New Procedures: Old Problems – Don’t get caught off guard!

This article originally was published in the March/April 2018 edition of Radio Guide.

On February 26, the Media Bureau issued its first Equal Employment Opportunity (“EEO”) audit of 2018 to randomly selected radio and television stations.  There are two significant changes that 2018 brings to this procedure that could catch broadcasters off guard.

FCC Steps into Cyberspace!

First, broadcasters must note that this is the first EEO audit since the online public file rule has become effective for ALL radio and television stations.  The second significant difference is that this new 2018 audit marks the FCC’s next step into the world of internet dependent communications. Be warned that the Commission is now conducting all correspondence electronically.  The U.S. Post Office is gone, gone, gone! No more mailed letters; so don’t look for FCC notices in the mailbox.  Beginning with this audit, all communications between the FCC EEO staff and broadcast licensees will be accomplished either by email or by filing responses in the FCC hosted online public file. 

Where do I file?

The Commission has created an EEO audits folder in all broadcast stations’ online public files.  Look for it under Equal Employment Opportunity records – additional documents – EEO audits, investigations and complaints.  The February 2018 EEO audit letter instructs broadcaster respondents that their responses must be uploaded to that FCC online public file; they are not to be filed with the secretary or sent directly to the EEO staff, as in past years. 

E-Mail Addresses:

By the way; since the commission is now sending the official correspondence by e-mail, it is also important that every broadcaster be sure to validate its current email address with the Commission and in the contact records it maintains for the station.  You can longer rely on your FCC contact rep, typically your law firm, to get a copy and notify you.  The Commission is not sending copies to the station’s attorney of record or other contact representatives.  In already pending matters Commission’s rules require that notices also be sent to the station’s attorney, and if direct communication occurs with the party, a copy must be mailed to the attorney.  But an EEO audit apparently not considered by the Commission to be a pending matter to which that rule applies, as copies of the recent EEO audit letters were not sent to the FCC contact representatives. 

Not your same old Audit Letter!

So be alert and should you receive an EEO audit letter, notice also that there are some new features.  As in the past, employment units of fewer than five employees are exempted from the audit, however, exempt employment units must now respond with a list of the unit’s full-time employees, identified by job title (without names) and the number of hours each is regularly assigned to work per week.   

Document, Document, Document!

An area where even compliant stations regularly fall short in an EEO audit is documentation. In particular, many stations do good in complying with the EEO rule requirements but fall short by not retaining sufficient documentation of their Prong 3, supplemental outreach efforts.  From the beginning, the Commission has repeatedly emphasized that if you can’t document it, it did not happen!  While stations often participate in more than the required supplemental outreach activities, in my experience too often they don’t think to secure and maintain adequate documentation to verify their participation. 

It’s not that hard to get the adequate documentation at the time of the event, but it can be time-consuming and sometimes impossible to get it a year or two after the fact.  The Commission is not terribly picky about what you keep to document supplemental outreach: it can take the form of thank you letters from schools, students or civic associations, flyers or notices of the event that display the station logo, interview notices from a job fair or any other similar correspondence or document.  The important point is that, although almost any type of documentation would be deemed satisfactory by the staff, you must maintain it and have it available for an audit.

Similarly, when hiring for a full-time position (30 hours a week or more) busy broadcasters sometimes forget to keep documentation of the broad outreach used to advertise employment opportunities.  While the axiom “if it’s not documented, it didn’t happen” remains true, with this audit, the Commission has made it easier for stations to demonstrate their broad outreach in this audit.  While the Commission requires dated copies of all advertisement,  bulletins, letters, faxes, emails or other communications announcing the position, in this audit the employment unit may send one copy of each notice with a list of the sources to which it was sent, rather than providing copies of every notice.  The station must make an affirmative statement to indicate whether it retains copies of all the notices.  On-air ads can be documented with a single log sheet showing when the ad aired and a statement as to the other times it aired instead of providing multiple log sheets.

Ideas for Prong 3

Depending on the size of the market, employment units must perform two or four Prong 3, supplemental outreach efforts every two years, measured from the filing of the station license renewal.  When the If the employment unit has performed more than four initiatives, the audited station needs to document only four and then only summarize the rest and be ready, if asked, to provide more information on request. 

The Commission made it easy for stations to decide what qualifies as a supplemental outreach initiative.  In the original rulemaking, it offered a menu of items that it would accept.

Last year, the Commission made the job of Prong 1 outreach even easier, declaring that broad outreach in hiring may be achieved solely with internet notice, provided certain standards are met.  Years ago, in response to a lawsuit, the Commission changed its EEO approach from requiring specific racial and gender diversity in the employment unit to one of requiring “broad outreach” to achieve inclusiveness.  However, in the belief that the internet was new and would not reliably reach the poor or many minorities, it rejected the suggestion that broad outreach could be achieved solely through the use of the internet.  Last year, and some 15 years later, the Commission announced its reassessment of that conclusion.  Finding that internet usage has become sufficiently widespread, broadcasters can now use the internet as a sole recruitment source to meet the “wide dissemination” requirement of its rules.

In reaching its conclusion, the Commission’s found that the number of internet connections in the U.S. has surpassed the U.S. population and that computer access has become so ubiquitous that it can reasonably be assumed that an internet job posting will be readily available to all segments of the community.  The ruling also relied on a 2015 Pew Research Center study reporting that 90% of Americans who had looked for work in the preceding two years used online resources for their job search and 84% of them submitted their job applications online.  Compared to newspapers, the Commission found that the generally free or cost-effective use of internet postings would assist in even broader outreach than costly print advertising and that employers can automate the process of posting jobs online.  Thus, the Commission found that online job postings were now likely to achieve the largest number of people possible if posted on a widely available site. 

That last caveat is important because the staff will continue to examine the specifics of each case to ascertain whether the posting of a full-time job vacancy actually achieved wide dissemination.  Broadcaster employment units must be prepared to show that the sources achieved broad outreach; how many sources were used no longer matters, provided broad outreach can be documented. 

Also be cautioned that the unit must continue to “use recruitment sources for each full-time vacancy sufficient in its reasonable, good faith judgment to widely disseminate information concerning the vacancy.”  Therefore, broadcasters are free to select the number and type of recruitment sources they use, and may even use a single online internet posting, provided the posting appears on a website that is so widely used that it can reasonably be expected to achieve broad outreach and wide dissemination.  So, the choice of websites and internet outreach remain very important and must continue to be done thoughtfully with FCC policy goals in mind. 

The random audit program:

So back to: Be Prepared!  The FCC is committed to reaching every broadcast station sooner or later.  Audits use a completely random selection process and the odds are that your station will be audited sooner or later.  Be prepared and know the rules.  The audit letters do change from time to time and now you can no longer rely on the U.S. mail or your attorney for notification.  There should be a person in charge of EEO compliance in every station or employment unit and make certain that your current e-mail address is the one on record with the FCC.

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.