LS Client Memo

fcc DECIS= IONS SIGNAL STRICT ENFORCEMENT OF eeo RULES

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The FCC recently issued three Notices of Apparent Liability (“NALs”) that serve as a reminder to broadcasters of the importance of complying with the FCC’s EEO rules, including the requirement to recruit widely for every full-time job opening. The NALs imposed forfeitures ran= ging from $3,000 to $12,000 and heightened EEO reporting conditions for three years on the affected broadcasters.

In two of the cases, the FCC determined that the broadcasters failed to properly recruit for certain full-time vacancies by relying exclusively on employee and industry referrals. The FCC concluded that such limi= ted recruitment falls short of the level of broad public outreach required un= der the EEO rules. These two broadcasters also failed to recruit widely for other full-time vacancies by relying on limited sources th= at collectively could not reasonably be expected to reach the stations’ entire community, such as internal postings, websites, employee and indus= try referrals and walk-ins. The= FCC also reiterated that reliance on Internet websites is insufficient to ach= ieve the required broad and inclusive outreach for job openings.

The NALs also cited EEO rule violations not involving recruitment. In one case, a= broadcaster failed to post its EEO public file report on the station’s website = by the public file reporting deadline. In another, a broadcaster failed to provide notice of each full-ti= me vacancy to organizations that had requested such notice, and did not reta= in fully detailed documentation to support data reported in its EEO public f= ile report. In all cases, the v= arious EEO rule violations cited in the NALs were taken by the FCC as evidence of each broadcaster’s failure to engage in the required self-assessmen= t of its EEO recruitment program, which is itself a violation of the EEO rules= .

The FCC imposed special reporting conditions on the affected broadcasters in addition to the forfeitures. The broadcast= ers are required to submit their EEO public file r= eports to the FCC annually (as opposed to bi-annually) for the next three years. In addition, the broadcasters are required to submit additio= nal information demonstrating compliance with the EEO rules, including dated copies of every advertisement, letter, e-mail or other communication announcing full-time vacancies at the employment unit.

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What You Should Do

The NALs reflect the FCC’s heightened enforcem= ent of its EEO rules and the penalties that can be imposed when rule violations = are found. We therefore recomme= nd that you carefully examine your EEO program for compliance with the EEO rules, paying particular attention to these requirements:

Broad Outreach to a Variety of Recruitment Sources, Including Non-Inte= rnet and Non-Station Sources. While the FCC does not require the use of a specific number of recruitment sources, if a source or sources, collectiv= ely, cannot reasonably be expected to reach the station’s entire communi= ty, a broadcaster may be found to be in violation of the FCC’s EEO rules. In practice this mea= ns that a station that relies solely on websites, internal postings, industr= y or employee referrals and walk-ins will not be deemed to have engaged in the required broad EEO outreach.

Notifying Organizations Requesting Notice of All Vacancies. If an organization requests noti= ce of all full-time vacancies at the station employment unit, broadcasters are = required to notify the organizat= ion of all such vacancies.

Recordkeeping. Broadcas= ters should retain copies of all records documenting compliance with each aspe= ct of the employment unit’s EEO program. Specifically, broadcasters should retain notices and other communications relating to job vacancy announcem= ents and should carefully record the number of interviewees for each vacancy by recruitment source. If broadcasters do not know the recruitment source for an interviewee, they should ask for that information during the interview.

Placement of EEO Public File Reports on Station Websites. Broadcasters are required to pla= ce their EEO public file reports on the websites of each station in the stat= ion employment unit, for each station that maintains a website, by the stations’ EEO public file report deadline.

Regular Self-Assessment. The FCC’s EEO rules require that each employment unit periodically assess its recruitment program to ensure that it is effectiv= e in achieving broad EEO outreach, and to address any problems found as a resu= lt of that assessment. Where a broadcaster fails to comply with the FCC’s EEO requirements, the FCC may conclude the licensee separately failed to adequately assess its recruitment program.

If you have any questions concerning these decisions or compliance with t= he FCC’s EEO rules, please contact your primary attorney in our office= .

July 8, 2009

This memorandum is intended only as a general discussion of these issues and should not be regarded as legal advic= e.

We would be pleased to provide additional deta= ils or advice about specific situations if desired.

2000 K Stre= et NW, Suite 600 | Washington, DC 20006-1809
tel. 202.429.8970 | fax 202.293.7783 | www.lermansenter.com

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