**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Review of the Commission's ) MM Docket No. 98-204

Broadcast and Cable )

Equal Employment Opportunity )

Rules and Policies )

and )

Termination of the ) MM Docket No. 96-16

EEO Streamlining Proceeding[^1] )

**MEMORANDUM OPINION AND ORDER**

**Adopted: September 11, 2000 Released: November 22, 2000**

By the Commission: Chairman Kennard issuing a separate statement;
Commissioner Furchtgott-Roth dissenting and issuing a statement.

TABLE OF CONTENTS

Paragraph

I. INTRODUCTION 1

II\. DISCUSSION 3

> A. Recruitment 3
>
> B. Supplemental Recruitment Measures under Option A 8
>
> C. Markets with Low Minority Labor Force 12
>
> D. Internet Recruitment Efforts 16
>
> E. Enforcement Procedures 19
>
> F. Recordkeeping Requirements 21
>
> G. Reporting Requirements 27
>
> H. Annual Employment Report 35
>
> I. Sunset 43
>
> J. Filing Date for Initial Statement of Compliance (Form 397) 45
>
> K. "Safe Harbor" 49
>
> L. Impact of Rule on State Law 51
>
> M. Joint Recruitment Efforts 54
>
> N. Recruitment Exemptions 61
>
> O. Mid-Term Review 64
>
> P. Applicants 65
>
> R. Definition of Market 68
>
> S. Religious Broadcasters 76
>
> T. Owner/Employees 82

III\. CONCLUSION 83

IV\. PROCEDURAL MATTERS AND ORDERING CLAUSES 84

APPENDIX A: Schedule for Initial Filing of Statements of Compliance (FCC
Form 397)

APPENDIX B: Rules

#########  I. INTRODUCTION

1.  The Commission has before it a Petition for Partial Reconsideration
    and Clarification of the *Report and Order in MM Docket Nos. 98-204
    and 96-16*, 15 FCC Rcd 2329 (2000) ("*Report and Order*") filed by
    the National Association of Broadcasters ("NAB"); responses thereto
    filed by Minority Media and Telecommunications Council and 30 other
    organizations ("MMTC")[^2] and by National Organization for Women
    Foundation and seven other organizations ("NOW");[^3] NAB's Comments
    in response thereto; and a letter from counsel for MMTC dated May
    8, 2000. In addition, we will address herein a Petition for
    Expedited Clarification of the FCC's New EEO Rule filed by the law
    firm of Fleischman and Walsh, L.L.P. ("Fleischman"). In the *Report
    and Order*, the Commission adopted new broadcast Equal Employment
    Opportunity ("EEO") regulations and policies and amended its cable
    EEO rules and policies. The rules are designed to be consistent with
    the D.C. Circuit's decision in *Lutheran Church -- Missouri Synod v.
    FCC*.[^4] NAB also requests clarification of certain aspects of our
    rule. We will deny NAB's petition insofar as it seeks
    reconsideration of the rules adopted by the *Report and Order*.
    However, we will provide clarification as to several of the issues
    raised by NAB, as well as the issue raised by Fleischman. In
    addition, we will consider certain issues pertaining to the *Report
    and Order* on our own motion, primarily as a result of informal
    inquiries from the public.

2.  NAB's petition specifically concerns only the broadcast EEO Rule.
    Amendments to the EEO rules applicable to cable entities, including
    multichannel video programming distributors ("MVPDs"), were designed
    to conform those rules, as much as possible, to the broadcast EEO
    Rule.[^5] Accordingly, although no cable entity or representative
    thereof has sought reconsideration of the cable EEO rules,
    clarifications provided herein will also apply to those rules
    insofar as they incorporate requirements similar to those in the
    broadcast EEO Rule.

#########  II. DISCUSSION

**A. Recruitment**

3.  NAB objects to the requirement of the Rule that broadcasters recruit
    for every vacancy. NAB contends that, because of broadcaster
    compliance with EEO regulations for the past 30 years, minorities
    and women have made "great inroads" into the broadcasting industry.
    Accordingly, NAB argues, a requirement that broadcasters recruit for
    every vacancy is no longer necessary. Thus, even if broadcasters did
    rely upon "word-of-mouth" recruitment, NAB contends that would not
    operate to exclude women and minorities because they are now part of
    the "word-of-mouth" network. MMTC generally supports recruitment for
    all vacancies but indicates that exceptions could be made for job
    categories where the number of minorities and women industrywide
    approaches parity with the national labor force. MMTC suggests that,
    at that point, reliance can be placed on "word-of-mouth" networks
    that include minorities and women. It suggests that janitors and
    secretaries might be appropriate job classifications for exemption
    from the recruitment requirement. NOW supports the retention of the
    recruitment requirement in order to afford all qualified individuals
    the opportunity to gain employment within the broadcast industry.

4.  The requirement that broadcasters recruit for every vacancy has long
    been part of our broadcast EEO Rule.[^6] Accordingly, we are
    prohibited from modifying this requirement as applied to television
    licensees by virtue of Section 334(a) of the Communications Act of
    1934, as amended ("Communications Act"), which states that the
    Commission shall not revise the EEO Rule applicable to television in
    effect on September 1, 1992.[^7] Similarly, the statute establishing
    EEO requirements for cable entities requires recruitment whenever
    jobs are available.[^8] NAB has failed to justify a departure from
    these requirements for radio licensees.

5.  NAB's justification for the elimination of the recruitment
    requirement is that 30 years of EEO regulations have resulted in
    minorities and women achieving increased job opportunities in the
    broadcast industry. However, this is an attestation to the success
    of the requirement, not grounds for its abandonment. We cannot
    confidently conclude at this time that the gains made in achieving a
    more diverse workforce would be preserved if we abandoned the
    requirements that substantially contributed to the achievement.
    Moreover, as recently as 1992, Congress found as follows in adopting
    the Cable Television Consumer Protection and Competition Act of 1992
    ("1992 Cable Act"):

> \(1\) *despite the existence of regulations governing equal
> employment* *opportunity*, females and minorities are not employed in
> significant numbers in positions of management authority in the *cable
> and broadcast television industries*;
>
> \(2\) increased numbers of females and minorities in positions of
> management authority in the *cable and broadcast television
> industries* advances the Nation's policy favoring diversity in the
> expression of views in the electronic media; and
>
> \(3\) rigorous enforcement of equal employment opportunity rules and
> regulations is required in order to effectively deter racial and
> gender discrimination.[^9]

NAB has not demonstrated that the remaining problems found by Congress
in 1992 have since been resolved so as to justify eliminating a
requirement that has helped open up employment in the broadcast industry
to a broader spectrum of job candidates. Moreover, in the absence of the
requirement to recruit for all full-time vacancies, many of the most
desirable positions might be open to a limited number of potential
applicants, possibly excluding significant segments of the community,
such as minorities and women.

6.  Further, we note that the recruitment requirement contained in our
    present Rule is not limited to recruitment designed to attract
    minority and women applicants. Rather, it is designed to ensure
    broad outreach to all potential applicants, including, but not
    limited to, minorities and women. This race and gender neutral
    approach will provide significant benefits to all persons interested
    in broadcast employment, not only minorities and women. We do not
    believe it would be appropriate to create exemptions based on the
    racial and gender composition of the labor force, as suggested by
    MMTC, because we wish to maintain a race and gender neutral approach
    that eliminates barriers to employment that are unrelated to job
    qualifications.

7.  Finally, NAB submits as an attachment to its Petition a letter from
    a broadcaster who indicates that his station typically begins the
    recruitment process by talking to other broadcasters as the first
    step. He also reports that this is followed up by contacts with
    other public sources. The broadcaster complains that the *Report and
    Order* renders such "word of mouth" techniques as contacts with
    other broadcasters "unacceptable." This is incorrect. We have
    precluded reliance on "word of mouth" recruitment as the sole method
    of recruitment because "word of mouth" techniques alone will not
    achieve broad outreach. However, a broadcaster is not precluded from
    utilizing "word of mouth" recruitment sources so long as it has also
    used public recruitment sources sufficient to widely disseminate
    information concerning the vacancy, as required by our rules.

**B. Supplemental Recruitment Measures Under Option A**

8.  Under Option A of our EEO Rule, broadcasters are required to
    undertake two supplemental recruitment measures in addition to wide
    dissemination of information concerning vacancies. One of these
    supplemental recruitment measures involves performing longer-term
    initiatives selected from a "menu" of alternatives, such as
    participation in or sponsorship of job fairs, participation in
    community events, internship programs, scholarships, and similar
    activities.[^10] Broadcasters with five to ten full-time employees
    must perform two activities selected from the menu every two years,
    while larger broadcasters must perform four activities every two
    years. NAB contends that this requirement is burdensome and
    unnecessary. NAB notes that it had proposed a similar menu-like
    system in its Comments filed in this proceeding. However, NAB
    intended its proposal as a substitute for the requirement that
    broadcasters recruit for every vacancy. NAB contends that imposing
    this requirement as a supplement to recruitment for every vacancy
    "may be too burdensome for some stations to use." It further urges
    that, in any event, the number of menu options broadcasters are
    required to implement over a two-year period is unduly burdensome
    and should be reduced. It cites the fact that broadcasters must
    attend four job fairs in order to receive credit for having
    performed one menu option.[^11] MMTC opposes any changes in the
    Option A menu options. NOW also opposes the elimination or reduction
    of the menu options, suggesting that, if anything, the options
    should be more focused on women and minorities.

9.  We are not persuaded to modify our requirements in this respect.
    NAB's contentions are premised on little more than generalized
    claims of burden that it has failed to support with any specific
    evidence. Option A is intended to supplement the requirement for
    vacancy-specific recruitment with longer term recruitment and
    training activities that will raise the community's awareness of
    employment opportunities and develop a talent pool that broadcasters
    and cable entities can draw from as specific vacancies occur. As a
    result, all segments of the community will not only have access to
    information concerning specific job vacancies but also will be
    encouraged to develop the knowledge and skills to pursue them. We
    believe that this will enhance the effectiveness of vacancy-specific
    recruitment efforts. NAB's assertion that our new requirements
    impose unreasonable burdens is particularly unpersuasive because we
    have removed recordkeeping burdens imposed by our former Rule that
    are no longer necessary as a result of the Option A supplemental
    recruitment measures. Broadcasters that elect Option A will not have
    to collect data concerning the gender, race, or ethnicity of
    applicants, interviewees, or hirees, which many broadcasters
    identified as the most burdensome requirements of our former Rule.
    Instead, we require them to collect race and gender neutral data as
    to the recruitment sources of interviewees and hirees so that they
    can monitor whether those sources are productive.

10. NAB has similarly failed to support its claim that the number of
    menu options that broadcasters must perform is unreasonable. The
    Rule provides a number of options from which a broadcaster may
    choose. For example, if it feels that attending four job fairs over
    a two-year period is excessive, it can choose among a wide array of
    other options. Moreover, the Rule incorporates relief for small
    broadcasters by requiring performance of fewer menu options by
    broadcasters with five to ten full-time employees. Finally, we will
    not modify the menu options as suggested by NOW to more narrowly
    focus on women and minorities. The menu options are part of a
    program that is designed to benefit all segments of the community,
    including, but not limited to, women and minorities. If recruitment
    activities are inclusive, the entire community should benefit.

11. As indicated in the *Report and Order*, we intend to provide
    broadcasters maximum flexibility and opportunity to experiment with
    respect to the implementation of the menu options.[^12] Thus, our
    Rule specifically allows initiatives developed by broadcasters that
    are not otherwise enumerated in the Rule.[^13] We have received
    inquiries as to whether it would be permissible to implement half of
    two options and combine the two halves to count as one of the four
    initiatives (or two in the case of stations with five to ten
    full-time employees) required over two years, such as, by combining
    attendance at two (rather than four) job fairs pursuant to Section
    73.2080(c)(2)(i) and sponsorship of one (rather than two) community
    event pursuant to Section 73.2080(c)(2)(xi). This would be
    consistent with the intent of our Rule, which is designed to afford
    broadcasters flexibility in the implementation of the menu options.
    Thus, we wish to encourage broadcasters to experiment in order to
    find the outreach initiatives that will be most effective in their
    communities and make the best use of their resources.

**C. Markets with Low Minority Labor Force**

12. NAB urges us to reinstate what it refers to as the "traditional
    exemption" applicable under our former Rule in the case of
    broadcasters located in markets with a minority workforce of five
    percent or less. MMTC expresses concern that the reinstitution of
    the exemption could raise questions as to the program's compliance
    with *Lutheran Church*. NOW contends that the exemption is no longer
    necessary.

13. The policy in question was not a wholesale exemption from the Rule.
    Women are present in all markets and thus all broadcasters were
    required to maintain an EEO program directed to women, and hence
    were required to recruit for all vacancies. However, when a
    broadcaster applied for a new construction permit or approval of the
    assignment or transfer of control of an existing license, it was
    generally required to submit an EEO program showing how it would
    assure equal employment opportunity for both women and minority
    groups.[^14] Similarly, at renewal time, broadcasters were required
    to set forth information and data concerning their EEO efforts
    specifically targeting both women and minorities.[^15] Because the
    focus of the pertinent forms was on efforts to recruit minorities
    and women, we recognized that there was no purpose in requiring the
    information and data required by those forms with respect to
    minorities where minorities were not significantly present in the
    labor force.

14. Our present rule does not focus on efforts to recruit minorities and
    women specifically, but rather on efforts to achieve broad outreach
    to all segments of the community. Thus, the present Forms 396-A and
    396 are not directed specifically to efforts to recruit women and
    minorities, but rather to efforts to achieve broad outreach. Because
    we do not request information or data targeted to efforts to recruit
    minorities, an exemption for broadcasters located in markets with a
    small minority workforce would not be pertinent, as indicated in the
    *Report and Order*.[^16]

15. NAB contends that our emphasis on broad outreach to the entire
    community is inconsistent with our purpose, as perceived by NAB, of
    "increasing minority participation in the broadcasting industry."
    This is without merit. Our Rule is still designed to ensure equal
    opportunity for all applicants to learn of and compete for jobs,
    including minorities and women. We believe that the goal of equal
    opportunity we have always sought can be achieved through a policy
    based on broad outreach. Insofar as all prospective applicants are
    given a meaningful chance to seek broadcast employment, minorities
    and women will necessarily be included, while avoiding the
    perception that those groups are being unfairly favored to the
    disadvantage of other groups. Accordingly, NAB has failed to
    demonstrate a basis for reinstating the former practice and its
    request for reconsideration is therefore denied.

**D. Internet Recruitment Efforts**

16. NAB contends that the Rule does not give credit for the use of the
    internet as a recruitment tool, based on its interpretation of
    Paragraph 86 of the *Report and Order*.[^17] NAB therefore requests
    reconsideration of our decision insofar as it excludes the internet
    completely and urges that we should recognize it as a valid method
    (among many different methods) of widely disseminating job vacancy
    information. MMTC contends that the internet is not at present an
    effective method of reaching minorities. NOW argues that the
    Commission did not deny all credit for internet recruitment, but
    that the internet is not yet adequate as the sole means of
    recruitment.

17. We find no need for the requested reconsideration. Paragraph 86 of
    the *Report and Order* addressed the suggestion that we should adopt
    a rule that would find a broadcaster to have achieved broad outreach
    based on the use of the internet as its **only** recruitment source.
    We found that **at this time** reliance on the internet as the
    **sole** method of recruitment was not warranted. We nonetheless
    recognized that the internet may be a valuable recruitment source,
    albeit at this time "as one of several recruiting mechanisms." Thus,
    the *Report and Order* did not exclude the internet as a recruitment
    source, but recognized it as one of several useful methods a
    broadcaster might utilize in conjunction with others to achieve
    broad outreach.

18. We remain optimistic that the internet will develop as an
    increasingly effective means of communicating job vacancies to
    prospective applicants. As indicated in Paragraph 87 of the *Report
    and Order*[^18], we will continue to monitor the development of
    internet job banks. Also, we will entertain requests to modify our
    current position that the internet is not yet adequate, by itself,
    to widely disseminate vacancy information, in accordance with the
    standards specified in Paragraph 87 of the *Report and Order*.

> **E. Enforcement Procedures**

19. NAB generally objects to our enforcement procedures and "zero
    tolerance" policy, including our recordkeeping and reporting
    requirements, as unnecessary in light of the absence of any evidence
    that broadcasters are unlikely to comply with our requirements. NAB
    contends that broadcasters have complied diligently with EEO
    requirements in effect during the past 30 years and gains have been
    made within the industry. MMTC questions the industry's commitment
    to EEO efforts in the absence of a rule. It also urges that, even to
    the extent that most broadcasters comply, there should be no
    acceptable level of noncompliance. NOW supports the specific
    enforcement measures we have adopted.

20. The enforcement mechanisms we have adopted are designed to ensure
    compliance and to assist the broadcasters in implementing the
    program. NAB has failed to demonstrate these measures are unduly
    burdensome. We note in this regard that we have eliminated many of
    the aspects of the prior rule to which broadcasters most objected,
    in particular, the requirement to track the gender, race and
    ethnicity of all applicants, interviewees and hires. Also, we have
    sought to accord broadcasters maximum discretion in designing their
    EEO programs. Moreover, NAB misperceives the "zero tolerance
    policy." It provides notice that the Commission will not fail to act
    when habitual or egregious violations of program requirements are
    demonstrated. The policy will not be implemented to impose sanctions
    on broadcasters for minor deficiencies where the overall record
    demonstrates a good faith effort to comply with the program's
    requirements. Especially in the initial implementation of our new
    requirements, we expect to rely upon guidance and advice more than
    sanctions to achieve our underlying goal of ensuring the
    implementation of effective EEO programs.

**F. Recordkeeping Requirements**

21. NAB contends that the recordkeeping requirements contained in the
    Rule are unduly burdensome and unnecessary. It contends that the
    requirement under Option B to collect data on the race and gender of
    applicants remains burdensome because it is often necessary to
    request applicants to provide this information. It further asserts
    that the recordkeeping requirements of the Rule are inconsistent
    with the goal of reducing recordkeeping requirements for some
    broadcasters reflected in *Streamlining Broadcast EEO Rules and
    Policies*, 11 FCC Rcd 5154 (1996) ("*Streamlining*"). It urges that
    the imposition of what it views as more stringent recordkeeping
    requirements is inconsistent with the approach proposed in
    *Streamlining*.

22. We believe that the recordkeeping requirements applicable to Option
    A and B, respectively, are reasonably necessary to enable
    broadcasters, the public, and the Commission to monitor compliance
    with the requirements of the recruitment option elected by the
    broadcaster. The records required to be maintained permit
    verification that a broadcaster took the steps it was required to
    take under the recruitment option it elected. In addition, the Rule
    requires specified data designed to permit verification that the
    broadcaster's efforts under the recruitment option it elects are
    succeeding in widely disseminating information concerning job
    vacancies. Without such data, the broadcaster may not be able to
    assess whether its outreach is inclusive, and the Commission will
    have no way to verify that the broadcaster has complied with the
    requirements of the recruitment option it elected.[^19]

23. NAB's claim that the recordkeeping requirements are unduly
    burdensome is not supported. The only specific burden cited is the
    burden of tracking the race/ethnicity and gender of applicants. We
    note that any broadcaster that finds that requirement unduly
    burdensome can avoid it by electing recruitment Option A;
    broadcasters that elect Option A are not required to track the
    race/ethnicity and gender of applicants. While that requirement is
    still applicable to broadcasters that elect Option B, the burden is
    no greater than under our former rule. Moreover, under either
    option, broadcasters are not required to track the race/ethnicity
    and gender of interviewees and hirees, as was the case under the
    former rule.

24. We sought to determine in the *Streamlining* proceeding whether
    relief was warranted for certain smaller broadcast stations or
    stations in smaller markets arising from concerns expressed that
    such broadcasters had difficulties "attracting and retaining
    minority employees."[^20] We proposed various alternatives to
    address this problem in the context of the requirements then in
    effect. However, the problem of demonstrating success in attracting
    and retaining minority employees is moot because our new Rule
    requires inclusive outreach to all job candidates, regardless of
    race or ethnicity. In addition, we have provided relief for smaller
    stations by requiring fewer menu options for stations with ten or
    fewer full-time employees that elect Option A and by excusing radio
    stations with ten or fewer full-time employees from mid-term
    reviews.[^21] Finally, our Rule accords broadcasters a choice
    between two recruitment options (A and B) that will enable
    broadcasters to assess, in light of their own circumstances, which
    option involves the least burden. Many small broadcasters may find
    Option B to be less burdensome because they have relatively few
    vacancies. Accordingly, we believe that our current requirements are
    consistent with the thrust of our proposals in *Streamlining*, to
    the extent that those proposals have not become moot under the new
    EEO Rule.

25. Another proposal in *Streamlining* concerned the use of joint
    recruitment efforts.[^22] While broadcasters remain ultimately
    responsible under the new Rule for ensuring broad outreach, they may
    engage in joint recruitment efforts, including, where appropriate,
    joint efforts to implement the Option A supplemental recruitment
    measures.[^23] In this respect, the *Report and Order* is consistent
    with the *Streamlining* proposal.

26. Finally, we proposed addressing in *Streamlining* the use of
    alternative labor forces different from those generally required
    under our former EEO Rule.[^24] Under our present EEO Rule, that
    issue is moot because, as discussed below, broadcasters may use
    reasonable, good faith discretion to define their markets and assess
    whether their outreach efforts within their markets are inclusive.

**G. Reporting Requirements**

27. NAB objects to two reporting requirements incorporated into the EEO
    Rule. It first objects to the requirement that broadcasters place
    certain information concerning their recruitment efforts in the
    station public file annually.[^25] It also objects to the
    requirement that broadcasters file a statement of compliance with
    the Commission every two years.[^26] NAB objects to both
    requirements because they constitute new reporting requirements that
    NAB views as unnecessary and redundant. It urges that these
    requirements are not warranted by past failures of broadcasters to
    comply with EEO requirements. MMTC urges the retention of both
    requirements. It contends that the public file requirement is
    essential to ensure the widest possible availability of EEO
    compliance information. MMTC contends that, in addition to its use
    for members of the public in a station's community, the information
    is also legitimately used by national civil rights organizations
    that assist local groups in monitoring EEO compliance and to
    prospective employees who are concerned about their prospective
    employer's EEO record.

28. We are not persuaded by NAB's contentions that the public file
    report and the biannual statement of compliance are unnecessary. We
    have accorded broadcasters considerable discretion in the
    implementation of their EEO programs. We believe that the monitoring
    devices we have established are necessary and reasonable to ensure
    that EEO programs are meaningfully implemented on a continuing
    basis. We do not believe that this goal could be reliably ensured by
    conducting a review of EEO compliance only at the end of eight-year
    license terms. Thus, we seek to ensure that licensees do not ignore
    our EEO requirements until shortly prior to renewal time.
    Accordingly, we are requiring that broadcasters submit a statement
    of compliance (FCC Form 397) wherein a broadcaster must certify
    whether or not it has complied with the outreach requirements of the
    EEO Rule during the preceding two years. The requirement should not
    generally involve a significant burden because a broadcaster should
    be continuously aware of whether or not it is in compliance with
    Commission rules. However, if this is not so in a particular case,
    the required filing will enable the broadcaster to discover and
    correct any deficiencies in its EEO efforts long before the filing
    of its next renewal application. Further, we note that broadcast
    licenses have been the subject of frequent sales and consolidations
    in recent years. As a result, the licensee during the early part of
    a license term may have disposed of the license by renewal time.
    More frequent review of EEO efforts is warranted to ensure that each
    licensee, not just the licensee that holds a license at renewal
    time, will implement a meaningful EEO program.

29. We believe it particularly appropriate for the Commission to review
    broadcasters' EEO efforts more frequently than once every eight
    years in the initial stages of the implementation of our Rule. Thus,
    we expect to rely upon the statements of compliance, including, when
    applicable, mid-term reviews, to detect any problems in the
    administration of the Rule and to clarify issues that may arise
    concerning the Rule. This would be impossible if we awaited the next
    renewal application filings, which will not be due, at the earliest,
    until 2003.[^27] We also believe that the statement of compliance
    will serve a beneficial purpose by ensuring that broadcasters
    periodically review the extent of their compliance.

30. Moreover, the public file report is designed to facilitate public
    participation in the EEO process. Because our goal is to ensure that
    broad outreach is achieved, we believe public participation is
    important. Thus, the public can bring to a broadcaster's attention a
    problem of which it might not otherwise be aware. In addition, we
    believe that meaningful, ongoing communication between a broadcaster
    and the public will result in a more effective outreach program.

31. Our record-keeping and reporting requirements are not based on any
    expectation that broadcasters are likely to violate the Rule.
    Rather, we anticipate that most broadcasters will seek to comply. We
    believe that the public file report and the statement of compliance
    will assist broadcasters in doing so by enabling them to detect and
    correct any problems expeditiously. As a result, initially minor
    deficiencies will not develop into a long-standing pattern of
    perhaps unintentional noncompliance that may result in delay and a
    serious enforcement action at renewal time. In addition, as noted
    above, broadcasters may benefit from communication with, and input
    from, the public. Accordingly, we believe that the public file
    report and the statement of compliance are necessary for the proper
    administration of our Rule, and we do not believe that they impose
    any unreasonable burden on broadcasters.

32. NAB objects to the requirement that broadcasters who have web sites
    place the public file report on the web site. It compares the
    requirement to a proposal we previously rejected that a broadcaster
    be required to mail copies of documents contained in the public file
    to persons outside the station's service area.[^28] NAB further
    notes that some stations maintain web sites that are not configured
    for purposes such as the posting of the public file report.
    Accordingly, a substantial expense would be involved in posting the
    public file report. NAB also asserts that requiring the internet
    posting of the public file is inconsistent, in NAB's view, with our
    unwillingness to credit the internet as a recruitment tool. Both
    MMTC and NOW oppose NAB's request that we delete this requirement.
    They contend that there are legitimate uses for the information
    outside of the service area. MMTC also points out that, even if the
    licensee's web site could not accommodate the public file report,
    the licensee could arrange for its inclusion on some other party's
    web site with an appropriate link.

33. We will retain the requirement that broadcasters that have a web
    site post the public file report on it. The requirement is designed
    to facilitate access by persons within the service area. That this
    may also make it accessible to persons outside the service area is
    therefore not material and we need not reach the question of whether
    such persons have a legitimate need for the information. With
    respect to the contention that, in some instances, broadcasters may
    experience difficulties in accommodating the public file on their
    existing web sites, NAB has failed to provide information as to the
    extent of any such difficulties or the costs involved in addressing
    them sufficient to justify a change in the requirement specified in
    our rules.

34. NAB requests clarification as to whether the public file report must
    include the names of interviewees. The pertinent provisions of the
    Rule state that the public file report should include the number of
    interviewees or applicants, as applicable.[^29] Thus, we confirm
    that there is no requirement that the public file report include the
    names of the interviewees or applicants. All that is required is,
    under Option A, the total number of interviewees generated by each
    recruitment source during the year preceding the filing of the
    report (e.g., Daily Newspaper -- 11 interviewees) or, under Option
    B, the total number of applicants generated by each recruitment
    source during the year preceding the filing of the report as well as
    a breakdown of how many of those applicants were women or members of
    a minority group (e.g., Daily Newspaper -- 50 applicants including
    25 women, 18 Blacks, 8 Hispanics, 4 Asian/Pacific Islanders).

**H. Annual Employment Report (FCC Form 395-B)**

35. NAB requests modification or elimination of the Broadcast Annual
    Employment Report (FCC Form 395-B). Form 395-B is an annual report
    of the employees at a broadcast employment unit, broken down by
    gender and race/ethnicity. This information will be utilized to
    monitor industry trends, assess the effectiveness of our Rule, and
    report to Congress.[^30] We continue to believe that these are
    important functions, and, accordingly, decline to eliminate the
    filing requirement. We made it clear in the *Report and Order* that
    the information will not be used in any way to assess broadcasters'
    or cable entities' compliance with our EEO rules. Further, we will
    summarily dismiss any petition filed by a third party based on Form
    395-B employment data.[^31] This means that we will not use
    employment data as a means for processing or screening renewal
    applications or mid-term reviews. It also means that we will not use
    this data as a basis for conducting audits or inquiries.

36. NAB contends in its Petition that, notwithstanding our express
    intent not to consider employment data in assessing broadcasters'
    and cable entities' EEO compliance, its collection might nonetheless
    violate *Lutheran Church* by creating pressure to engage in
    race-based hiring because overall industry trends might ultimately
    impact decisions concerning possible changes in applicable EEO
    regulations. MMTC argues in opposition that it is unlikely that
    hiring decisions would be impacted by this consideration. NOW
    contends that the Commission, Congress and the public need the
    information collected in order to assess the effectiveness of the
    rules.

37. We disagree with NAB's contention that the collection of employment
    data might result in raced-based hiring decisions. We do not believe
    that a broadcaster would take into account an applicant's race in
    connection with a particular hire because of its speculative and
    highly attenuated impact on future regulations affecting the
    industry generally. Thus, in making a particular hire, the primary
    concern of any reasonable broadcaster is to find the best possible
    person for the job at hand. It is highly unlikely that a broadcaster
    would hire a less qualified person solely for the purpose of
    impacting overall industry employment statistics because the impact
    of an individual hiring decision on those statistics would be
    negligible and Commission action modifying the EEO Rule as a result
    of long-term industry trends would be highly speculative.

38. NAB urges that, if we retain the employment report requirement, we
    should at least adopt a procedure whereby the employment data
    supplied would be separated from the identity of the broadcaster
    supplying it. NAB justifies its request on the ground that it will
    "ameliorate broadcasters' concerns" and prevent misuse of the data
    either by the Commission or other parties. MMTC and NOW oppose NAB's
    proposal, arguing that the public is entitled to access to this
    information.

39. We will not adopt the NAB's proposal. We have made it clear that we
    will not use this data for the purpose of assessing any aspect of an
    individual station's compliance with our EEO rule, and that we will
    summarily dismiss pleadings alleging EEO violations based on that
    data. Therefore, we do not believe that there is a legitimate basis
    for broadcasters to fear that the data will be used against them in
    EEO enforcement proceedings. While we have considered the proposal
    to use a "tear-off" sheet to separate the identity of the filer from
    the employment data, we have declined to adopt it for several
    reasons. To ensure the integrity of our data collection program, we
    need to maintain the identity of the filer with the data at least
    long enough to allow the staff to contact the filer if the data
    submitted is incomplete. If we separated the identity of the filer
    from its filing immediately, we would have no way to contact the
    filer in the event that we discovered, upon review, that its
    submission was incomplete. Nor is separation of the filer's identity
    *after* an initial review to determine completeness a workable
    solution. Under the Freedom of Information Act,[^32] we would not be
    able to withhold the complete filing from members of the public
    during our initial review period, however brief that might be, so
    this procedure would not accomplish the NAB's goal of making the
    filing completely anonymous. In any event, we believe that we are
    legally precluded from adopting the NAB's tear-off sheet proposal.
    Under the Federal Records Act (FRA),[^33] we cannot "alienate or
    destroy" any information that is an integral part of an agency
    record except in compliance with the FRA's provisions. We believe
    that the identity of the filer would be considered an integral part
    of the employment report that could not be severed from the
    employment statistics under the FRA.[^34] Thus, the only way to
    assure the complete anonymity that the NAB seeks would be to allow
    the employment report to be filed anonymously. But this would afford
    us no way of enforcing the reporting requirement, and thus would
    completely undermine the integrity of the data collection program.

40. Nevertheless, in order to alleviate the concerns of broadcasters to
    the fullest extent possible consistent with our statutory
    responsibilities and constraints, we will add a provision to the
    broadcast and cable EEO rules reflecting the assurances we have
    repeatedly provided: that data concerning the gender, race and
    ethnicity of a broadcaster's or cable entity's workforce will be
    used only for purposes of analyzing industry trends and reporting to
    Congress, and that it will not be used for the purpose of assessing
    any aspect of an individual broadcaster's or cable entity's
    compliance with our EEO rules. Since we are legally obligated to
    comply with our own rules,[^35] this should put to rest the concerns
    of even the wariest broadcaster.

41. NAB finally urges that we should require the filing of employment
    data every two years rather than every year. It cites the fact that
    a licensee is only required to file an ownership report (FCC Form
    323), which includes information as to gender and race or ethnic
    status of owners, every two years.[^36] MMTC and NOW urge the
    retention of the annual filing.

42. We will continue to require the annual filing of the employment
    report. The ownership report is not analogous to the employment
    report because, in addition to the routine biennial filing of the
    ownership report, broadcasters must file an ownership report within
    30 days after consummating an ownership change that requires
    Commission approval,[^37] a requirement inapplicable to the FCC Form
    395-B. Thus, the information available to the Commission at any
    given time remains reasonably current. We believe that, especially
    in view of the large number of station sales that have taken place
    in recent years, an annual filing of the employment report is
    necessary to ensure reasonably current data. Indeed, Section 334 and
    Section 634 of the Communications Act, which require the collection
    of annual employment data concerning broadcast television licensees
    and cable entities,[^38] reflect a Congressional preference for
    annual filings of employment data. Moreover, the filing of this data
    is not unduly burdensome. Finally, for the same reasons discussed in
    para. 4, above, we believe that Sections 334 and 634 of the
    Communications Act would preclude a change in this requirement for
    broadcast television stations and cable entities. To adopt a
    different requirement for radio would render the data for these
    services less useful because the data would reflect different time
    periods.

> **I. Sunset**

43. NAB urges that we should establish a sunset provision establishing a
    date when EEO enforcement will be discontinued because there is an
    absence of evidence that discriminatory practices continue to exist.
    MMTC indicates that it may in the future be appropriate to establish
    a sunset provision for some aspects of the rules based on industry
    trends as to the employment of minorities and women.

44. For the reasons stated in paragraph 148 of the *Report and
    Order*,[^39] we do not believe that the establishment of a sunset
    deadline is appropriate at this time. In particular, as noted
    therein, we do not believe that such a deadline would be consistent
    with Sections 334 and 634 of the Communications Act, which require
    us to maintain EEO rules for television broadcasters and cable
    entities. NAB does not address these statutory constraints. We also
    note that the requirements we have adopted are race neutral. Thus,
    they are based on the proposition that broad outreach will ensure
    equal opportunity for all, and the absence of evidence that
    "discriminatory practices continue to exist" would not necessarily
    indicate that the rules no longer serve the public interest.[^40]
    Finally, NAB does not even suggest an objective basis on which to
    sunset the rules.[^41] Of course, as with all our rules, we will
    monitor the continuing effectiveness of and need for the EEO
    requirements on an on-going basis.

> **J. Filing Date for Initial Statement of Compliance (Form 397)**

45. NAB requests clarification of the filing schedule for the initial
    statement of compliance (Form 397). It notes that the rule requires
    that a statement of compliance be filed on the second, fourth and
    sixth anniversaries of the filing of a station's last renewal
    application.[^42] However, paragraph 143 of the *Report and Order*
    indicates that the first filing will be made on June 1, 2000, only
    by the television renewal group consisting of stations in the
    District of Columbia, Maryland, Virginia and West Virginia, and that
    the first filing by radio licensees will be made on June 1, 2001, by
    radio stations in the same states.[^43] NAB contends that this is
    inequitable, confusing and contrary to the rule.

46. We will clarify our policy regarding the initial filing of
    statements of compliance. In doing so, we will abandon the schedule
    suggested in paragraph 143 of the *Report and Order*. Initially, by
    *Public Notice* dated April 28, 2000, we indicated that, for the
    year 2000, we expect statements of compliance from only four
    television renewal groups: District of Columbia, Maryland, Virginia
    and West Virginia (June 1, 2000); North Carolina and South Carolina
    (August 1, 2000); Florida, Puerto Rico and the Virgin Islands
    (October 1, 2000); and Alabama and Georgia (December 1, 2000). We
    will adhere to that schedule for the year 2000. However, beginning
    in 2001, we will commence the regular filing schedule as prescribed
    in the rule, i.e., all radio and television stations will file a
    statement of compliance on the second, fourth, or sixth anniversary
    of the filing of their last renewal application. For instance, by
    February 1, 2001, statements of compliance should be filed by
    television stations in Arkansas, Louisiana, and Mississippi (fourth
    anniversary); television stations in New Jersey and New York (second
    anniversary); and radio stations in Kansas, Nebraska, and Oklahoma
    (fourth anniversary). For convenience, Appendix A hereto sets forth
    the deadlines for the initial filing of the statement of compliance
    for each renewal group.[^44] Thereafter, stations in each group must
    file the form biennially.

47. Low power television (LPTV) stations are subject to the broadcast
    EEO Rule by virtue of a cross-reference contained in Section 74.780
    of the Commission's Rules. This includes the requirement to file
    statements of compliance. However, we will not require LPTV stations
    to file statements of compliance in 2000. Beginning February 1,
    2001, LPTV stations with five or more full-time employees should
    begin filing statements of compliance in accordance with the
    schedule prescribed for television stations. We note, however, that
    LPTV stations are not subject to the requirement that certain EEO
    information be placed in the public file annually because LPTV
    stations are not required to maintain a public file. They are also
    not subject to mid-term review because such review is based on the
    public file report. Similarly, they are not required to submit a
    copy of the public file report at renewal time. However, LPTV
    stations with five or more full-time employees are subject to the
    recordkeeping requirements of Section 73.2080(c)(5) or (d)(1) of the
    Rules (depending on whether they have elected Option A or Option B),
    which must be submitted to the Commission if requested.[^45]

48. We have also created a new broadcast service, Class A Television,
    consisting of former LPTV stations.[^46] As in the case of LPTV, we
    will not require the filing of statements of compliance in 2000.
    Beginning February 1, 2001, Class A Television stations with five or
    more full-time employees should begin filing statements of
    compliance in accordance with the schedule prescribed for television
    stations. Unlike LPTV stations, Class A Television stations are
    treated as full power stations and are subject to most requirements
    applicable to full power stations.[^47] This includes the
    requirements of the EEO Rule. Therefore, Class A television stations
    with five or more full-time employees will be expected to comply
    with the provisions of the EEO Rule, to place annually a public file
    report in the public file, to file a statement of compliance (FCC
    Form 397) every two years, and to submit a copy of the public file
    report as part of their mid-term statement of compliance, as well as
    at renewal time.

> **K. "Safe Harbor"**

49. NAB requests that we should clarify our rule to specify the extent
    of recruitment that is required so as to create a "safe harbor" that
    will be presumed to constitute broad outreach. NAB contends that
    compliance with the outreach requirement requires that a broadcaster
    "prove" not only that its sources are sufficient to notify
    minorities and women of job vacancies but that minorities and women
    were in fact reached with this information. It contends that, in the
    absence of a prescribed "safe harbor," the only way to do so is to
    demonstrate that minorities and women are in fact present in
    interview pools (under Option A) or applicant pools (under Option
    B). Pursuant to its understanding of the Rule, NAB suggests that,
    under Option A, a broadcaster that gets most of its interviewees
    from the daily newspaper would be deemed to have an ineffective
    outreach proposal, even though the newspaper's circulation may reach
    the entire community. MMTC opposes the creation of a "safe harbor"
    because it would be misinterpreted as a quota and would discourage
    experimentation. NOW argues that Option A in itself constitutes a
    "safe harbor."

50. We will not prescribe a minimum number or type of recruitment
    sources that will be deemed to constitute broad outreach. The
    sources necessary to accomplish broad outreach will necessarily vary
    based on the circumstances of each community. Further, NAB's request
    is premised on the misconception that we will expect broadcasters to
    prove not only that they have achieved outreach to minorities and
    women but also that minorities and women in fact received the
    information and applied for jobs. The EEO Rule requires only that
    broadcasters engage in recruitment reasonably calculated to reach
    all segments of the community, including minorities and women. It
    does not require that minorities and women in fact be present in
    either applicant or interview pools to any specified degree. Indeed,
    under Option A, we have no way of determining the presence of
    minorities and women in the applicant or interview pools. Under
    Option B, a virtual absence of minority or women applicants despite
    their presence in the community might raise a question as to whether
    the broadcaster's recruitment sources were sufficient to reach them,
    and should cause a broadcaster to examine the reach of the
    recruitment sources it is utilizing. However, if the broadcaster
    were able to demonstrate that its sources in fact could be expected
    to reach those groups, a violation would not be found based on the
    fact that minorities or women did not apply. Under either option, a
    general lack of referrals from outside recruitment sources might
    similarly raise a question as to whether those sources were
    achieving broad outreach. With respect to NAB's hypothetical, we
    would not find recruitment ineffective simply based on the fact that
    a broadcaster's interviewees came from a daily newspaper that
    reached the entire community, nor would we draw any adverse
    inference from that fact.[^48]

> **L. Impact of Rule on State Law**

51. NAB requests a ruling that the Option B requirement of collecting
    data concerning the race, ethnicity, and gender of applicants
    preempts state laws that may restrict the collection of such data.
    NAB asserts that, under our former rule, the requirement to collect
    race, ethnicity, and gender data was construed as preempting state
    laws that restricted the collection of such data. However, NAB is
    concerned that because Option B is not mandatory in that a
    broadcaster could choose Option A, which does not involve the
    collection of race, ethnicity, and gender data, a state could argue
    that the collection of such data is not required by our EEO Rule.

52. We will grant the requested clarification. Our intent in adopting
    the EEO Rule is that broadcasters (and cable entities) should have
    the discretion to elect either Option A or Option B. A state law
    that was interpreted as removing that discretion would be
    inconsistent with our EEO Rule.

53. We considered this issue in connection with our former rule in *NAB
    Request for Clarification*, 4 FCC Rcd 1715 (1989). We found therein
    that state laws restricting the collection of race, ethnicity, and
    gender data typically excluded collection required by Federal law or
    in furtherance of an EEO program. NAB has not demonstrated that any
    state has enacted a requirement that is inconsistent with Option B.
    Accordingly, we find it premature to declare any particular state
    statute to be preempted. However, we will consider the situation
    should it arise.

> **M. Joint Recruitment Efforts**

54. NAB requests clarification as to the extent to which broadcasters
    may perform the menu options required by Option A jointly.
    Specifically, it asks whether broadcasters can jointly sponsor a job
    fair pursuant to Section 73.2080(c)(2)(ii). It further asks whether
    each individual employment unit of a corporate licensee that
    maintains a corporate scholarship program can claim credit for the
    scholarship program pursuant to Section 73.2080(c)(2)(vii). It
    finally asks whether each individual employment unit can claim
    credit for a mentoring or training program sponsored by a corporate
    licensee that is open to all employees but only takes place at
    certain stations.

55. In the *Report and Order*, we indicated that we would not specify in
    detail the steps to be taken to implement the Option A menu options
    in order to accord broadcasters maximum flexibility and opportunity
    to experiment. We also indicated that broadcasters could implement
    menu options on a joint basis so long as each broadcaster remained
    responsible for the menu options it selected.[^49] Consistent with
    these principles, we offer the following guidance concerning the
    situations raised by NAB as well as other situations that have been
    brought to our attention.

56. With respect to the hosting of job fairs, this option could be
    performed on a joint basis, subject to the qualification that each
    broadcaster must participate in a meaningful way in the planning and
    implementation of the event. It is not sufficient to merely lend the
    station's name to an event or support it with a financial
    contribution. Insofar as a particular broadcaster's participation
    amounts to little more than attendance at the job fair, then it can
    only claim credit for such attendance, even if it has been nominally
    designated a cosponsor.

57. We note that the term "sponsor" as used in connection with several
    options set forth in Section 73.2080(c)(2) has apparently been
    misunderstood by some as referring only to a financial contribution.
    Our intent for the purpose of these options is that a "sponsor"
    should have a meaningful input into the planning and implementation
    of a specified event. Simply lending one's name or making a monetary
    contribution would not be sufficient. Events can be jointly
    sponsored, so long as each broadcaster seeking credit for sponsoring
    the event is actively involved in planning and implementing the
    event. For instance, several stations might cosponsor an
    informational event in the community pursuant to Section
    73.2080(c)(2)(xi). If the event seeks to integrate the perspective
    of each participating broadcaster, it could well be more valuable
    than an event presenting only the perspective of one broadcaster.
    However, a broadcaster could not claim credit for sponsorship by
    merely lending its name or providing a financial contribution to the
    event.

58. With respect to the maintenance of a scholarship program by a
    corporate licensee, we believe that it is reasonable for a corporate
    licensee to maintain a scholarship program for those employment
    units it owns. However, any such scholarship program should
    incorporate involvement by the employment units for which credit
    will be claimed in such areas as the design of the program, the
    solicitation of prospective scholarship recipients, the interviewing
    and selection of scholarship recipients, on-air promotion of the
    program, and evaluation of the effectiveness of the program. While
    each employment unit need not be involved in every aspect of the
    program, meaningful involvement in the program is essential to
    ensure that the employment unit is fulfilling its responsibility
    under our Rule. In addition, the number of employment units seeking
    credit for a scholarship program should bear a reasonable
    relationship to the number or type of scholarships awarded by the
    corporate licensee.

59. We note that unrelated broadcasters could also jointly maintain a
    scholarship program, which could be done through a state or local
    broadcast association, including efforts by such associations to
    coordinate regional efforts. Again, however, we believe that the
    program should incorporate meaningful involvement by each
    broadcaster seeking credit for the initiative in such areas as the
    design of the program, the solicitation of prospective scholarship
    recipients, the interviewing and selection of scholarship
    recipients, on-air promotion of the program, and evaluation of the
    effectiveness of the program. Thus, a scholarship program entails
    more than merely providing funds. While we permit broadcasters to
    share the burdens involved in implementing a meaningful program, we
    expect some degree of participation from each participant. Also,
    each broadcaster participating in a joint scholarship program
    remains responsible for the success of the program. For instance, if
    a scholarship program were established and funded but no
    scholarships were actually awarded because no efforts were made to
    publicize its availability, the qualifications required of a
    recipient were unreasonably high, or as a result of some other
    factor regarding the design and/or implementation of the program, we
    would not consider that the initiative had been successfully
    implemented, and none of the participants in the joint program could
    claim credit for it. Finally, as in the case of corporate
    scholarship programs, the number or type of scholarships awarded by
    the joint scholarship program would have to bear a reasonable
    relationship to the number of employment units seeking credit for
    it.

60. With respect to mentoring, internship or training programs
    administered by a corporate licensee, employment units of the
    licensee could claim credit for such a program even if not
    implemented in the community where the employment unit is located,
    but only so long as personnel from the employment units are
    participants in the mentoring, internship or training program.
    Similar questions have arisen as to job fairs hosted by a corporate
    licensee. We would credit individual employment units with cohosting
    the job fair only to the extent that personnel from the unit were
    involved in planning and implementing the job fair. Employment units
    of the licensee could be credited with attendance at the job fair,
    but only if personnel from the employment unit with substantial
    responsibility in making hiring decisions at the unit in fact
    participated in the job fair. Put otherwise, while the corporate
    headquarters can assist in the implementation of menu options,
    personnel from the respective employment units must also be involved
    in implementation should they seek credit for participation.

**N. Recruitment Exemptions**

61. The EEO Rule requires that broadcasters recruit for every vacancy.
    We nonetheless recognized that, in rare instances, circumstances
    might arise where recruitment would not be feasible. We cited as an
    example the need to immediately replace an employee who departs
    without notice and whose duties could not be fulfilled, even
    briefly, by other station employees. We nonetheless noted that we
    could not anticipate every circumstance which might justify filling
    a vacancy without recruitment. We indicated that we would rely upon
    the good faith discretion of licensees in this respect. We made
    clear, however, that we expected such situations to be rare and that
    licensees should elect to proceed without recruitment only in
    exceptional circumstances.[^50]

62. NAB urges that we should also recognize exemptions to the
    recruitment requirement in two circumstances: 1) the hiring of
    special talent, and 2) the hiring of a replacement for an existing
    employee whom management has not yet informed of his imminent
    replacement. In each instance, the proposed exemption would be
    subject to the qualification that it not be routinely used. MMTC
    opposes the special talent exemption as potentially discriminatory
    and the exemptions for hires to replace an existing employee as
    unnecessary.

63. We will not create any categorical exemptions to the general
    requirement that broadcasters recruit for every vacancy. We
    recognized in the *Report and Order* that there may be exigent
    circumstances where recruitment might not be feasible. However, it
    was not our intent to create categorical exemptions to the general
    requirement. The hypothetical mentioned in the *Report and Order*
    was intended only as an example and not as an exemption routinely
    applicable to a particular category of hires. Either of the
    circumstances cited by NAB might, in some instances, justify a
    decision not to recruit. Nonetheless, we are unwilling to exempt
    these situations categorically from the recruitment requirement
    because it may well be entirely feasible to recruit in some of these
    situations, such as the hiring of "special talent." We will rather
    consider any claims of exigent circumstances on a case-by-case basis
    in light of the broadcaster's overall recruitment efforts in the
    event a question arises.

> **O. Mid-Term Review**

64. Section 73.2080(f) states that the Commission intends to conduct
    mid-term reviews of "each broadcast television station and each
    radio station that is part of an employment unit of more than ten
    full-time employees . . . . " Fleischman asks whether this language
    is inconsistent with language in the *Report and Order* indicating
    that only radio stations, but not television stations, with five to
    ten full-time employees would be exempt from the mid-term review
    requirement.[^51] There is no inconsistency. The language in the
    Rule concerning employment units of more than ten full-time
    employees refers only to radio stations, not to television stations.
    As indicated in the *Report and Order*, we do not believe we can
    extend this relief to television stations with five to ten full-time
    employees in light of Section 334 of the Communications Act.

> **P. Applicants**

65. We have received inquiries concerning the definition of an
    "applicant" under Option B, which we will address on our own motion.
    The concern has been expressed that, especially as a result of
    internet recruitment, broadcasters may frequently receive a large
    number of expressions of interest and that it would be burdensome to
    track the recruitment source, gender, and racial/ethnic status of
    all such persons, if they are considered to be "applicants." We will
    afford broadcasters good faith discretion in defining the term
    "applicant." For example, a broadcaster could reasonably define an
    "applicant" to include only those persons who demonstrate in their
    application or resume that they possess the minimum qualifications
    for the position as specified in the vacancy announcement. However,
    a broadcaster should utilize a definition that is based on objective
    criteria, and, having decided upon a definition, a broadcaster
    should apply it in a consistent manner to all its positions. We also
    do not expect broadcasters to track the recruitment source, gender,
    and racial/ethnic status of non-vacancy specific expressions of
    interest in employment, unless such persons are thereafter
    considered for employment as part of a particular applicant pool.

66. We have received informal feedback that Option B has been construed
    by some as requiring that a broadcaster utilizing Option B must be
    able to demonstrate the recruitment source, gender, and
    racial/ethnic status of 100 percent of its applicants or face a
    finding that it is in violation of our EEO Rule. This is incorrect.
    We expect broadcasters which elect Option B to exercise reasonable
    diligence in seeking to ascertain the recruitment source, gender,
    and racial/ethnic status of all applicants. However, we realize that
    some applicants will elect not to provide this information. We will
    not find broadcasters that have made reasonable good faith efforts
    to collect the pertinent data in violation of the EEO Rule solely
    because some applicants declined to provide it.

> **Q. Part-Time Hires**

67. In paragraph 109 of the *Report and Order*, [^52] we indicated that
    if a temporary employee was hired after recruitment, any later
    decision to convert the employee's status to permanent could be
    treated as a promotion, rather than a new hire. We have received
    inquiries as to whether the same policy would apply in the case of a
    part-time employee whom the employer subsequently wishes to convert
    to full-time. We have decided to treat this situation in the same
    manner as temporaries. Thus, if a part-time employee is initially
    hired after broad outreach to all segments of the community, the
    decision to subsequently convert him or her to full-time may be
    treated as a promotion. However, if the broadcaster did not engage
    in full recruitment at the time of the initial part-time hire, it
    would have to recruit before converting the employee to full-time.
    We note that in both cases, our policy applies only where the
    temporary or part-time employee is promoted to the same, or
    essentially the same, job on a permanent or full-time basis. Also,
    we note that paragraph 109 of the *Report and Order* cautions that
    "excessive instances of temporary hires being converted to permanent
    hires without a meaningful opportunity for recruited applicants to
    compete could result in a finding of noncompliance if the evidence
    suggests the practice has the effect of avoiding meaningful outside
    recruiting." The same caution would apply to excessive instances of
    part-time employees being converted to full-time employees.

> **R. Definition of a Market**

68. There are two respects in which the extent of a broadcaster's market
    or community is pertinent to the EEO Rule. First, a group of
    commonly owned stations in the same market that share at least one
    employee is defined as a single employment unit for purposes of the
    EEO Rule. [^53] Thus, a broadcaster must determine what its market
    is in order to determine which of its individual licenses are part
    of that market. Second, a broadcaster must define its community for
    the purpose of assessing the adequacy of its outreach.[^54] We have
    not prescribed a particular method for defining what constitutes a
    market or community. Rather, we are leaving these determinations to
    the good faith discretion of the broadcaster. In making this market
    determination, however, a broadcaster should assess the technical
    coverage of its station(s); its marketing, promotional, and
    advertising practices; the pertinent market definitions adopted by
    public agencies or commercial services, such as Nielsen and
    Arbitron; and requests for notices of job vacancies from
    locally-based community groups.

69. In determining the market for commonly owned stations, it is often
    necessary to assess whether stations are part of the same market
    even though they are licensed to different communities. Again, we
    accord licensees discretion to determine in good faith which
    stations should properly be considered part of a particular market,
    utilizing criteria such as those discussed above. We also note that
    stations in the same market should be considered part of the same
    employment unit even if the licenses are held by different business
    entities that are commonly owned or controlled. We would view
    licensees as commonly owned for the purpose of the EEO Rule if 50
    percent or more of the voting control of the licensees is held by
    the same persons or entities.

70. While we are according discretion in this respect, we expect
    broadcasters to be able to provide a reasonable explanation for
    their determinations should it become pertinent. Thus, we would
    become concerned if the circumstances suggest that a broadcaster is
    unreasonably using its market definition to claim an unwarranted
    exemption based on having fewer than five or eleven full-time
    employees. Similarly, we would become concerned if a broadcaster
    were unreasonably defining its community in a manner that excludes
    certain areas or populations that it clearly does serve.

71. We also note that, although our Rule seeks to achieve broad outreach
    to the community, this does not preclude the use of regional or
    national recruitment sources. Such sources also promote the wide
    dissemination of information concerning employment opportunities. We
    will accordingly give consideration to a broadcaster's use of such
    sources in assessing its EEO record.

72. Finally, we recognize that there may be some employment units that
    are located in markets that include stations licensed to communities
    in more than one state that are in different renewal groups. As a
    result, the date of the last renewal application filing differs for
    some stations in the same employment unit. We have received several
    inquiries concerning this circumstance because the dates for placing
    the EEO public file report in the public file and for filing FCC
    Form 397 are based on the anniversary of the filing of the last
    renewal application. It is not our intent that employment units
    comply with these requirements more than once merely because they
    include stations in more than one renewal group. Accordingly, we
    will generally expect employment units in this situation to proceed
    in accordance with the schedule for only one of the renewal groups
    included in their unit. However, there may be rare instances
    involving television stations where it will be necessary to request
    a supplemental filing in order to comply with the statutory
    requirement that we conduct mid-term reviews of television
    licensees' EEO compliance.

73. Renewal applications must still be filed separately for each station
    in accordance with the regular schedule for the station's renewal
    group. FCC Form 396, the EEO form submitted with the renewal
    application, requests that the licensee attach the EEO public file
    report that is ordinarily placed in the public file simultaneously
    with the filing of the renewal application. In cases where a station
    is part of an employment unit that is using the EEO filing schedule
    for another renewal group, the station should submit with its FCC
    Form 396 the most recent EEO public file report prepared for the
    employment unit.[^55] If the licensee feels that the most recent EEO
    public file report does not accurately reflect the employment unit's
    EEO program as of the date of the filing of the renewal application,
    it should disclose any pertinent facts as part of the narrative
    statement also required by the FCC Form 396. Finally, FCC Form 396
    is ordinarily used to indicate the licensee's election of
    recruitment options for the next two years. However, in the case of
    a renewal application filed for a station that is part of an
    employment unit including stations from other renewal groups, the
    renewal application must use the recruitment option specified in
    accordance with the filing schedule for the renewal group that
    governs the employment unit.

74. Employment units consisting of stations in more than one renewal
    group may select the renewal group that it will utilize for the
    purpose of determining the filing dates for its annual public file
    reports and its biennial statements of compliance, in accordance
    with the following criteria. If the employment unit includes a
    television station, the dates for the television station should
    ordinarily govern, in order to accommodate the statutory requirement
    for mid-term review of television licensees' EEO compliance. Apart
    from this situation, the renewal group that will determine the
    employment unit's EEO filing schedule should be selected so as to
    minimize the time between the date for placing the EEO public file
    report in the public file and the date for the filing of renewal
    applications for stations located in renewal groups that have
    different renewal filing dates than the renewal group used to
    determine the employment unit's EEO filing schedule. Broadcasters
    needing assistance in selecting an appropriate EEO filing schedule
    may contact the Mass Media Bureau's EEO Staff (202-418-1450).

75. There may also be circumstances where an employment unit consists of
    television and radio stations that are part of the same renewal
    group, except that the renewal schedule for radio is one year
    earlier than the schedule for television.[^56] In these
    circumstances, the filing schedule for television stations should be
    utilized for purposes of filing the biannual statements of
    compliance (FCC Form 397) for the employment unit. Because the date
    for placing the annual public file report in the public file is the
    same for both radio and television, the most recent public file
    report should be submitted with the renewal applications for both
    television and radio stations in the employment unit.[^57]

> **S. Religious Broadcasters**

76. We permit religious broadcasters to establish religious belief or
    affiliation as a qualification for employment by rule in the case of
    radio broadcasters[^58] and by nonbinding policy in the case of
    television broadcasters.[^59] As a preliminary matter, we will apply
    this same policy to low power television and Class A television
    licensees, which were not specifically mentioned in the *Report and
    Order*. We also indicated at paragraph 149 of the *Report and Order*
    that, in the case of hires that are subject to a religious
    qualification, we nonetheless expect broadcasters to make
    reasonable, good faith efforts to recruit widely among their
    co-religionists.[^60] We did not address in the *Report and Order*
    how we would monitor compliance with this requirement. On our own
    motion, we will now clarify this matter.

77. As reflected in the Notice accompanying the Initial Election
    Statement, we did not require broadcasters that have applied a
    religious qualification to all of their employees to make an
    election between Option A and Option B. We nonetheless expected
    religious broadcasters which have applied a religious qualification
    to all employees to file a statement with the Initial Election
    Statement attesting that all of their jobs were subject to a
    religious qualification. In the case of broadcasters that expected
    to have some employees not subject to a religious qualification, we
    expected the broadcasters to make an election and to follow the
    specific recruitment requirements for those positions.

78. We also expect religious broadcasters with five or more full-time
    employees, including those that have applied a religious
    qualification to all their jobs, to file the statement of compliance
    (FCC Form 397) in accordance with the schedule previously discussed.
    They should execute the certification that they have complied with
    the outreach provisions of the EEO Rule. In the case of hires
    subject to a religious qualification, the broadcaster's
    certification pertains to whether or not it has made reasonable,
    good faith efforts to recruit for all vacancies among their
    co-religionists. Religious broadcasters should also either make an
    election governing non-religious hires during the next two years or
    attest that all of the hires will be subject to a religious
    qualification.

79. With respect to recordkeeping, not all of the recordkeeping
    requirements are pertinent to religious broadcasters that apply a
    religious qualification to all of their employees because they are
    not required to utilize Option A or Option B. However, we believe
    that records as to full-time vacancies filled, recruitment sources
    utilized to fill those vacancies, the date each vacancy was filled,
    and the recruitment source of the hiree[^61] remain pertinent to
    monitoring whether the broadcaster made reasonable, good faith
    efforts to recruit among persons who meet the applicable religious
    qualification.

80. Similarly, with respect to the requirement that broadcasters place
    certain EEO information in their public file, not all of the
    information generally required is pertinent to hires that are
    subject to a religious qualification. Again, however, we believe
    that information concerning the full-time vacancies filled, the
    recruitment sources used, and the recruitment source of the
    hiree[^62] is pertinent to the requirement that broadcasters make
    reasonable, good faith efforts to recruit among persons who meet the
    applicable religious qualification. Accordingly, religious
    broadcasters that apply a religious qualification, including those
    that apply the qualification to all of their jobs, will be expected
    to place this information in the public file on an annual basis with
    respect to those hires that are subject to the religious
    qualification. Also, the public file report should be attached to
    the mid-term statement of compliance of a broadcaster subject to
    mid-term review and the FCC Form 396 submitted with a broadcaster's
    renewal application, even in the case of broadcasters that apply a
    religious qualification to all their jobs. Religious broadcasters
    should also either make an election in the FCC Form 396 or reaffirm
    that all their jobs are subject to a religious qualification. FCC
    Form 396 also calls for a narrative statement as to how the station
    achieved "broad and inclusive" outreach. In the case of positions
    subject to a religious qualification, a religious broadcaster should
    submit a narrative statement describing its reasonable, good faith
    efforts to recruit among its co-religionists for such positions.

81. We recognize that the *Report and Order* did not fully clarify the
    applicability of the recordkeeping and reporting requirements to
    religious broadcasters, especially those that apply a religious
    qualification to all employees. Accordingly, we will not consider a
    religious broadcaster that has heretofore failed to comply with the
    specific recordkeeping and reporting requirements clarified herein
    to be in violation of the EEO Rule.

> **T. Owner/Employees**

82. We have received inquiries as to whether individuals who have an
    ownership interest in a broadcast licensee and are also employees of
    the licensee's station should be considered employees for purposes
    of the EEO Rule. We believe that, where an owner has a controlling
    interest (50 percent or greater voting control), he or she should
    not be considered a station "employee" for purposes of the EEO Rule,
    even if he or she in fact holds a position at the station. In the
    case of a controlling principal, any position will generally be an
    incident of ownership rather than a normal employment relationship.
    Thus, it is unlikely that a controlling principal could in any
    normal sense be hired or fired. We will not extend this treatment to
    principals with less than a controlling interest because the
    circumstances pertaining to their employment at the station may vary
    widely and we cannot necessarily assume that their employment is
    primarily an incident of their ownership. Therefore owners with less
    than 50 percent voting control of a licensee who are in fact
    employed at its station should be considered station employees for
    the purposes of the EEO Rule.

**III. CONCLUSION**

83. In light of the foregoing, we will deny NAB's Petition insofar as it
    seeks reconsideration of the rules adopted by the *Report and
    Order*. However, to the extent indicated above, we will clarify our
    requirements as requested by NAB, Fleishman, and on our own motion.

**IV. PROCEDURAL MATTERS AND ORDERING CLAUSES**

84. *Final Regulatory Flexibility Certification*. The Regulatory
    Flexibility Act of 1980, as amended (RFA)[^63] requires that a
    regulatory flexibility analysis be prepared for rulemaking
    proceedings, unless the agency certifies that \"the rule will not
    have a significant economic impact on a substantial number of small
    entities.\"[^64] The RFA generally defines \"small entity\" as
    having the same meaning as the terms \"small business,\" \"small
    organization,\" and \"small governmental jurisdiction.\"[^65] In
    addition, the term \"small business\" has the same meaning as the
    term \"small business concern\" under the Small Business Act.[^66] A
    small business concern is one which: (1) is independently owned and
    operated; (2) is not dominant in its field of operation; and (3)
    satisfies any additional criteria established by the Small Business
    Administration (SBA).[^67]

85. In this *Memorandum Opinion and Order*, the Commission, in addition
    to stating various clarifications to the Commission's rules,
    incorporates into the rules a policy announced in the *Report and
    Order* that data concerning the gender, race and ethnicity of a
    broadcaster's or cable entity's workforce will be used only for
    purposes of analyzing industry trends and reporting to Congress, and
    that it will not be used for the purpose of assessing any aspect of
    an individual broadcaster's or cable entity's compliance with our
    EEO rules. This rule change merely retains the status quo, and for
    clarity restates the existing policy in a Note to the broadcast and
    cable rules. Therefore, we certify that the requirements of this
    Memorandum Opinion and Order will not have a significant economic
    impact on a substantial number of small entities. The Commission
    will send a copy of the *Memorandum Opinion and Order*, including a
    copy of this final certification, in a report to Congress pursuant
    to the Small Business Regulatory Enforcement Fairness Act of 1996.
    *See* 5 U.S.C. § 801(a)(1)(A). In addition, the *Memorandum Opinion
    and Order* and this certification will be sent to the Chief Counsel
    for Advocacy of the Small Business Administration, and will be
    published in the Federal Register. *See* 5 U.S.C. § 605(b).

86. Accordingly, IT IS ORDERED that, pursuant to the authority contained
    in sections 4(i) and 405 of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 154(i) and 405, and section 1.106 of the
    Commission\'s rules, 47 C.F.R. § 1.106, the Petition for Partial
    Reconsideration filed by the National Association of Broadcasters
    and the Petition for Expedited Clarification of the FCC's New EEO
    Rule filed by Fleischman and Walsh, L.L.P., ARE GRANTED, to the
    extent indicated herein, and ARE OTHERWISE DENIED.

87. IT IS FURTHER ORDERED that the clarifications to the Commission's
    EEO rules and policies set forth herein ARE ADOPTED.

88. IT IS FURTHER ORDERED that, pursuant to the authority contained in
    Sections 1, 4(i), 4(k), 257, 301, 303(r), 307, 308(b), 309, 334,
    403, and 634 of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 151, 154(i), 154(k), 257, 301, 303(r), 307, 308(b), 309,
    334, 403, and 554, Part 0, Part 73 and Part 76 of the Commission\'s
    Rules ARE AMENDED as set forth in attached Appendix B.

89. IT IS FURTHER ORDERED that, pursuant to the Contract with America
    Advancement Act of 1996, the rule amendments set forth in Appendix B
    WILL BECOME EFFECTIVE 30 days after their publication in the Federal
    Register or upon receipt by Congress of a report in compliance with
    the Contract with America Advancement Act of 1996, Pub. L. No.
    104-121, whichever is later. The amendments involve no new or
    modified information collection requirements.

90. IT IS FURTHER ORDERED that the Commission's Consumer Information
    Bureau, Reference Information Center, SHALL SEND a copy of this
    *Memorandum Opinion and Order*, including the Final Regulatory
    Flexibility Certification, to the Chief Counsel for Advocacy of the
    Small Business Administration.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas

Secretary

APPENDIX A

FCC FORM 397 INITIAL FILING DATES

RADIO STATIONS

+-----------------+----------------+----------------+-----------------+
| LED: OCT. 1,    | LED: DEC. 1,   | LED: FEB. 1,   | LED: APR. 1,    |
| 2003            | 2003           | 2004           | 2004            |
+-----------------+----------------+----------------+-----------------+
| DIST. OF        | NORTH CAROLINA | FLORIDA        | ALABAMA         |
| COLUMBIA        |                |                |                 |
|                 | SOUTH CAROLINA | PUERTO RICO    | GEORGIA         |
| MARYLAND        |                |                |                 |
|                 | Form 397:      | VIRGIN ISLAND  | Form 397:       |
| VIRGINIA        | 8-1-2001       |                | 12-1-2001       |
|                 |                | Form 397:      |                 |
| WEST VIRGINIA   |                | 10-1-2001      |                 |
|                 |                |                |                 |
| Form 397:       |                |                |                 |
| 6-1-2001        |                |                |                 |
+-----------------+----------------+----------------+-----------------+
| LED: JUNE 1,    | LED: AUG 1,    | LED: OCT 1,    | LED: DEC 1,     |
| 2004            | 2004           | 2004           | 2004            |
+-----------------+----------------+----------------+-----------------+
| ARKANSAS        | INDIANA        | MICHIGAN       | ILLINOIS        |
|                 |                |                |                 |
| LOUISIANA       | KENTUCKY       | OHIO           | WISCONSIN       |
|                 |                |                |                 |
| MISSISSIPPI     | TENNESSEE      | Form 397:      | Form 397:       |
|                 |                | 6-1-2002       | 8-1-2002        |
| Form 397:       | Form 397:      |                |                 |
| 2-1-2002        | 4-1-2002       |                |                 |
+-----------------+----------------+----------------+-----------------+
| LED: FEB. 1,    | LED: APR. 1,   | LED: JUNE 1,   | LED: AUG. 1,    |
| 2005            | 2005           | 2005           | 2005            |
+-----------------+----------------+----------------+-----------------+
| IOWA            | COLORADO       | KANSAS         | TEXAS           |
|                 |                |                |                 |
| MISSOURI        | MINNESOTA      | NEBRASKA       | Form 397:       |
|                 |                |                | 4-1-2001        |
| Form 397:       | MONTANA        | OKLAHOMA       |                 |
| 10-1-2002       |                |                |                 |
|                 | NORTH DAKOTA   | Form 397:      |                 |
|                 |                | 2-1-2001       |                 |
|                 | SOUTH DAKOTA   |                |                 |
|                 |                |                |                 |
|                 | Form 397:      |                |                 |
|                 | 12-1-2002      |                |                 |
+-----------------+----------------+----------------+-----------------+
| LED: OCT. 1,    | LED: DEC. 1,   | LED: FEB. 1,   | LED: APR. 1,    |
| 2005            | 2005           | 2006           | 2006            |
+-----------------+----------------+----------------+-----------------+
| ARIZONA         | CALIFORNIA     | ALASKA         | CONNECTICUT     |
|                 |                |                |                 |
| IDAHO           | Form 397:      | GUAM           | MAINE           |
|                 | 8-1-2001       |                |                 |
| NEVADA          |                | HAWAII         | MASSACHUSETTS   |
|                 |                |                |                 |
| NEW MEXICO      |                | OREGON         | NEW HAMPSHIRE   |
|                 |                |                |                 |
| UTAH            |                | SAMOA          | RHODE ISLAND    |
|                 |                |                |                 |
| WYOMING         |                | WASHINGTON     | VERMONT         |
|                 |                | (state)        |                 |
| Form 397:       |                |                | Form 397:       |
| 6-1-2001        |                | Form 397:      | 12-1-2001       |
|                 |                | 10-1-2001      |                 |
+-----------------+----------------+----------------+-----------------+
| LED: JUNE 1,    | LED: AUG. 1,   |                |                 |
| 2006            | 2006           |                |                 |
+-----------------+----------------+----------------+-----------------+
| NEW JERSEY      | DELAWARE       |                |                 |
|                 |                |                |                 |
| NEW YORK        | PENNSYLVANIA   |                |                 |
|                 |                |                |                 |
| Form 397:       | Form 397:      |                |                 |
| 2-1-2002        | 4-1-2002       |                |                 |
+-----------------+----------------+----------------+-----------------+

**\***LED = License Expiration Date

TELEVISION STATIONS

+-----------------+----------------+----------------+-----------------+
| LED: OCT. 1,    | LED: DEC. 1,   | LED: FEB. 1,   | LED: APR. 1,    |
| 2004            | 2004           | 2005           | 2005            |
+-----------------+----------------+----------------+-----------------+
| DIST. OF        | NORTH CAROLINA | FLORIDA        | ALABAMA         |
| COLUMBIA        |                |                |                 |
|                 | SOUTH CAROLINA | PUERTO RICO    | GEORGIA         |
| MARYLAND        |                |                |                 |
|                 | Form 397:      | VIRGIN ISLAND  | Form 397:       |
| VIRGINIA        | 8-1-2000       |                | 12-1-2000       |
|                 |                | Form 397:      |                 |
| WEST VIRGINIA   |                | 10-1-2000      |                 |
|                 |                |                |                 |
| Form 397:       |                |                |                 |
| 6-1-2000        |                |                |                 |
+-----------------+----------------+----------------+-----------------+
| LED: JUNE 1,    | LED: AUG 1,    | LED: OCT 1,    | LED: DEC 1,     |
| 2005            | 2005           | 2005           | 2005            |
+-----------------+----------------+----------------+-----------------+
| ARKANSAS        | INDIANA        | MICHIGAN       | ILLINOIS        |
|                 |                |                |                 |
| LOUISIANA       | KENTUCKY       | OHIO           | WISCONSIN       |
|                 |                |                |                 |
| MISSISSIPPI     | TENNESSEE      | Form 397:      | Form 397:       |
|                 |                | 6-1-2001       | 8-1-2001        |
| Form 397:       | Form 397:      |                |                 |
| 2-1-2001        | 4-1-2001       |                |                 |
+-----------------+----------------+----------------+-----------------+
| LED: FEB. 1,    | LED: APR. 1,   | LED: JUNE 1,   | LED: AUG. 1,    |
| 2006            | 2006           | 2006           | 2006            |
+-----------------+----------------+----------------+-----------------+
| IOWA            | COLORADO       | KANSAS         | TEXAS           |
|                 |                |                |                 |
| MISSOURI        | MINNESOTA      | NEBRASKA       | Form 397:       |
|                 |                |                | 4-1-2002        |
| Form 397:       | MONTANA        | OKLAHOMA       |                 |
| 10-1-2001       |                |                |                 |
|                 | NORTH DAKOTA   | Form 397:      |                 |
|                 |                | 2-1-2002       |                 |
|                 | SOUTH DAKOTA   |                |                 |
|                 |                |                |                 |
|                 | Form 397:      |                |                 |
|                 | 12-1-2001      |                |                 |
+-----------------+----------------+----------------+-----------------+
| LED: OCT. 1,    | LED: DEC. 1,   | LED: FEB. 1,   | LED: APR. 1,    |
| 2006            | 2006           | 2007           | 2007            |
+-----------------+----------------+----------------+-----------------+
| ARIZONA         | CALIFORNIA     | ALASKA         | CONNECTICUT     |
|                 |                |                |                 |
| IDAHO           | Form 397:      | GUAM           | MAINE           |
|                 | 8-1-2002       |                |                 |
| NEVADA          |                | HAWAII         | MASSACHUSETTS   |
|                 |                |                |                 |
| NEW MEXICO      |                | OREGON         | NEW HAMPSHIRE   |
|                 |                |                |                 |
| UTAH            |                | SAMOA          | RHODE ISLAND    |
|                 |                |                |                 |
| WYOMING         |                | WASHINGTON     | VERMONT         |
|                 |                | (state)        |                 |
| Form 397:       |                |                | Form 397:       |
| 6-1-2002        |                | Form 397:      | 12-1-2002       |
|                 |                | 10-1-2002      |                 |
+-----------------+----------------+----------------+-----------------+
| LED: JUNE 1,    | LED: AUG. 1,   |                |                 |
| 2007            | 2007           |                |                 |
+-----------------+----------------+----------------+-----------------+
| NEW JERSEY      | DELAWARE       |                |                 |
|                 |                |                |                 |
| NEW YORK        | PENNSYLVANIA   |                |                 |
|                 |                |                |                 |
| Form 397:       | Form 397:      |                |                 |
| 2-1-2001        | 4-1-2001       |                |                 |
+-----------------+----------------+----------------+-----------------+

**\***LED = License Expiration Date

APPENDIX B

**1. Part 73 of Chapter 1 of the Code of Federal Regulations is amended
as follows:**

# **Subpart H -- Rules Applicable to All Broadcast Stations** {#subpart-h-rules-applicable-to-all-broadcast-stations .unnumbered}

> Section 73.3612 is amended to add the following Note:
>
> Note: 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 compliance with the
> equal employment opportunity requirements of § 73.2080.
>
> **2. Part 76 of Chapter 1 of the Code of Federal Regulations is
> amended as follows:**
>
> Section 76.77 is amended to add the following Note to subsection (a):
>
> Note: Data concerning the gender, race and ethnicity of a cable
> entity'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 cable entity's compliance with the equal
> employment opportunity requirements of §§ 76.73 and 76.75.

STATEMENT OF CHAIRMAN WILLIAM E. KENNARD

*Re: In the Matter of Review of the Commission's Broadcast and Cable
Equal Employment Opportunity Rules and Policies and Termination of the
EEO Streamlining Proceeding,*

*MM Dockets Nos. 98-204, 96-16, Order on Reconsideration*

I do not usually respond to separate statements of other commissioners.
This is useful in producing Commission orders in reasonably prompt
fashion. However, this practice has the effect of permitting the last
commissioner that circulates a separate statement to have the last word.
Moreover, since the date on which separate statements are circulated is
not usually disclosed, it may appear to readers that a dialogue occurred
and that the last commissioner to file made points that could not be
rebutted, rather than that no one responded to that commissioner's
statement simply because it was circulated very shortly before an order
was issued. I depart from the usual practice here because Commissioner
Furchtgott-Roth has issued a separate statement in the EEO
reconsideration proceeding ("Reconsideration Dissenting Statement") that
contains a number of erroneous statements, and a brief response is
needed to set the record straight.

First, the Reconsideration Dissenting Statement contends that, "Taken as
a whole, the Order evinces the Commission's purpose of achieving a
broadcast workforce with a particular (albeit as yet undisclosed) racial
and gender composition." Lest the public take the Commission's silence
in response as an admission of the ulterior motive suggested by the
dissent, let me state again what the Commission's goal is, although that
goal is abundantly clear from the Commission's orders: The Commission's
goal is equal employment opportunity throughout the recruitment and
hiring process, without regard to race or gender.[^68] No more and no
less.

The dissent further contends that, if the Commission's true goal were
simply broad outreach, and the EEO rule does not in fact *presume*
certain levels of minority and women applicants, then information
concerning whether there are minorities and women in an employer's
applicant pools is *irrelevant.* This is a *non sequitur*. While an
employer may conscientiously advertise its job openings, it may not know
for sure whether its outreach efforts are reaching all sectors of its
community based solely on where it chose to advertise. It might, for
example, advertise in a newspaper but find that few or no Hispanics
apply, despite a large Hispanic community. In that event, the
broadcaster should examine its outreach methods and determine whether it
might be able to disseminate the information more widely by using
additional methods of distributing the information. The dissent
continues to assert, but has never satisfactorily explained, how
collecting this information will have the "effect of pressuring
broadcasters to make employment-related decisions on the legally
impermissible bases of race and gender." It is that "pressure," not the
rule's race-neutrality, that is fictional. The fact is, since the
Commission will never consider, in enforcing the EEO rules, the race or
gender of the persons whom the employer hires (which assurance has now
been codified in the rules), the rules will not have the effect advanced
by the dissent. They will have only their intended effect of fostering
broad outreach and equal employment opportunity.

Second, the Reconsideration Dissenting Statement states that "the
Commission in its appellate advocacy has taken troubling liberties in
its characterization of my views." Specifically, the Statement complains
that "Contrary to the contention of the Brief, my dissent made no
attempt to identify either of the two goals \[of the EEO rules\] as
primary." I disagree.

In his February 2, 2000, statement dissenting from the *Report & Order*
establishing the revised EEO rules ("February 2 Statement") Commissioner
Furchtgott-Roth noted that our EEO rules initially were premised on
"furthering the national policy against employment discrimination" and,
only later, "the Commission stated that the regulations were meant to
create diversity of programming." The February 2 Statement further noted
that the Order establishing the revised rules "takes the opposite tack,
*deliberately downplaying the diversity of programming rationale*."
(emphasis added).

In our brief, we pointed out that, unlike the broadcast petitioners, the
dissent "recognized that in the Order at issue the Commission made clear
that fostering diversity of programming provided an independent and
secondary basis for the EEO rules." I do not understand how the dissent
can complain that our brief "has taken troubling liberties in its
characterization of \[his\] views," when he stated that the rationales
were articulated sequentially and independently and asserted that the
Commission "deliberately downplay\[ed\] the diversity of programming
rationale" in its Reconsideration Order. It seems entirely fair to
characterize a rationale that has been "downplayed" as a secondary
rationale.[^69]

The important point is that the dissent was right the first time,
although the characterization"deliberately downplaying"again suggests
some non-existent ulterior motive.[^70] After the D.C. Circuit's
decision in *Lutheran Church*, the Commission took a completely fresh
look at our EEO rules. That review made clear to us that Congress
intended that we apply recruitment and non-discrimination requirements
to *all* job categories in order to deter discrimination, even if some
of those jobs have no impact on program diversity. *Report and Order* ¶
11. Congress in 1984 and again in 1992 extended and codified our EEO
rules by adopting sections 334 and 634 of the Communications Act, so
that EEO requirements now apply by statute to operators of cable
systems, direct broadcast satellite systems, and other multichannel
multipoint distribution systems, as well as to broadcasters. *See* 47
U.S.C. §§ 334, 554.

In enacting those statutes, Congress made clear that it was not merely
requiring non-discrimination from these employersas is required of all
employers by Title VIIbut also was requiring them to "adopt positive
recruitment, training, job design, and other measures needed to
[ensure]{.underline} genuine equality of opportunity." 47 U.S.C. §
554(c)(5); *see also* 47 U.S.C. § 334(a)(1), *codifying* 47 C.F.R.
73.2080(b) (1992 version, which also mandated "positive measures")
(emphasis added). In addition, Congress was not interested only in
fostering programming diversity, for it made clear that the EEO rules
extended to categories of employees who do not affect the content of
programming, including "unskilled laborers" and "semi-skilled
operatives." 47 U.S.C. § 554(d)(3)(A). In other words, Congress required
EEO programs of the sort we have reinstated. Commissioner
Furchtgott-Roth would effectively nullify these Acts of Congress, which
contradict his hostility to EEO programs.

Underlying Congress's decision to require "positive recruitment"
measures from broadcasters and other video programming distributors, in
addition to the general non-discrimination requirement imposed on all
employers by Title VII, is their special use of the public airwaves.
With respect to broadcasters, that basis is well-established, and its
history is worth repeating briefly here. In 1966, the D.C. Circuit held
that a broadcaster is "granted the free and exclusive use of a limited
and valuable part of the public domain; when he accepts that franchise
it is burdened by enforceable public obligations." *Office of
Communications of the United Church of Christ v. FCC*, 359 F.2d 994,
1003. As explained in the *Report & Order* establishing the revised EEO
rules, we cited both "the national policy against discrimination" and
"the fact that broadcasters are licensed under the Communications Act to
operate in the public interest" in the course of adopting rules
"prohibiting broadcast stations from discriminating" and "requiring
stations to maintain a program designed to assure equal opportunity in
every aspect of station employment." *Report & Order* ¶ 23. The Supreme
Court has endorsed the conclusion that broadcasters are public trustees
"burdened by enforceable public obligations," *CBS, Inc. v. FCC*, 453
U.S. 367, 395 (1981), and the D.C. Circuit has relied upon the public
trustee concept as recently as this summer. *See Community Television,
Inc. v. FCC*, 216 F.3d 1133, 1146 (D.C. Cir. 2000)(referring to "the
valuable public resource that is broadcast spectrum" in the course of
upholding the digital television rules).

Frankly, one of the few remaining public interest obligations imposed on
broadcasters is the requirement that they establish and maintain EEO
programs. Congress has endorsed and expanded the reach of our EEO rules,
and nothing in the D.C. Circuit's decision in *Lutheran Church*
suggested that any constitutional question was raised by a race-neutral
outreach obligation.

**In the Matter of Review of the Commission's Broadcast and Cable Equal
Employment Opportunity Rules and Policies and Termination of**

**the EEO Streamlining Proceeding, MM Dockets Nos. 98-204, 96-16,**

**Memorandum Opinion and Order**

## Dissenting Statement of Commissioner Harold W. Furchtgott-Roth

I dissented from the Report & Order in this proceeding on the grounds
that the new Equal Employment Opportunity ("EEO") rules adopted in the
wake of *Lutheran Church-Missouri Synod v. FCC*, 141 F.3d 344 (1998),
*reh'g denied*, 154 F.3d 487*, reh'g en banc denied*, 154 F.3d 494,
suffer from essentially the same constitutional and statutory flaws as
the original set.

Specifically, I argued that, although the outreach rule itself is
phrased in race- and gender-neutral terms, the Order's implementing
rules, policies, and procedures are clearly premised on racial and
gender classifications. *See* Dissenting Statement of Commissioner
Harold W. Furchtgott-Roth*, In the Matter of Review of the Commission's
Broadcast and Cable Equal Employment Opportunity Rules and Policies and
Termination of the EEO Streamlining Proceeding, Report & Order*, 15 FCC
Rcd 2329, 2501-2509 (2000) ("Dissenting Statement"). Among other things,
the Order makes plain that racially "homogenous" employees are
unacceptable to the Commission, *id.* at 2504-2505, requires
broadcasters to track the race and gender of employment applicants and
employees, *id.* at 2502-2506, concludes that these racial and gender
profiles are necessary to review individual station compliance with the
rules and to assess the general effectiveness of the rules, *see id*. at
2503, 2505, and requires broadcasters to co-sponsor job fairs with
groups that have a "substantial participation of women and minorities,"
*see id.* at 2502. Taken as a whole, the Order evinces the Commission's
purpose of achieving a broadcast workforce with a particular (albeit as
yet undisclosed) racial and gender composition.

Repeatedly disavowing any such purpose, as do both today's Order and the
Chairman's separate statement, cannot change the reality of the race-
and gender-based requirements embedded in the EEO program. Moreover, if
one takes the Commission at its word that its goal is to achieve equal
opportunity without regard to race and gender, the fit between that
neutral end and the program's facially race- and gender-based means is
exceedingly poor. To my mind, the choice of means here belies the
asserted purpose.

In the original item, I also expressed the view that, depending upon the
governmental interest cited by the Commission, there were additional
reasons to question the validity of the rules. *See id.* at 2511-2517.
To the extent that the Commission seeks to rely upon the prevention or
eradication of discrimination as the underlying aim of the rules, *NAACP
v. Federal Power Commission*, 425 U.S. 662 (1976), presents a serious
obstacle to a finding of jurisdiction under the "public interest"
provisions of Title III. *See* Dissenting Statement at 2513-2514
(setting forth holding of *NAACP v. FPC* that the public interest
standard does not provide authority to promote the public's general
welfare)*; see also Lutheran Church*, 141 F.3d at 354. On the other
hand, if the Commission points to diversity of programming as its goal,
it must face the questions whether it has adequately defined that term
and whether there is sufficient record evidence to support the
conclusion that race and gender correlate with identifiable types of
broadcast content. *See* Dissenting Statement, 15 FCC Rcd. at 2514-2517;
*see also Lutheran Church*, 141 F.3d at 354, 356. When relying on
diversity, the Commission also wants for a compelling governmental
interest for purposes of Equal Protection analysis. *See id.,* at
354-355 (rejecting diversity of programming as compelling government
interest). As I explained, the fact that both interests suffer from
legal flaws puts the Commission to a Hobson's choice in crafting and
defending EEO rules. *See* Dissenting Statement, 15 FCC Rcd. at 2513,
2517.

In its filing with the D.C. Circuit in the pending appeal of these new
rules, the Commission hangs its constitutional hat on the
non-discrimination hook. *See* Brief for Respondents, *Maryland-District
of Columbia-Delaware Broadcasters Ass'n v. FCC*, Nos. 00-1094, 00-1198,
at 38-56. Although the Commission's Brief points to my dissent as proof
that the rules are based solely on a theory of non-discrimination and
that even I "understood that the Commission's primary basis for enacting
the rules was the deterrence of discrimination, including discrimination
that can occur as the result of reliance on word-of-mouth recruiting,"
*id.* at 39*,* that is simply not what my statement says*.*

In dissent, I noted that the original EEO rules were adopted initially
on a non-discrimination basis. I went on to explain, however, that the
Commission subsequently articulated another regulatory end -- namely,
diversity in programming. *See* Dissenting Statement, 15 FCC Rcd. at
2512 ("Originally, the EEO rules were adopted in the 'public interest'
of furthering the general national policy against employment
discrimination . . . . Later, the Commission stated that the regulations
were meant to create diversity of programming.") (internal citations
omitted). Counter to the contention of the Brief, my dissent made no
attempt to identify either of the two goals as "primary." Rather, I
observed that the Commission has switched back and forth between the
goals depending upon the legal problem *du jour* that it sought to
avoid. *See id.* ("Since \[it adopted the second goal of diversity of
programming\], the Commission has alternated between these goals as
independent rationales or cited them as complementary aims."). [^71]

Furthermore, and again contrary to the Commission Brief's
representation, my dissent never validated the assumption that
discrimination properly includes word-of-mouth recruiting. As a matter
of simple fact, my dissent expressed no opinion on either the truth or
the falsity of that proposition. If anything, I arguably cast some doubt
on its legitimacy by stating that the Commission's understanding of
discrimination was out of step with traditional employment
discrimination law. *See* *id.* 2505 at n. 5 ("The breadth of this
policy -- which limits the ability of broadcasters to hire based on
'word of mouth,' without any evidence of past or present discrimination
-- is remarkable when compared to Title VII.").[^72]

In view of the foregoing, I think it fair to say that the Commission in
its appellate advocacy has taken troubling liberties in its
characterization of my views. Most unfortunately, this is not the first
time that this has occurred. *Cf. Lutheran Church*, 154 F.3d at 489 n. 1
("The Commission\'s attempt to characterize Commissioner
Furchtgott-Roth\'s concern as limited to television stations is
disingenuous."). While I deeply regret the existence of the need to do
so, I feel compelled to correct the record, lest anyone assume that I
concur in the Brief's description of my position in this very important
proceeding.[^73]

In addition, I again emphasize the strained nature of the Commission's
continuing effort to cast the new EEO scheme as race- and gender-neutral
while it simultaneously enacts race- and gender-based requirements, such
as the filing of race and gender information about applicants and
employees. Consider the following example from this Memorandum Opinion
and Order. If the outreach rule does not "require that minorities and
women will in fact be present in either applicant or interview pools to
any specified degree," *supra* at para. 50, then how could data
documenting the race and gender of applicants logically be "necessary .
. . to verify that \[a\] broadcaster has complied with the requirements
of the recruitment \[rule\]," *id.* at para. 22?[^74] If the rule does
not presume any particular level of minorities and women in applicant
pools, then information about those very levels should properly be
irrelevant to the question of compliance. Other information (say,
documentation of advertisements about job openings, or even a survey of
all residents in the area asking whether they received notice of the
openings) might be pertinent to compliance with a dissemination rule
that operates without regard to race and gender, but certainly *not*
information about something that the Commission purports *not* to
attempt to regulate. In its effort to maintain the fiction of race- and
gender-neutrality and still pursue what the Commission perceives as
inadequate minority and female "represent\[ation\]," 15 FCC Rcd. at
2331, in broadcast employment, this Order -- like the one that it
affirms \-- meets itself coming and going.

In response to all of this, the Chairman cites Congress' judgment that
we establish and maintain EEO programs. Those statutory requirements
could have been satisfied with a race- and gender-neutral outreach
program, however. As to cable operators, the statute requires only
"positive . . . measures needed to ensure genuine equality of
opportunity," 47 U.S.C. section 554(c)(5), not necessarily the injection
of race- and gender-based decisionmaking into the employment process.
With respect to broadcasters, the issue is slightly more complicated, as
the plain language of section 334(a)(1) appears simply to have frozen
into place our (now invalidated) 1992 EEO rules. In any event, even if
the relevant statutes necessitated the use of race-- and gender-based
classifications in EEO rules, the Commission in other contexts has
prudently decided to avert Equal Protection issues by creating a
broader, neutral category of beneficiaries. That approach has been
upheld by the D.C. Circuit. [^75] Assuming *arguendo* that EEO programs
are a statutory obligation for both cable and broadcasters, there is no
reason that we could not have applied that same model here.

Thus, my disagreement is not with these statutory provisions, as the
Chairman suggests. It is indisputable that we are duty-bound to
implement them according to their terms. As explained above, however,
these statutes simply do not mandate the use of constitutionally suspect
racial and gender classifications. My disagreement is with the
Commission's decision to exercise its discretion under these provisions
in a way that needlessly triggers grave Equal Protection problems. Given
that the D.C.Circuit already has struck down one set of EEO rules as
unconstitutional, the Commission's continued insistence on pushing this
legal envelope seems ill-advised, to put it mildly.

\* \* \*

Today's Memorandum Opinion and Order does nothing to cure the
above-described constitutional and statutory flaws in the new EEO rules.
Rather, it simply makes a few minor modifications to a regulatory plan
that, for reasons detailed in my original dissent, has the purpose and
effect of pressuring broadcasters to make employment-related decisions
on the legally impermissible bases of race and gender. And all of this
adopted when an undoubtedly race- and gender-neutral alternative -- that
proposed by the Broadcast Executive Directors Association -- was plainly
available to the Commission. Try as the Commission might to talk its way
past *Lutheran Church*, I do not think that its action allows for the
avoidance of that precedent. Accordingly, I respectfully dissent from
this item.

[^1]: *Streamlining Broadcast EEO Rule and Policies*, MM Docket No.
    96-16, 11 FCC Rcd 5154 (1996) (*Streamlining*).

[^2]: In addition to MMTC, the organizations include: African American
    Media Incubator, Alliance for Community Media, Alliance for Public
    Technology, American Civil Liberties Union, Black College
    Communications Association, Civil Rights Forum on Communications
    Policy, Cultural Environment Movement, Fairness and Accuracy in
    Reporting, League of United Latin American Citizens, Mexican
    American Legal Defense and Education Fund, Minority Business
    Enterprise Legal Defense and Education Fund, National Asian American
    Telecommunications Association, National Asian Pacific American
    Legal Consortium, National Association of Black Owned Broadcasters,
    National Association of Black Telecommunications Professionals,
    National Association for the Advancement of Colored People, National
    Bar Association, National Council of La Raza, National Hispanic
    Federation for the Arts, National Hispanic Media Coalition
    (including its Los Angeles, New York, Chicago, Tucson, Albuquerque,
    Phoenix and San Antonio Chapters), National Latino
    Telecommunications Taskforce, National Urban League, People for the
    American Way, Project on Media Ownership, Puerto Rican Legal Defense
    and Education Fund, Rainbow/PUSH Coalition, Telecommunications
    Advocacy Project, Telecommunications Research and Action Center, and
    Women's Institute for Freedom of the Press.

[^3]: In addition to NOW, the organizations include: Center for Media
    Education, Feminist Majority Foundation, NOW Legal Defense and
    Education Fund, Philadelphia Lesbian and Gay Task Force, Wider
    Opportunities for Women, Women's Institute for Freedom of Press, and
    United Church of Christ.

[^4]: 141 F.3d 344 (D.C. Cir. 1998), *pet. for reh'g denied*, 154 F.3d
    487, *pet.for reh'g en banc denied*, 154 F.3d 494 (D.C. Cir. 1998)
    ("*Lutheran Church*").

[^5]: *Report and Order*, para. 1, 15 FCC Rcd at 2330-31.

[^6]: *See* former Section 73.2080(c)(2) of the Commission's Rules.

[^7]: 47 U.S.C. § 334(a); *Report and Order*, para. 22, 15 FCC Rcd at
    2337. Of course, we did modify some aspects of our prior Rule in
    order to reconcile them with the constitutional limitations set
    forth in the *Lutheran Church* decision. *See Report and Order*, 15
    FCC Rcd at 2343 n.59. Elimination of the recruitment requirement
    could not be justified on that basis.

[^8]: 47 U.S.C. § 634(d)(2)(B).

[^9]: 1992 Cable Act, Section 22(a) (emphasis added). *See also* H.R.
    Rep. No. 628, 102d Cong., 2d Sess. 111-17 (1992).

[^10]: *See* Section 73.2080(c)(2).

[^11]: *See* Section 73.2080(c)(2)(i).

[^12]: *Report and Order*, pare. 103, 15 FCC Rcd at 2374.

[^13]: *See* Section 73.2080(c)(2)(xiii).

[^14]: *See* former Form 396-A, set forth as Appendix C of *Amendment of
    Part 73 of the Commission's Rules Concerning Equal Employment
    Opportunity in the Broadcast Radio and Television Services*, 2 FCC
    Rcd 3967 (1987) ("*1987 Report and Order*") at 3978 *et seq*.

[^15]: *See* former Form 396, set forth as Appendix E of the *1987
    Report and Orde*r, 2 FCC Rcd at 3991 *et seq.*

[^16]: Para. 131, 15 FCC Rcd at 2383.

[^17]: 15 FCC Rcd at 2368-69.

[^18]: 15 FCC Rcd at 2369.

[^19]: In his dissenting statement, Commissioner Furchtgott-Roth asserts
    that the "Commission's conclusion that race and gender data are not
    just relevant but 'necessary' to its review for compliance with the
    outreach duty also suggests that the data collection requirement is
    not severable from the rest of the EEO program." *See* Dissenting
    Statement of Commissioner Furchtgott-Roth, at note 4. He goes on to
    argue that "\[i\]t appears doubtful that the Commission would have
    adopted the substantive requirements of the outreach rule if it
    lacked the concomitant ability to evaluate and enforce compliance
    with those requirements." *Id*. Obviously, the invalidation of the
    data collection requirement imposed under recruitment Option B to
    which the dissenting Commissioner refers would only impair
    enforcement of recruitment Option B, and would have no effect
    whatsoever on enforcement of compliance with recruitment Option A or
    on any other aspect of the new EEO Rule. To avoid any possible
    misinterpretation of the Commission's intent in adopting the
    severability clause set forth in paragraph 232 of the *Report and
    Order*, we clarify here our intent as to severability: (1) if any of
    the data collection requirements imposed under Option B were
    invalidated, it is our intent that only Option B would be
    invalidated because only that option would be impaired; (2) if the
    "menu items" set forth in Sections 73.2080(c)(2)(iii) or (c)(2)(xii)
    (or the parallel provisions of the cable EEO rule) were invalidated,
    it is our intent that only those menu items would be invalidated and
    broadcasters and cable entities could then elect to participate in
    any of the remaining menu items set forth in Section 73.2080(c)(2)
    (or the parallel cable rule); and (3) if the Rule were invalidated
    as to any persons or circumstances, then its provisions would be
    invalidated only as applied to those persons or circumstances and
    would otherwise remain in effect. *See Report and Order*, para. 232,
    15 FCC Rcd at 2420.

[^20]: *Streamlining*, para. 20, 11 FCC Rcd at 5164.

[^21]: *See* Section 73.2080(c)(2) and (f) of the Commission's Rules.

[^22]: *Streamlining*, para. 31 *et seq.*, 11 FCC Rcd at 5168-70.

[^23]: *Report and Order*, para. 88, 15 FCC Rcd at 2369; para. 97, 15
    FCC Rcd at 2371; and para. 103, 15 FCC Rcd at 2374.

[^24]: *Streamlining*, para. 35, 11 FCC Rcd at 5170-71.

[^25]: *See* Section 73.2080(c)(6) and (d)(2). The Rule also requires
    that a broadcaster place its public file report on its web site, if
    it has one. NAB also objects to this requirement, which we will
    address separately below.

[^26]: *See* Section 73.2080(i)(1).

[^27]: *See* Section 73.1020 of the Commission's Rules.

[^28]: *Review of the Commission's Rules Regarding the Main Studio and
    Local Public Inspection Files of Broadcast Television and Radio
    Stations*, 14 FCC Rcd 11113, 11119-20 (1999).

[^29]: *See* Section 73.2080(c)(6)(iv) and (d)(2).

[^30]: *Report and Order*, para. 164, 15 FCC Rcd at 2395.

[^31]: *Report and Order*, para. 225-26, 15 FCC Rcd at 2417-18.

[^32]: 5 U.S.C. § 552.

[^33]: 44 U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., 3301 et
    seq.

[^34]: *See Armstrong v. Executive Office of the President*, 1 F.3d 1274
    (D.C. Cir. 1993). The D.C. Circuit held in *Armstrong* that an
    agency violated the FRA by preserving only paper records of the text
    of e-mail messages which did not show who sent the document, who
    received it, and when it was received. The court viewed the missing
    information as integral parts of the agency record that the agency
    lacked discretion to "lop off." 1 F.3d at 1286.

[^35]: *See, e.g., Service v. Dulles,* 354 U.S. 363, 388-89 (1957);
    *Gardner v. FCC,* 530 F.2d 1086, 1089-91 (D.C. Cir. 1976).

[^36]: *See* Section 73.3615(a) of the Commission's Rules; *1998
    Biennial Regulatory Review -- Streamlining Mass Media Applications,
    Rules and Processes*, 13 FCC Rcd 23056, 23094 (1998).

[^37]: *See* Section 73.3615(c) of the Commission's Rules.

[^38]: *See* Sections 334 and 634(d)(3)(A) of the Communications Act, 47
    U.S.C. § 334 and 554(d)(3)(A).

[^39]: *Report and Order*, 15 FCC Rcd at 2389.

[^40]: NAB Petition at 16 n.5.

[^41]: *See id.*

[^42]: *See* Section 73.2080(i)(1).

[^43]: *Report and Order*, 15 FCC Rcd at 2387.

[^44]: If the specified deadline is a holiday (including weekends), the
    statement is due the next business day. *See* Section 1.4(j) of the
    Commission's Rules.

[^45]: International broadcast stations are also not required to
    maintain a public file and therefore need not maintain an EEO public
    file report, but should otherwise comply with the recordkeeping and
    reporting requirements.

[^46]: *Establishment of a Class A Television Service*, 15 FCC Rcd 6355
    (2000).

[^47]: *Id.*, para. 23, 15 FCC Rcd at 6365.

[^48]: We have also received inquiries as to whether a broadcaster may
    utilize the services of an outside organization or individual to
    assist it in designing and implementing its recruitment efforts.
    Nothing in our Rule presently prohibits the use of an outside
    organization or individual to assist a broadcaster in its EEO
    compliance efforts. Thus, we intend to afford broadcasters
    flexibility in designing recruitment techniques that will result in
    broad outreach. For instance, an outside service might assist the
    broadcaster in identifying productive recruitment sources,
    facilitating the delivery of vacancy notifications to such sources,
    and/or preparing reports to better enable the broadcaster to track
    and monitor the results of its recruitment efforts. However,
    regardless of the method employed, each broadcaster remains
    individually responsible for compliance with the recruitment,
    recordkeeping and reporting requirements of our Rule.

[^49]: *Report and Order*, para. 103, 15 FCC Rcd at 2374.

[^50]: *Report and Order*, para. 89, 15 FCC Rcd at 2369.

[^51]: *Report and Order*, 15 FCC Rcd at 2381 and n.195. Both radio and
    television stations with fewer than five full-time employees are
    separately exempt from the mid-term review requirement pursuant to
    Section 73.2080(g).

[^52]: 15 FCC Rcd at 2375.

[^53]: Section 73.2080(h)(2).

[^54]: *Report and Order*, 15 FCC Rcd at 2377.

[^55]: For instance, an employment unit consisting of radio stations
    licensed to communities in both Kansas and Missouri might choose to
    utilize the dates applicable to the renewal group that includes
    Kansas for EEO filing purposes. The Missouri station(s) in the
    employment unit will still file its next renewal application on
    October 1, 2004, the regular filing date for Missouri radio
    renewals. However, because the employment unit will use the EEO
    filing schedule for Kansas, the Missouri renewal applicant should
    attach to its FCC Form 396 the EEO public file report placed in its
    public file on February 1, 2004, the anniversary date of the filing
    of Kansas renewals.

[^56]: For instance, in the case of the North Carolina and South
    Carolina renewal group, the next renewal applications for radio
    stations are due by August 1, 2003, whereas the next renewal
    applications for television stations are due by August 1, 2004.

[^57]: Thus, a radio station in North Carolina would submit with its
    renewal application the report placed in the public file on August
    1, 2003, and a North Carolina television station in the same
    employment unit would submit the report placed in the public file on
    August 1, 2004.

[^58]: Section 73.2080(c)(1).

[^59]: *Report and Order*, para. 149, 15 FCC Rcd at 2389.

[^60]: *Id.*

[^61]: Section 73.2080(c)(5)(i), (ii), and (vi).

[^62]: Section 73.2080(c)(6)(i), (ii), and (iii).

[^63]: The RFA, *see* § 5 U.S.C. S 601 et. seq., has been amended by the
    Contract With America Advancement Act of 1996, Pub. L. No. 104-121,
    110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small
    Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).

[^64]:   5 U.S.C. § 605(b).

[^65]:   5 U.S.C. § 601(6).

[^66]:   5 U.S.C. § 601(3) (incorporating by reference the definition of
    \"small business concern\" in Small Business Act, 15 U.S.C. S §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies \"unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register.\"

[^67]:   Small Business Act, § 15 U.S.C. S 632.

[^68]: As the Commission said in the Order issuing our revised EEO
    rules: "Outreach in recruitment must be coupled with a ban on
    discrimination to effectively deter discrimination and ensure that a
    homogenous workforce does not simply replicate itself through an
    insular recruiting and hiring process." *Report & Order* ¶ 3.
    Contrary to the assertions of the dissent, our EEO Rule is not
    premised on race and gender classifications. For example, it does
    not, as the dissent maintains, *require* broadcasters to sponsor job
    fairs with (or otherwise target) groups that have a "substantial
    participation of women and minorities." The EEO rule simply allows
    broadcasters who co-sponsor job fairs with such organizations to
    count that outreach effort toward their ultimate obligation to reach
    out to all segments of their community. Moreover, the Rule does not
    penalize broadcasters who choose not to partner with such
    organizations or who choose not to co-sponsor job fairs at all. The
    fundamental disconnect between the dissent and the majority is that
    the dissent would promote equal employment opportunity by excluding
    sources likely to refer minority and female applicants.

[^69]: In this regard, our *Report & Order* promulgating the revised EEO
    rules discussed programming diversity in a separate section that
    followed our discussion of section 634, section 334, congressional
    ratification, and section 309(j), and our section addressing
    programming diversity began and ended with sentences stating that it
    provided an "additional" basis for the rules. So programming
    diversity was plainly an independent and secondary basis for the
    rules. In addition, rather than reflecting some malevolent
    "downplaying," our emphasis on the statutory bases for the EEO rules
    reflected our thorough reanalysis of our authority, coupled with our
    decision not to institute rules specifically designed to foster
    programming diversity. A good case can be made that, in addition to
    the EEO requirements that apply to all employees of broadcast
    stations, including unskilled laborers and semi-skilled operatives,
    special requirements should govern the recruiting and hiring of
    personnel such as general managers and professionals who plainly
    influence programming. Such special requirements for top-level
    employees would have to be based primarily on a programming
    diversity rationale, but we did not adopt any such requirements at
    this time. Accordingly, there was no reason to give primary weight
    to that rationale in the *Report & Order* issuing the revised EEO
    rules.

[^70]: The dissent also complains that, "contrary to the Commission
    Brief's representation, my dissent never validated the assumption
    that discrimination properly includes word-of-mouth recruiting." I
    find this complaint particularly curious because the paragraph that
    referenced Commissioner Furchgott-Roth identified him as "the
    dissenting Commissioner," making clear that he did not "validate"
    the Order in any respect. The Commission's brief only maintained
    that the dissent understood the Commission's Order, while the
    broadcasters had not; it did not contend that the dissent agreed.

[^71]: The fact that I further observed that the Commission continued in
    the February EEO Order its pattern of vacillating between goals,
    *i.e.*, that it "downplay\[ed\]" the diversity rationale, as the
    Chairman notes, is not to the contrary. By that statement, I meant
    that the Commission sought to make the diversity theory sound less
    important to the regulatory plan than it actually was; in other
    words, the Order soft pedaled, or muted, the significance of that
    theory. That is not the same thing as an assertion on my part that
    the non-discrimination theory clearly and actually took preeminence
    over any other aim.

    .

[^72]: The Chairman makes no answer to this aspect of my concern
    regarding the Brief.

[^73]: Notably, the Commission's ambiguity about the relationship
    between the purposes animating its EEO rules persists to this day.
    In the section of its Brief concerning statutory authority for the
    new rules, the Commission relies not just on the non-discrimination
    principle but also on the diversity rationale; it never suggests
    that diversity is any less significant a governmental aim than
    non-discrimination. *See* Brief for Respondents at 15 ("The
    Commission found . . . statutory support for new EEO rules in its
    authority to regulate broadcasting to serve the public interest and
    foster programming diversity."); *id.* at 29 (The Commission
    enforces EEO regulations "both to 'deter racial and gender
    discrimination' and to advance 'diversity in expression of views in
    the electronic media.'") (internal citations omitted). It is
    internally inconsistent for the Commission to disclaim the diversity
    rationale as merely incidental for constitutional purposes but then
    cite it as a fully co-equal basis for the exercise of statutory
    authority. Non-discrimination either was or was not the "primary,"
    *id.* at 39, end of the EEO rules, and that answer cannot change
    depending on whether the Commission is making a statutory argument
    or a constitutional one

[^74]: The Commission's conclusion that race and gender data are not
    just relevant but "necessary" to its review for compliance with the
    outreach duty also suggests that the data collection requirement is
    not severable from the rest of the EEO program. It appears doubtful
    that the Commission would have adopted the substantive requirements
    of the outreach rule if it lacked the concomitant ability to
    evaluate and enforce compliance with those requirements. *See K-Mart
    Corp. v. Cartier*, 486 U.S. 281, 294 (1988). Although the Commission
    now asserts that it always meant its race- and gender-based
    requirements to be severable, *see supra* at para. 22 n. 19, it
    never explains how the data collection requirements could be
    indispensable to compliance review and still severable; the
    Commission cannot have this both ways.

[^75]: In rulemaking for spectrum auctions under section 309(j) of the
    Communications Act, the Commission took the sensible approach of
    granting a preference to small businesses in general, as opposed to
    minorities and women in particular, as arguably contemplated by the
    statute. On review of this decision, the D.C. Circuit held: "By
    selecting this option, the Commission avoided any issue under
    *Adarand*, and yet complied with the congressional directive to
    create opportunities for small businesses and for women- and
    minority-owned businesses to participate in the
    \[telecommunications\] market. . . . \[T\]he modified rules will
    incidentally benefit businesses owned by minorities and women as
    many such businesses will qualify as small businesses." O*mnipoint
    Corp v. FCC*, 78 F.3d 620, 633-634 (1996).