Further Notice of Proposed Rulemaking

On Monday, July 26, 2021, the FCC released a Further Notice of Proposed Rulemaking (“FNPRM”) that seeks to refresh the record in the Commission’s Broadcast and Cable Equal Employment Opportunity (“EEO”) Rules proceeding. The FNPRM is the first step in the Commission’s efforts to revive use of FCC Form 395-B for the purpose of identifying the broadcast industry’s ethnic and gender composition. This advisory details the FCC’s history of EEO rules and procedures, discusses the Commission’s plans, and outlines the opportunity for the broadcast industry to provide comments and proposals.

FCC’s EEO Rules History: The Communications Act (“the Act”) requires the FCC to collect workforce composition data from broadcasters on an annual basis. Prior to 2001, the Commission used FCC Form 395-B to collect that data. However, two decisions of the D.C. Circuit—Lutheran Church – Missouri Synod v. FCC and MD/DC/DE Broadcasters Association v. FCC—found the Commission’s use of the Form 395-B data to assess compliance with EEO requirements to be unconstitutional. Filing of the form has not been required and data have not been collected since 2001. The Commission also revised the rules in 2004, but suspended the collection of Form 395-B because of outstanding questions regarding the confidentiality of employment data collection. For the past twenty years, the FCC has not collected Form 395-B data, yet the statutory requirement remains in effect.

FCC’s Proposals: Throughout the FNPRM, the FCC attempts to strike a balance between the public necessity in collecting industry-wide EEO data, the broadcast industry’s reluctance to publically report licensee EEO data, and the Congressional mandate to compile EEO data. The FNPRM does not propose any specific amendments to the Form 395-B format or reporting requirements. Instead, the FCC appears to favor a regime consistent with the Communications Act requiring the confidential, non-station-attributed collection of Form 395-B data that will be used only in analyzing industry trends and compiling reports for Congress. Each major consideration and the nature of the comments sought are set forth below.

• Public Necessity: First, the FCC seeks to collect the data for the explicit purposes of analyzing industry trends in EEO practices and for creating reports on the industry trends for Congress. The FCC acknowledges that the D.C. Circuit decisions do not prohibit the collection of Form 395-B data, but restricts how the FCC uses that data. The FCC cannot use Form 395-B information in licensing renewals or to determine compliance with EEO requirements. However, the FCC believes the data to be important for understanding the broadcast media diversity landscape. Acting Charirwoman Rosenworcel and Commissioner Starks both released statements supporting the FNPRM, explaining that the Form 395-B data will be used to understand the media workforce and to develop regulatory actions to ensure equal employment opportunities in the broadcast industry. Therefore, the FNPRM seeks comment on its proposal to use the Form 395-B only to analyze the industry EEO landscape and in reports to Congress.
• Confidential Disclosures: Second, the FCC appears to be sensitive to the broadcast industry’s reluctance to publically report station-attributed EEO data, because of a fear of public backlash, complaints, and litigation should the public deem a station’s diversity performance unsatisfactory. The Commission appears to propose making the collected Form 395-B data confidential and to exempt broadcasters from any requirement to publically release its Form 395-B data. But this approach raises issues. The Act can be interpreted to require broadcasters to keep Form 395-B in their public files. Under current Commission rules, broadcasters would be required to include Form 395-B in their Online Public File, meaning each broadcaster’s ethnic and gender profile information would be publically accessible. The FNPRM seeks comment on how the FCC might collect and maintain Form 395-B employment data in a confidential manner to protect the broadcasters. Specifically, it seeks proposals to allow broadcasters to file Form 395-B confidentially, while still ensuring that the FCC can determine which stations have complied and be able to contact the licensee if there are problems, while also remaining in compliance with FOIA and Federal Records Act requirements.
• Statutory Authority: Finally, the FCC is required to collect and maintain Form 395-B under Section 334(a) of the Communications Act. The FNPRM reiterates that any proposals for Form 395-B provided by the industry must comply with the Congressional mandate. This includes whether the FCC has the statutory authority to make potential changes to the collection and format of Form 395-B and what qualifies as “pertinent employment data” that must be collected.

Broadcaster Obligations: As discussed above, the FNPRM does not outline any specific proposals for the collection of Form 395-B data, so it is difficult to discern what obligations the finalized rules might impose on broadcasters. Rather, it describes the obligations with which the FCC must comply and the value of compliance for public policy. Absent congressional action, it does appear likely that a revised rule will at least require that broadcasters complete Form 395-B and report that data to the FCC for use in reporting trends to Congress. At present, the FNPRM seeks only to refresh its record since Form 395-B has not been utilized for nearly twenty years. Following the FNPRM, the Commission will likely proceed with finalizing Form 395-B rules and reporting requirements. The FNPRM is the broadcast industry’s opportunity to inform the Commission of the industry’s position on these matters and to propose solutions going forward.

Comments will be due 30 days after publication in the Federal Register, and reply comments will be due 60 days after publication. We will let you know when those dates have been set.

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.