Oh Oh!! I Just Got Caught

...in An FCC Random EEO Audit!

On June 10th, 2014, the Federal Communications Commission mailed the second of its Equal Employment Opportunity (EEO) audit letters for 2014 to randomly selected radio stations. The list and the letter can be viewed by accessing the Media Bureau's current EEO headline page on the FCC website at: http://www.fcc.gov/encyclopedia/equal-employment-opportunity-2014-headlines

Nothing to worry about if you've been paying attention. But beware, it's been over a decade since the FCC adopted its EEO rules, and even some of the most well-intentioned broadcasters who recruit in total compliance, have found themselves in trouble, forgetting about the substantial record keeping requirements.

As the June 10th letter demonstrates, the FCC EEO audit program continues in full swing, with several audit rounds every year. The 2003 EEO Report & Order established a goal to randomly audit 5% of all broadcast stations each year. That's about 770 radio and 110 TV stations per year of the over 15,000 radio and 2,200 television stations. The selection is entirely random, although there are some exemptions. For example, the FCC will not audit more than one station in a station employment unit ("SEU"). The vast majority of exempted stations, however, are those with renewals granted in the prior 18 months, since they are entitled to discard pre-grant EEO records. Also, stations with fewer than five full-time employees, generally not counting the owners as an employee, are exempt.

The audits examine a variety of licensee responsibilities, frequently referred to as the "three prong" EEO requirement. The first prong -- affirmative recruiting -- includes the need to provide affirmative outreach recruiting efforts for every SEU full-time vacancy. The second is notification for each full-time vacancy to any organization that requests to be notified about SEU employment opportunities. The third is the obligation to perform either two or four outreach activities actual supplement employee recruitment whether or not the station has a current hiring opportunity, the number being dependent on the size of the station and the market.

It is this last "prong," the supplemental outreach activity requirement, that often causes the most problems, because it comes with a significant record keeping requirement that many broadcasters have overlooked even when they have fully complied with the activity requirement itself.

To support the SEU's supplemental outreach activity requirement, every broadcaster must retain records to document compliance. The commission staff has frequently stated that if records don't exit, it did not happen for purposes of FCC compliance. Records are required to be kept until the final grant of the renewal application for the term during which the initiative occurred. Since we have just completed a renewal round, for many stations that will now be as many as eight years.

While the supplemental outreach activities are performed, broadcasters sometimes forget to collect or retain letters, memos, publicity brochures and other evidence of participation to support their claim and obtain credit under the commission's rules. Some have received them and thrown them away, not mindful of the need to document compliance. Because the Commission monitors EEO compliance through random audits any licensee is subject to having to produce the documents to evidence their outreach activities at almost any time, unless they had been audited in within the last two years.

So, whether your station is named in this latest round or not, now is a good time to double-check your records. If you don't have materials documenting your outreach efforts or supporting your supplemental event participation now is the time to write to the sponsoring agency and request a thank-you letter or other materials that identifies your station's or SEU's involvement. Materials that were used to promote the event and that indicate the station was a participant or any other such documents will work. An ounce of prevention now will save a lot of effort, angst and legal fees later, should you find yourself the addressee on an FCC random audit letter.

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.