## FEDERAL COMMUNICATIONS COMMISSION

**Washington, D.C. 20554**

> In reply refer to:

DA 04-1753 Room 3A740

Letter Released: June 21, 2004

Richard Zaragoza, Esq.

Paul Cicelski, Esq.

Shaw Pittman, LLP

2300 N Street, N.W.

Washington, DC 20037

Re: Emergency Request for Broadcast EEO Audit Relief

Dear Messers. Zaragoza and Cicelski:

This is in reference to your June 7, 2004, Emergency Request for Relief
Under Broadcast EEO Audits, filed on behalf of 45 State Associations of
Broadcasters. Your request asks the Commission to withdraw all EEO audit
letters mailed to radio and television stations and delay any further
mailings until at least 90 days after the Commission acts upon pending
petitions for reconsideration of the EEO rules, or to extend the
deadline for responding to the audit letters until that time. You argue
that a delay is necessary because it will allow stations the opportunity
to incorporate the matters decided in the reconsideration decision into
their EEO programs before the audits are reinstituted. You also allege
that the audits prejudge issues raised in petitions for reconsideration,
that they are inconsistent with the scope of the Commission's EEO
program, and that they should be treated confidentially.

Your request is denied. The EEO rules have been in effect and have been
enforced for more than a year, since March 10, 2003. The audits are
therefore not premature and, given that the review is based on our
current rules, there is no basis to delay audits pending possible
revisions to those rules. Similarly, enforcement of our existing rules
in no way prejudges issues raised on reconsideration and, although the
letters are clear and unambiguous in their terms, broadcasters with
specific questions may call the EEO staff for further clarification.

Your allegation that the audits are outside the scope of the
Commission's EEO program is also incorrect. You claim that the number of
stations to be audited exceeds the Commission's five percent estimate of
broadcast stations to be audited every year because the audits include
all stations within a particular station employment unit ("SEU") with
which the audited station is associated. We understand that some audited
stations are part of larger employment units and will take this into
account as we complete the audit through the remainder of this year.
Thus, we do not expect to audit more than five percent of stations,
although we do not believe that an audit in excess of that number would
result in a cognizable injury to any party.

You also claim that the audit letters go beyond the scope of the
Commission's authorized EEO audits because they request materials in
addition to what is contained in a station's EEO public file. The
Commission has stated that its random audits will require broadcasters
to provide upon request documentation verifying compliance with the EEO
rules.[^1] The audit letters do not ask for documents or information
beyond that required by our EEO rules. Thus, the audit letters comply
with the Commission's authorized procedure for EEO audits.

Finally, you state that the Commission's customary practice is to
maintain the confidentiality of investigations and you argue that
licensees should not be required to place a copy of the audit letter and
responses in their public inspection file. Sections 73.3526(e)(10) and
73.3527(e)(11) of our rules, however, quite clearly provide that
broadcast stations must place in their local public inspection files
material relating to FCC investigations. We have no warrant to deviate
from that requirement here.

Accordingly, in view of the foregoing, the Emergency Request for
Broadcast EEO Audit Relief filed by the State Associations of
Broadcasters IS DENIED.

> Sincerely,
>
> W. Kenneth Ferree
>
> Chief, Media Bureau

[^1]: *Second Report and Order and Third Notice of Proposed Rulemaking*,
    17 FCC Rcd 24018, 24060 (2002).