the address, contact person and telephone number of each recruitment source; and
   2. separate list of Prong 2 organizations entitled to notification.
3. A list of recruitment sources that referred people hired for the full-time vacancy, including:
   1. data on the total number of interviewees and total number of interviewees referred by that source.
4. A list and brief description of Prong 3 menu options of supplemental outreach initiatives the SEU implemented during the preceding year.

It is with the Local Public File annual report that I have found the most misconceptions among broadcasters. Some are placing far more material in the Local Public File than is required, including multiple years of data. Each station's annual Local Public File Report is required to contain only the data from the immediate past single year. While the station must keep prior Local Public File reports available in its own records, only a single year is required to be posted in the Local Public File or on the website. I have seen some stations post two, five or even eight years' worth of data every year. This is far more than is necessary, and simply provides an opportunity for regulatory mischief by those who might wish to harm the station.

Some broadcasters are doing all that is required, and doing it quite well, but failing to keep sufficient data to complete necessary reports and verify their activities. For example, the requirement to list recruitment sources requires that they be listed for each specific vacancy and report the name, address, and telephone number of each contact used at the recruitment source. Listing the recruitment source alone, without the additional required information could become an issue in the review process at license renewal time or with a random FCC EEO audit. It is critical that all broadcasters maintain this information as well as copies of all newspaper advertisements or other forms of advertising and outreach that document the efforts made to comply with Prong 1 broad outreach.

Another critical observation is that some broadcasters fail to maintain sufficient detail about their supplemental outreach Prong 3 activities. To claim credit for a Prong 3 station activity, the description of that activity must relate to one of the specific 15 activates named at Section 73.2080 of the rules or otherwise further the goal of disseminating information about employment opportunities in broadcasting to job candidates who might otherwise be unaware of them. The description must demonstrate more than spreading good will for broadcasting.

Internships should contain sufficient data so that a specific internship is identifiable. Remember also that support for scholarship programs requires more than simply contributing money. Participating in the selection process, advertising for applicants or other activities that actually place the broadcaster or those with hiring authority in touch or in proximity with potential applicants is critical to obtaining credit for that activity.

Remember: When filing your renewal EEO program report, or if you must file a midterm report, or in the context of a random audit, you will be asked for the last two Local Public File reports. So you must maintain sufficient data to justify all of your activities and claims for those reports.

If broadcasters will remember these simple rules and principles, life can be made a lot easier at renewal time or when their number comes up in a random EEO audit.

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.