It was a time when OutKast dominated Top 40 radio and George W. Bush was gearing up for a reelection campaign as U.S. President. That’s when state broadcaster associations filed a petition seeking reconsideration of the Third Report and Order and Fourth NPRM regarding EEO data collection by the Commission.
On February 7, 2024, the FCC decided to act on that 2004 petition, granting it in part while also denying it in part, dismissing in part, and deferring in part.
With numerous parties coming together to file an opposition, the FCC was presented with the following requests in the state associations petition:
- to amend the Note to section 73.3612 to, in their view, clarify and strengthen the Commission’s pledge to refrain from using Form 395-B data for compliance or enforcement purposes
- to address the issue of confidential treatment for Form 395-B
- to issue a Fourth Report and Order resolving issues raised in the Third Report and Order and Fourth NPRM and in petitions for reconsideration filed in response to the Second
Report and Order and Third NPRM
Now, in 2024, the Rosenworcel Commission has taken that long-ago filed petition under consideration. In doing so, it examined a request from State Associations to expand the Commission’s pledge to not use Form 395-B data to assess an individual broadcast licensee’s compliance with the EEO rules.
This would require an edit to Section 73.3612, to read as follows with changes shown in italics:
Note to Section 73.3612: Data concerning the gender, race and ethnicity of a broadcast station’s workforce collected in the annual employment report will be used only for purposes of analyzing industry trends and making reports to Congress. Such data will not be used for the purpose of assessing any aspect of an individual broadcast licensee’s or permittee’s compliance with the nondiscrimination or equal employment opportunity requirements of Section 73.2080. Accordingly, the Commission will not entertain any allegation or showing that a broadcast licensee or permittee has violated any aspect of
Section 73.2080 on the basis that the station’s workforce does not reflect a certain number of persons of a particular gender, race or ethnicity either overall or in any one or more job categories.
With three Democrats ensuring a 3-2 vote in favor of the change, the FCC acted by finding it appropriate “to make certain changes” to the language of this section in its rules.
The phrase “or permittee” passed muster with the opposing parties. However, the Commission did not see any need to include the final sentence shown in italics above, calling it “essentially a repetition of the preceding sentence now that we have added ‘nondiscrimination or’ to the preceding sentence,” it ruled.
The revised rule will read as follows:
Each licensee or permittee of a commercially or noncommercially operated AM, FM, TV, Class A TV or International Broadcast station with five or more full-time employees shall file an annual employment report with the FCC on or before September 30 of each year on FCC Form 395-B. Data concerning the gender, race and ethnicity of a broadcast station’s workforce collected in the annual employment report will be used only for purposes of analyzing industry trends and making reports to Congress. Such data will not be used for the purpose of assessing any aspect of an individual broadcast licensee’s or permittee’s compliance with the nondiscrimination or equal employment opportunity requirements of Section 73.2080.
Regarding the other State Associations issues, most, the FCC says, are unrelated to the Form 395-B filing requirement and is deferring action “because they are beyond the scope of this Order on Reconsideration.”
The Commission then dismissed as moot the ability to recruit via the internet, which the Commission addressed in the intervening time period, and a modification to the effective date of the then-new rules.
