All posts by David Oxenford

FCC Announces Information Session on Revised Biennial Ownership Reports

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

The FCC has released a Public Notice announcing that it will be holding an information session on November 28, 2017 at 1 p.m. Eastern Time to familiarize broadcasters with the new Biennial Ownership Report forms. This information session can be viewed live online and will also be archived for viewing after the session (archive to be available here). As we wrote here, the FCC has extended to March 2, 2018 the due date for filing Biennial Ownership Reports, as it is in the process of developing a new form that will, hopefully, make it easier for broadcasters to complete the Form 323 and 323E Ownership Reports that must be filed by licensees once every two years. This information, which will present an overview of the new form, appears to be its official unveiling.

Note that this will be the first time that noncommercial broadcasters will be filing at the same time as commercial broadcasters (see our article here). Also, while commercial broadcasters will need to obtain an FCC Registration Number (FRN) for each person who has an attributable interest in a station, the FCC recently decided that noncommercial licensees need not get an FRN for each member of its governing board (as it would entail getting each member’s social security number). But noncommercial broadcasters still will need to get a Special Use FRN for all officers and directors reported on their ownership reports (see our article here).

There are no additional costs for the call; the advice is free as part of your MAB membership.

Court Rejects Appeal of FCC Decision Not to Mandate Multilingual EAS Alerts

The MAB and the SECC are currently surveying all Michigan Broadcast Stations and Cable Systems at the request of the FCC (see below).  If you have not been contacted for your information, please contact Dan Kelley at the MAB:  dkelley@michmab.com and you will be provided a link to your station’s information.

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

On October 17, The United States Court of Appeals issued an order denying the appeal of an FCC order that rejected a requirement that multilingual EAS alerts be provided in every market. We wrote about the FCC’s proceeding here and here. The Court upheld the FCC’s decision as reasonable, finding that the Commission did not have enough evidence to determine how such alerts should be implemented on a nationwide basis, and noting that the FCC was still reviewing whether to adopt requirements that broadcasters provide alerts in languages other than English in the future. That decision should serve as a reminder that in the FCC order rejecting the call to mandate multilingual EAS alerts in all markets, the Commission did call for broadcasters to supply more information – information that is due in early November.

In 2016, when the FCC rejected the imposition of multilingual EAS alerts, they imposed an obligation on broadcast stations to report to their State Emergency Coordinating Committees (“SECC”) information about what the stations are doing to implement multilingual EAS – including a description of any plans they have to implement such alerts in the future, and whether or not there are significant populations of non-English speaking groups in their communities that would need such alerts. We wrote about that obligation here. The one year deadline would seem to be November 3, one year after the FCC’s order was published in the Federal Register (though an FCC small-business compliance guide summarizing the obligations, released in August, available here, states on the top of page 3 that the deadline is November 6). In any event, given the Court’s decision relying on the FCC gathering information about the provision of emergency alerts to non-English speaking communities, it is important that stations provide their SECCs by early November. The FCC’s Small Business Compliance Guide is a good summary of what is required.

The Court decision was a 2-1 decision, with a dissenting judge finding that the FCC already had asked for information about multilingual EAS alerts several times, and did not get it. The dissenting judge thought that the Court should have found that the FCC was unreasonable in once again saying that they were looking for more information with no guarantee that they would receive that information. This dissent highlights the importance that seems to be placed on the upcoming submission of this information to state EAS committees.

Broadcasters need to find out who heads their SECC, and get them the information about multilingual EAS alerts in the next few weeks, so that the SECCs can review their state EAS plans and, where necessary, make changes by next May based on the information in the November reporting, so that broadcasters can better serve non-English speaking populations with emergency alerts.

There are no additional costs for the call; the advice is free as part of your MAB membership.

Update: New Advertising Disclaimers on E-Cig and Cigar Advertising Still on for 2018

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

Last year, the FDA adopted requirements to tag advertisements for vaping and e-cig advertising with a warning that e-cigs contain nicotine and that nicotine is an addictive chemical. These requirements were to go into effect in 2018.

In the last week, I have received several questions about these rules and their effective date. According to this FDA document (see the table on Page 5), released in August, the new disclosure obligations are still set to become effective on August 10, 2018. We wrote about that effective date here, and about the adoption of the requirements, including additional health warning disclosures required for cigar advertising, here. We don’t claim to be FDA experts, so companies offering these products should consult with lawyers who are knowledgeable about the status of additional obligations imposed on manufacturers and retailers adopted by the FDA last year.

There are no additional costs for the call; the advice is free as part of your MAB membership.

FCC Reminder to Video Programming Distributors – Including Broadcasters – on Accessibility Obligations

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

With the recent hurricanes and the tragedy in Las Vegas, the FCC Public Notice issued last week reminding all video programmers of the importance of making emergency information accessible to all viewers seems very timely. The public notice serves as a good refresher on all of the obligations of video programmers designed to make emergency information available to members of the viewing audience who may have auditory or visual impairments that may make this information harder to receive. As the FCC also reminds readers of its notice of the ways in which to file complaints against video programming distributors who do not follow the rules, TV broadcasters need to be extremely sensitive to all of these requirements.

What are these obligations? These are some of the obligations highlighted by the FCC’s reminder:

  • For persons who are visually impaired, rules require that emergency information that is visually provided in a newscast also be aurally described in the main audio channel of the station.
  • When emergency information is provided outside of a newscast (e.g. in a crawl during entertainment programming), that information must be accompanied by an aural tone and then an audio version of the emergency information must be broadcast on a secondary audio channel (SAP channel) of a TV station at least twice. See our articles here, here and here about this obligation.
  • For persons who are deaf or hard of hearing, the Commission requires that emergency information provided in the audio portion of a broadcast also be presented visually, through methods including captioning, crawls or scrolls that do not block any emergency information provided through other visual means (like other captions or crawls).
  • For stations that are permitted to use electronic newsroom technique (ENT) captions, where ENT does not provide captions for breaking news and emergency alerts, stations must make emergency information available through some other visual means. See our post here on this obligation.
  • The FCC suggests, but does not require, that stations make emergency information available through multiple means (maps, charts and other visual information) and in plain language, so that all viewers can understand the nature of any emergency.

Emergency information is described broadly as information “intended to further the protection of life, health, safety and property, i.e., critical details regarding the emergency and how to respond to the emergency.” The FCC gives the following examples of the types of emergencies that may be covered: “tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, school closings and changes in school bus schedules resulting from such conditions, and warnings and watches of impending changes in weather.” Note that, for the school closings and bus route changes, the FCC has, for now, exempted this information from the requirement that crawls be converted to audio for the SAP channel, given the likely length that such messages would take (see our article here). The kinds of details that trigger these obligations include the areas that will be affected by the emergency, evacuation orders, detailed descriptions of areas to be evacuated, specific evacuation routes, approved shelters or the way to take shelter in one’s home, instructions on how to secure personal property, road closures and how to obtain relief assistance.”

The Commission notes that, in wide-spread emergencies like a hurricane, notices may need to be provided far beyond the local area directly hit by the emergency, as other areas can also be affected by the event.

Paying attention to the rules highlighted here and provided in more detail in the FCC’s Public Notice are very important, not just as it is important for broadcasters to serve all members of the public in their viewing areas, but also because there has been active enforcement in this area. The enforcement of these rules do not appear to be a partisan issue, as certain accessibility obligations have even be made more stringent during the term of this administration otherwise noted for its deregulation in other areas. So pay attention to this important reminder from the FCC.

There are no additional costs for the call; the advice is free as part of your MAB membership.

Recordkeeping Rules for Third-Party Fundraising by Noncommercial Broadcasters to be Effective November 13, 2017

David Oxenford - ColorBy: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

In July, we wrote about the effective date of the FCC’s new rules allowing non-CPB noncommercial stations to interrupt their normal programming to raise funds for third-party charitable and non-profit organizations (we wrote here about the decision itself), for up to 1% of their total airtime. In July, we noted that the new rules on the recordkeeping requirements about these fundraising efforts had not yet gone into effect, as they needed to be approved by the Office of Management and Budget under the Paperwork Reduction Act. The Federal Register has announced that this approval has been received and the paperwork rules will go into effect on November 13.

The new rules require on-air disclosures at the beginning and end of any fundraising appeal where the station tells its audience that the money is going to a third-party, not to the station. That announcement must be made at least hourly for longer fund-raising appeals. In addition, the station must maintain in its public file the following information:

  • the date, time, and duration of the fundraiser;
  • the type of fundraising activity;
  • the name of the non-profit organization benefitted by the fundraiser;
  • a brief description of the specific cause or project, if any, supported by the fundraiser; and
  • to the extent that the station participated in tallying or receiving any funds for the non-profit group, an approximation of the total funds raised

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline.  Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your membership.

Complaints Filed Against TV Stations for Public File Violations on Political Issue Ads

David Oxenford - ColorBy: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

Last week, the Campaign Legal Center and Issue One, two political “watchdog” organizations, filed FCC complaints against two Georgia TV stations, alleging violations of the rules that govern the documents that need to be placed into a station’s public inspection file regarding political “issue advertising” (see their press release here, with links to the complaints at the bottom of the release). FCC rules require that stations place into their public files information concerning any advertising dealing with controversial issues of public importance including the list of the sponsoring organization’s chief executive officers or directors. Section 315 of the Communications Act requires that, when those issues are “matters of national importance,” the station must put into their public file additional information similar to the information that they include in their file for candidate ads, including the specifics of the schedule for the ads including price information and an identification of the issue to which the ad is directed. The complaints allege that, while the stations included this additional information in their public file, the form that was in the public file stated that the sponsors of the ads did not consider the issues to be ads that addressed a matter of national importance, despite the fact that they addressed candidates involved in the recent highly contested election for an open Congressional seat in the Atlanta suburbs.

Section 315(e)(1)(b) states that an issue of national importance includes any advertising communicating any message directed to “any election to Federal office.” The stations against which the complaints were filed used the NAB form that asks political and issue advertisers to provide the information necessary for the public file, as do many broadcast stations. The FCC does not require that the NAB form be used but, as it is designed to gather the required information, many stations use it. Some simply take the form and place it into their public file with a copy of their advertising order form specifying the rates and advertising schedule and assume that their FCC obligation is complete. But, here, the complaints allege that the advertisers, in response to a question on the form that asks whether the advertising was directed to an issue of national importance, checked the box that said that the ad was not a Federal issue ad despite the fact that the ad addressed candidates or issues involved in the election for the open Congressional seat. The form was apparently then simply put into the public file in that way without additional notation or correction by the station.

So, basically, the complaints do not appear to allege that the stations failed to put information into their file sufficient for the public to evaluate who was sponsoring the ads, what the sponsors were paying, or how many ads were being run – information only required for Federal issue ads (ads of national importance) and not ads that addressed local issues. Instead, the complaints allege that the stations were in violation of the rules because a box on a form that is not even required by the FCC was checked incorrectly.

These complaints seem to harken back to a set of similar complaints resolved by the FCC last year, admonishing a number of TV stations for not inquiring more when incomplete information was provided by issue advertisers on a political disclosure form (see our article here on that decision). The new Commission, as one of its first acts, rescinded that decision seemingly because it was made by the Media Bureau and not the full Commission (see our article here). Since the rescission, the FCC has not issued further guidance on the issues raised in the complaints. Perhaps these complaints will trigger action on those pending matters from the FCC. But, regardless of the outcome, the complaints teach broadcasters two things – first, they need to be questioning the information provided by issue advertisers on their advertising disclosure forms to make sure that information is accurate and complete, and second, that stations political files are being watched. With the political file being online for all TV stations and for big market radio stations (and, by March 1 of next year, for all radio stations – see our article here), any of these watchdog organizations can scan the public file for inconsistencies and inaccuracies from the privacy of their own home or office, without the station ever knowing. This places a premium on stations being complete and accurate with all of their disclosures.

For more information about political advertising issues, see our Guide to Political Advertising Issues, here.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline.  Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your membership.

FCC Sets August 28 Deadline for Updates to ERTS Reporting System

David Oxenford - ColorBy: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

We wrote earlier about the upcoming EAS Nationwide Test and the need for broadcasters to make sure that their EAS equipment is operating in compliance with all FCC rules. The FCC itself has now released its own Public Notice detailing the many things that broadcasters need to check at their facilities before the upcoming test, including the need to update their information in the ERTS EAS reporting system by August 28. The FCC also issued a new EAS Handbook detailing broadcaster’s EAS obligations.

The Public Notice notes that the EAS test will focus on the IPAWS internet-based system through which the common alerting protocol (“CAPS”) alert is sent – a system that was mandated a few years ago as an additional way for alerts to be conveyed to stations to supplement the traditional “daisy-chain” of alerts being passed from one broadcast station to another (see our articles here, here and here). The internet-based system will allow both English and Spanish versions of the Nationwide alert to be transmitted and will also provide text of the message that can be converted to a video crawl on TV screens.

The Public Notice provides a list of potential EAS issues that each station should review to make sure that their EAS systems are operating in compliance with the rules. The Notice also sets August 28, 2017 as the deadline for all stations to complete their “2017 ERTS Form One” setting out information about each station’s EAS decoders, encoders or combined units. ERTS is the system that reports on the results of the EAS tests. Test results will need to be filed on Form Two in ERTS on September 27 before midnight, with more detailed information about the results of the test to be submitted in a Form Three by November 13, 2017. The FCC warns stations to start looking at these forms now – particularly the one due on August 28 – to make sure that your information is updated and accurate and you are ready for the September test. As we suggested in our earlier post, this public notice makes clear that now is the time for all stations to review their EAS equipment, and the ERTS Forms, to get ready for the Nationwide Test.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline.  Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your membership.

FCC Releases Tutorial on FM Translator Auction Window for AM Stations

David Oxenford - ColorBy: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

On July 13, The FCC released an online tutorial for the upcoming windows for filing for FM translators for AM stations. The first window will run from July 26 until 6 pm E.T. on August 2, where Class C and D AM stations that did not receive a translator in last year’s 250-mile waiver windows can file for a new FM translator to rebroadcast their AM station. We wrote about that window here.

The online tutorial may be accessed here.

The tutorial references various FCC filing guides to assist applicants in filing their applications. The Public Notice announcing the Tutorial also makes clear that, if an applicant has a pending application to acquire an AM station during the window, the proposed assignee can file the application for the new translator, presumably to be granted upon the acquisition of the station (as these translators are tied to the AM on a permanent basis). The current owner of the station and the proposed buyer cannot both file – only one application per station will be permitted. AM stations planning to take advantage of this window should be well into the process of preparing their applications for the window that opens in less than 2 weeks.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline.  Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your membership.

FCC Officially Starts Proceedings to Abolish Main Studio Rule and Review All Other Broadcast Rules

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

As expected, at its monthly open meeting May 18, the FCC started two proceedings of particular importance to broadcasters. The first looks at the abolition of the main studio rules. The second asks for comments on all of the other rules affecting broadcasters and other media companies to see which are ripe for appeal. For the most part, the proposals as adopted mirrored the draft orders released for public review back at the end of April, which we summarized here.

The proposal to review all media rules – referred to as the Modernization of Media Regulation – will look at all media-related FCC rules with the idea of eliminating or modifying those that no longer make sense in the modern media environment. Only the multiple ownership rules, already under review in separate proceedings (see our posts here, here and here) are excluded from this review. Comment dates for proposals to change specific rules are due by July 5, with replies due August 4. The two Republican commissioners supported this proposal. Commissioner Clyburn, the FCC’s lone Democrat, dissented from the adoption of the Public Notice launching the inquiry, not necessarily because she is opposed to review of existing rules, but because she felt that the notice presupposes that the public interest can only be achieved by abolishing rules that limit industry operations. She suggests that many FCC rules remain important – including EEO rules, Biennial Ownership Reports, and certain rules governing access to cable programming. The Republican commissioners, on the other hand, point to the efficiencies that can be gained by abolishing rules that no longer make sense, or which require filings that serve no particular purpose (see Commissioner O’Rielly’s statement here). No doubt, these differing perceptions of the rules will be reflected in comments filed by various parties in this proceeding.

The proposal to abolish the main studio rule very closely tracked the draft order that we summarized back in April, here, asking a number of questions about the impact that the abolition would have on station’s ability to serve their communities. A few additional questions were added to the final order, the most substantive of which dealt with the requirement that would be retained that stations maintain local telephone numbers that local residents can call to address issues about station operations or to respond to community needs and emergencies that may arise. Included among the new questions was the question of whether the phone line needed to be manned during all business hours, or perhaps even during all hours of operation of the station. Even if a live person is not required to answer the phone, the FCC asked whether there should be some requirement that all calls be answered within a given time frame, principally so that no emergency go unreported. In effect, if adopted, these would be new requirements that a broadcaster giving up its main studio would have to live with.

The apocryphal story of the station in Minot, North Dakota where no one was home when a train carrying dangerous chemicals spilled was brought up in one Commissioner’s comments, suggesting that a specific rule on response time was needed – even though the owners of that station have repeatedly said that the story was not true and the station was covering the emergency even though local authorities, working with some outdated contact list, didn’t know where to call. Regardless of the truth of that story, the issue remains the one that appears to be the most controversial on this issue – how will a station with no physical local presence maintain ties with its community. Broadcasters and other interested parties can file comments thorough a date to be announced 30 days after the Notice of Proposed Rulemaking is published in the Federal Register, with reply comments due 15 days later.

These two proceedings again demonstrate that Chairman Pai is serious about his deregulatory agenda for the FCC. Interested parties should comment on these proceedings and stay involved so that their viewpoints can be reflected in the FCC’s ultimate decisions – and in connection with the next deregulatory proposals that may arise from the Modernization of Media Regulation proceeding.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline.  Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your membership.

5 Questions on the Meaning of the FCC’s Recent Ruling on Online Recruiting – How Does it Change a Broadcaster’s EEO Obligations?

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

The FCC recently issued a declaratory ruling (which we summarized here) addressing the requirement that broadcasters widely disseminate information about all of their job openings in such a way as to reach all of the groups within their communities. The recent FCC decision stated that a broadcaster can now rely solely on online sources to meet the wide dissemination obligation. In the past, the sole reliance on online sources would have brought a fine from the FCC, so this is a big change for broadcasters – one which recognizes the realities in the world today as to where people actually go to find information about job openings.

This decision does not end all other EEO obligations imposed by the FCC rules. The Indiana Broadcasters Association recently asked me 5 questions about that new decision to highlight some of the other obligations that still arise under the FCC’s EEO rules. Here is that discussion of the continuing obligations under the EEO rules:

1. The FCC recently issued a Declaratory Ruling about how Job Openings should be posted. What’s changing?

The FCC is now permitting broadcasters (and cable companies) to meet their obligation to widely disseminate information about their job openings solely through the use of online recruitment sources. In the past, broadcasters were fined if they did not, in addition to online sources, use recruitment sources such as community groups, employment agencies, educational institutions and newspapers to solicit candidates for virtually all open positions at any station. Under the FCC’s new ruling, a broadcaster can use online recruitment sources as their sole means of meeting their obligation to widely disseminate information about job openings, as long as the broadcaster reasonably believes that the online source or sources that it uses are sufficient to reach members of the diverse groups represented in its community.

2. Are there still Equal Employment Opportunity requirements in place from the FCC?

This ruling does not abolish all EEO requirements. In addition to a general obligation to not discriminate in hiring and other employment practices, the FCC rules set out a three-prong EEO outreach program for broadcasters. The ruling addresses only the first prong – the obligation to widely disseminate information about virtually all job openings at a station. The other two prongs of the EEO program are undisturbed by the FCC’s recent ruling.

The second prong of the FCC’s EEO rules requires that broadcasters notify a community group about job openings at the station if the community group specifically asks to be notified of such openings. Stations need to continue to provide such notifications and to publicize the fact that community groups can ask to be included on the list of groups getting notifications.

The third prong of the EEO program for broadcasters is the obligation to do “non-vacancy specific outreach” – the menu options of efforts stations need to undertake to educate their community about the jobs available at broadcast stations and the training necessary to fill those jobs, as well as the training of employees and others to assume new responsibilities at broadcast stations. These menu options include activities such as internship and mentorship programs, speaking before community groups about job openings, providing scholarships to those interested in broadcasting, working with educational institutions to educate their students about broadcast jobs, training programs to prepare existing employees to assume new responsibilities and similar programs.

Broadcasters also need to continue to self-assess their program. If the sources that they are using for recruiting do not bring employment candidates from diverse sources, they need to consider changing the mix of recruitment tools that they are using. This obligation to review the success of their EEO outreach is not changed by the recent ruling.

3. Should a station still participate in State Association-sponsored Career Fairs, as a way to bolster EEO outreach?

Yes. As set forth in response to the last question, stations still need to do non-vacancy specific outreach efforts to inform members of their communities about broadcast jobs. One of the menu options available to meet that obligation is the attendance at job fairs by management-level employees who are involved in the hiring process. If station employees attend 4 job fairs in a two year period, they get one credit toward meeting their obligations (smaller stations need 2 credits in each two-year period measured from their license renewal filing date to meet their non-vacancy specific outreach requirements, larger stations in larger markets need 4 credits in a two-year period).

4. Any practices that can be curtailed because of the new ruling?

The new ruling allows a broadcaster to meet its wide dissemination obligation for all of its job openings if they use a single online recruiting source to publicize each opening, if the broadcaster reasonably believes that the online source that it is using will reach members of all groups within its community with information about its openings. That means that the broadcaster need no longer publish ads about job openings in the local newspaper and need no longer reach out to community groups to publicize job openings (except for those community groups that specifically asked to be notified about openings under “Prong 2” of the FCC’s EEO outreach obligations). However, the FCC suggested that it would be a good thing if broadcasters continued to reach out to community groups with information about job openings and to broadcast information about those openings on their own stations – but those outreach efforts are no longer mandatory.

5. Do you see any additional EEO-related changes on the horizon?

The FCC is about to commence a wide-ranging review of all of its rules applicable to broadcast stations looking to determine which ones are no longer necessary. Some have suggested that the remaining FCC EEO outreach obligations are no longer necessary. The FCC, under its statutory obligation to assess the character of all broadcast applicants and licensees, can always act against a station owner if the EEOC or state employment agencies find that the station has actually discriminated in its hiring or other employment practices.

Whether the FCC in fact goes further to deregulate EEO remains to be seen, but several commentators have suggested that the FCC divest itself of responsibilities where there is another government agency with more expertise. Thus, some think that, as there is an EEOC to deal with employment matters and other government agencies who deal with labor and other occupational issues, the FCC ought to reduce its duplicative efforts in this area.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline.  Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your membership.