By: David Oxenford, Wilkinson Barker Knauer, LLP
The FCC on Friday (4/21) released a declaratory ruling making it significantly easier for broadcasters and MVPDs to meet their EEO obligations imposed by FCC rules. These rules for broadcasters and MVPDs (cable and satellite TV providers) require that these businesses, when filling job openings, widely disseminate information about the openings in a manner that is expected to reach members of all community groups in the area from which employees are likely to be found. In the past, under the rules adopted in 2002, the Commission has not allowed recruitment to be conducted solely through online sources. Instead, the 2002 order suggested that the daily newspaper would, in many communities, be an outlet that would reach the diverse groups within a community – though most broadcasters supplemented newspaper publication with notifications to numerous schools, community organizations, educational institutions and others who might possibly refer employee candidates. Stations that relied solely on online sources faced substantial fines from the FCC (see the cases we summarized here and here).
The decision on Friday recognized that we are in a different world than when these rules were adopted almost 15 years ago. Now, most recruiting is done online. Thus, in response to a petition I filed on behalf of clients (summarized here), the FCC determined that a broadcaster or MVPD can rely solely on online sources in its recruiting. It no longer needs to use the newspaper, reach out to community groups or even use its own airwaves to give notice of job openings to satisfy the wide dissemination obligation. The FCC encouraged stations to continue to use some of these outreach methods, but it is no longer required. The broadcaster or MVPD needs to be reasonable in picking online sources that are likely to reach the members of various groups within its community – though the decision as to exactly which online employment sources to use will be left to the good-faith discretion of the broadcaster or MVPD. The Commission went so far as to say that, depending on the circumstances, a single online source could reasonably be found to be sufficient.
Note that this ruling does not change any other EEO requirement. Even though broadcasters no longer need to reach out to community groups to meet the requirement of wide dissemination of job openings, a separate “prong” of the FCC’s EEO policy still requires that broadcasters notify community groups of job openings when a group specifically asks to be notified of such openings. So all outreach to community groups is not over. Also, this ruling does not disturb the requirement that broadcasters engage in efforts to educate the public about broadcast employment opportunities and how to find those opportunities and to train for them. This requirement for non-vacancy specific outreach requires that a broadcaster conduct a certain number of menu options every two years – things like attending job fairs, participating in internship or scholarship programs and having employees speak at educational institutions or before community groups about broadcast employment.
Nor does the ruling lessen the paperwork requirements of completing an annual EEO public file report and otherwise retaining information about a station’s hiring practices. Random EEO audits will also continue (see our post here about the last EEO audit notice). For more about the FCC’s EEO rules, see our posts here and here. Even though some EEO obligations must continue to be observed by broadcasters, this is one step supported both by broadcasters and members of the minority community to bring FCC-required recruiting practices into the modern day.
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.